The opinion of the court was delivered by: WEINER
This action was brought pursuant to 42 U.S.C. § 405(g) to review a final decision of the Secretary of Health and Human Services which determined that Cynthia L. Maguire, born out of wedlock, is the child of Randolph W. Maguire, deceased, under the provisions of the Social Security Act, making the child eligible for child's insurance benefits upon the deceased wage earner's record under 42 U.S.C. §§ 402(d) and 416(e), (h) of the Social Security Act. The plaintiff is the surviving wife of the deceased wage earner, and the mother of the three children born of that marriage (Tr. 14).
Presently before the court are cross-motions for summary judgment. For the reasons which follow, the motion of the plaintiff is granted and the motion of the defendant is denied.
On July 27, 1981, the plaintiff filed an application for surviving child's insurance benefits on the account of her deceased husband, Randolph W. Maguire ("deceased wage earner") for the three children born of their marriage (Tr. 233). Thereafter, on April 4, 1983, Cynthia Louise Hutwagner (Hutwagner), on behalf of her daughter, Cynthia, also applied for child's insurance benefits on the account of the deceased wage earner (Tr. 241-246), claiming that Cynthia's father was the deceased wage earner (Tr. 248). The Social Security Administration determined that Cynthia was entitled to benefits on the deceased wage earner's account and accordingly notified plaintiff that as a result of Cynthia's entitlement to benefits, the benefits being paid to plaintiff's children were subject to a reduction in amount (Tr. 249-254).
Plaintiff challenged the Administration's determination that Cynthia was entitled to benefits, and the matter was reviewed by an Administrative Law Judge ("ALJ") (Tr. 255-257). The ALJ determined that Cynthia was entitled to child's insurance benefits on the deceased wage earner's account (Tr. 12-18, 259-261). Plaintiff sought further review of the ALJ's decision and the Appeals Council denied plaintiff's request for review, thereby rendering the ALJ's decision the final decision of the Secretary (Tr. 6-7).
Title 42 U.S.C. § 405(g) provides that the findings of the Secretary as to any fact shall be conclusive if supported by substantial evidence. Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938); Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981). The purpose of our review is limited to determining whether, upon consideration of the record as a whole, there is substantial evidence to support the Secretary's findings of fact. Goldman v. Folsom, 246 F.2d 776, 778 (3d Cir. 1957). While we recognize the deference to administrative decisions implied in the substantial evidence rule, there is simultaneously a responsibility in a reviewing court to assure that administrative conclusions are rational. Universal Camera Corp. v. Labor Board, 340 U.S. 474, 490, 95 L. Ed. 456, 71 S. Ct. 456 (1951); Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981); Smith v. Califano, 637 F.2d 968 (3d Cir. 1981). Accordingly, we have reviewed the record and find that the ALJ's decision that Cynthia L. Maguire is the child of Randolph W. Maguire, deceased is not supported by substantial evidence in the record.
In the decision following the hearing held November 29, 1984, the ALJ noted that neither Cynthia's mother, Hutwagner, nor the wage earner were ever married (Tr. 14). In fact, at the time that Cynthia was born, Hutwagner was legally married to John P. Nawn (Tr. 14).
There are two issues of primary concern that stem from the ALJ's determination that Cynthia was the child of the deceased wage earner, Randolph W. Maguire. First, the ALJ found that Cynthia was not the "legitimate" product of the valid marriage between Nawn and Hutwagner (Tr. 15-17). He based this determination on evidence of record, testimony and written statements by the parties and their witnesses, and Cynthia's baptismal record from the St. Mary's of the Assumption Church (Tr. 15-17).
The evidence did not substantiate a finding of "illegitimacy." Under Pennsylvania law, when a child is born during a marriage, the child is presumed legitimate. Com. ex rel. O'Brien v. O'Brien, 390 Pa. 551, 555, 136 A.2d 451 (1957); Cairgle v. American R. and S.S. Corp., 366 Pa. 249, 256-7, 77 A.2d 439 (1951); Com. ex rel. Spangler v. Spangler, 283 Pa. Super. 190, 423 A.2d 1053, 1054 (1980). The presumption of legitimacy is one of the strongest known to the law, and to rebut it, evidence of non-access, "lack of sexual intercourse, or impotency must be clear, direct, convincing and unanswerable." Cairgle 366 Pa. at 255-6. See also: Com. ex rel. Johnson v. Peake, 272 Pa. Super. 340, 415 A.2d 1228, 1229 (1979). Additionally, non-access cannot be testified to by a wife to overcome the presumption of legitimacy. Cairgle 366 Pa. at 256.
Applying the previously stated principles to the case sub judice, we find that the evidence presented did not overcome the "presumption of legitimacy." The ALJ's determination that Cynthia Maguire was an illegitimate child, a child not of the previous marriage between Hutwagner and John P. Nawn is not supported by substantial evidence. The only evidence considered by the ALJ in making his determination of "non-access" was that of Hutwagner (Tr. 14-15). She testified that she and her husband, Nawn, separated in 1976 - "without further contact" (Tr. 15, 148). This was the only evidence of record regarding access considered by the ALJ (Tr. 15). Based on this self-serving testimony of Hutwagner, the ALJ made a determination that ". . . the evidence fails to establish that Mr. Nawn had access to Mrs. Hutwagner . . ." (Tr. 15). The ALJ's determination of non-access and therefore a determination on Cynthia's "legitimacy" is not substantiated by Hutwagner's meager testimony. Furthermore, the ALJ did not properly allocate the burden of proof in determining the non-access question in finding that ". . . the evidence fails to establish . . ." (emphasis added). The ALJ had, in effect, placed the burden of proof on the plaintiff to prove access. That burden was misplaced by the ALJ. It was Hutwagner who had the burden to prove non-access, not the plaintiff to prove access. Hutwagner failed to sustain her burden of proof.
(3) If there is clear and convincing evidence that the man was the father of the child, which may include a prior ...