AR 86-11(11): Autrey v. Harris , 639 F.2d 1233 (5th Cir. 1981) -- Interpretation of the Secretary's Regulation Regarding Presumption of Death -- Title II of the Social Security Act

(Rescinded 7/14/95; see 60 FR 19163, 20 CFR 404.721(b))

AR 86-11(11)

EFFECTIVE DATE: 4/2/86

ISSUE:

Whether a presumption of death which must be rebutted by SSA arises under

20 C.F.R. 404.721(b) once a claimant shows that an individual has been

absent from his or her residence and has not been heard from for seven

years or whether the presumption only arises if the claimant also proves

there is no apparent reason for the absence.

STATUTE/REGULATION/RULING CITATION:

Section 205(a) and 205(g) of the Social Security Act, (42 U.S.C. 405(a)

and 405(g)); 20 C.F.R. 404.721(b); SSR 80-10c [1]

CIRCUIT:

ELEVENTH (ALABAMA, FLORIDA,

GEORGIA) [2]

Autrey v. Harris , 639 F.2d 1233 (5th Cir. 1981)

APPLICABILITY OF RULING:

DESCRIPTION OF CASE:

In 1970, Leona Autrey, the plaintiff in this case, applied for child's

benefits on behalf of her son and two daughters on the earnings record of

the worker, Herman George Fisher. Mr. Fisher was the natural father of

plaintiff's son and the adoptive father of her two daughters. Mr. Fisher

disappeared in 1969. The plaintiff sought to establish the fact of his

death in accordance with the Secretary's presumption of death regulation,

20 C.F.R. 404.704(a), which stated:

Plaintiff was divorced from Mr. Fisher in 1967, but testified that there

was no hostility and that both she and the children had frequent contact

with him after the divorce until 1969 when he disappeared. Mr. Fisher was

last heard from when he left the Kansas City airport, piloting a small

plane, and radioed an airport for weather information for a flight to Las

Vegas. The plane has never been found.

divorced from Mr. Fisher in 1967, but testified that there

was no hostility and that both she and the children had frequent contact

with him after the divorce until 1969 when he disappeared. Mr. Fisher was

last heard from when he left the Kansas City airport, piloting a small

plane, and radioed an airport for weather information for a flight to Las

Vegas. The plane has never been found.

Leona Autrey's application for child's benefits for her children based on

the worker's earnings record was denied initially and upon

reconsideration. On her further appeal to the administrative hearing

level, the administrative law judge (ALJ) ruled against her, on the basis

that she had not proven that Mr. Fisher's disappearance was "unexplained"

within the meaning of 20 C.F.R. 404.705(a). The ALJ held that personal,

legal and familial difficulties constituted sufficient explanation for the

disappearance and identity change. The ALJ based this conclusion on the

fact that Mr. Fisher had failed to file income tax returns in the three

years before his disappearance, evidence of minor family difficulties,

and, a suggestion that he was attempting to avoid making child support

payments. The ALJ's decision stood as the final decision of the

Secretary.

Upon plaintiff seeking judicial review, the U.S. District Court for the

Eastern District of Texas affirmed the Secretary's decision. Plaintiff

then appealed to the Court of Appeals for the Fifth Circuit. The Court of

Appeals heard the appeal and reversed the decision of the district

court.

HOLDING:

Regarding the presumption of death regulation, the court held that:

n of the

Secretary.

Upon plaintiff seeking judicial review, the U.S. District Court for the

Eastern District of Texas affirmed the Secretary's decision. Plaintiff

then appealed to the Court of Appeals for the Fifth Circuit. The Court of

Appeals heard the appeal and reversed the decision of the district

court.

HOLDING:

Regarding the presumption of death regulation, the court held that:

Following the formulation of the Ninth Circuit Court of Appeals in Secretary of Health, Education and Welfare v. Meza , 368 F.2d 389,

392 (9th Cir. 1966), the Fifth Circuit held that the Secretary could

overcome the presumption either (i) by presenting evidence that the person

is alive or (2) by proving facts "that rationally explain the anomaly of

the disappearance in a manner consistent with continued life."

Citing Aubrey v. Richardson , 462 F.2d 782 (3rd Cir. 1972) and Meza , the court stated that the burden on the Secretary "requires

more than mere conjecture as to possible explanations." 639 F.2d at 1235.

In this case, the court held that Mr. Fisher's failure to file tax returns

even before his disappearance, his attempts to avoid child support

payments and alleged minor family difficulties were insufficient to rebut

the presumption, and did not justify a conclusion that he had feigned

disappearance and changed his identity.

STATEMENT AS TO HOW AUTREY DIFFERS FROM SOCIAL SECURITY

POLICY:

By the terms of 20 C.F.R. 404.721(b), the presumption of death arises only

when an individual "has been absent from his or her residence for no

apparent reason, and has not been heard from, for at least 7 years." This

regulation has been interpreted by SSA to mean that a plaintiff bears the

burden of proving three elements to raise a presumption of an individual's

death; namely, that the individual has disappeared, that the disappearance

has lasted for seven years, and that there is no apparent reason for the

disappearance.

no

apparent reason, and has not been heard from, for at least 7 years." This

regulation has been interpreted by SSA to mean that a plaintiff bears the

burden of proving three elements to raise a presumption of an individual's

death; namely, that the individual has disappeared, that the disappearance

has lasted for seven years, and that there is no apparent reason for the

disappearance.

The decision of the Court of Appeals for the Fifth Circuit in Autrey holds that the plaintiff only bears the burden of proving

the first two elements in order to raise the presumption, and that SSA

bears the burden of rebutting the presumption, either by presenting

evidence that the missing individual is alive or by providing an

explanation, other than death, to account for the individual's absence in

a manner consistent with continued life rather than death.

EXPLANATION OF HOW SSA WILL APPLY THE AUTREY DECISION WITHIN

THE CIRCUIT:

This ruling applies only in cases in which the claimant resides in

Alabama, Florida, or Georgia at the time of the determination or decision

at any level of administrative review, i.e., initial, reconsideration,

administrative law judge hearing or Appeals Council review.

In cases which involve 20 C.F.R. 404.721(b), the presumption of death

arises if the claimant presents evidence that the individual has been

absent from his or her residence and not heard from for seven years. The

agency then must bear the burden under the Autrey holding of

rebutting the presumption, either by presenting evidence that the missing

individual is alive or by providing an explanation, other than death, to

account for the individual's absence in a manner consistent with continued

life rather than death.

EFFECTIVE DATE:

Date of Publication

dence and not heard from for seven years. The

agency then must bear the burden under the Autrey holding of

rebutting the presumption, either by presenting evidence that the missing

individual is alive or by providing an explanation, other than death, to

account for the individual's absence in a manner consistent with continued

life rather than death.

EFFECTIVE DATE:

Date of Publication

[1] SSR 80-10c is a ruling

of nonacquiescence previously issued on the presumptions of death issue

with regard to the Sixth Circuit's decision in Johnson v. Califano ,

607 F.2d 1178 (1979). A ruling of acquiescence now is being issued with

regard to Johnson , which will supersede SSR 80-10c .

[2] Autrey is a Fifth

Circuit case. However, the Eleventh Circuit formerly was part of the Fifth

Circuit and Fifth Circuit decisions issued before October 1, 1981, which Autrey was, are precedent for the Eleventh Circuit. See Bonner

v. City of Prichard, Alabama , 661 F.2d 1206 (11th Cir. 1981).

[3] 20 C.F.R. 404.705(a) has

been revised and recodified at 20 C.F.R. 404.721(b) effective June 7,

1978. (See 20 C.F.R. 404.721(b) (1985).) The revised regulation has

eliminated "unexplainedly absent" and has substituted "absent from his or

her residence for no apparent reason." The revision, however, did not

change policy concerning the presumption of death.