AR 86-8(6): Johnson v. Califano , 607 F.2d 1178 (6th Cir. 1979) -- 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(Rescinded 7/14/95; see 60 FR 19163, 20 CFR 404.721(b))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 86-8(6)

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), (42 U.S.C. 405(a) and 405(g)); 20 C.F.R.

404.721(b); SSR

80-10c

CIRCUIT:

SIXTH (MICHIGAN, OHIO, KENTUCKY, TENNESSEE)

Johnson v. Califano , 607 F.2d 1178 (6th Cir. 1979)

APPLICABILITY OF RULING:

DESCRIPTION OF CASE:

In 1973, Geraldine Johnson applied for child's benefits on behalf of her

daughter, Kathy Ross on the earnings record of the worker, Danny D. Ross,

Kathy's father. Since there was no record of Mr. Ross' death, 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(a), which

stated:

Ms. Johnson and Mr. Ross met in 1964 and had a short-lived and tumultuous

relationship. Mr. Ross was a heavy drinker and, throughout their

relationship, the couple was accustomed to violent physical fights. Ms.

Johnson and Mr. Ross were married in December 1964, at which time Ms.

Johnson was five months pregnant with Kathy. The last time Ms. Johnson saw

Mr. Ross was in 1965, when he visited his two-week old daughter. Ms.

Johnson had stated that Mr. Ross showed no fatherly affection for his

new-born child and spent a part of the visit at a house of ill- repute.

The last time Ms. Johnson heard from Mr. Ross was in November 1965, when

he sent her a letter from his army service post in Germany.

nant with Kathy. The last time Ms. Johnson saw

Mr. Ross was in 1965, when he visited his two-week old daughter. Ms.

Johnson had stated that Mr. Ross showed no fatherly affection for his

new-born child and spent a part of the visit at a house of ill- repute.

The last time Ms. Johnson heard from Mr. Ross was in November 1965, when

he sent her a letter from his army service post in Germany.

Early in 1066, the Army reassigned Mr. Ross to a new service post in

Thailand. Along with the reassignment, he was given thirty days leave in

the United States and was scheduled to report to San Francisco on February

10, 1966. However, Mr. Ross failed to report as scheduled. The last known

trace of Mr. Ross was on February 14, 1966, when he picked up his Army

paycheck in Washington, D.C. He was classified as AWOL on March 3, 1966,

and as a deserter on April 1, 1966. Since the disappearance, Mr. Ross'

parents have not heard from him and no wage earnings have been reported

under his Social Security number.

Ms. Johnson's application was denied initially and upon reconsideration.

On her further appeal to the hearing level, the administrative law judge

(ALJ) found that Ms. Johnson had established the worker's death in

accordance with 20 C.F.R. 404.705(a) and awarded benefits to her for her

child. However, Ms. Johnson appealed this decision to the Appeals Council

on the ground that the ALJ had incorrectly set the date for the award of

benefits. The Appeals Council granted review, found that the evidence of

record provided "logical reasons" other than death to explain the

prolonged absence of Mr. Ross (e.g., the desire either to avoid court

martial for desertion or to escape the difficulties of his marriage), and

reversed the award of benefits.

on the ground that the ALJ had incorrectly set the date for the award of

benefits. The Appeals Council granted review, found that the evidence of

record provided "logical reasons" other than death to explain the

prolonged absence of Mr. Ross (e.g., the desire either to avoid court

martial for desertion or to escape the difficulties of his marriage), and

reversed the award of benefits.

Ms. Johnson sought judicial review in the U.S. District Court for the

Western District of Kentucky which reversed the decision of the Secretary.

The Secretary then appealed to the Court of Appeals for the Sixth Circuit,

which affirmed the district court decision.

HOLDING:

Johnson

Regarding the presumption of death regulation, the court adopted the

following rule:

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 Sixth Circuit held that the Secretary could

overcome the presumption by making an affirmative showing either that the

"missing person is alive" or that "the anomaly of the disappearance [is]

consistent with continued life."

The court recognized that pre-departure evidence may support a finding

that the worker's absence is not unexplained. However, it found that the

mere presence of difficulties, from which a plausible explanation for a

disappearance may be inferred, is insufficient, to rebut a presumption of

death. To rebut such a presumption, the court held that the Secretary must

establish a more direct explanation of flight. On the facts of the instant

case, the court held that evidence regarding Mr. Ross' marital and career

difficulties was insufficient to rebut the presumption and did not justify

a conclusion that he had feigned disappearance and changed his

identity. [2]

STATEMENT AS TO HOW JOHNSON DIFFERS FROM SOCIAL SECURITY

POLICY:

at the Secretary must

establish a more direct explanation of flight. On the facts of the instant

case, the court held that evidence regarding Mr. Ross' marital and career

difficulties was insufficient to rebut the presumption and did not justify

a conclusion that he had feigned disappearance and changed his

identity. [2]

STATEMENT AS TO HOW JOHNSON 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 means that a claimant 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 Sixth Circuit in Johnson 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 JOHNSON DECISION WITHIN

THE CIRCUIT:

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

Michigan, Ohio, Kentucky or Tennessee at the time of the determination of

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

reconsideration, administrative law judge hearing or Appeals Council

review.

ontinued life rather than death.

EXPLANATION OF HOW SSA WILL APPLY THE JOHNSON DECISION WITHIN

THE CIRCUIT:

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

Michigan, Ohio, Kentucky or Tennessee at the time of the determination of

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

[1] 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.

[2] The Court of Appeals

referred to the facts in Dowell v. Gardner , 386 F.2d 809 (6th Cir.

1967) as an example of evidence that points sufficiently directly to an

explanation other than death for a worker's disappearance. In , the court,

without discussing the evidentiary burdens of the parties, affirmed the

final decision of the Secretary denying child's benefits where the worker

(1) deserted the child of an earlier marriage, (2) burned the trailer

which was the family residence of the current claimants after his wife

filed for divorce, and (3) had wages posted to his earnings record in the

year following his disappearance.