If an individual entitled to old-age insurance benefits

* adopts a

child after such individual becomes entitled to such benefits, such child shall be deemed not to meet the requirements of clause (i) of paragraph (1)(C) [section 202(d)(1)(C)(i), supra], unless such child—

(B) was legally adopted by such individual before the end of the 24-month period beginning with the month after the month in which such individual became entitled to old-age insurance benefits, but only if—

(i) such child had been receiving at least one-half of his support from such individual for the year before such individual filed his application for old-age insurance benefits ***. (Emphasis supplied.)

For the purpose of determining whether, under the facts in this case, the child meets the dependency requirement in section 202 (d) (9) of the Act, the specific question presented is whether the words "for the year" in the phrase "receiving at least one-half of his support from such individual for the year before such individual filed his application for old-age insurance benefits *" which appears in section 202(d) (9) requires the continuous receipt of one-half support throughout the year or whether they could mean the receipt of one-half of the claimant's total support during the year, as a whole, irrespective of whether for some months in the year the claimant did not receive any of his support from the wage earner.

备

It would appear that Congress intended the former, i.e., that the child must have been continuously receiving one-half of his support during the year, for the following reasons. First, a study of the legislative history of the present section 202(d) (9) (formerly section 202(d) (10)), supports this interpretation. Former section 202(d) (10) was enacted by section 323 (a) of P.L. 89-97, 89th Cong., July 30, 1965. In both Sen. Rep. No. 404, Part I, 89th Cong., 1st Sess. (1965), at pages 17 and 109, and H.R. Rep. No. 213, 89th Cong., 1st Sess. (1965), at pages 15 and 95, these provisions were referred to as requiring that "the child must be receiving one-half of his support for the entire year before the worker's entitlement" or as requiring that "The child had been receiving at least one-half of his support from the worker for the entire year before the worker became entitled to old-age insurance benefits *." (Emphasis supplied.)

Secondly, consideration of the purpose underlying the enactment of what is now section 202(d) (9) and the situation that provision sought to correct (as shown by its legislative history) also supports this interpretation.

Accordingly, in Sen. Rep. No. 404, Part I, supra, at page 108, and H.R. Rep. No. 213, at page 94 it is stated:

Under present law, a child adopted by a worker who is already retired and getting old-age insurance benefits can become entitled to benefits even though he was not dependent on the worker at the time the latter retired, [i.e., at the time the worker filed his application for old-age insurance benefits]. In contrast, present provisions governing the payment of child's insurance benefits to a child adopted by a person getting disability insurance benefits, and to a child adopted by the surviving spouse of a worker who has died, contain requirements designed to assure that benefits will be paid to such children only when there is a basis for assuming that the child lost a source of support when the worker became disabled or died.

[Your] committee believes that the provisions concerning adoptions by retired workers should be made comparable to those relating to adoptions in

other cases so as to provide safeguards against abuse through adoption of children solely to qualify them for benefits, and has included in the bill a provision that would accomplish this result. * *

Clearly then, in enacting what is now section 202 (d) (9), supra, it appears that Congress did not want a child to be considered dependent on an individual who adopted him after such individual's entitlement to old-age insurance benefits unless the child actually was dependent on that individual at the time he filed for old-age insurance benefits; that is, unless the child actually lost his primary regular source of support by the individual's retirement. Were the test the child's receipt from the individual of one-half of his total support during the pertinent one-year period, without regard to whether support was furnished continuously throughout the year, there could be cases in which the child would not be actually dependent on the insured individual at the time of the latter's application for old-age insurance benefits and yet qualify as a dependent under section 202 (d) (9), supra. An example of this would be a case where a child received at least one-half of his total yearly support from an individual during the early months of the support period but then acquired a new, independent and permanent source of support during the latter part of that period. On the basis of the last-quoted portion of the legislative history of what is now section 202 (d) (9), supra, as well as the reference therein to the "entire year," it seems clear that one of the reasons for which that section was enacted was to preclude a conclusion that the child was a dependent, for benefit purposes, of the former individual in a situation like that described above. Certainly, too, in other instances, the acquisition of a new permanent source of total support prior to the time as of which dependency is determined will defeat a finding of dependency where the receipt from the insured individual of one-half support at a particular time is an entitlement factor. See, for example, Baetich v. Hobby, 212 F.2d 480 (2 Cir., 1954), cert. den. 348 U.S. 831 (1954) and Steeb v. Folsom, 140 F. Supp. 463 (E.D. N.Y., 1956), which concerns parent's insurance benefits.

For the foregoing reasons, therefore, it is held that it is necessary for a child to have been receiving at least one-half his support from an insured individual, and been supported continuously, during the pertinent one-year period if he is to qualify as a dependent under section 202(d) (9), supra. In this case, this requirement has not here been met as there were 5 months (August 1964 through December 1964) during the pertinent one-year period in which the insured individual, R, did not support the child.

SECTION 202 (d) (9) (B).-CHILD'S INSURANCE BENEFITS-CHILD ADOPTED AFTER INDIVIDUAL'S ENTITLEMENT TO OLD-AGE IN. SURANCE BENEFITS-DEPENDENCY REQUIREMENTS

SSR 68-70a

Where a child was born to the worker's unwed daughter in January 1955, and 9 months later, in October 1955, the worker filed an application for, and became entitled to, old-age insurance benefits; where the worker legally adopted the child in April 1966 and in May 1966 filed an application on behalf of the child for child's insurance benefits; and where the evidence

established that throughout the 3-month period prior to the child's birth. the mother was living with and fully supported by the worker, and for the 9 months after its birth up to the time the worker filed his application, the child was living with and fully supported by the worker, held, the child was receiving at least one-half of its support from the worker for the year preceding the time the worker filed his application for old-age insurance benefits, and since the child was living with the worker at the time he filed such application the child may be deemed dependent on the worker at the time of the application for child's benefits. Accordingly, all other requirements of the law being met, the child is entitled to child's insurance benefits.

This case is before the Appeals Council upon the request of A, hereinafter referred to as the claimant, for review of the hearing examiner's decision issued on December 20, 1966. The request for review was granted and the claimant was apprised of his rights with respect thereto.

In his decision, the hearing examiner found that S was not adopted by the claimant within 24 months after the claimant became entitled to oldage insurance benefits; and that the child was not receiving at least onehalf of her support from the claimant during the year before the date he filed his application for old-age insurance benefits because she was born less than one year before that date. The hearing examiner concluded that the child was not entitled to child's insurance benefits.

The general issue before the Appeals Council is whether S is entitled to child's insurance benefits as the adopted child of A. The specific issue is whether the child was dependent upon A within the meaning of the pertinent provisions of the Social Security Act, as amended in 1965, at time of application.

Section 202(d) of the Social Security Act, as amended in 1965, provides, as pertinent here, that child's insurance benefits are payable to the legally adopted child of an insured individual, but only if certain requirements are met. One of these requirements, in the case of an insured individual who is living, is that the child must be dependent upon him at the time. the child's application for benefits was filed. However, a child legally adopted by the insured individual (who was not his natural parent or his stepparent) after the latter became entitled to old-age insurance benefits, shall be deemed not to be dependent upon the insured individual at the time the child's application is filed unless, in addition to other conditions not pertinent here, the following requirements set forth in paragraph 9(B) of section 202(d) of the Act (Section 202 (d) (10) (B) prior to the 1967 Amendments, Public Law 90-248) are met:

1. The child was receiving at least one-half of his support from the insured individual for the year before that individual filed his application for old-age insurance benefits, and

2. Either adoption proceedings had been instituted by the insured individual in or before the month application was filed for old-age insurance benefits or the child was living with the insured individual in that month.

The above requirements of section 202 (d) (9) (B) of the Social Security Act were added by section 323 (a) of the 1965 Amendments (Public Law 89-97). This section also provides that the legal adoption of the child (who is not the natural child or the stepchild of the insured individual) must be completed before the end of a 24-month period after the month in which the adopting insured individual became entitled to old-age insurance benefits. This requirement as to the time limit for adoptions did not

Old-Age and Survivor's Insurance Benefits become effective until August 1966. However, the other requirements of section 202 (d) (9) (B) to which reference has been made became effective as to applications for child's insurance benefits filed on or after July 30, 1965.

The claimant filed his application for old-age insurance benefits on October 12, 1955, and became entitled to such benefits effective October 1955. On May 3, 1966, he filed an application for child's insurance benefits on behalf of S, his granddaughter, born on January 5, 1955, and legally adopted by him on April 30, 1966.

Under these circumstances, the 24-month time limit for adoption set forth in section 202(d) (9) (B) of the Act is not applicable because S'was adopted before August 1966.

It is clear from the record that adoption proceedings had not been instituted by A in or before the month he filed his application for old-age insurance benefits. However, S was living with him in the month he filed his application for old-age insurance benefits. Therefore, the remaining issue before the Appeals Council is whether S was receiving at least one-half of her support from the claimant for the year preceding the filing of his application for old-age insurance benefits, i.e., for the period October 12, 1954 through October 11, 1955.

S was born out of wedlock to M, the claimant's daughter, in his home in West Virginia. M estimated that she did not earn over $50 “spending money" in the year prior to S's birth. The claimant's statement that M did not start working regularly until after S was about a year old, is corroborated by M's earnings record showing no earnings posted until the first quarter of 1956. Both statements are further corroborated by M's application for a social security account number dated December 29, 1955. At some later date, apparently in mid-1957, M left the child with the claimant and his wife and went to New York City to work.

The Appeals Council is satisfied from the evidence that M lived with and was supported by the claimant during the three months prior to S's birth (i.e. October through December 1954). It also seems clear that the child was fully supported by the claimant from her birth in January 1955 until he filed his application for old-age insurance benefits in October 1955 and probably beyond that time.

Since the support period under section 202(d) (9) (B) of the Act is from October 1954 to October 1955, and S was born in January 1955, a question arises as to whether S may be considered to have been living with and receiving at least one-half of her support from the claimant for the one year period prior to her birth by reason of the fact that her mother was living with and being supported by the claimant during the 3 month period prior to her birth. It is generally accepted that when justice or convenience requires, the child in the womb is dealt with as a human being even though physiologically it is part of the mother. Thus it has been held that the marriage of a wage earner and his wife created a steprelationship between the wage earner and his wife's child, even though the child was unborn at the time (Social Security Ruling 60-9, Cumulative Bulletin 1960-1961 p. 35).

Further, where a legally adopted child of a disability insurance beneficiary was conceived before the beginning of the beneficiary's period of disability but born thereafter, and the child's mother, the beneficiary's step

daughter, was residing in his household at the beginning of his period of disability, it has been held that such child was "in being" at the beginning of the period of disability and "living with" the beneficiary at the time (Social Security Ruling 67-17, Cumulative Bulletin 1967, p. 16).

Applying these principles to the facts in the instant case, the Appeals Council believes, and so finds, that the child was dependent upon the claimant for her support during the three months prior to her birth (by virtue of the support extended to the child's mother), as well as during the nine months after her birth.

Based on the foregoing, the Appeals Council makes the following specific findings:

1. S was living with the claimant in October 1955, the month in which he filed his application for old-age insurance benefits.

2. She was receiving at least one-half of her support from the claimant during the year preceding the filing of his application for old-age insurance benefits.

3. She is deemed dependent upon the claimant at the time her application was filed.

It is the decision of the Appeals Council that S is entitled to child's insurance benefits based on the application therefor filed on her behalf on May 3, 1966.

SECTIONS 202(d) (9) (B).-CHILD'S INSURANCE BENEFITSCHILD ADOPTED AFTER WORKER'S ENTITLEMENT TO OLD-AGE INSURANCE BENEFITS-DEPENDENCY REQUIREMENTS

20 CFR 404.323 (a) (6)

Craig v. Finch, 425 F.2d 1005 (5th Cir., 1970)

SSR 70-53c

Where the claimant, nearly six years after she became entitled to old-age insurance benefits, legally adopted her grandchild, held, the child was not "legally adopted" within the statutorily prescribed time (the 24-month period beginning with the month after the month in which worker became entitled to benefits (section 202(d) (9) (B) of the Social Security Act)), and therefore, does not qualify as a "dependent" and is not entitled to child's benefits. Further held, “legally adopted” under the dependency requirements of section 202 (d) (9) (B) of the Act, encompasses only formal, statutorily-authorized proceedings; neither "in loco parentis" nor so-called “equitable adoption" relationships satisfy such requirements.

DYER, Circuit Judge: This action was brought by Mrs. Lillian R. Craig under 42 U.S.C.A. § 405 (g) of the Social Security Act to review a decision of the Secretary of Health, Education and Welfare which denied child benefits under the Act to Mrs. Craig's adopted son, Michael Kelly. The District Court reversed the Secretary's decision and awarded benefits.

The only question presented in the case is a construction of the phrase "legally adopted" as it appears in 42 U.S.C.A. § 402 (d) (9) (B) of the Act. The District Court construed the phrase to mean "a factually existing and continuing parent-child relationship within the specified limitation period