The opinion of the court was delivered by: COOLAHAN
This is a civil action to review a final decision of the Secretary of Health, Education and Welfare by its Appeals Council of the Bureau of Hearings and Appeals, Social Security Administration, in respect to a claim for children's insurance benefits under the Social Security Act. This court has jurisdiction under 42 U.S.C. § 405(g). The court's review of the facts in the present case is limited to inquiry as to whether there was substantial evidence in the record to support a finding by the defendant Secretary of Health, Education and Welfare.
The facts in the instant case, as established by the parties before the Hearing Examiner below, appear to be as follows: Horace "Doc" Crenshaw, hereinafter referred to as the decedent, and Bessie Crenshaw, hereinafter referred to as the claimant, began living together in December of 1939, ostensibly as husband and wife, until the death of the decedent in 1960. Three children, Kenneth, Anthony T., and Mary, hereinafter referred to as the infant plaintiffs, were born to them. Decedent apparently acknowledged the children as his own and supported them and the claimant continuously until his death. Claimant had never been married prior to meeting the decedent, but decedent had been married to one Blanche Taylor, by whom he had four children. According to the record, decedent and his wife separated in 1935, but there is no evidence that this marriage was ever dissolved. Apparently, claimant did not learn of the decedent's marriage until the birth of the first infant plaintiff.
Decedent was a fully insured individual under the Social Security Act. He died on December 15, 1960 and was domiciled until death in Newark, New Jersey. Thereafter, on February 20, 1961, claimant filed an application on behalf of the three infant plaintiffs for children's insurance benefits on the earnings record of the decedent. This claim was denied. A hearing was then held before the Hearing Examiner of the Bureau of Hearings and Appeals where it was determined that the infant plaintiffs were entitled to the benefits claimed. Subsequently, the Appeals Council upon due notice to the claimant, decided to review the Hearing Examiner's decision on its own motion. It found that the infant plaintiffs were not the children of the decedent at the time of his death, as required by the Social Security Act, 42 U.S.C. § 416(h)(2)(A), and therefore reversed the decision of the Hearing Examiner. Having considered all of the claimant's arguments on this appeal, I affirm the action taken by the Appeals Council.
Claimant in this action is proceeding pursuant to 42 U.S.C. § 402(d), which provides in part:
(1) Every child (as defined in section 416(e) of this title) of an individual * * * who dies a fully or currently insured individual, if such child * * *
(C) was dependent upon such individual * * *
(ii) if such individual has died, at the time of such death, * * *
shall be entitled to * * * a child's insurance benefit * * *.
(3) A child shall be deemed dependent upon his father * * * unless, at such time, such individual was not living with or contributing to the support of such child and * * *
(A) such child is neither the legitimate nor adopted child of such individual * * *.
It is the position of the claimant that since the infant plaintiffs were dependent upon the decedent as required by Section 402(d)(1) and (3) supra, they are entitled to child insurance benefits under the same section. The only problem with this argument, however, is that Section 402(d) refers to children as defined in Section 416(e) of the same title. This section provides that the term "child" means child or legally adopted child. Thus, to ascertain the definition of child under Section ...