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October 22, 1985

MARGARET M. HECKLER, Secretary of Health and Human Services, Defendant

The opinion of the court was delivered by: ACKERMAN

 This case is before me under section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to review the final determination of the Secretary denying plaintiff the surviving child's benefits which she is seeking. Plaintiff has exhausted the administrative channels, and this case is properly before me for review. The ALJ determined that the plaintiff, Yvonne McBride, an infant, is not a "child" for the purposes of 42 U.S.C. § 416(h)(2)(A) or (B) or 42 U.S.C. 416(h)(3)(C). This finding for reason stated infra was not based on substantial evidence. The ALJ, in an error of substantive law, excluded admissible evidence on the issue of paternity. Additional evidence supportive of plaintiff's position was not developed by the ALJ. Claimant first applied for benefits when she was less than two years old. At the time of the hearing before the ALJ, the claimant had attained the age of 5 and testified on her own behalf. (Plaintiff's Brief at 5. This testimony is not included in the record). This court can see no compelling reasons for leaving claimant suspended in the morass of bureaucracy while her childhood trickles by. The ALJ's decision was not based on substantial evidence. It is the opinion of this court, therefore, that the decision of the ALJ is reversed. Claimant is hereby awarded surviving child's benefit under 42 U.S.C. § 416(h)(2)(A).

 I. Procedural History

 The plaintiff Vinnie McBride is proceeding on behalf of her infant daughter Yvonne McBride. Yvonne was born on July 3, 1978 (Tr. 56). The wage earner in this case is Alvina Derrick, now deceased, the alleged father of Yvonne. Alvina Derrick died on February 23, 1980, at the age of 36, from visceral congestion, cause pending toxicological examination (Tr. at 53). On March 6, 1980, plaintiff filed for surviving child's benefits (Tr. at 41-44). This application was denied on May 5, 1980, and no appeal was taken (Tr. at 41-44). Plaintiff made a new application for benefits on September 1, 1982, which was denied on October 28, 1982 (Tr. at 9). On December 6, 1982, plaintiff made a request for reconsideration. (Id.). A reconsideration determination was handed down on February 12, 1983, but plaintiff's claim was again denied on the grounds that "Yvonne did not qualify as a 'child' of the wage earner under the Social Security Act." (Tr. at 9). On November 29, 1983, plaintiff requested a hearing before the ALJ; this hearing occurred on February 1, 1984. (Tr. at 19). Vinnie McBride proceeded pro se. The ALJ denied plaintiff's application for benefits on the following grounds: 1) Yvonne failed to qualify as a "child" of the wage earner under 42 U.S.C. § 416(h)(2)(A) or (B); and 2) Yvonne did not qualify as a "child" under 42 U.S.C. § 416(h)(3)(C). On April 11, 1984, plaintiff made a request for review; (Tr. at 13) the Appeals Council denied this request on August 3, 1984. (Tr. at 3). This case is now properly before me for review.

 II. Statement of Facts

 Yvonne T. McBride was born on July 3, 1978. Her parents were not married. (Tr. 38). Yvonne's birth certificate lists Vinnie McBride as her mother; however, the information space for "father" is blank. (Tr. 56). At the hearing on February 1, 1984, the ALJ questioned Vinnie McBride about the birth certificate. Ms. McBride stated that when she first saw the birth certificate, she was "very much upset" because the father's name was omitted. (Tr. 36). Upon receiving the birth certificate in the mail, she visited the Bureau of Vital Statistics who informed her that the name "Alvina Derrick" could not be listed on the Birth certificate "because father isn't given". (Tr. 36).

 When Yvonne was born, Ms. McBride applied for welfare for her. It was her understanding that the welfare department would take the alleged father to court upon the initial application for benefits. (Tr. 36). (Ms. McBride has an older child whose father was in this manner adjudicated to be Alvina Derrick). An action to establish paternity was filed on August 15, 1978 in the Essex County Juvenile and Domestic Relations Court, Docket No. 97195. This complaint to establish paternity and support was drawn pursuant to N.J.S.A. 9:17. (Now repealed). The complaint listed Alvina Derrick as defendant and was signed by a designated representative of the Essex County Welfare Board. (Tr. 80). This case was never adjudicated. (Tr. 17).

 At the hearing before the ALJ, Vinnie McBride presented sworn statements from family members as evidence of paternity. Bernice Derrick Ford, Alvina's mother; Gertrude Price, Alvina's grandmother; and Glenn Derrick, Alvina's brother, all stated 1) that at the time of his death Alvina was living with and supporting Yvonne; 2) that Alvina acknowledged paternity of Yvonne, and that 3) the family members considered themselves to be respectively, the grandmother, great-grandmother, and uncle of Yvonne. (Tr. 74-77). The ALJ did not accept these statements as satisfactory evidence on the grounds that they were based on hearsay (Tr. 18). As explained supra, this ruling was error on the part of the ALJ.

 Vinnie McBride stated at the hearing that Alvina Derrick was living with her; however, this arrangement was clandestine so as not to disrupt her welfare payments. (Tr. 35). As his mailing address, Alvina Derrick used the address of his mother or grandmother in Newark. Id. The plaintiff stated that her sole proof that Alvina Derrick resided with her at the time of his death was statements of family members and the fact that people from work dropped him off at their home. (Tr. 33). In September 1982, the plaintiff stated that her cousin Cheryl Moses lived with her and could attest to the fact that Alvina Derrick was living in the home with Vinnie, Hason, and Yvonne McBride. (Tr. 17). Cheryl Moses did not offer any testimony in the instant claim, nor in the previous claim. The ALJ ruled that the plaintiff could not support her allegations that Alvina Derrick was residing with Yvonne at the time of his death. The ALJ relied upon Alvina's obituary notice in the newspaper which listed Alvina Derrick's address as that of his mother. (Tr. 18). (This obituary notice also stated that Alvina Derrick was the father of Yvonne, but the ALJ did not choose to rely on this portion of the article. (Tr. 55).

 Of relevance also in the instant determination, is the issue of child support. The claimant testified at the hearing that Alvina Derrick contributed to the support of both Hason McBride and Yvonne McBride (Tr. 34). The sworn testimony of Bernice Derrick Ford, Gertrude Price, and Glenn Derrick support this contention, and the Secretary presented no evidence to refute it. Alvina Derrick was under a court order to provide support for Hason McBride and this was in arrears. Vinnie McBride stated that every 2 weeks, when Alvina Derrick was paid, he gave her $40-60 for the support of Hason and Yvonne. These payments were always in cash, and Ms. McBride had no receipts, checks, or written proof. Id. Ms. McBride was unable to gain access to Alvina Derrick's employment records to ascertain whether he had listed Yvonne as a dependent. (Tr. 37-38). This was because she was not the decedent's wife. (Tr. 38). On September 17, 1982, a representative of the wage earner's employer was contacted. She stated that a co-employee of Alvina Derrick stated that Alvina had mentioned dependents named "McBride". This was supported by the payroll and employment record office located in Maryland, although the office stated that further investigation was needed to verify that Yvonne's name was listed in the records. (Tr. 69). No further development of this evidence was included in the record. However, in his determination, the ALJ erroneously stated that the employment records showed no recognition of Yvonne by Alvina Derrick. (Tr. 17). It is not alleged by the plaintiff that lack of counsel prejudiced her right to a fair hearing. However, the ALJ has a heightened responsibility in pro se claims. Livingston v. Califano, 614 F.2d 342 (3d Cir. 1980). Clearly, the ALJ failed in his duty with respect to the development of the decedent's employment records. The claimant was thwarted in her attempts to secure the employment records, and the ALJ made no effort to develop the record. "A social security judge acts as an examiner charged with developing the facts . . . and is under an affirmative duty to inquire into all the matters at issue." Coulter v. Weinberger, 527 F.2d 224 (3d Cir. 1975) (citations omitted). Failure to consider evidence favorable to the claimant without giving reasons for the rejection of such evidence violates the 3d Circuit standards enunciated in Cotter v. Harris, 642 F.2d 700 (3d Cir. 1981) and is grounds for reversal.

 III. Analysis

 A. Who is a "child"?

 I turn now to a consideration of the law relevant to the instant determination. To qualify for benefits as a surviving child, a claimant must be determined to be a "child" under 42 U.S.C. § 416(h)(2)(A) and (B) which states in pertinent part:

(2)(A) In determining whether an 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 . . . .
(B) If an applicant is a son or daughter of a fully or currently insured individual but is not (and is not deemed to be) the child of such insured individual under subparagraph (A), such applicant shall nevertheless be deemed to be the child of such insured individual if such insured individual and the mother or father, as the case may be, of such applicant went through a marriage ceremony resulting in a purported marriage between them which, but for a legal impediment described in the last sentence of paragraph (1)(B), would have been a valid marriage.

 I need not consider § 416(h)(2)(B), for Alvina Derrick and Vinnie McBride did not participate in a marriage ceremony. I therefore turn my attention to § 416(h)(2)(A).

 It is uncontested that Alvina Derrick was domiciled in the state of New Jersey at the time of his death. Therefore, the controlling law is New Jersey intestacy law. There is a question in this case as to which year's form of the New Jersey intestacy statute is applicable. The ALJ applied the 1978 version of the statute which required that the parents intermarry or that paternity be established by clear and convincing proof. (Tr. 17). However, at the time of the hearing on February 1, 1984, the 1983 revision of the law had been in effect since April 1983.

 The harsh common law rule on illegitimate children prevented their inheriting from either parent in intestacy. N.J.S.A. 3A:4-7, modified the common law by providing that illegitimate children could inherit by and through the mother. Such children could only inherit from an intestate father if the parents had subsequently married and the child was recognized. In 1977, N.J.S.A. 3A:4-7 was ruled unconstitutional following Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977). In the Matter of the Estate of Sharp, 151 N.J. Super. 579, 377 A.2d 730 (Ch. Div. 1977). Like the Texas statute in Trimble, the New Jersey statute applicable in Sharp, N.J.S.A. 3A:4-7, was found unconstitutional because it failed to grant illegitimate children the same rights vis-a-vis their father as it granted vis-a-vis the mother, thereby violating the due process requirements of the Amendment. Sharp 377 A.2d at 732. N.J.S.A. 3A:4-7 was repealed by P.L. 1977, C. 412, § 90, eff. September 1, 1978, and replaced in the new Probate Code by N.J.S.A. 3A:2A-41, P.L. 1977, C. 412, § 44, eff. September 1, 1978.

 At the time of Alvina's death in 1980, the New Jersey law on intestate succession was broader than N.J.S.A. 3A:4-7. N.J.S.A. 3A:2A-41 permitted succession if paternity had been adjudicated before the death of the father or was established by clear and convincing proof. N.J.S.A. 3A:2A-41(b)(2) (1978). However, in 1983 the law on succession had been further expanded to include the "New Jersey Parentage Act." In its present form, the law reads, in pertinent part:

If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person, . . . (b). In cases not covered by subsection a, a person is the child of its natural parents regardless of their marital status. The parent and child relationship may be established by proof that parentage has been adjudicated under prior law, under the laws governing probate, by an order of a court in another state or pursuant to the "New Jersey Parentage Act," P.L. . . ., c . . . (C . . .) (now pending before the Legislature as Senate Bill No. 888 of 1982).

 Before commencing an analysis of the "New Jersey Parentage Act", I turn to a consideration of which rendition of N.J.S.A. 3A:2A-41 should apply in the instant case. Under the 1978 version of the statute, Yvonne must show that before the death of Alvina, he was adjudicated to be her father, or she must establish his paternity by clear and convincing proof. However, under the 1983 statute, the clear and convincing proof standard was abandoned. Thus, if Yvonne can meet the requirements of the "New Jersey Parentage Act" which permits a presumption of paternity which is rebuttable only by clear and convincing proof, she need not go through the formal adjudication process. The burden of proof in New Jersey has shifted from the alleging to the denying party. This is especially significant, here, for the Secretary has not presented a breath of suggestion, much less any clear and convincing proof, that Alvina was not the father of Yvonne.

 The court in Sharp, supra in considering the question of retroactivity and prospective application, stated ". . . prospective application may be particularly fair in a property case where persons have justifiably relied on prior law." Sharp at 733 (citations omitted). In the case before me, the question of reliance is moot, for Alvina Derrick died intestate. Of greater relevance, therefore, is the matter of judicial fulfillment of legislative intent, as the Sharp court noted:

The final issue is the consequence of the invalidation. Plaintiff cites Schmoll v. Creecy, supra, in which the Appellate Division in a dictum indicated that were N.J.S.A. 3A:4-7 unenforceable, an illegitimate child would be relegated to his common law status and be able to inherit from neither intestate parent. 104 N.J. Super. at 137-38, 249 A.2d 3. Yet the Supreme Court on the further appeal in an analogous situation considered the overall legislative intent and would not let the wrongful death statute fall even though its class of beneficiaries had to be expanded to save it. 54 N.J. at 202-205, 254 A.2d 525. The approach of the Supreme Court does not seem consistent with the Appellate Division dictum. In this era of expanding legislative condemnation of discriminatory practices, including the forbidding of discrimination of the basis of ancestry under the Law Against Discrimination, the court believes that the Legislature would not want the court to deny to illegitimate children the rights granted under N.J.S.A. 3A:4-7. See N.J.S.A. 10:5-3; Hammond v. Pennsylvania R.R. Co., 31 N.J. 244, 156 A.2d 689 (1959). The legislative intent may be best observed by construing N.J.S.A. ...

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