AR 86-6(3): Aubrey v. Richardson , 462 F.2d 782 (3rd Cir. 1972); Shelnutt v. Heckler , 723 F.2d 1131 (3rd Cir. 1983) -- 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(Rescinded 7/14/95; see 60 FR 19163, 20 CFR 404.721(b))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 86-6(3)

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:

THIRD (DELAWARE, NEW JERSEY, PENNSYLVANIA, VIRGIN ISLANDS)

APPLICABILITY OF RULING:

DESCRIPTION OF CASE(S):

Aubrey

In 1969, Florence Aubrey, the plaintiff in this case, applied for child's

benefits for her two minor children, on the earnings record of the worker,

John W. DeMasse, who was her former husband and their father. Since there

was no record that Mr. DeMasse had died, the plaintiff sought to establish

the fact of his death pursuant to the Secretary's presumption of death

regulation, 20 C.F.R. 404.705, which stated:

Plaintiff married Mr. DeMasse in 1952, separated from him "at least

twelve times," and filed numerous suits against him for nonsupport, as a

result of which he served several short jail terms. Mr. DeMasse was last

heard from on June 8, 1961, the day of his release from the latest jail

sentence, at which time he telephoned the plaintiff. Since that date,

attempts to locate him through friends and acquaintances and by the

authorities proved fruitless. No earnings were posted to his Social

Security earnings record after his disappearance. There also was evidence

that Mr. DeMasse had borrowed money from loan sharks which he had not

repaid, and that they had come looking for him prior to his prison

sentence, but not after his release

date,

attempts to locate him through friends and acquaintances and by the

authorities proved fruitless. No earnings were posted to his Social

Security earnings record after his disappearance. There also was evidence

that Mr. DeMasse had borrowed money from loan sharks which he had not

repaid, and that they had come looking for him prior to his prison

sentence, but not after his release. Plaintiff obtained a divorce from Mr

DeMasse in 1962, and an ex parte decree from the Philadelphia

Orphans Court granting her letters of administration, based on his

presumed death, in 1968.

After being denied initially and upon reconsideration, Florence Aubrey's

application for child's benefits was allowed by the hearing

examiner. [3] However, reviewing

the case on its own motion, the Appeals Council issued a final decision

which denied benefits on the basis that the disappearance was not

"unexplained" within the meaning of 20 C.F.R. 404.705 and, therefore, that

the worker's death was not established.

Florence Aubrey sought judicial review in the U.S. District Court for the

Eastern District of Pennsylvania which reversed the Secretary's decision

and awarded benefits to her for the children. The Secretary appealed to

the Court of Appeals for the Third Circuit which affirmed the decision of

the district court.

Shelnutt

Martha Shelnutt, the plaintiff in this case, applied for mother's

benefits for herself and child's benefits for her daughter on the earnings

record of the worker, James Shelnutt, who was her former husband and the

child's father. Plaintiff contended that Mr. Shelnutt's death should be

presumed, by application of 20 C.F.R. 404.721(b).

ffirmed the decision of

the district court.

Shelnutt

Martha Shelnutt, the plaintiff in this case, applied for mother's

benefits for herself and child's benefits for her daughter on the earnings

record of the worker, James Shelnutt, who was her former husband and the

child's father. Plaintiff contended that Mr. Shelnutt's death should be

presumed, by application of 20 C.F.R. 404.721(b).

Mr. Shelnutt was a self-employed stockbroker who was last heard from when

he left his home in Seattle in April 1971, telling his family that he was

going to a silver mine in Idaho on business. He took with him enough

luggage for a short trip and approximately $18,000 in cash from investors.

After his disappearance, the Seattle police issued a warrant for his

arrest on charges of grand larceny. Subsequently, plaintiff obtained a

divorce from Mr. Shelnutt in Washington and obtained a Court of Chancery

decree of his presumed death in Delaware.

Martha Shelnutt's applications for mother's and child's benefits were

denied at all levels of the administrative appeals process. The ALJ found

that Mr. Shelnutt could not be presumed dead under 20 C.F.R. 404.721(b)

since evidence of marital and financial difficulties and the arrest

warrant concerning the disappearance of funds constituted an explanation

other than death which accounted for his continued absence.

The ALJ's decision stood as the final decision of the Secretary, and

Martha Shelnutt sought judicial review in the U.S. District Court for the

District of Delaware which affirmed the Secretary's decision. Martha

Shelnutt then appealed to the Court of Appeals for the Third Circuit which

reversed the decision of the district court and awarded benefits to

plaintiff for herself and her child.

HOLDINGS:

Aubrey

tood as the final decision of the Secretary, and

Martha Shelnutt sought judicial review in the U.S. District Court for the

District of Delaware which affirmed the Secretary's decision. Martha

Shelnutt then appealed to the Court of Appeals for the Third Circuit which

reversed the decision of the district court and awarded benefits to

plaintiff for herself and her child.

HOLDINGS:

Aubrey

Relying on Ninth Circuit case law in Secretary of Health, Education

and Welfare v. Meza , 368 F.2d 389, 392 (9th Cir. 1966), the Third

Circuit Court of Appeals held that "[W]hen the facts show that a person

has been absent from his residence and unheard of for a period of seven

years, a presumption arises that he is dead." The court citing Gardner

v. Wilcox , 370 F.2d 492, 494 (9th Cir. 1966) added that the

presumption having been established, "[t]he burden of explanation then

shifts to the Secretary, and the presumption can be dissipated 'by proof

of facts that rationally explain the anomaly of the disappearance in a

manner consistent with continued life.'"

The court further stated that when the Secretary infers an explanation

from conflicting facts, the explanation must be supported by facts "which

do -- not merely may -- 'rationally explain the anomaly of the

disappearance in a manner consistent with continued life.'" Specifically,

the court found that the fact that Mr. DeMasse had sought to avoid child

support payments, and the fact that he had served prison sentences for

desertion and non-support constituted too conjectural an explanation for

disappearance to rebut the presumption of

death. [4]

Shellnutt

onally explain the anomaly of the

disappearance in a manner consistent with continued life.'" Specifically,

the court found that the fact that Mr. DeMasse had sought to avoid child

support payments, and the fact that he had served prison sentences for

desertion and non-support constituted too conjectural an explanation for

disappearance to rebut the presumption of

death. [4]

Shellnutt

Reiterating its holding in Aubrey , the Court of Appeals held that

the "burden of proof is dispositive" and requires judgment for the

plaintiff where "[e]ach side has advanced a plausible scenario -- the

Secretary that Shelnutt fled marital and financial problems by absconding

with other people's money, and the claimant that her husband was killed

while on a legitimate business trip, possibly by someone who knew he was

carrying a large sum of cash." In finding for the plaintiff the court

pointed to the fact that the evidence did not establish that the worker's

financial or marital difficulties were more serious than they had been for

a long time prior to the disappearance.

STATEMENT AS TO HOW AUBREY AND SHELNUTT DIFFER 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 decisions of the Court of Appeals for the Third Circuit in the above

cases hold 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 AUBREY AND SHELNUTT DECISIONS WITHIN THE CIRCUIT:

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

Delaware, New Jersey, Pennsylvania or the Virgin Islands 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 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

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

agency then must bear 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.

EFFECTIVE DATE:

Date of Publication

[1] SSR 80-10c is a ruling

of nonacquiescence previously issued on the presumption 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] 20 C.F.R. 404.705 was

recodified, without revision, at 20 C.F.R. 404.705(a) effective December

18, 1974, and was revised and recodified at 20 C.F.R. 404.721(b) effective

June 7, 1978. The revised regulation eliminated "unexplainedly absent" and

substituted "absent from his or her residence for no apparent reason." The

revision, however, did not change policy concerning the presumption of

death.

[3] Hearing examiners now are

known as administrative law judges (ALJ's).

[4] The court contrasted its

conclusion in Aubrey with its decision in Miller v. Richardson, 457

F.2d 378 (1972). In Miller , the evidence showed that the worker

left the family home shortly after a woman, whom he had been seeing, also

disappeared, and that he phoned his wife several days after his

disappearance to state that he intended to begin a new life in California.

On these facts, the Court of Appeals affirmed the Secretary's decision on

substantial evidence grounds finding that Miller's disappearance was not

unexplained and implicit in his departure was an intention to continue

living.