2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-4-2011

Karen Capato v. Comm Social Security

Precedential or Non-Precedential: Precedential

Docket No. 10-2027

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Recommended Citation

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 10-2027

____________

KAREN K. CAPATO, o/b/o B.N.C., K.N.C.,

 Appellant

v.

COMMISSIONER OF SOCIAL SECURITY

____________

APPEAL FROM THE UNITED STATES DISTRICT 

COURT

FOR THE DISTRICT OF NEW JERSEY

(D.C. Civil No. 08-cv-05405)

District Judge: Honorable Dennis M. Cavanaugh

____________

Argued: November 15, 2010

____________

Before: BARRY, CHAGARES and VANASKIE, Circuit 

Judges

(Opinion Filed: January 4, 2011)

____________

Bernard A. Kuttner, Esq. (Argued)

Kuttner Law Offices 

24 Lackawanna Plaza 

Millburn, NJ 07041

Counsel for Appellant

Kelsi B. Corkran, Esq. (Argued)

William Kanter, Esq. 

United States Department of Justice 
2

Appellate Section 7216 

950 Pennsylvania Avenue, N.W. 

Washington, DC 20530

-and

Christopher J. Brackett, Esq. 

Sixtina Fernandez, Esq. 

Ellen E. Sovern, Esq. 

Social Security Administration 

Office of General Counsel - Region II 

26 Federal Plaza 

New York, NY 10278

-andEric P. Kressman, Esq. 

Social Security Administration 

SSA/OGC/Region III 

6th Floor 

P.O. Box 41777 

Philadelphia, PA 19101

Counsel for Appellee

____________

OPINION OF THE COURT

____________

BARRY, Circuit Judge

This case – a case that involves the rights of the 

posthumously conceived children of a deceased wage earner 

and his widow – requires us to consider the intersection of 

new reproductive technologies and what is required to qualify 

for child survivor benefits under the Social Security Act (the 

―Act‖). It goes without saying that these technologies were 

not within the imagination, much less the contemplation, of 

Congress when the relevant sections of the Act came to be, 

and that they present a host of difficult legal and even moral 

questions. We need not reach those difficult questions given 

the discrete factual circumstances of this case. We, 

nonetheless, cannot help but observe that this is, indeed, a 

new world. 
3

I. Background

A. Factual History

Robert Capato was born in the State of Washington in 

1957 and, aside from a ten-year period when he resided in 

California, lived in Washington until the 1990s. Mr. Capato 

met his future wife, Karen, in Washington and subsequently 

moved with her to Colorado, where they lived for two years. 

In early 1999, the couple moved to Florida for Mr. Capato‘s 

business, and lived in Florida for approximately three years. 

At some point while in Florida, they decided to move to New 

Jersey and took some steps in that regard, but did not leave 

Florida prior to Mr. Capato‘s death. 

In August 1999, shortly after the Capatos‘ wedding in 

New Jersey, Mr. Capato was diagnosed with esophageal 

cancer, and was told that the chemotherapy he required might 

render him sterile. The Capatos, however, wanted children, 

and thus, before he began his course of chemotherapy, Mr. 

Capato deposited his semen in a sperm bank, where it was

frozen and stored. Somewhat surprisingly, given the 

treatment that Mr. Capato was by then undergoing, Ms. 

Capato conceived naturally and gave birth to a son in August 

2001. The Capatos, however, wanted their son to have a 

sibling. 

Mr. Capato‘s health deteriorated in 2001, and he died 

in Florida in March of 2002. His death certificate listed his 

residence as Pompano Beach, Florida. Three months before 

his death, he executed a will in Florida naming as his 

beneficiaries the son born of his marriage to Ms. Capato and 

two children from a prior marriage. Although Ms. Capato 

claims that she and her husband spoke to their attorney about 

including ―unborn children‖ in the will, ―so that it would be 

understood that . . . they‘d have the rights and be supported in 

the same way that [their natural born son] was already 

privileged to,‖ App. at 288, the will did not contain any such 

provision. 
4

Shortly after Mr. Capato‘s death, Ms. Capato began in 

vitro fertilization using the frozen sperm of her husband. She 

conceived in January 2003 and gave birth to twins on 

September 23, 2003, eighteen months after Mr. Capato‘s 

death. 

B. Procedural History

In October 2003, Ms. Capato applied for surviving 

child‘s insurance benefits on behalf of the twins based on her 

husband‘s earnings record. The Social Security 

Administration denied her claim, and Ms. Capato timely 

requested a hearing before an administrative law judge 

(―ALJ‖). A hearing was held on May 30, 2007, with 

testimony taken from Ms. Capato and two friends. On 

November 28, 2007, the ALJ rendered his decision denying 

Ms. Capato‘s claim. Observing that ―[t]his is a case where 

medical-scientific technology has advanced faster than the 

regulatory process,‖ id. at 6, and that this is a ―very 

sympathetic case‖ in which ―allowing benefits would appear 

to be consistent with the purposes of the Social Security Act,‖ 

the ALJ nonetheless believed himself ―constrained by 

applicable laws and regulations to find disentitlement.‖ Id. at 

7. Finding that the twins, conceived after the death of their 

father, ―are not for Social Security purposes the  ̳child(ren)‘ 

of the deceased wage earner, Robert Capato, under Florida 

state law as required by section 216(h)(2)(A) of the Social 

Security Act,‖ the ALJ concluded that they were not entitled 

to child‘s insurance benefits in accordance with sections 

202(d)(1) and 216(e) of the Act and the relevant regulations. 

Id. at 8. The District Court affirmed, echoing the ALJ‘s 

interpretation of the Act and his conclusion that Mr. Capato 

was domiciled in Florida on the date of his death and, thus, 

that Florida‘s law of intestacy should be applied. This timely 

appeal, over which we have jurisdiction pursuant to 28 U.S.C. 

§ 1291, followed. We will affirm in part and vacate in part, 

and remand for further proceedings.1 

 

1

 We will affirm the dismissal of Ms. Capato‘s Equal 

Protection claim. As the Ninth Circuit found in a similar 

challenge, ―the [Social Security Administration] is not 
5

II. Discussion

A. Standard of Review

We review de novo the District Court‘s decision to 

uphold the denial of benefits. Boone v. Barnhart, 353 F.3d 

203, 205 (3d Cir. 2003). We review the ALJ‘s decision to 

assure that it was supported ―by substantial evidence in the 

record.‖ Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir. 1994)

(internal quotation marks and citation omitted). ―Substantial 

evidence is more than a mere scintilla. It means such relevant 

evidence as a reasonable mind might accept as adequate.‖ 

Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995) (internal 

quotation marks and citation omitted). ―Where the ALJ‘s 

findings of fact are supported by substantial evidence, we are 

bound by those findings, even if we would have decided the 

factual inquiry differently.‖ Fargnoli v. Massanari, 247 F.3d 

34, 38 (3d Cir. 2001). 

B. Entitlement to Child’s Insurance Benefits

Title II of the Social Security Act, codified at 42 

U.S.C. § 401 et seq., allows certain categories of children to 

receive a survivor‘s benefit following the death of a ―fully or 

currently insured individual.‖ 42 U.S.C. § 402(d)(1). The 

purpose of ―federal child insurance benefits‖ is not to provide 

general welfare benefits, but to ―replace the support that the 

 

excluding all posthumously-conceived children, only those 

that do not meet the statutory requirements under State law.‖ 

Vernoff v. Astrue, 568 F.3d 1102, 1112 (9th Cir. 2009). Such 

a classification does not violate Equal Protection laws 

because it is reasonably related to the government‘s interest in 

assuring that survivor benefits reach children who depended 

on the support of a wage-earner and lost that support due to 

the wage-earner‘s death. See id. (―[T]he challenged 

classifications are reasonably related to the government‘s 

twin interest in limiting benefits to those children who have 

lost a parent‘s support, and in using reasonable presumptions 

to minimize the administrative burden of proving dependency 

on a case-by-case basis.‖). 
6

child would have received from his father had the father not 

died.‖ Jones ex rel. Jones v. Chater, 101 F.3d 509, 514 (7th 

Cir. 1996) (citing Mathews v. Lucas, 427 U.S. 495, 507-08 

(1976)); see also Adams v. Weinberger, 521 F.2d 656, 659 

(2d Cir. 1975) (the purpose of the Act is to provide support to 

children who have lost ―actual‖ or ―anticipated‖ support). In 

general, ―the [Act] is to be accorded a liberal application in 

consonance with its remedial and humanitarian aims.‖ 

Eisenhauer v. Mathews, 535 F.2d 681, 686 (2d Cir. 1976). 

To qualify for child‘s insurance benefits, the applicant 

must be the ―child,‖ as defined in § 416(e) of the Act, of an 

individual entitled to benefits or who is fully or currently

insured. 42 U.S.C. § 402(d)(1). Section 416(e) defines 

―child‖ broadly as, in relevant part, ―the child or legally 

adopted child of an individual.‖ Id. § 416(e)(1). 

Additionally, and as relevant here, the ―child‖ (a) must have 

filed an application for benefits, (b) must be unmarried and 

less than eighteen years old (or an elementary or secondary 

school student under nineteen), and (c) must have been 

dependent upon the deceased individual at the time of his or 

her death. Id. §§ 402(d)(1)(A)-(C). ―Every child (as defined 

in section 416(e) of this title)‖ will qualify, assuming, of 

course, that the other requisites have been met. Id. § 

402(d)(1). 

Section 416(h), entitled ―Determination of family 

status,‖ offers other ways by which to determine whether an 

applicant is a ―child‖: 

In determining whether an applicant is the child 

or parent of a fully or currently insured 

individual for purposes of this subchapter, the 

Commissioner of Social Security shall apply 

such law as would be applied in determining the 

devolution of intestate personal property by the 

courts of the State in which such insured 

individual is domiciled at the time such 

applicant files application or, if such insured 

individual is dead, by the courts of the State in 

which he was domiciled at the time of his death. 
7

Id. § 416(h)(2)(A). 

Moreover, if an applicant is unable to inherit from the 

deceased wage earner under state intestacy law, the Act 

provides three alternative mechanisms by which to deem the 

applicant a ―child‖ for purposes of survivor benefits. These 

alternatives are, on their face, inapplicable here and are set 

forth only for completeness. First, the applicant is deemed to 

be the ―child‖ of the insured individual if the applicant is the 

son or daughter and the covered parent went through a 

marriage ceremony that would have been valid but for a legal 

impediment. Id. § 416(h)(2)(B). Second, the applicant is 

deemed to be the ―child‖ where the insured individual, before 

death, either (a) acknowledged in writing that the applicant 

was his or her child; (b) was decreed by a court to be the 

mother or father of the applicant; or (c) was ordered by a 

court to pay child support. Id. § 416(h)(3)(C)(i). Third, the 

applicant is deemed to be the ―child‖ where the deceased 

individual is shown to be the mother or father, and the 

deceased individual was living with or contributing to the 

child‘s support at the time of death. Id. § 416(h)(3)(C)(ii). 

Thus, ―child‖ is defined in different subsections of the 

Act -- § 416(e) and again in §§ 416(h)(2)(A), 416(h)(2)(B),

and 416(h)(3). Were we to determine that the § 416(h)(2)(A)

definition of ―child‖ is appropriate here and go on to apply 

the law of intestacy of Florida, as the Commissioner argues 

we should, we would affirm. But neither the Commissioner 

nor the District Court, who agreed with the Commissioner,

has told us why, in the factual circumstances of this case, 

where there is no family status to determine, we would even 

refer to § 416(h). Under § 402(d), the child is a ―child‖ as 

defined in § 416(e). To accept the argument of the 

Commissioner, one would have to ignore the plain language 

of § 416(e) and find that the biological child of a married 

couple is not a ―child‖ within the meaning of § 402(d) unless 

that child can inherit under the intestacy laws of the domicile 

of the decedent. There is no reason apparent to us why that 

should be so, and we join the Ninth Circuit in so concluding. 
8

In Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 

2004), a case factually identical to the case before us,2the 

Ninth Circuit explained that §§ 416(h)(2) and (3) ―were added 

to the Act to provide various ways in which children could be 

entitled to benefits even if their parents were not married or 

their parentage was in dispute,‖ and have ―no relevance‖ for 

determining whether a claimant is the ―child‖ of a deceased 

wage earner where parentage is not in dispute. 371 F.3d at 

596. The Commissioner conceded that Mr. Netting‘s children 

were his biological children, id. at 597, as here the 

Commissioner concedes that Mr. Capato‘s children are his. 

The Ninth Circuit found that the district court erred when it 

concluded that Mr. Netting‘s children were not ―children‖ for 

purposes of the Act.3 

In response to Gillett-Netting, the Commissioner

issued an ―Acquiescence Ruling,‖ effective September 22, 

2005.4 See Social Security Acquiescence Ruling 05-1(9), 70 

Fed. Reg. 55,656 (Sept. 22, 2005). The Acquiescence Ruling 

 

2

 The husband was diagnosed with cancer, was advised that 

chemotherapy might render him sterile, and his semen was 

frozen and stored in hopes that, even after he died, his wife 

would have his children. His wife conceived by means of in 

vitro fertilization and gave birth to twins eighteen months 

after his death. 

3

 Because, in the case before us, the District Court did not 

reach the issue of dependency given its conclusion that the 

definition of ―child‖ was not satisfied, we, therefore, need not 

address the Ninth Circuit‘s conclusion that Mr. Netting‘s 

children were ―conclusively deemed dependent on [him] 

under the Act‖ and why that was thought to be so. 371 F.3d 

at 599. 

4

 ―An acquiescence ruling explains how we will apply a 

holding in a decision of a United States Court of Appeals that 

we determine conflicts with our interpretation of a provision 

of the Social Security Act (Act) or regulations when the 

Government has decided not to seek further review of that 

decision or is unsuccessful on further review.‖ See Social 

Security Acquiescence Ruling 05-1(9), 70 Fed. Reg. 55,656 

(Sept. 22, 2005). 
9

limited the application of Gillett-Netting to claims within the 

Ninth Circuit. Id. at 55,657. It also contained a ―Statement 

as to How Gillett-Netting Differs From SSA‘s Interpretation 

of the Social Security Act.‖ Id. In that Statement, the 

Commissioner hewed to the arguments she had made to the 

Ninth Circuit: in all cases, § 416(h) ―provides the analytical 

framework that we must follow for determining whether a 

child is the insured‘s child for the purposes of section 

[416(e)],‖ and § 416(h)(2)(A) directs the application of state 

intestacy law or the alternative mechanisms in §§ 

416(h)(2)(B) and 416(h)(3)(C) to determine whether a child is 

a ―child.‖ Id. An ―after-conceived‖ child, she continued, 

cannot satisfy the alternative mechanisms in §§ 416(h)(2)( B) 

and 416(h)(3)(C), and ―[c]onsequently, to meet the definition 

of  ̳child‘ under the Act, an after-conceived child must be able 

to inherit under State law.‖ Id. There was no explanation as 

to why the statute even suggests, much less compels, that 

result. 

The Commissioner has attempted to explain to us why 

the Ninth Circuit‘s analysis of the Act‘s legislative history 

was ―indisputably mistaken.‖ The explanation goes as 

follows: ―When child survivor benefits were established in 

1939, section 416(h)(2)(A) was the only way any child could 

be eligible for benefits.‖ Appellee‘s Br. at 34. Because no 

effective means existed at that time to scientifically prove a 

child-parent relationship, Congress determined that the

primary way to prove child status should be eligibility to 

inherit under state law. Id. Given that state laws would have 

provided for inheritance by the child of a marriage, that child 

would have no problem qualifying as the wage-earner‘s 

―child‖ for survivor benefits under the Act. The 

Commissioner argues that even though Congress added § 

416(h)(3) in 1965 to provide additional ways by which a child 

could prove ―child‖ status, ―that addition did nothing to 

change the existing requirement that all children, even 

including children of married parents whose parentage was 

not in dispute, satisfy at least one of the provisions of section 

416(h).‖ Id. at 35. 
10

The explanation ignores the fundamental question: 

why should we, much less why must we, refer to § 416(h) 

when § 416(e) is so clear, and where we have before us the 

undisputed biological children of a deceased wage earner and 

his widow. The plain language of §§ 402(d) and 416(e) 

provides a threshold basis for defining benefit eligibility. The 

provisions of § 416(h) then provide for ―[d]etermination of 

family status‖—subsection (h)‘s heading—to determine 

eligibility where a claimant‘s status as a deceased wageearner‘s child is in doubt. Were it the case that such status 

had to be determined here, we would turn to the relevant 

provisions of § 416(h). But a basic tenet of statutory 

construction is that ―[i]n the absence of an indication to the 

contrary, words in a statute are assumed to bear their 

 ̳ordinary, contemporary, common meaning.‘‖ Walters v. 

Metro. Educ. Enters., Inc., 519 U.S. 202, 207 (1997) (quoting 

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 

U.S. 380, 388 (1993)). The term ―child‖ in § 416(e) requires 

no further definition when all parties agree that the applicants 

here are the biological offspring of the Capatos. Stated 

somewhat differently, we do not read §§ 402(d) or 416(e) as 

requiring reference to § 416(h) to establish child status under 

the facts of this case. Our analysis does not render § 416(h) 

superfluous but, rather, places it in context with § 416(e) and 

the clear command of § 402(d)(1) to refer to § 416(e) to 

define the word ―child.‖5

We acknowledge that another factual scenario might 

render the Commissioner‘s concerns more persuasive. Those 

concerns must, however, await another case, though we note 

them ourselves with some concern: 

[A]lthough biological paternity can now be 

scientifically proven to a near certain degree of 

 

5

 Because we can resolve this issue based on our analysis of 

Congress‘ ―unambiguously expressed intent‖ in the statutory 

language, we need not determine whether the 

Commissioner‘s interpretation is a permissible construction 

of the statute. See Chevron, U.S.A., Inc. v. Natural Res. Def. 

Council, Inc., 467 U.S. 837, 842-43 (1984). 
11

probability, modern artificial reproduction 

technologies currently allow for variations in 

the creation of child-parent relationships which 

are not solely dependent upon biology. The use 

of donor eggs, artificial insemination, and 

surrogate wombs could result in at least five 

potential parents. Accordingly, even in modern 

times, the basic assumption underlying the 

Gillett-Netting panel‘s reasoning – i.e., that 

biological paternity always results in an 

 ̳undisputed‘ child-parent relationship – is 

unfounded. 

Appellee‘s Br. at 36 (internal citation omitted). 

To be sure, as the Ninth Circuit put it, ―[d]eveloping 

reproductive technology has outpaced federal and state laws, 

which currently do not address directly the legal issues 

created by posthumous conception.‖ Gillett-Netting, 371 

F.3d at 595. As we have noted, the more difficult of those 

legal issues are not before us. What is before us is a discrete 

set of circumstances and the narrow question posed by those 

circumstances: are the undisputed biological children of a 

deceased wage earner and his widow ―children‖ within the 

meaning of the Act? The answer is a resounding ―Yes.‖ 

Accordingly, we will vacate the order of the District Court in 

part and remand for a determination of whether, as of the date 

of Mr. Capato‘s death, his children were dependent or 

deemed dependent on him, the final requisite of the Act 

remaining to be satisfied.6 

 

6

 Given this disposition, it is not necessary for us to 

determine where Mr. Capato was domiciled at his death or to 

delve into the law of intestacy of that state. We note, 

however, that were we to decide the issue of domicile, we 

would likely conclude that it was Florida.