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March 20, 1996

SHIRLEY S. CHATER, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: NORDBERG

 Plaintiff seeks judicial review pursuant to 42 U.S.C. §§ 405(g), 416(h), of a final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner found that Clifton Binion was not entitled to Child's Insurance Benefits ("CIB") on the account of Johnny Binion because he was not the "child" of Johnny Binion (the wage earner) as that term is defined in the Social Security Act. 42 U.S.C. §§ 402(d), 416(h).

 Plaintiff filed a Motion for Summary Judgment and Defendant filed a cross Motion for Summary Judgment, both of which were referred to Magistrate Judge Joan B. Gottschall pursuant to 28 U.S.C. § 636(b)(1)(B) for the entry of a Report and Recommendation ("R&R"). On November 6, 1995, the Magistrate Judge issued an R&R recommending that Plaintiff's Motion for Summary Judgment be granted and that Defendant's Motion for Summary Judgment be denied. Defendant has filed Objections to the Magistrate Judge's recommendations, and Plaintiff has filed a Response to Defendant's Objections.

 In light of Defendant's Objections to the R&R, the Court reviews the Magistrate Judge's determination on a de novo basis. Fed. R. Civ. P. 72(b). For the following reasons, the Court does not accept the Magistrate Judge's recommendation and affirms the Commissioner's decision.


 Sandra and the wage earner were married in August 1965, and were divorced in January 1984. (R. 99, 111-112.) Between 1965 and 1971, four children were born to the couple. (R. 111.) The wage earner acknowledged that the four were his children in a November 19, 1975 application for disability insurance benefits, and the application states that the wage earner and Sandra had been separated for six months. (R. 100-103.) Similarly, in a December 16, 1975 application for CIB, Sandra stated that she and the wage earner had been separated since March 1975. (R. 106, 108.)

 Clifton was born on August 10, 1976, after Sandra and the wage earner filed the applications described in the preceding paragraph. The birth came before Sandra and the wage earner divorced, but the spaces for the father's name and place of birth were left blank on the birth certificate. However, the birth certificate states that the father's age was 34. (R. 104.) The wage earner, having been born on November 7, 1942 (R. 100), would have been age 34 in 1976.

 Besides failing to name the wage earner as Clifton's father on the birth certificate, Sandra did not name him as a child of the marriage when the divorce court entered a judgment by default. However, Sandra's other four children by the wage earner were all named in the divorce decree. As grounds for divorce, the decree states that the wage earner "wilfully deserted the petitioner for a period of more than one year, since the 10th day of February, 1976, and still persists in such desertion to date." (R. 111-112.)

 After the wage earner died in May 1991, Sandra applied for CIB on Clifton's behalf on July 2, 1991. (R. 95-98.) At that time, she made the following comment:

When my child was born my husband and I were separated and had been for about 5 months. When I provided the information for his birth certificate I did not list my husband; however I listed his age.

 (R. 97.) Later, in connection with her September 27, 1991 request for reconsideration, Sandra also stated as follows:

I was married to Johnny Binion when Clifton was conceived and Johnny is Clifton's father. We were separated when Clifton was born and I didn't tell Johnny Clifton was his child until about a year ago.

 (R. 122.)

 During the processing of Sandra's initial application and her request for reconsideration, three witnesses, two of whom were the wage earner's siblings, signed statements attesting to their belief that the wage earner was Clifton's father. (R. 118-119, 125-126, 127-128.) Two statements attributed to the wage earner's mother provide seemingly inconsistent testimony, however. First, the record contains an unsigned and undated statement that may have been sent to the wage earner's mother for signature, but never returned (R. 40-41, 114-115.) Per that statement, the mother could not recall whether the wage earner or a daughter told her that Clifton was the wage earner's child. She also believed the wage earner told relatives that he was Clifton's father (R. 114.) Around the time of Sandra's CIB application, though, a Social Security Administration ("SSA") employee completed a second report. That document described a phone conversation in which the wage earner's mother said that the wage earner never bought things for Clifton or acknowledged that Clifton was his son. Nor did Clifton spend time with the wage earner or the wage earner's mother. Per the employee describing the phone contact, the wage earner's mother expressed an opinion that Clifton was not the wage earner's son. (R. 116-117.)

 Sandra's CIB claim was denied initially, with the explanation that "a requirement of the Social Security Law is not met." (R. 120-121.) When the claim was denied on reconsideration (R. 129-132), the following explanation was provided:

The evidence on file shows that Sandra Binion married the worker on August 27, 1965, in Leflore County, Mississippi. Johnny Binion filed application for disability benefits on November 19, 1975, and indicated he had been separated from Sandra for about 6 months. This would make an approximate separation around May 1975. The birth certificate for Clifton Binion shows he was born August 10, 1976, 15 months after the worker indicated he had separated from Sandra. When she filed an application for their five other children on December 16, 1975, she indicated they had last been living with the worker prior to March 1975 at which time they were all living with her at 4304 W. Adams Street, in Chicago. When she filed the 1991 claim for Clifton, Sandra stated that 'when my child was born my husband and I were separated and had been for about 5 months.' The birth certificate for the child shows that Sandra was at the 4304 W. Adams address when the child was born August 10, 1976. The worker's address on his 1975 application was 3021 W. Jackson St., and that was the same address as given on the death certificate in May 1991. His mother (Rosa L. Washington) was listed on the death certificate as informant and was also at the same address for the deceased worker. This information implies that they had been living separate and apart since early 1975 and at the same separate residences for a substantial length of time; the worker staying in the same domicile from 1975 until his death. The Administration notes that there was no father's name given on the child's birth certificate and it was also noted that Sandra Binion gave no father's name for the child when she applied for a Social Security number for the child in February 1978. This is a strong indication that she did not consider the worker to be the father of her child born August 10, 1976. A copy of their divorce decree in January 1984 does not mention Clifton Binion as a child of the worker but it does list four other children of this marriage. As Sandra L. Binion was the petitioner and would have furnished this information to the court, it would again appear evident she did not consider this child to be the worker's.
The evidence on file supports the initial determination that Clifton Binion is not the child of the deceased wage earner, Johnny E. Binion. The presumption of the child's legitimacy has clearly been overcome by the actions of his mother and the information furnished by the worker and records with the court, Social Security Administration, and the State. The denial of benefits is affirmed as correct and in accordance with the law and Regulations.

 (R. 131-132.) Statements from witnesses were not mentioned in the notice of denial.

 Sandra appealed from the adverse decision, requesting a hearing before an administrative law judge ("ALJ"). Along with counsel, Sandra, Clifton and four witnesses appeared for the hearing on August 14, 1992. (R. 37.)

 Responding to the ALJ's initial questions, Sandra testified that she had a sixth grade education. Although she felt that she could not read or write well, she could read a simple message and write a simple letter. (R. 44.) Sandra was not then working, and had been on public aid for about 20 years. (R. 45).

 The ALJ's questions first focused on the question of when Sandra and the wage earner separated. When reminded of statements in the 1975 benefit applications to the effect that she and the wage earner were not living together after March or May 1975, Sandra testified that those statements were inaccurate. According to Sandra, between March 1975 and February 1976, the wage earner would leave home for relatively short periods, but then return. (R. 47-50, 55.) Sandra denied having had sexual relations with anyone other than the wage earner during the time she was married to him, although she acknowledged that she might have had a "friend" in the latter part of 1976. (R. 50, 55.) When asked to explain why she did not list the wage earner as the father on Clifton's birth certificate, Sandra responded that at that point in time she was having a lot of problems with the wage earner. She "really didn't want to ...

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