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HULLUM v. SULLIVAN

April 15, 1991

DEWAN HULLUM, by his next friend VALERIE WATSON, Plaintiff,
v.
LOUIS SULLIVAN, Secretary, Department of Health and Human Services, Defendant


Milton I. Shadur, United States District Judge.


The opinion of the court was delivered by: SHADUR

MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 Dewan Hullum ("Dewan"), by his next friend and mother Valerie Watson ("Watson"), brings this action to review the decision of Secretary of the Department of Health and Human Services Louis Sullivan ("Secretary") denying Dewan's application for surviving child's insurance benefits under one of the sections of the Social Security Act (the "Act"), 42 U.S.C. § 402(d)(1). *fn1" Dewan now moves for summary judgment under Fed. R. Civ. P. ("Rule") 56, and Secretary has both responded to that motion and filed his own motion for judgment on the pleadings. *fn2" For the reasons stated in this memorandum opinion and order, Dewan's motion is denied and Secretary's decision is upheld as a matter of law.

 Facts and Procedural History

 Dewan was born out of wedlock in Milwaukee, Wisconsin on July 12, 1986. Dewan's mother Watson had lived there with Harry Hullum, Jr. ("Harry") since March 1984, and she continued to do so through October 1986. During that period Watson had two children by Harry -- Devon and Dewan Hullum -- and had sexual relations with no one other than Harry. Harry never disputed that he was Dewan's father and indeed acted like a father toward him. Harry's three sisters -- Jewell Hullum ("Jewell"), Linda Hullum and Jeanette Walker -- as well as Harry's mother Cue Lee Hullum and Watson's mother Lena Watson all heard Harry declare that he was Dewan's father. In addition, Harry and Watson lived with Jewell while Watson was pregnant with Dewan.

 Harry and Watson were never married. Harry is not listed as the father on Dewan's birth certificate, nor did Harry ever acknowledge in writing that he was Dewan's father, nor was he ever decreed to be Dewan's father or ordered to pay child support to Dewan in a judicial proceeding.

 On July 13, 1987 Watson applied for and was denied child's insurance benefits on Dewan's behalf. Watson then filed a request for reconsideration, and on August 19, 1987 Secretary denied the request. Watson next requested an administrative hearing, and on March 3, 1988 Administrative Law Judge ("ALJ") Edward Bobrick (now a Magistrate Judge of this District Court) issued a decision denying her application. Watson then sought review of the decision by the Appeals Council, and on July 18, 1988 the Appeals Council vacated the decision because it could not locate a copy of the hearing tape and remanded the claim for a new administrative hearing. After a new hearing ALJ Bobrick issued a new decision on April 27, 1989 denying Watson's application. Watson again sought review, and on May 31, 1990 the Appeals Council denied the request and adopted the ALJ's decision as Secretary's final decision. *fn3"

 Standard of Review

 Section 405(g) provides that in any review of Secretary's decision:

 
the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. . . .

 "Substantial evidence" is that which "a reasonable mind might accept as adequate to support [the] conclusion" ( Taylor v. Schweiker, 739 F.2d 1240, 1241 (7th Cir. 1984), quoting Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971) -- the decision almost invariably cited for that proposition in the Social Security cases). Secretary's conclusions of law, however, are not entitled to the same deference -- any errors of law must of course be reversed ( Schaefer v. Heckler, 792 F.2d 81, 84 (7th Cir. 1986)).

 Eligibility Criteria Under the Act

 Any unmarried child of a deceased wage earner who died fully or currently insured can receive child's benefits if he or she is considered a "child" of the wage earner and was "dependent" on the wage earner at the time of the wage earner's death (Section 402(d)(1)). "Child" status can be shown by a child born out of wedlock in several ways under the Act. However, Dewan contends that he qualifies for benefits in only one of those ways -- under Section 416(h)(2)(A), which states in relevant part:

 
In determining whether the applicant is the child . . . of a fully or currently insured individual for purposes of this subchapter, the Secretary shall apply such law as would be applied in determining the devolution of intestate personal property . . ., if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death. . . . Applicants who according to such law would have the same status relative to taking intestate personal property as a child . . . shall be deemed such.

 Any applicant who is able to show "child" status under Section 416(h)(2)(A) is deemed "dependent" as well and is thus eligible for child's insurance benefits under Section 402(d)(1) ( Mathews v. Lucas, 427 U.S. 495, 499 n. 2, 49 L. Ed. 2d 651, 96 S. Ct. 2755 (1976)).

 Harry was domiciled in Wisconsin at the time of his death. Therefore Secretary properly looked to that state's intestate succession laws to determine whether Dewan would have been eligible to inherit from Harry. Wisconsin intestate succession law provides in relevant part (Wis. Stat. Ann. § 852.05(1) ("Section 852.05(1)"): *fn4"

 
A nonmarital child or the child's issue is entitled to take in the same manner as a marital child by intestate succession from and through his or her mother, and from or through his or her father if the father has either been adjudicated to be the father in a paternity proceeding under ch. 767, or has admitted in open court that he ...

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