Robert v FSM Social Security Administration [2019] FMSC 35; 22 FSM R. 388 (Kos. 2019) (2 December 2019)

FSM SUPREME COURT TRIAL DIVISION
CIVIL ACTION NO. 2016-2000

TULPE B. ROBERT, on behalf of minor children,
SALIK B. ROBERT and ELMON B. ROBERT,
Plaintiff,

vs.

FEDERATED STATES OF MICRONESIA SOCIAL
SECURITY ADMINISTRATION, and FSM SOCIAL
SECURITY BOARD OF TRUSTEES,
Defendants.
_____________________________________________

ORDER

Beauleen Carl-Worswick
Associate Justice

Decided: December 2, 2019

APPEARANCES:

For the Plaintiff: Canney Palsis, Esq.
Directing Attorney
Micronesian Legal Services Corporation
P.O. Box 38
Tofol, Kosrae FM 96944

For the Defendants: Stephen V. Finnen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941

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HEADNOTES

Social Security - Claims and Benefits
That the adoptive father is not identified as the children’s parent on official forms may be of little significance in determining dependency. Some forms are necessarily confusing because the question of "parent" can be ambiguous, especially with respect to medical records. Robert v. FSM Social Sec. Admin., 22 FSM R. 388, 392 (Kos. 2019).

Administrative Law - Statutory Construction; Evidence - Presumptions; Statutes - Presumptions
The argument that the presumptions "cancel each other out" is not viable. Robert v. FSM Social Sec. Admin., 22 FSM R. 388, 393 (Kos. 2019).

Common Law
FSM courts may look for guidance from U.S. common law decisions if there are no statutes or decisions of constitutional courts within the FSM. Robert v. FSM Social Sec. Admin., 22 FSM R. 388, 393 n.4 (Kos. 2019).

Administrative Law - Statutory Construction; Evidence - Presumptions; Statutes - Presumptions
When a plaintiff successfully creates a presumption, he not only satisfies his burden of going forward but also shifts that burden to the defendant. The defendant then must rebut the presumption to satisfy his burden of going forward. The burden of persuasion normally remains on the plaintiff for his claim throughout the trial. Robert v. FSM Social Sec. Admin., 22 FSM R. 388, 393 (Kos. 2019).

Social Security - Claims and Benefits
A child is deemed dependent upon his proven natural parent or adoptive parent unless such parent was not living in the same household with or contributing to the child’s support. Robert v. FSM Social Sec. Admin., 22 FSM R. 388, 393 (Kos. 2019).

Evidence - Presumptions; Social Security - Claims and Benefits
Regardless of arguments about the application of presumptions, case law requires a determination of the adoptive children’s "actual dependency" on the deceased adoptive parent. This does not regard a presumption. It is a factual inquiry and primarily focused on documentary evidence. Robert v. FSM Social Sec. Admin., 22 FSM R. 388, 394 (Kos. 2019).

Social Security - Claims and Benefits
A valid claim for adopted child benefits requires proof of adoption and of the adopted child’s dependency on the wage earner. Robert v. FSM Social Sec. Admin., 22 FSM R. 388, 394 (Kos. 2019).

Social Security - Claims and Benefits
Social Security has the regulatory authority to request additional proof of dependency and the claimant is required to submit such proof. Actual dependency upon the adoptive parent is a prerequisite for an adopted minor to receive surviving child Social Security benefits after the adoptive parent’s death. Robert v. FSM Social Sec. Admin., 22 FSM R. 388, 394 (Kos. 2019).

Social Security - Claims and Benefits
A Social Security claimant becomes "entitled" to benefits once he or she has applied and has provided convincing evidence of entitlement. A Social Security benefit applicant is responsible for providing the evidence needed to prove his or her entitlement to Social Security benefits. Robert v. FSM Social Sec. Admin., 22 FSM R. 388, 394 (Kos. 2019).

Social Security - Claims and Benefits
Regulations provide Social Security with wide discretion in obtaining evidence that it considers determinative on the issue of an adopted child’s dependency. The Social Security Administrator has the discretion to request any documents or evidence that will prove the child’s dependency on the insured person. Robert v. FSM Social Sec. Admin., 22 FSM R. 388, 394-95 (Kos. 2019).

Social Security - Claims and Benefits
Based on the wide discretion granted to Social Security under regulation § 100.22 to determinendency, ncy, a request for evidence of the adopted child’s "economic dependency" is within the scope of the Board’sority. Robert v. FSM Social Sec. Admin., 22 FSM R. 388, 395 n.7 (Kos. 2019).

Administrative Law - Administrative Procedures Act; Administrative Law - Judicial Review
On an appeal from an FSM administrative agency, the court, under the Administrative Procedures Act, must hold unlawful and set aside agency actions and decisions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; or contrary to constitutional right, power, privilege, or immunity; or without substantial compliance with the procedures required by law. These Administrative Procedures Act provisions apply to all agency action unless Congress by law provides otherwise and it applies to Social Security Administration appeals because no part of the Social Security Act provides otherwise. Robert v. FSM Social Sec. Admin., 22 FSM R. 388, 396 (Kos. 2019).

Evidence - Burden of Proof; Social Security - Claims and Benefits
While the court recognizes the difficulties a Social Security claimant may have in substantiating her claim, the burden of proof remains with the applicant as a matter of law and does not shift to the Social Security Administration. Robert v. FSM Social Sec. Admin., 22 FSM R. 388, 396 (Kos. 2019).

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COURT’S OPINION

BEAULEEN CARL-WORSWICK, Associate Justice:

I. BACKGROUND

On February 28, 2019, following further administrative review, the court ordered the parties to file Supplemental briefs regarding the following issues:

1) Were Salik and Eimon Robert dependent on Berney Robert’s disability benefits?

2) Were Salome and Lerina Robert employed at the time they were residing in the household of Berney Robert?

3) Pursuant to FSM SSA Regulation § 100.sn’t dependency ancy assumed if the adopted child resides in the same household as the wage earner?

The defendant Federated States of Micronesia Social Security Administration (herein, "FSMSSA") filed its Response to Court Order on March 13, 2019. The plaintiff Tulpe Robert (herein, "Robert") filed her Reply on March 22, 2019. Based on the parties’ responses, the court finds that plaintiff Robert has failed to meet her burden of proof to show dependency of the minors on Berney Robert and the Motion for Summary Judgment shall be granted and the Complaint dismissed. The court’s reasoning is set forth below.

II. DISCUSSION

1) Were Salik and Eimon Robert dependent on Berney Robert’s disability benefits?

Defendant FSMSSA argues that plaintiff Robert failed to meet her burden of proof that Salik and Eimon were dependent on Berney Robert. The FSMSSA notes that from January 29, 2010 (the date of customary adoption) to March 9, 2012 (the date of Berney Robert’s death), Berney Robert had three (3) minor children of his own living in his household along with Salik and Eimon. The FSMSSA points out that from the date of adoption to the date of Berney Robert’s death, Salome and Lerina, the birth mothers of the children, lived with Berney Robert along with Salik and Eimon and that both mothers were employed outside the home. Finally, the FSMSSA notes that the natural mothers were identified as the parents on school and medical forms, not the adoptive parent Berney Robert.

In opposition, plaintiff Robert argues that the adoptive children, Salik and Eimon, cohabited with the adoptive parent and therefore are presumed to be dependents of the adoptive parent for the purpose of receiving derivative social security disability benefits. Robert contends that the biological parents signing school records does not necessarily prove that there was no dependency. Robert also argues that whether the biological parents earned income while living in the adoptive parent’s home does not disprove dependency, as their income was sporadic over the years and there is no evidence that the biological parents were the sole providers for the children.

FSM Social Security Regulations set forth the evidence of dependency that the FSM Department of Social Security may require upon application for benefits. Reliance upon the presumption in favor of proof of dependency through residency of the proposed dependents with the adoptive parents is not necessarily sufficient. The pertinent regulation is FSMSSA § 100.22.

; 100.22 Evidence of depend

A child shall be deemed dependent upon his proven natural parent or adoptive parent unless such parent was not living in the same household with or contributing to the su of such child.

(a) When evidence of a child’s dependency is needed. If you or someone on your behalf apply for child’s benefits, we may request evidence that the child was the insured person’s dependent at a specific time - usually the time you applied or the time the insured died or became disabled. What evidence we request depends upon how you claim to be related to the insured person.

(b) Preferred Evidence - at least two types of preferred evidence shall be required.

(1) Evidence that the insured person and child were or are living together in one household;

(2) Evidence that the insured person was/is contributing to the support of the child;

(3) The child is listed as a child beneficiary on the insured person’s life insurance policy, if the insured person has or had insured his life;

(4) Official school records showing the insured person as provider for the child; or

(5) At the discretion of the FSMSSA Administrator, any other documents or evidence that will prove dependency of the child on the insured person.

(emphasis added).

Official Forms

The court finds that the fact that Berney Robert is not identified as the parent of the children on official forms to be of little significance in determining dependency in this case. The FSMSSA attached to its Response to Court Order various documents showing that the natural mothers, not Berney Robert, were identified as the parents of the children on medical records. Ex. C and D to Aff. of Presley Charley. The FSMSSA also attached to its Response to Court Order, Exhibit E to the Affidavit of Presley Charley, showing that in the 2010 Census the children were listed as living with Berney Robert as their "Grandfather," not their father. The FMSSA also alleges, without providing proof, that the mothers are listed as the parents of the subject children on school records.^[1] Def’s. Resp. to Ct. Order (Mar. 2019), Ex. A at 1.

There are problems with these exhibits. First, they are difficult to decipher, as the copies are of poor quality. Second, the court finds that these types of forms are necessarily confusing as the question of "parent" can be ambiguous, especially with respect to medical records. Third, identification problems are compounded when the biological mothers live with the adoptive children and adoptive father. Finally, they are not school records, which are considered "preferred evidence" under FSMSSA Regulations 100.22(b)(4).^[2] Accordingly, the court, in its discretion, does not find this misidentification of parental relationships on the official forms presented to be determinative of the issue of dependency.

The court will address the issues of the impact of presumptions and proof of dependency in item 3 below.

2) Were Salome and Lerina Robert employed at the time they were residing in the household of Berney Robert?

Both defendant FSMSSA and plaintiff Robert concur that during the pertinent time period, January 29, 2010 to March 9, 2012, Salome Robert, the birth mother of Salik, and Lerina Robert, the birth mother of Eimon Robert, were living in the home of Berney Robert, the adoptive father of the children, and that both mothers were working outside the home.

3) Pursuant to FSM SSA Regulation § 100.22, isn’endency ancy assumed if the adopted child resides in the same household as the wage earner?

Presumptions

The Administrative Review Board found that FSM SSA Regulation § 100.22 doe2 does noty becaubecause the biological mothers lived with the adoptive parent; therefore, there were conflicting presumptions that "cancel each other out so the Board muview actual dependency."

The argument that the the presumptions "cancel each other out" is not viable.^[3] This issue is not discussed in FSM law;^[4] accordingly, the court has consulted U.S. case precedent, which provides as follows:

When a plaintiff successfully creates a presumption, he not only satisfies his burden of going forward but also shifts that burden to the defendant. The defendant then must rebut the presumption to satisfy his burden of going forward. . . . [T]he burden of psrsuanorn normally remains on the plaintiff for his claim throughout the trial.

Keeler Brass Co. v. Continental Brass Co., 862 F.2d 1063, 106h Cir8).

The two presumptions identified bied by they the Board are - 1) the adoptive children lived with adoptive parents and 2) the adoptive children lived with their natural parents.

It appears that the conflicting presumptions identified by the Board arise from the language of FSMSSA Regulation § 100.22, which provides in ihe disjunctive that "A child shall be deemed dependent upon his proven natural parent or adoptive parent unless such parent was not living in the same hold with or contributing to the support of such child." (e" (emphasis added).

Apparently, the Board found that since the children lived with both the adoptive parent and the natural parents that the children could be the dependents of either the adoptive parent or the natural parents; therefore the children’s eligibility for benefits required proof of "actual dependency."

Robert argues that no presumptions apply and that the law requires an award of derivative social security benefits to Salik and Eimon Robert, regardless whether the biological mothers, Salome and Lerina Robert, respectively, lived with Berney Robert or earned income while residing there. Plaintiff cites the following authority in support of her argument:

FSM Social Security Regulation § 100.22, which pro, "A childchild is dependent upon a person entitled to old age benefits or who was dependent upon an individual who died fully insured or currently insured, shall be entitled, upon filing an aation for child’s inss insurance benefits for each months beginning with the death of the insured person . . . .
3 p>5.M.CS.M.C. 803(3803(3), which provides, "A surviving child shall be deemed to have been dependent on his parent or ado pareless parent or adopting parent was not living in the same household with or h or contrcontributiibuting to the support of such child prior to his death."

In addition, Robert argues that Kosrae State Code § 6.3401ies. It provides that that adoption severs the rights of the biological parents and makes them wholly reliant upon the adoptive parent:

When a decreadoption has become absolute, the child adopted and the adoe adopting parents hold towards each other the legal relation of parent and child and have all the rights, and are subject to all the duties of that relationship. From the time of the adoption the natural parents of the adopted child are relieve of all parental duties toward the child and all responsibilities for the child and, have no right over him.

Kos. S.C. § 6.3401

Regardless oess of arguments regarding the application of presumptions, case law requires a determination of "actual dependency"^[5] of Salik imon on Berney Robert. Thi This does not regard a presumption. It is a factual inquiry and primarily focused on documentary evidence.^[6] Alokoa v. FSM Social Sec. Admin., 16 FSM R. 271, 273 (Kos. 2009).

Actual Dependency

Case Law

A valid claim for adopted child benefits requires proof of adoption and of the adopted child’s dependency on the wage earner. Miguel v. FSM Social Sec. Admin., 20 FSM R. 475, 479 (Pon. 2016).

Social Security has the regulatory authority to request additional proof of dependency and the claimant is required to submit such proof. Actual dependency upon the adoptive parent is a prerequisite for an adopted minor to receive surviving child Social Security benefits after the adoptive parent’s death. Neth v. FSM Social Sec. Admin., 20 FSM R. 362, 370-71 (Pon. 2016).

"A [Social Security] claimant becomes ’entitled’ to benefits once he [or] she has applied and has provided convincing evidence of entitlement." Neth v. FSM Social Sec. Admin., 20 FSM R. 362, 367 (Pon. 2016) (relying on Social Sec. Reg. § 1. A Social Security benefbenefit applicant is responsible for providing the evidence needed to prove his or her entitlement to Social Security benefits. Id. at 369-70 (citing Social Seg. § 100.5).

.

u>Thal>Thalman v. FSM Social Sec. Admin., 20 FSM R. 625, 628 (Yap 2016) (alteration in original).

Proof

Regulations provide the FSMSSA with wide discretion to obtain evidence that it considers determinative on the issue of dependency. The catchall provision of section 100.22 allows the request of evidence as follows:

FSMSSA Regulation § 100.22(b)(5): "At the discretion of the FSMSSA Administrator, any other documents or evidence that will prove dependency of the child on the insured person."

Here, the Board requested repeatedly proof of "eco dependency." Ex. F and G nd G to Summ. J. Mot.

In response, plaintiff submitted two generalized affidavits attesting to the economic dependency of the subject minors on Berney Robert. Ex. H to Summ. J. Mot.

The transcript of the original appeal hearing before the Board, Ex. J to Summ. J. Mot., is problematic, as it is unclear what regulation, if any, requires a finding of "economic dependence."^[7] Alexander Narruhn the Administrator and ex-officio member of the Board stated,

[C]an I just make something clear, perhaps there may be some misunderstanding cause I know that all these appeals are the same and I present this as a legal question because our requirements again for adopted child is for the parent to provide the required documents and one or two economic dependency documents. So we really required two, again we tried to do away with the economic dependency, but because it is in the regulation, we make sure we follow our regulation. So I understand that there is a court document but the reason why I denied the claim was because of the insufficient additional document as required in our regulation.

Mot. for Summ. J., Ex. J at 3.

What would constitute statistically sufficient evidence of "economic dependency" is not defined; although, Acting Chairman of the Board, Kalwin Kephas provided an example, "if you have documents like life insurance that can show economic dependency." The plaintiffs were given until the following day to produce this document. Id. at 6. (It is unknown from the record whether this document existed or was provided).

Otherwise, it is unclear what documents could be produced that would show evidence of specific expenditures by Berney Robert on the subject minors. Arguably, this would be complicated by the number of people residing in the Robert household. In any event, the plaintiff provided no financial documentation before the Board at the original appeal or at the hearing regarding the three supplemental questions at issue here. Id.; Def’s. Resp. to Ct. Order (Mar. 2019), Ex. A at 1, Ex. B.

The defendant FSMSSA argues that in the absence of proof by the plaintiff of "actual dependency" of the minors on Berney Robert, that evidence supporting the alternative presumption in Regulation § 100.22 (that the na mothersthers were providing the monetary support for the children) should be determinative of the issue of dependency. Accordi the court will turn to the summary of the financial information provided by the FSMSSA forA for the pertinent years - 2010 through 2012. Resp. to Ct. Order Aff. of Presley Curley paras. 6-9.^[8]

For 2010, the documentation submitted by the FSMSSA shows that Salome and Lerina’s combined wages ($5,415.12) were slightly more than Robert’s disability income ($4,856.44). Id. at para. 8.

During 2011, the combined wages of Salome and Lerina ($2,195) were less than the income of Berney Robert ($4,856.64); however, Lerina worked for the TBR Bakery, which had gross revenue of ($9,953). Id. at 9.

During 2012, the income of Salome and Lerina from wages ($577.41) was lower than Berney’s income ($1,214.16); however, Lerina was "running" the TBR bakery, which had gross revenue of $16,905. Id.

Standard of Review

On an appeal from an FSM administrative agency, the court, under the Administrative Procedures Act, must hold unlawful and set aside agency actions and decisions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; or contrary to constitutional right, power, privilege, or immunity; or without substantial compliance with the procedures required by law. These Administrative Procedures Act provisions apply to all agency action unless Congress by law provides otherwise and it applies to Social Security Administration appeals because no part of the Social Security Act provides otherwise. Neth, 20 FSM R. at 366.

Here, the FSMSSA required the plaintiff to provide evidence of "economic dependency" of the children on the adoptive grandfather. The request itself is not unreasonable, given that the children lived together with the adoptive grandfather and the natural mothers, all of whom had income, and the pertinent regulation^[9] allowed that the children could be dependents of the adoptive or the natural parents. On the other hand, how the plaintiff was to document "economic dependence" is not clearly defined, except that the children could have been named as beneficiaries of a life insurance policy. However, the court would note that neither the transcript of hearing before the Board on August 20, 2014 nor the transcript of the Board hearing on July 18-19, 2018 show testimony of any disinterested witnesses in support of the application for benefits. It appears to the court that affiants Salik Thomson and Elizabeth Likiaksa, whose statements are attached as Exhibit H to the Summary Judgment Motion, could have testified as to the specifics of what they observed about Berney Robert attending to the minors’ financial needs. The court recognizes the difficulties the plaintiff may have in substantiating her claim; however, the burden of proof remains with the applicant as a matter of law and does not shift to the FSMSSA.^1[0]

III. CONCLUSION

The court finds based on the entirety of the record, including the financial data submitted by the defendant, that (1) the FSMSSA substantially complied with the Administrative Procedures Act in reaching its decision denying the plaintiff Tulpe Robert’s benefits claim on behalf of the minors Salik and Eimon Robert, (2) the FSMSSA made a prima facie showing of entitlement to summary judgment and that no material questions of fact remain for hearing, and (3) that plaintiff Tulpe Robert has failed to meet her burden to rebut defendant’s prima facie case by showing "actual dependence" of the adoptive minors on Berney Robert.

THEREFORE IT IS HEREBY ORDERED that the Motion for Summary Judgment filed by the defendant Federated States of Micronesia Social Security Administration is GRANTED.

IT IS FURTHER ORDERED that the plaintiff’s Complaint is HEREBY DISMISSED in its entirety with prejudice.

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^[1] This statement is inconsistent with Exhibits F and G to the Summary Judgment Motion and page two of the transcript of Board hearing conducted on July 18-19 (Ex. B to Resp. to Ct. Order), which records that Attorney Finnen represented to the Board that the appellant had presented two report cards for the school year 2016 that did not establish dependency since the wage earner had passed away in 2010.

This statement is also inconsistent with Early Childhood Program Enrollment Applications (Ex. E and F to the Compl.), which list Berney Tulpe as the father of the subject minors (although these applications were submitted on 3/24/14, after the death of Berney Robert on 3/9/12).

^[2] Social Security has requested hospital records and census records in other matters as proof of dependency. See e.g., Alokoa v. FSM Social Sec. Admin., 16 FSM R. 271, 273 (Kos. 2009).

^[3] The need for proof of "actual dependency" is discussed below.

^[4] FSM Courts may look for guidance from U.S. common law decisions if there are no statutes or decisions of constitutional courts within the FSM. Ihara v. Vitt, [2013] FMSC 5; 18 FSM Intrm. 516, 526 (Pon. 2013).

^[5] The term "actual dependency" is not statutory. It derives from Alokoa v. FSM Social Sec. Admin., 16 FSM R. 271, 276 n.2. (Kos. 2009).

^[6] "[I]n making adjudicative decisions on an individual’s right to benefits or payments, FSMSSA generally assigns greater weight to written evidence." FSMSSA Reg. § 100.3.

^[7] The court finds, based on the wide discretion granted to the FSMSSA under ation § 100.22 to determinendency, ncy, that a request for evidence of "economic omic dependency" is within the scope of authority granted to the Board.

^[8] The FSMSSA argues that Berney Robert had three natural children in his care during the time in which dependency was measured, implying that there was no "actual dependency." Resp. to Ct. Order. Aff. of Presley Curley para. 4.

^[9] FSMSSA Reg. § 10

^1[0] Neth, 20 FSM R. at 370-71.