Appendix — Goff v. Mathews

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Supreme Court of the United States

October Term, 1976

NELLIE T. GOFF, Petitioner

Vv.

CASPAR WEINBERGER, Secretary of Health

Education and Welfare, Respondent

APPENDIX

EDWARD T. DODD, JR.

JEREMIAH M. KEEFE

Counsel for Petitioner

21 State Street

P.O. Box 2156

Waterbury, Ct. 06702

Of Counsel:

Zipoli, Keefe & Dodd

21 State Street

P. O. Box 2156

Waterbury, Ct. 06702

TABLE OF CONTENTS

. Judgment of the United States Court of

Appeals

_ Memorandum of Decision of the United

District Court on Cross Motions for Summary

Judgment

_ Decision of Appeals Council, Social Security

Administration, Bureau of Hearings and

Appeals

. Hearing decision of Administrative Law

Judge, Social Security Administration, Bur-

eau of Hearings and Appeals

Letter of Attorney Grabowski dated January

3, 1974

Affidavit of Attorney Grabowski dated April

10, 1974

_ Statutes and Regulations involved ..........

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APPENDIX A

UNITED STATES COURT OF APPEALS

For The

SECOND CIRCUIT

Ata stated Term of the United States Court of Appeals for

the Second Circuit held at the United States Courthouse in the

City of New York, on the Fourth day of May

one thousand nine hundred and Seventy-Six

Present:

HON. WILLIAM H. MULLIGAN

HON. THOMAS J. MESKILL

Circuit Judges

HON. EDMUND L. PALMIERI

District Judge

NELLIE T. GOFF,

Plaintiff - Appellant

76-6004

v.

CASPAR WEINBERGER, Secretary of Health,

Education and Welfare,

Defendants - Appellees.

Appeal from the United States District Court for the

District of Connecticut.

This cause came on to be heard on the transcript of record

from the United States District Court for the District of

Connecticut, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the judgment of said

District Court be and it hereby is affirmed judgment with

costs to be taxed against the appellant.

A. DANIEL FUSARO

Clerk

by VINCENT A. CARLIN

Chief Deputy Clerk

APPENDIX B

MEMORANDUM OF DECISION OF THE

UNITED DISTRICT COURT ON CROSS MOTIONS

FOR SUMMARY JUDGMENT

RULING OF CROSS-MOTIONS

FOR SUMMARY JUDGMENT

This action was brought pursuant to § 205(g) of the

Social Security Act, as amended, 42 U.S.C. § 405(g),

requesting judicial review of a final decision of the Secretary

of Health, Education and Welfare. The Appeals Council

reversed the Administrative Law Judge’s decision, which

had allowed dependents’ insurance benefits to the plaintiff

and her children retroactive to March 31, 1959. The case

comes before the Court on cross-motions for summary

judgment pursuant to Rule 56, Fed. R. Civ P. No remaining

factual issues exist to be resolved and the case can now be

decided as a matter of law. The legal issue presented is

whether or not the record contains substantial evidence to

support the Secretary's denial action of survivor's insurance

benefits for any month prior to January, 1970; and whether or

not any valid application was filed with the Social Security

Administration prior to January, 1971. The Court finds that

the Secretary’s findings are supported by substantial

evidence and his decision is therefore affirmed.

FACTS

At the time of Clayton E. Woolley’s death, he was married

to the plaintiff, Nellie T. Goff. He died on March 31, 1959 from

injuries suffered during the course of his employment dy the

State of Connecticut and was covered at the time by

Workmen’s Compensation. At that time the couple had three

living children, a stepchild, Jane (Woolley) Turgeon, born

June 1, 1949, married during May 1969; James Woolley, born

February 3, 1953, and Patricia Woolley, born October 19,

1955.

The plaintiff concedes that no written application for Social

Security benefits was formally filed in writing in behalf of the

children until January 28, 1971. The defendant awarded

payments for one year retroactively back to January, 1970, to

two minor children, James and Patricia, both of whom were

under 18 years of age.

The plaintiff thereafter married her present husband,

Joseph P. Goff, in 1962. She complains that she and the

children should have been qualified to receive benefits

commencing on March’31, 1959. Immediately after the death

of her husband on March 31, 1959, she applied under

Connecticut State Law § 5-144, for Workmen’s Compensation

and received an award for herself and said children. For that

purpose she was represented by retained counsel and

consulted him on the question of whether or not she and the

children were entitled to receive Social Security Benefits.

The attorney stated in an attached affidavit, that he had

telephoned the New Britain Social Security Office sometime

during July, 1959, to inquire as to the family’s eligibility and

was informed by a Social Security employee, that since she

and the children were already receiving benefits under the

State Workmen’s Compensation Act, they did not qualify for

Social Security insurance benefits.

She now claims that since she was dissuaded from filing in

1959, through the alleged false advice given by an employee

of the agency to her attorney, the latter’s oral inquiry should

be considered tantamount to a written statement of intent to

file an application for benefits, as required by § 404.613 of

Regulation No. 4. In fact, the Administrative Law Judge

here made his finding that the oral telephone inquiry made

by the plaintiff's attorney, of which no record could be found,

constituted a lawful statement of intent, within the meaning

of the Social Security regulations and justified a finding that

the claim of the mother and children was valid and effective

on March 31, 1959.

DISCUSSION OF LAW

Title 42 U.S.C. § 405(a) vests in the Secretary the right to

make and promulgate procedural regulations to administer

the Act. 1/Under these regulations, 20 C.F.R. § 404.601(d)

provides:

‘“« _ . an individual has not ‘filed an application’ for

purposes of sections 202, 216(i), or 223 of the Act...

until an application on a form prescribed in § 404.602

has been filed in accordance with the regulations in

this subpart.”

20 C.F .R. § 404.601(e) provides:

“The term ‘“‘to execute an application’ (or a written

statement, request, or notice . . .) means the

completion and signing of the application (or written

statement, request, or notice) ...”’

In furtherance of the foregoing policy, § 404.613 of these

regulations provides, that if an individual files a written

statement with the Social Security Administration, which

indicates an intention to claim benefits and such statement

bears his signature, the filing of such statement shall be

considered to be the filing of an application for such benefits.

Thus the administrative purpose of the Act and its supporting

regulations were specifically designed to assure, that only a

written expression of intent to claim Social Security benefits

should be accepted and considered as a valid application

under the law. This case is clearly distinguishable from the

case of Tuck v. Finch, 430 F. 2d 1075 (4th Cir. 1970), cited by

the plaintiff, and the plaintiff concedes that no written record

exists in the Social Security office to confirm that an

application, written or oral, was ever filed.

The Social Security Act, supplemented by its regulations,

was intended to eliminate or at least reduce to a minimum

the possibility of fraud, confusion, and laxity in its

4b

administration. The vastness of the program makes it

essential to adhere to the written application procedure, if

there is to be an orderly and controllable system of

management for approving claims and paying out insurance

benefits.

The plaintiff claims that the defendant is estopped from

denying relief, because the agency’s own employee

dissuaded her from filing a written application. Further-

more, she claims that since the Administrative Law Judge,

its own agency employee, found in her favor, the Govern-

ment has thereby waived any procedural non-compliance by

her in failing to file the required written application.

The Government cannot be estopped in this manner from

insisting upon the performance of statutory conditions

precedent, by the unauthorized acts of a local Social Security

office employee.

‘‘But even assuming that he did receive ‘misinforma-

tion’ on which . . . acted to her detriment, it is plain

that estoppel will not lie against the Government

under these circumstances. Parties dealing with the

Government are charged with knowledge of and are

bound by statutes and lawfully promulgated regula-

tions despite reliance to their pecuniary detriment

upon incorrect information received from Govern-

ment agents or employees. Failure to comply with

the applicable statute and regulations precludes

recovery against the Government ‘no matter with

what good reason’ the claimant believed she had

come within the requirements. Estoppel will not lie

regardless of the financial hardship ‘resulting from

innocent ignorance.’ Federal Crop Insurance Corp v.

Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10;

Walker-Hill Co. v. United States, 162 F.2d 259 (7 CIR.

1947), cert. den. 332 U.S. 771, 68 S.Ct. 85, 92 L.Ed. 356;

James v. United States, 185 F.2d 115, 22 A.L.R. 2d 830

(4 Cir. 1950).”’ Flamm v. Ribicoff, 203 F.Supp. 507, 510

(S.D.N.Y. 1961).

Re NE

Sb

Also see, McIndoe v. United States, 194 F.2d 602, 603 (9th Cir.

1952); and Taylor v. Flemming, 185 F.Supp. 280, 284 (W.D.

Arkansas 1960).

While the Administrative Law Judge found that the

telephone inquiry made by the plaintiff’s attorney constitut-

ed a statement of intent on the part of the plaintiff to file for

benefits within the meaning of § 404.613, that conclusion was

in fact an interpretation of a rule of law applied to the factual

circumstances as the judge found them. To press beyond and

claim that his ruling, as an employee of the agency,

constituted an actual waiver of the defendant’s position, so as

to estop it from denying benefits, would destroy the quasi-

judicial character of the Administrative Law Judge. It would

also unduly curb the Secretary’s clear statutory right to an

effective review of final rulings, pursuant to 42 U.S.C. §

405(b). This statute provides in part:

“The Secretary is further authorized, on his own

motion, to hold such hearings and conduci sucii

investigations and other proceedings as he may deem

necessary or proper for the administration of this

title.’ (Emphasis added).

Such a construction would also unduly limit the right to a full

judicial review under 42 U.S.C. § 405(g); a result never

contemplated by the Congress.

The factual situation found to exist here does not conform

to the essential requirements of the Social Security

Regulations, 20 C.F.R. §§ 404.602 and 404.613. Failure of the

plaintiff to file a timely application under the rules is not

simply a non-essential procedural requirement, it is a

substantial and basic requirement of the regulations.

“In ann & —— promulgated by the

Secretary of Health, Education, and Welfare, the

Court refers to pertinent provisions of 20 C.F.R. §

404.601 et seq. Under § 404.601, it is required that an

individual file an application on a form prescribed by

6b

the Administration. Section 404.607(b) provides for

benefits retroactive for one year from the date of

filing. Section 404.608 sets out the guideline that a

written statement, request, notice or application is

deemed ‘a filing’, but only on the date it is received by

the local office. In addition, such a statement must be

reduced to the prescribed form within certain riods

for it to be effective.”” Parker v. Finch, 327 F. Supp.

193, 195 (N.D. Ga. 1971).

The defendant Secretary is charged with the duty to weigh

the evidence, to resolve material complaints in the testimony

and to determine the cases accordingly. Moss v. Gardner,

411 F. 2d 1195 (4th Cir. 1969) Staples v. Gardner, 357 F. 2d 922

(5th Cir. 1966); Stumbo v. Gardner, 365 F.2d 275 (6th Cir.

1966); Rhinehart v. Finch, 438 F.2d 920 (9th Cir. 1971). The

findings of the Secretary are conclusive, if supported by

substantial evidence and a proper application of the law.

The Court adopts the findings and decisions of the Appeals

Council (Tr. 4-10) as affirmed by the Secretary of Health,

Education, and Welfare. The Court finds that the Secretary’s

determinations were supported by substantial evidence, as

required under § 205(g) of the Social Security Act, 42 U.S.C. §

405(g). Newman v. Celebreeze, 310 F.2d 780 (2d Cir. 1962);

Dondero v. Celebreeze, 312 F.2d 677 (2d Cir. 1963).

The defendant’s motion for summary judgment is granted.

SO ORDERED.

Dated at Hartford, Connecticut, this 17th day of October,

1975.

T. Emmet Clarie

Chief Judge

FOOTNOTE

1

42 U.S.S. § 405(a) provides:

“Rules and regulations. The Secretary shall have full

power and authority to make rules and regulations

ee

7b

and to establish procedures, not inconsistent with the

provisions of this title, which are necessary or

appropriate to carry out such provisions, and shall

adopt reasonable and ag r rules and regulations to

regulate and provide for nature and extent of the

roofs and evidence and the method of taking and

urnishing the same in order to establish the right to

benefits hereunder.”’

Ic

APPENDIX C

SOCIAL SECURITY ADMINISTRATION

Bureau of Hearings and Appeals

DECISION OF APPEALS COUNCIL

In the case of:

Nellie T. Goff for self and 0/b/o

Jane W. Turgeon, James and Patricia Woolley

(Claimant)

Clayton Woolley

(Wage Earner)

Claim for:

Mother’s Insurance Benefits

Child’s Insurance Benefits

048-20-6929

(Social Security Number)

This case is before the Appeals Council on its own motion to

review the decision of the administrative law judge issued on

March 11, 1974. The Appeals Council notified the claimant

and her representative of this action and of her rights with

respect thereto.

Mr. Jeremiah M. Keefe, Esquire, the claimant’s represen-

tative, appeared before the Appeals Council on June 4, 1974

and prese’ ted oral argument on behalf of the claimant.

In his decision, the administrative law judge found that an

oral inquiry, concerning the payment of benefits to the

claimant and her children, made in 1959, by her then

representataive, constituted a written statement of intent to

file a claim for benefits as required by section 404.613 of

Regulations No. 4 of the Social Security Administration and

that the claimant and her children were entitled to mother’s

and child’s insurance benefits, respectively, beginning

2c

March 1959.

Evidence in addition to that considered by the administra-

tive law judge has been entered into the record by the

Appeals Council as follows:

Exhibit AC-1 Copy of affidavit signed by Bernard F.

Grabowski dated April 10, 1974.

ISSUES

The general issue before the Appeals Council is whether

mother’s and child’s insurance benefits are payable to the

claimant for any month prior to January 1970. Specifically at

issue is whether an oral inquiry made in 1959 constituted a

statement of intent to file an application for benefits as

prescribed in section 404.613 of Regulations No. 4.

LAW AND REGULATIONS

Section 202(d) of the Social Security Act provides, in

pertinent part, for the entitlement to child’s insurance

benefits of a child who, among other requirements, has filed

an application for child’s insurance benefits and who is not

married.

Section 202(g) of the Act provides, as pertinent herein, for

the entitlement to mother’s insurance benefits of a widow of

the wage earner who, among other requirements, has filed

an application for mother’s insurance benefits and who is not

married.

Section 202 (j) (1) of the Act provides that the retroactivity

of an application for monthly benefits shall be limited to 12

months prior to the month of filing of the application.

Section 205(a) of the Act provides that:

‘The Secretary shall have full power and authority to

make rules and regulations and to establish proce-

dures, not inconsistent with the provisions of this title,

which are necessary or a riate to carry out such

provisions, and shall adopt reasonable and oy r

rules and regulations to regulate and provide for

nature and extent of the proofs and evidence and the

method of taking and furnishing the same in order to

establish the right to benefits hereunder.”’

Section 404.601(b) of Social Security Administration

Regulations No. 4 provides, in pertinent part, that the term

“applicant’’ refers to the individual who has filed an

application on his own behalf or on behalf of another for

monthly benefits. Section 404.601(c) of the regulations

indicates that the term ‘application’ refers only to an

application on a form prescribed in section 404.602 and

includes an application for monthly benefits. Section

404.601(d) provides that an individual has not ‘‘filed an

application” for the purposes of section 202 of the Act until an

application on a form prescribed in section 404.602 has been

filed in accordance with the regulations in Subpart G. Section

404.601(e) of the regulations provides that the term ‘“‘to

execute an application’’ means the completion and signing of

the application (or written statement, request, or notice).

Section 404.608(a) of the regulations provides, in pertinent

part, that an application (or written statement, request or

notice) is considered to have been filed only as of the date it is

received at aa office of the Social Security Administration or

by an employee of the Administration who has been

authorized to receive such application at a place other than

such office. Section 404.610 provides that any request for a

determination or decision relating to a person’s right to

monthly benefits shall be in writing.

Section 404.613 of the regulations provides, in pertinent

part, that where an individual filed a written statement with

the Administration that indicates an intention to claim

monthly benefits and said statement bears his signature, the

filing of said written statement is considered to be the filing

of an application for such purposes, provided a prescribed

application is filed by such individual within 6 months of the

date of the date of notice of the requirement therefor.

EVIDENCE CONSIDERED

The Appeals Council has carefully studied all the testimony

at the hearing, the arguments made, and the exhibits of

record.

EVALUATION OF THE EVIDENCE

The claimant filed an application for child’s insurance

benefits on January 28, 1971. The wage earner died fully

insured on March 31, 1959. Benefits were awarded effective

January 1970 to James, born on February 3, 1953, and

Patricia, born on September 19, 1955. The claimant, who was

married to the wage earner at the time of his death,

remarried in 1962. The claimant requested reconsideration

maintaining that benefits should be payable beginning

March 1959 because the claimant had been dissuaded from

filing in 1959 by her then representative. Upon reconsidera-

tion it was determined that no application had been filed

prior to the one dated January 28, 1971 and that benefits could

begin no earlier than January 1970.

The record reflects no oral or written inquiry ever having

been made prior to the January 1971 application. The claim-

ant’s attorney at the time of the wage earner’s death,

Benjamin Grabowski, alleges that he telephoned the New

Britain, Connecticut Social Security Office, and was

informed that no benefits were payable because workmen’s

compensation benefits were being paid to the claimant and

her children (Exhibits 20 and AC-1). This conversation all-

egedly took place in 1959, shortly after the wage earnei's

death.

As to whether a valid application exists based on the

alleged oral inquiry, section 404.613 of Regulations No. 4

clearly requires a written statement indicating intent to

claim benefits. Moreover, Social Sec rity Ruling 66-17c, C.B.

1966, p. 39, clearly indicates that an oral inquiry is

insufficient to constitute the filing of an application. In this

Ruling, an individual inquired orally in February 1956 as to

whether she qualified for widow's insurance benefits, and

was advised of the deceased worker's lack of insured status

and of her ineligibility. She subsequently filed a written

application for benefits in May 1962, and submitted evidence

which was sufficient to establish additional earnings for the

worker, giving him an insured status as of his date of death.

It was held that the oral inquiry did not constitute the filing of

an application since applications for benefits must be in

writing and that the Social Security Administration cannot be

—— from asserting the requirements for entitlement to

nefits.

In addition, the great weight of the court decisions support

the Social Security Administration’s policy, as reflected by

the Ruling (supra), with regard to what constitutes an

application. The requirement of the regulations that an

application must be in writing and that an oral claim cannot

constitute an application has been held to be a proper

exercise of regulatory authority. Smaltz v. Ribicoff, CCF

UIR, Fed. para. 14,632 (W.D. No., 9/27/62). Where there is no

record of a written request for benefits, the claimant has not

established a condition precedent for entitlement. Graham

v. Celebrezze, CCH UIR, Fed. para 16,146 (W.D. Mo.,

12/18/63). The filing of a written statement of intention to

claim benefits is a minimum requirement for entitlement to

benefits. Mandelstram v. Celebrezze, CCH UIR, Fed. para.

14, 733 (E.D. N.Y. 3/16/67). See also, Emerson v. Celebrezze,

CCH UIR, Fed. para. 14,237 (M.D. Ga., 6/7/65); Flamn v.

Ribicoff, 203 F. Supp. 507 (1961); Hilton v. Celebrezze, CCH

UIR, Fed. para. 14,315 (S.D. W. Va., 1/11/66); Stiel v.

Celebrezze, CCH UIR, Fed. para 16,235 (E.D. Mo., 6/14/64);

SSR 63-37C (C.B. 1963, p. 13). Also, it is well established that

the government cannot be estopped by the actions of its

agents from requiring compliance with statutory conditions

of entitlement. See Caldwell v. Celebrezze, CCH UIR, Fed.

para. 14, 650 (1962) and Taylor v. Flemming, 186 F. Supp. 280

(1960).

The claimant’s representative contends that the decision of

the U.S. Court of Appeals for the Fourth Circuit in the case of

Tuck v. Finch, 430 F. 2d 1975 (1970) is applicable to the case at

hand. The question in that case was whether Mr. Tuck

acquired 4 quarters of coverage in 1961 to meet the insured

status requirements for disability purpose. By finding that

Mr. Tuck filed an application for benefits in February 1965,

when he had inquired orally at a social security office about

benefits, the Court was then able to indicate that the

Secretary could change his records of Tuck's self-employ-

ment income in 1961 under section 205[c] [5] [A] of the Act

inasmuch as the February 1965 ‘‘application’’ tolled the

statute of limitations until a “‘final’’ decision was made

thereon. Thus, Tuck involved a question of the filing of an

application for purposes of section 205(c) (5) (A) rather than

for purposes of entitlement under sections 202(d) and 223(g)

of the Act.

The relevant portion of the Circuit’s Court’s decision is as

follows:

‘The Secretary has peas applications forms for

disability insurance benefits. 20 CFR sections 422.501

and .505. Ordinarily an application made on this form

will conclusively establish the date it was filed. Use

of a form, however, does not appear to be mandatory,

and its absence does not conclusively establish that no

application was made, especially when the applicant

is illiterate. Here the Secretary’s own records

affirmatively show that in February 1965, Tuck asked

about —— Social Security benefits and that an

official of the Social Security Administration discus-

sed his ene with him. While a written applica-

tion might be expected from a literate person, an

illiterate often can do little other than make an oral

request to the official to whom he has been referred.

****

7c

We hold, therefore, that Tuck’s oral request for

benefits and the records of the Secretary establish

that in February 1965 Tuck made an application for

monthly benefits. Therefore, under section 205(c) (5)

(A) of the Act, the Secretary may change his records

so they will correctly reflect the number of quarters

of coverage to which Tuck is entitled.’

It is quite clear that a distinguishing factor in Tuc! is that

the Secretary’s records corroborated his claim ‘hat he

‘“‘applied”’ for disability benefits in February 1965, and that,

as an illiterate, an oral inquiry would be the manner in which

he would apply for benefits. In the instant case, there is no

record of the alleged oral inquiry and neither the claimant

not Mr. Grabowski could be considered to be illiterate. It

would, therefore, appear because of the dissimilarities in the

two cases (Tuck and the one at hand), that the court’s

findings in the Tuck case are not applicable to the present

proceeding. Moreover, the Social Security Administration

has not acquiesced in the Tuck decision nor has it effected

any policy changes based on that decision.

The administrative law judge was clearly in error in

finding that the alleged oral inquiry made by Mr. Grabowski

in 1959 was the equivalent of the written statement required

by section 404.613 of Regulations No. 4. The only valid

application for monthly benefits in this case was filed on

January 28, 1971.

FINDINGS AND CONCLUSIONS

OF THE APPEALS COUNCIL

In summary, the Appeals Council makes the following

findings and conclusions:

1. The alleged oral inquiry made by Mr. Grabowski

does not constitute a wr:tten statement of intent to

file an application for benefits as required by

section 404.613 of Regulations No. 4.

2. Pursuant to section 202 (j) (1) of the Act, the

application filed on January 28, 1971 can be

retroactive only to January 1970.

3. The claimant, Nellie T. Goff, is not entitled to

—- insurance benefits, having remarried in

1962.

4. Jane W. Turgeon married in May 1969 and is,

therefore not entitled to child’s insurance benefits

based on the application filed on January 28, 1971.

5. James and Patricia Woolley are entitled to child’s

insurance benefits a January 1970 based

on the appl:cation filed on January 28, 1971.

DECISION

The decision of the administrative law judge is reversed.

It is the decision of the Appeals Council that Nellie T. Goff is

not entitled to mother’s insurance benefits; that Jane W.

Turgeon is not entitled to child’s insurance benefits; and that

James and Patricia Woolley are entitled to child’s insurance

benefits beginning January 1970 and for no prior month.

APPEALS COUNCIL

Joseph E. Doneghy, Member

Norman S. Kerns, Member

Herman Elegant, Member

Date: July 22, 1974

APPENDIX D

HEARING DECISION OF ADMINISTRATIVE LAW

JUDGE, SOCIAL SECURITY AL ‘INISTRATION,

BUREAU OF HEARINGS AND APPEALS

DEPARTMENT OF

HEALTH, EDUCATION, AND WELFARE

Social Security Administration

Bureau of Hearings and Appeals

HEARING DECISION

In case of

Nellie T. Goff on her own behalf and

0/b/o the children of Clayton Woolley

(Claimant)

Clayton Woolley (Deceased)

(Wage Earner)

Claim for

Mother's Insurance Benefits

Child’s Insurance Benefits

048-20-6929

(Social Security Number)

This case being properly before the undersigned Adminis-

trative Law Judge was heard in Hartford, Connecticut on

December 19, 1973. The claimant appeared personally and

testified. She was represented in the hearing by her

attorneys, Jeremiah M. Keefe and Leonard P. Coviello. The

present husband, James Goff, was also present.

The claimant, on January 28, 1971 filed an application for

surviving child’s insurance benefits in which she listed as

surviving children of Clayton Woolley (who died on March 31,

1959), James Woolley (born February 3, 1953), Patricia

Woolley (born October 19, 1955), and Jane (Woolley) Turgeon

(born June 1, 1949 and married May 10, 1969). Benefits for

James Woolley and Patricia Woolley were awarded on April

14, 1971.

In the letter dated July 29, 1971 (Exhibit 9 -- deemed to be

the request for reconsideration the claimant expanded this

case to constitute application for:

(a) child’s insurance benefits for James Woolley

and Patricia Woolley from March 1959;

(b) child’s insurance benefits for Jane (Woolley)

Turgeon from March 1959 to May 1969) ;

(ec) mother’s insurance benefits for herself from

March 1959 to November 1962.

Inasmuch as the initial determination allowed child’s

insurance benefits for James and Patricia from January

1970, in effect as to these two children the request for

reconsideration contained request that the date of entitle-

ment for each of them be changed from January 1970 to

March 1959, which if approved would provide lump sum

payment for benefits accrued during the period March 1959

through December 1969.

Section 202(d) of the Social Security Act provides for the

payment of monthly benefits to the qualified child of an

insured individual who has filed an application.

Section 202(j) of the Social Security Act and Regulations

No. 4, Section 404.607 of the Social Security Administration

limit the retroactivity of an application for monthly benefits

to twelve months before the month of filing.

Section 404.608 of Regulations No. 4 provides that an

application is considered to be filed as of the date it is

received by the Social Security Administration.

Section 404.613 of the Regulations provides that if an

individual files a written statement with the Social Security

Administration which indicates an intention to claim benefits

and such statements bears his signature, the filing of such

statement shall be considered to be the filing of an

application for such benefits.

The purpose of that Section 404.613 is to provide a flexibility

in giving effect to the congressional intent that persons

having a bona fide claim shall not be denied that claim

merely because of a failure to satisfy the technicalities

irrespective of how necessary for the orderly processing of

the great mass of paper work involved in the administration

of the Social Security Act. In formulating Section 404.613, as

a practical matter it was recognized that only a written

expression or indication of intent to claim Social Security

Benefits should be accepted as being an application for such

benefits because oral statements and responses thereto tend

to be ambiguous and subject to gross misunderstanding even

though everyone involved is acting in great good faith. Thus,

the purpose of requiring that the statement be in writing is

that a reasonable degree of certainty as to facts be

established before determinations are made pursuant to

which substantial payments will be made out of the Social

Security trust funds.

On the total hearing record the Administrative Law Judge

finds that if within one year following the death of Clayton

Woolley application had been filed covering these parties, the

full range of benefits here requested would have been

allowed and paid starting on (effective date) March 31, 1959.

The claimant now requests, in effect, that the inquiry made

by the attorney for her late husband’s estate (then acting

for her and the children) be treated as being an application

filed within the meaning of the Social Security Act as of the

date of the said inquiry which was made within one year after

the date of death by Clayton Woolley.

4d

By letter dated January 3, 1974 (Exhibit 21) Bernard F.

Grabowski, Esquire, stated:

‘‘T represented her interest in the Estate of Clayton E.

Woolley and her brother-in-law, Francis J. nglert,

served as Administrator of said Estate.

“Upon completing her hearing for Workmen's

Compensation and other benefits under Section 5-144

of the Connecticut General Statutes, she made inquiry

of mé as to whether or not she and her children were

entitled to Social Security benefits. I checked into the

matter and phoned the Social Security office in New

Britian, Connecticut. I made inquiry at the office as

to whether or not under the fact situation involved she

and her children would be entitled to benefits. I was

advised that by reason of Workmen’s Compensation

benefits beiag available to her and her children

neither she nor her children were entitled to Social

Security benefits. ‘I so informed her. She took no

further action on this matter.”’

On the record now before the Administrative Law Judge,

he is persuaded and hence hereby finds for purposes of this

proceeding that former Congressman Grabowski did

(promptly after completing the hearing under Section 5-144

of the Connecticut Statutes) make --

“inquiry at the (New Britain Social Security) office

as to whether or not under the fact situation involved

she and her children would be entitled to benefits,”’

and the Administrative Law Judge also hereby finds that

Congressman Grabowski was advised by an employee in that

Social Security office acting in the scope of his or her

employment that --

“by reason of Workmen's Compensation benefits

being available to her and her children, neither she

nor her children were entitled to Social Security

Benefits.”

The date of that inquiry is not clear, but for present

purposes is fixed as being the date of completion of the

~}

5d

mentioned hearing (proceeding) under said Section 5-144,

which date was on (or about) July 31, 1959.

Thus, for purposes of this proceeding, it is established that

the inquiry was in fact made by Congressman Grabowski

acting as attorney for the claimant and the children here

involved, at a determinable date, and that by error or

mistake of an employee of the Social Security Administra-

tion, the attorney was advised that neither the claimant nor

the children were entitled to receive Social Security benefits,

and, but for this error or mistake, a formal application would

have been filed immediately and based thereon as of March

31, 1959, the claimant and each of the three children would

have been awarded Social Security benefits under the

account of Clayton Woolley 048-20-6929. In short the widow

(claimant) was entitled to receive mother’s insurance

benefits and each of the three children were entitled to

receive child’s insurance benefits, starting on (effective

date) and would have but for the mentioned error or mistake

by an employee in the Social Security District Office

involved.

It is believed by the Administrative Law Judge, and

therefore found, that if the inquiry made by former

Congressman Grabowski had been made in writing it would

have been deemed to be a statement of intent to file

application for whatever mother’s insurance benefits the

claimant might be entitled to receive and for whatever

child’s insurance benefits each or any of the three children

might be entitled to receive; therefore if that inquiry by

Congressman Grabowski had been in writing it would have

been considered for all purposes as Constituting an

application for those benefits. The Administrative Law

Judge believes, and therefore finds, that in the hearing

record of this case there is a substantial degree of certainty

that Congressman Grabowski did in fact make the stated

inquiry on (or about July 31, 1959), that it was not ambiguous,

that said inquiry in fact constituted a statement of intent to

claim all social security benefits which might be due to the

claimant and to each of the three children, and that said

statement of intent (although long allowed to remain

dormant because of the mistake or error by a Social Security

employee) was revived as soon as the claimant had reason to

believe such an error may have been made.

The purpose of Section 404.613 in requiring such statements

intention to be in writing having been fully satisfied in this

case that requirement is hereby waived.

Accordingly, the Administrative Law Judge finds that the

inquiry made by Congressman Grabowski constituted a

statement of intent within the meaning of Section 404.613, and

by construction constituted an application for mother’s

insurance benefits for the claimant and child’s insurance

benefits for each of the three children, all as of March 31,

1959. The Administrative Law Judge further finds that these

applications should be and hereby are allowed in full with an

effective date for each as of March 31, 1959. The

Administrative Law Judge further finds that the claimant

individually was entitled to receive mother’s insurance

benefits for the period March 31, 1959 to November 1962; that

the daughter, Jane (Woolley) Ti rgeon, was entitled to

receive child’s insurance benefits from March 31, 1959 to May

1969; and James Woolley and Patricia each were entitled to

receive child’s insurance benefits from March 31, 1959.

It is the decision of the Administrative Law Judge that the

applications for mother’s insurance benefits and for child's

insurance benefits, as above specified and discussed, are

each allowed with an effective date of March 31, 1959.

Thomas E. Bennett

Administrative Law Judge

March 11, 1974

™—., aa? ~

le

APPENDIX E

LETTER OF ATTORNEY GRABOWSKI

DATED JANUARY 3, 1974.

HANRAHAN, GRABOWSKI & HAYES

Attorneys at Law

583 Farmington Avenue

Bristol, Connecticut 06010

January 3, 1974

Honorable Thomas Bennett

Administrative Law Judge

Department of Health, Education and Welfare

Social Security Administration

U.S. Government

Washington, D.C.

Dear Judge Bennett:

Re: Nellie P. (Woolley) Goff

I have been informed that Nellie P. Goff has filed an appeal

regarding Sociel Security benefits for herself and her minor

children which has been heard by yourself or will be heard by

you in the very near future.

This letter is to verify that Nellie P. Goff was married to

Clayton E. Woolley and that they had three minor children at

the time of his death. Clayton E. Woolley met an untimely

death in the course of his employment with the State of

Connecticut Highway Department. At the time of his death

they had three minor children:

2e

Jane Nellie Woolley, born on June 1, 1949;

James Clayton Woolley, born on February 3, 1953; and

Patricia Irene Woolley, born on September 19, 1955.

At the time of Clayton E. Woolley’s death, his wife, Nellie,

was not employed and all three children were below the age

of eighteen years.

I represented her interest in the Estate of Clayton E.

Woolley and her brother-in-law, Francis J. Englert, served

as Administrator of said Estate.

Upon completing her hearing for Workmen’s Compensa-

tion and other benefits under Section 5-144 of the Connecticut

General Statutes, she made inquiry of me as to whether or

not she and her children were entitled to Social Security

benefits. I checked into the matter and phoned the Social

Security office in New Britian, Connecticut. I made inquiry

at the office as to whether or not under the fact situation

involved she and her children would be entitled to benefits. I

was advised that by reason of Workmen’s Compensation

benefits being available to her and her children, she nor her

children were entitled to Social Security benefits.

I so informed her. She took no further action on this

matter.

In January of 1971, she heard a radio or a television

broadcast which stated that benefits might be available to a

person in her situation.

In the interim she married Joseph Goff in November, 1962.

Her oldest child reached majority before January, 1971. This

oldest child married in 1969. The broadcast she heard

coupled with the birthday of her son in February, 1971,

causing her to inquire of the Social Security Department in

New Britian. She was advised by Mrs. Was that she was

entitled to benefits and could have been receiving benefits

from 1959. Having acquired this information she returned to

my office and so advised me. I informed her that I had made

inquiry upon the completion of our Workmen’s Compensation

matter of the Social Security office and was informed that no

benefits were available to her.

She informed me that she would make a request for Social

Security benefits in the very near future which she has done.

I write this letter to make the facts available to you, your

Honor, so that you can decide the matter on its merits; if

indeed she is entitled to Social Security benefits for

contributions made by her husband the cause of justice "vould

be served in her and her children receiving retroactive

benefits.

If you have any further questions of me, your Honor, I

would be too glad to answer them.

Very truly yours,

Bernard F.. Grabowski

if

APPENDIX F

AFFIDAVIT OF ATTORNEY GRABOWSKI

DATED APRIL 10, 1974

AFFIDAVIT

STATE OF CONNECTICUT )

) ss. Bristol

COUNTY OF HARTFORD, )

Personally appeared BERNARD F. GRABOWSKI, an

attorney authorized to practice law in the State of

Connecticut who, upon being duly sworn, desposes and says:

(1)

(2)

(3)

(4)

(5)

(6)

(7)

That be believes in the obligation of an oath;

That he is over the age of 18 years;

That he represented the interests of Nellie P. Goff,

widow of Clayton E. Woolley, individually and as

mother of three minor children, after the death of

Clayton E. Woolley, who died on March 31, 1959:

That in the course of said representation, he appeared

before the Workmen’s Compensation Commission of

Connecticut, and represented in proceedings under Sec.

5-144 of the Connecticut General Statutes;

That upon completion of the hereinbefore mentioned

proceedings, he was consulted by Mrs. Goff relative to

her eligibility, individually and for her minor children,

under the Social Security Act;

That pursuant to said inquiry, he inquired into the

matter and telephoned the Social Security Office in New

Britian, Connecticut;

That he was advised by an employee of the New Britian

Social Security Office that, pursuant to the Workmen’s

Compensation Commission benefits being available to

Mrs. Goff and her minor children, neither she nor her

children were entitled to Social Security benefits;

(8) That the specific date of his inquiry at the Social

Security Office in New Britain is uncertain but that it is

certain that it was in the month of July, 1959.

Bernard F.. Grabowski

Subscribed and sworn to before me this 10th day of April, 1974

James E. Hayes

Commissioner of Superior Court

APPENDIX G

STATUTES AND REGULATIONS INVOLVED

5 USC 556 [c] [8]

(c) Subject to published rules of the agency and within its

powers, employees presiding at hearings may --

(1) administer oaths and affirmations ;

(2) issue subpoenas authorized by law;

(3) rule on offers of proof and receive relevant evidence;

(4) take depositions or have depositions taken when the

ends of justice would be served;

(5) regulate the course of the hearing;

(6) hold conferences for the settlement or simplification

of the issues by consent of the parties;

(7) dispose of procedural requests or similar matters;

(8) make or recommend decisions in accordance with

section 557 of this title; and

2g

42 USCS § 402

{d] Child’s insurance benefits. (1) Every child (as defined in

section 216(e) [42 USCS § 416(e)]) of an individual

entitled to old-age disability insurance benfits, or of an

individual who dies a fully or currently insured

individual, if such child --

(A) has filed application for child’s insurance benefits,

(B) atthe time such application was filed was unmarried

and (i) either had not attained the age of 18 or was a

full-time student and had not attained the age of 22, or

(ii) is under a disability (as defined in section 223(d)

[42 USCS § 423(d)]) which began before he attained

the age of 22 and

(C) was dependent upon such individual --

(i) if such individual is living, at the time such

application was filed,

(ii) if such individual has died, at the time of such

death, or

(iii) if such individual had a period of disability which

continued until he became entitled to old-age or dis-

ability insurance benefits, or (if he has died) until the

month of his death, at the beginning of such period of

disability or at the time he became entitled to such

benefits,

shall be entitled to a child’s insurance benefit for each month,

‘ beginning with the first month after August 1950 in which

such child becomes so entitled to such insurance benefits and

ending with the month preceding whichever of the following

occurs --

(D) the month in which such child dies, or marries,

(E) the month in which such child attains the age of 18,

but only if he (i) is not under a disability (as so

defined) at the time he attains such age, and (ii) is

not a full-time student dur‘ng any part of such month,

(F) if such child was not under a disability (as so

defined at the time he attained the age of 18, the

earlier of --

Se ee eee

3g

42 USCS § 402

(i) the first month during no part of which he is a full-

time student, or

(ii) the month in which he attains the age of 22,

but only if he was not under a disability (as so defined) in

such earlier month, or

(G) if such child was under a disability (as so defined) at

time he attained the age of 18, if he was not under a

disability (as so defined) at such time but was under a

disability (as so defined) at or prior to the time he attained

(or would attain) the age of 22, the third month following

thte month in which he ceases to be under such disability or

(if later) the earlier of --

(i) the first month during no part of which he is a full-

time student, or

(ii) the month in which he attains the age of 22,

but only if he was not under a disability (as so defined) in

such earlier month.

Entitlement of any child to benefits under this subsection on

the basis of the wages and self-employment income of an

individual entitled to disability insurance benefits shall also

end with the month before the first month for which such

individual is not entitled to such benefits unless such

individual is, for such later month, entitled to old-age

insurance benefits or unless he dies in such month. No

payment under this paragraph may be made to a child who

would not meet the definition of disability in section 223(d)

[42 USCS § 423(d)] except for paragraph (1)(b) thereof for

any month in which he engages in substantial gainful

activity.

(2) Such child’s insurance benefit for each month shall, if the

individual on the basis of whose wages and self-employment

income the child is entitled to such benefit has not died prior

to the end of such month, be equal to one-half of the primary

insurance amount of such individual for such month. Such

child’s insurance benefit for each month shall, if such

individual has died in or prior to such month, be equal to

three-fourths of the primary insurance amount of such

individual. :

4g

42 USCS § 402

(3) A child shall be deemed dependent upon his father or

adopting father or his mother or adopting mother at the time

specified in paragraph (1)(c) 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, or

(B) such child had been adopted by some other individual.

For purposes of this paragraph, a child deemed to be a child

of a fully or currently insured individual pursuant to section

216(h)(2)(B) or section 216(h)(3) [42 USCS § 416(h)(2)(B),

(3)] shall be deemed to be the legitimate child of such

individual.

(4) A child shall be deemed dependent upon his stepfather or

stepmother at the time specified in paragraph (1) (C) if, at

such time, the child was living with or receiving at least

one-half of his support from such stepfather or stepmother.

(5) Inthe case of a child who has attained the age of eighteen

and who marries --

(A) an individual entitled to benefits under subsection

(a), (b), (e), (f), (g), or (h) of this section or under section

223(a) [42 USCS § 423(a) ], or

(B) another individual who has attained the age of

eighteen and is entitled to benefits under this subsection.

Such child’s entitlement to benefits under this subsection

shall, notwithstanding the provisions of paragraph (1) but

subject to subsection (s), not be terminated by reason of such

marriage; except that, in the case of such a marriage to a

male individual entitled to benefits under section 223(a) [ 42

USCS § 423(a) } or this subsection, the preceding provisions of

this paragraph shall not apply with respect to benefits for

months after the last month for which such individual is

entitled to such benefits under section 223(a) [42 USCS §

423(a)] or this subsection unless (i) he ceases to be so entitled

by reason of his death, or (ii) in the case of an individual who

ewe awe eno

3g

42 USCS § 402

was entitled to benefits under section 223(a) [42 USCS §

423(a)], he is entitled, for the month following such last

month, to benefits under subsection (a) of this section.

(6) Achild whose entitlement to child’s insurance benefits on

the basis of the wages and self-employment income of an

insured individual terminated with the month preceding the

month in which such child attained the age of 18, or with a

subsequent month, may again become entitled to such

benefits (provided no event specified in paragraph (1) (D)

has occured) beginning with the first month thereafter in

which he --

(A) (i) is a full-time student or is under a disability (as

defined in section 223(d), and (ii) had not attained the age

of 22, or

(B) is under a disability (as so defined) which began

before the close of the 84th month following the month in

which his most recent entitlement to child’s insurance

benefits terminated because he ceased to be under such

disability,

but only if he has filed application for such reentitlement.

Such reentitlement shail end with the month preceding

whichever of the following first occurs:

(C) the first month in which an event specified in

paragraph (1) (D) occurs:

(D) the earlier of (i) the first month during no part of which

he is a full-time student or (ii) the month in which he

attains the age of 22, but only if he is not under a disability

(as so defined) in such earlier month; or

(E) if he was under a disability (as so defined), the third

month following the month in which he ceases to be under

disability or (if later) the earlier of --

(i) the first month during no part of which he is a fulltime

student, or

(ii) the month in which he attains the age of 22.

(7) For the purposes of this subsection --

6g

42 USCS § 402

(A) A “full-time student” is an individual who is in full-

time attendance as a student at an educational institution,

as determined by the Secretary (in accordance with

regulations prescribed by him) in the light of the standards

and practices of the institution involved, except that no

individual shall be considered a ‘‘full-time student”’ if he is

paid by his employer while attending an educational

institution at the request, or pursuant to a requirement, of

his employer.

(B) Exept to the extent provided in such regulations, an

individual shall be deemed to be a full-time student during

any period of nonattendance at an educational institution

at which he has been in full-time attendance if (i) such

period is 4 calendar months or less, and (ii) he shows to the

satisfaction of the Secretary that he intends to continue to

be in full-time attendance at an educational institution

immediately following such period. An individual who

does not meet the requirement of clause (ii) with respect to

such period of nonattendance shall be deemed to have met

such requirement (as of the beginning of such period) if he

is in full-time attendance at an educational institution

immediately following such period.

(C) An *‘educational institution”’ is (i) a school or college or

university operated or directly supported by the United

States, or by any State or local government or political

subdivision thereof, or (ii) a school or college or university

which has been approved by a State or accredited by a

State-recognized or nationally-recognized accrediting

agency or body, or (iii) a nonaccredited school or college or

university whose credits are accepted, on transfer, by not

less than three institutions which are so accredited, for

credit on the same basis as if transferred from an

institution so accredited.

(D) A child who attains age 22 at a time when he is a full-

time student (as defined in subparagraph (A) of this

paragraph and without application of subparagraph (B) of

such paragraph) but has not (at such time) completed the

requirements for, or received, a degree from a four-year

college or university shall be deemed (for purposes of

determining whether his entitlement to benefits under this

ig

42 USCS § 402

subsection has terminated under paragraph (1)(F) and for

purposes of determining his initial entitlement to such

benefits under clause (i) of paragraph (1)(B)) not to have

attained such age until the first day of the first month

following the end of the quarter or semester in which he is

enrolled at such time (or, if the educational institution (as

defined in this paragraph) in which he is enrolled is not

operated on a quarter or semester system, until the first

day of the first month following the completion of the

course in which he is so enrolled or until the first day of the

third month beginning after such time, whichever first

occurs).

(8) In the case of --

(A) An individual entitled to old-age insurance benefits

(other than an individual referred to in subparagraph

(B)), or

(B) an individual entitled to disability insurance benefits,

or an individual entitled to old-age insurance benefits who

was entitled to disability insurance benefits for the month

preceding the first month for which he was entitled to old-

age insurance benefits,

a child of such individual adopted after such individual

became entitled to such old-age or disability insurance

benefits shall be deemed not to meet the requirements of

clause (i) or (iii) of paragraph (1)(C) unless such child --

(C) is the natural child or stepchild of such individual

(including such a child who was legally adopted by such

individual) or

(D) (i) was legally adopted by such individual in an

adoption decreed by a court of competent jurisdiction

within the United States,

(ii) was living with such individual in the United States

and receiving at least one-half of his support from such

individual (I) if he is an individual referred to in

subparagraph (A), for the year immediately before the

month in which such individual became entitled to old-age

8g

42 USCS § 402

insurance benefits, or if such individual had a period of

disability which continued until he had become entitled to

old-age insurance benefits, the month in which such period

of disability began, or (II) if he is an individual referred to

in subparagraph (B), for the year immediately before the

month in which began the period of disability of such

individual which still exists at the time of adoption (or, if

such child was adopted by such individual after such

individual attained age 65, the period of disability of such

individual which existed in the month preceding the month

in which he attained age 65), or the month in which such

individual became entitled to disability insurance benefits,

and (iii) had not attained the age of 18 before he began

living with such individual.

In the case of a child who was born in the one-year period

during which such child must have been living with and

receiving at least one-half of his support from such

individual, such child shall be deemed to meet such

requirements for such period if, as of the close of such period,

such child has lived with such individual in the United States

and received at least one-half of his support from such

individual for substantially all of the period which begins on

the date of birth of such chil¢

(9)(A) A child who is a child of an individual under clause

(3) of the first sentence of section 216(e) [42 USCS § 416(e) ]

and is not a child of such individual under clause (1) or (2)

of such first sentence shall be deemed not to be dependent

on such individual at the time specified in subparagraph

(1)(C) of this subsection unless (i) such child was living

such individual ir. the United States and receiving at least

one-half of his support from such individual (1) for the year

immediately before the month in which such individual

became entitled to old-age insurance benefits or disability

insurance benefits or died, or (II) if such individual had a

period of disability which continued until he had become

entitled to old-age insurance benefits, or disability

98

42 USCS § 402

and (ii) the period during which such child was living with

such individual began before the child attained age 18.

(B) In the case of a child who was born in the one-year

period during which such child must have been living with

and receiving at least one-half of his support from such

individal, such child shall be deemed to meet such

requirements for such period if, as of the close of such

period, such child has lived with such individual in the

United States and received at least one-half of his support

from such individual for substantially all of the period

which begins on the date of such child’s birth.

(g] Mother’s insurance benefits. (1) The widow and every

surviving divorced mother (as defined in section 216(d) [42

USCS § 416(d)]) of an individual who died a fully or

currently insured individual, if such widow or surviving

divorced mother --

(A) is not married,

(B) is not entitled to a widow’s insurance benefit,

(C) is not entitled to old-age insurance benefits, or is

entitled to old-age insurance benefits each of which is less

than three-fourths of the primary insurance amount of

such individual,

(D) has filed application for mother’s insurance benefits,

or was entitled to wife’s insurance benefits on the basis of

the wages and self-employment income of such individual

for the month preceding the month in which he died,

(E) at the time of filing such application has in her care a

child of such individual entitled to a child’s insurance

benefit, and

(F) in the case of a surviving divorced mother --

(i) the child referred to in subparagraph (E) is her son,

daughter, or legally adopted child, and

(ii) the benefits referred to in such subparagraphs are

payable on the basis of such individual’s wages and self-

employment income,

insurance benefits, or died, for the year immediately

before the month in which such period of disability began,

shall (subject to subsection (s)) be entitled to a mother’s

insurance benefit for each month, beginning with the first

10g

42 USCS § 402

month after August 1950 in which she becomes so entitled to

such insurance benefits and ending with the month preceding

the first month in which any of the following occurs: no child

of such deceased individual is entitled to a child’s insurance

benefit, such widow or surviving divorced mother becomes

entitled to an old-age insurance benefit equal to or exceeding

three-fourths of the primary insurance amount of such

deceased individual, she becomes entitled to a widow’s

insurance benefit, she remarries, or she dies. Entitlement to

such benefits shall also end, in the case of a surviving

divorced mother, with the month immediately preceding the

first month in which no son, daughter, or legally adopted

child of such surviving divorced mother is entitled to a child’s

insurance benefit on the basis of the wages and selfemploy-

ment income of such deceased individual.

(2) Such mother’s insurance benefit for each month shall be

equal to three-fourths of the primary insurance amount of

such deceased individual.

(3) In the case of a widow or surviving divorced mother who

marries --

(A) an individual entitled to benefits under subsection (a),

(f), or (h), or under section 223(a) [42 USCS § 423(a) ], or

(B) an individual who has attained the age of eighteen and

is entitled to benefits under subsection (d),

the entitlement of such widow or surviving divorced mother

to benefits under this subsection shall, notwithstanding the

provisions of paragraph (1) but subject to subsection (s), not

be terminated by reason of such marriage; except that, in

the case of such a marriage to an individual entitled to

benefits under section 223(a) [42 USCS § 423(a)] or subsec-

tion (d) of this section, the preceding provisions of this

paragraph shall not apply with respect to benefits for months

after the last month for which such individual is entitled to

such benefits under section 223(a) [42 USCS § 423(a)] or

subsection (d) of this section unless (i) he ceases to be so

entitled by reason of his death, or (ii) in the case of an

individual who was entitled to benefits under section 223(a)

lig

42 USCS § 402

[42 USCS § 423(a)], he is entitled, for the month following

such last month, to benefits under subsection (a) of this

section.

[i] Lump-sum death payments. Upon the death, after

August 1950, of an individual who died a fully or currently

insured individual, an amount equal to three times such

individual’s primary insurance amount, or an amount equal

to $255, whichever is the smaller, shall be paid in a lump sum

to the person, if any, determined by the Secretary to be the

widow or widower of the deceased and to have been living in

the same household with the deceased at the time of death. If

there is no such person, or if such person dies before

receiving payment, then such amount shall be paid --

(1) if all or part of the burial expenses of such insured

individual which are incurred by or through a funeral home

or funeral homes remains unpaid, to such funeral home or

funeral! homes to the extent of such unpaid expenses, but

only if (A) any person who assumed the responsibility for

the payment of all or any part of such burial expenses

files an application, prior to the expiration of two years

after the date of death of such insured individual, request-

ing that such payment be made to such funeral home or

funeral homes, or (B) at least 90 days have elapsed after

the date of death of such insured individual and prior to the

expiration of such 90 days no person has assumed

responsibility for the payment of any of such burial

expenses ;

(2) if all of the burial expenses of such insured individual

which were incurred by or through a funeral home or

funeral homes have been paid (including payments made

under clause (1) to any person or persons, equitably

entitled thereto, to the extent and in the proportions that he

or they shall have paid such burial expenses ;

(3) if the body of such insured individual is not available

for burial but expenses were incurred with respect to such

individual in connection with a memorial service, a

memorial marker, a site for the marker, or any other item

12g

42 USCS § 402

of a kind for which expenses are customarily incurred in

connection with a death and such expenses have been paid,

to any person or persons, equitably entitled thereto, to the

extent and in the proportions that he or they shall have paid

such expenses; or

(4) if any part of the amount payable under this subsection

remains after payments have been made pursuant to

clauses (1), (2), and (3), to any person or persons,

equitably entitled thereto, to the extent and in the

proportions that he or they shall have paid other expenses

in connection with the burial of such insured individual, in

following order of priority: (A) expenses of opening and

closing the grave of such insured individual, (B) expenses

of providing the burial plot of such insured individual, and

(C) any remaining expenses in connection with the burial

of such insured individual.

No payment (cxcept a payment authorized pursuant to

clause (1)(A) of the preceding sentence) shall be made to

any person under this subsection unless application therefor

shall have been filed, by or on behalf of such person (whether

or not legally competent), prior to the expiration of two years

after the date of such insured individual, or unless such

person was entitled to wife’s or husband’s insurance benefits,

on the basis of the wages and self-employment income of

such insured individual, for the month preceding the month

in which such individual died. In the case of any individual

who died outside the forty-eight States and the District of

Columbia after December 1953 and before January 1, 1957,

whose death occured while he was in the active military or

naval service of the United States, and who is returned to any

of such States, the District of Columbia, Alaska, Hawaii, the

Commonwealth of Puerto Rico, the Virgin Islands, Guam, or

Americar Samoa, for interment or reinterment, the

provisions of the preceding sentence shall not prevent

payment to any person under the second sentence of this

subsection if application for a lump-sum death payment with

respect to such deceased individual is filed by or on behalf of

such person (whether or not legally competent) prior to the

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42 USCS § 402

expiration of two years after the date of such interment or

reinterment. In the case of any individual who died outside

the fifty States and the District of Columbia after December

1956 while he was performing service, as a member of a

uniformed service, to which the provision of section 210 (1)

(1) [42 USCS 2d (1) (1) are applicable, and who is returned to

any State, or to any Territory or possession of the United

States, for interment or reinterment, the provisions of the

third sentence of this subsection shall not prevent payment to

any person under the second sentence of this subsection if

application for a lump-sum death payment with respect to

such deceased individual is filed by or on behalf of such

person (whether or not legally competent) prior to the

expiration of two years after the date of such interment or

reinterment.

14g

42 USCS § 405

EVIDENCE AND PROCEDURE FOR ESTABLISHMENT

OF BENEFITS

[a] Rules and regulations. The Secretary shall have full

power and authority to make rules and regulations and to

establish procedures, not inconsistent with the provisions of

this title, which are necessary or appropriate to carry out

such provisions, and shall adopt reasonable and proper rules

and regulations to regulate and provide for the nature and

extent of the proofs and evidence and the method of taking

and furnishing the same in order to establish the right to

benefits hereunder.

(5) After the expiration of the time limitation following any

year in which wages were paid or alleged to have been paid

to, or self-employment income was derived or alleged to have

been derived by, an individual, the Secretary may change or

delete any entry with respect to wages or self-employment

income in his records of such year for such individual or

include in his records of such year for such individual any

omitted item of wages or self-employment income but only --

(A) if an application for monthly benefits or for a

lump-sum death payment was filed within the time

limitation following such year; except that no such change,

deletion, or inclusion may be made pursuant to this sub-

paragraph after a final decision upon the application for

monthly benefits or lump-sum death payment;

(g]. Judicial review. Any individual, after any final decision

of the Secretary made after a hearing to which he was a

party, irrespective of the amount in controversy, may obtain

a review of such decision by a civil action commenced within

sixty days after the mailing to him or notice of such decision

or within such further time as the Secretary may allow.

Such action shall be brought in the district court of the United

States for the judicial district in which the plaintiff resides,

or has his principal place of business, or, if he does not reside

or have his principal place of business within any such

judiciai district, in the United States District Court for the

15g

42 USCS § 405

District of Columbia. As part of his answer the Secretary

shall file a certified copy of the transcript of the record

including ine evidence upon which the findings and decision

complained of are based. The court shall have power to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of

the Secretary, with or without remanding the cause for a

rehearing. The findings of the Secretary as to any fact, if

supported by substantial evidence, shall be conclusive, and

where a claim has been denied by the Secretary or a decision

is rendered under subsection (b) hereof which is adverse to

an individual who was a party to the hearing before the

Secretary, becausé of failure of the claimant or such

individual to submit proof in conformity with any regulation

prescribed under subsection (a) hereof, the court shall

review only the question of conformity with such regulations

and the validity of such regulations. The court shall, on

motion of the Secretary made before it files its answer,

remand the case to the Secretary for further action by the

Secretary, and may, at any time, on good cause shown, order

additional evidence to be taken before the Secretary, and the

Secretary shall, after the case is remanded, and after

hearing such additional evidence if so ordered, modify or

affirm his findings of fact or his decision, or both, and shall

file with the court any such additional and modified findings

of fact and decision, and a transcript of the additional record

and testimony upon which his action in modifying or

affirming was based. Such additional or modified findings of

fact and decision shall be reviewable only to the extent

provided for review of the original findings of fact and

decision. The judgment of the court shall be final except that

it shall be subject to review in the same manner as a

judgment in other civil actions. Any action instituted in

accordance with this subsection shall survive notwithstand-

ing any change in the person occupying the office of

Secretary or any vacancy in such office.

16g

20 CFR 404.601 [b]

Section 404.601 (b) of Social Security Administration

Regulations No. 4 provides, in pertinent part, that the term

‘applicant’ refers to the individual who has filed an

application on his own behalf or on behalf of another for

monthly benefits.

17g

20 CFR 404.601 [c]

Section 404.601 (c) of the regulations indicates that the

term ‘‘application’’ refers only to an application on a form

prescribed in section, 404.602 and includes an application for

monthly benefits.

18g

20 CFR 404.601 [d]

Section 404.601 (d) provides that an individual has not

‘filed an application’’ for purposes of section 202 of the Act

until an application on a form prescribed in section 404.602

has been filed in accordance with the regulations in Subpart

G.

19g

20 CFR 404.601 [e]

Section 404.601 (e) of the regulations provides that the term

‘“‘to execute an application’’ means the completion and

signing of the application (or written statement, requests, or

notice. )

208

20 CFR 404.613

‘* .. § 404.613 of these regulations provides, that if an

individual files a written statement with the Social

Security Administration, which indicates an intention

to claim benefits and such statement bears his signa-

ture, the filing of such statement shall be considered

to be the filing of an application for such benefits.

Thus the administrative purpose of the Act and its

supporting regulations were specifically designed to

assure, that only a written expression of intent to

claim Social Security Benefits should be accepted and

considered as valid application under the law .. .”’

KEKKE

‘The Social Security Act, supplemented by its

regulations, was intended to eliminate or at least

reduce to a minimum the possibility of fraud, confu-

sion, and laxity in its administration. The vastness of

the program makes it essential to adhere to the

written application procedure, if there is to be an

orderly and controllable system of management for

approving claims paying out insurance benefits.”’

(4-5a).*