AR 86-9(9): Secretary of Health, Education and Welfare v. Meza , 368 F.2d 389 (9th Cir. 1966); Gardner v. Wilcox , 370 F.2d 492 (9th Cir. 1966) -- 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(Rescinded 7/14/95; see 60 FR 19163, 20 CFR 404.721(b))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 86-9(9)

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 resi- dence 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:

NINTH (ALASKA, ARIZONA, CALIFORNIA, HAWAII, IDAHO, MONTANA, NEVADA,

OREGON, WASHINGTON, GUAM, NORTHERN MARIANA ISLANDS)

Secretary of Health, Education and Welfare v. Meza , 368 F.2d 389

(9th Cir. 1966)

Gardner v. Wilcox , 370 F.2d 492 (9th Cir. 1966)

APPLICABILITY OF RULING:

DESCRIPTION OF CASE(S):

Meza

In 1962, Lucy Meza, the plaintiff in this case, applied for mother's

benefits for herself and child's benefits on behalf of her children on the

earnings record of the worker, Domingo Meza, who was her husband, the

natural father of two of her children, and the stepfather of two other

children, born to her by a prior liaison. Since there was no record of the

worker's death, Lucy Meza sought to establish his death pursuant to the

Secretary's presumption of death regulation, 20 C.F.R. 404.705. This

regula- tion stated:

ren on the

earnings record of the worker, Domingo Meza, who was her husband, the

natural father of two of her children, and the stepfather of two other

children, born to her by a prior liaison. Since there was no record of the

worker's death, Lucy Meza sought to establish his death pursuant to the

Secretary's presumption of death regulation, 20 C.F.R. 404.705. This

regula- tion stated:

Plaintiff had not seen Mr. Meza since June 19, 1948, when he left their

home with his clothing, car, and a week's pay, while she was out shopping.

Plaintiff stated that she and Mr. Meza were not having any particular

marital or financial problems, that he did not have mental problems, and

that he was not involved in criminal activities. The evidence showed that

Mr. Meza was alive as late as the third quarter of 1954, when he was

working for an employer in Houston, Texas who reported his earnings for

Social Security purposes. Mr. Meza quit this job without notice or

explanation on July 14, 1954, and has not been heard from since. Upon a

petition filed by Lucy Meza to be appointed the adminis- tratrix of his

estate, the Superior Court of Los Angeles County, California entered a

decree on January 3, 1962 presuming Domingo Meza dead, as of June 19,

1955.

Lucy Meza's applications for child's and mother's benefits were denied

initially and upon reconsideration, and after an administrative hearing.

The hearing examiner [3] held

that the worker's absence was not unexplained within the meaning of 20

C.F.R. 404.705. The examiner based his conclusion on the fact that Mr.

Meza was alive as late as 1954, that he quit his job in Houston at that

time without notice, and that, in 1951, he had told the employer that he

had no dependents and listed a fictitious (or at least erroneous) address

on his work record. The examiner also stated that Mr. Meza may have been

trying to avoid making child support payments to Lucy Meza or to his first

wife, from whom he had been divorced in 1945.

as 1954, that he quit his job in Houston at that

time without notice, and that, in 1951, he had told the employer that he

had no dependents and listed a fictitious (or at least erroneous) address

on his work record. The examiner also stated that Mr. Meza may have been

trying to avoid making child support payments to Lucy Meza or to his first

wife, from whom he had been divorced in 1945.

The hearing examiner's decision stood as the final decision of the

Secretary, and was appealed by Lucy Meza to the U.S. District Court for

the Southern District of California. The district court reversed the

decision of the Secretary and awarded benefits to plaintiff for herself

and the children. Upon appeal by the Secretary, the Ninth Circuit Court of

Appeals affirmed the decision of the district court.

Wilcox

Wanda Wilcox, the plaintiff in this case, applied for mother's benefits

for herself and child's benefits on behalf of her children on the earnings

record of the worker, Bill Wilcox, who was her husband and the natural

father of three children born of the marriage. As in Meza , since

there was no record of Mr. Wilcox' death, the plaintiff sought to

establish the fact of his death pursuant to 20 C.F.R. 404.705.

Plaintiff and the worker were married in 1937, and he disappeared on March

30, 1953, while she was expecting their third child. The evidence showed

that Mr. Wilcox was employed by the State National Guard in Washington. On

March 30, 1953, he travelled from his home to another city in Washington

to seek employment, having indicated a belief that his current job would

be terminat- ed. The following day, the National Guard called plaintiff in

an effort to reach Mr. Wilcox and told her that a sum of money under his

charge was missing. When plaintiff reached her husband the following day

by phone, he advised her he would come home to resolve matters

ome to another city in Washington

to seek employment, having indicated a belief that his current job would

be terminat- ed. The following day, the National Guard called plaintiff in

an effort to reach Mr. Wilcox and told her that a sum of money under his

charge was missing. When plaintiff reached her husband the following day

by phone, he advised her he would come home to resolve matters. Instead,

she received a letter from him on April 2, which reflected a confused

state, advising her of where to find his car and ending with goodbye. Mr.

Wilcox's car was found at the place designated by him in the letter he had

sent to the plaintiff. The location of the car was near a river, which was

swift and deep. A search was conducted, but his body was not

discovered.

Wanda Wilcox's applications for child's and mother's benefits were denied

initially, upon reconsideration, and after an admin- istrative hearing.

The hearing examiner held that the worker's absence was not unexplained

within the meaning of 20 C.F.R. 404.705, but was explained by the fact

that he anticipated being charged with embezzlement.

The hearing examiner's decision stood as the final decision of the

Secretary, and was appealed by Wanda Wilcox to the U.S. District Court for

the Eastern District of Washington. The district court reversed the

decision of the Secretary and awarded benefits to plaintiff for herself

and the children. Upon appeal by the Secretary, the Court of Appeals for

the Ninth Circuit vacated the judgment of the district court, and remanded

the case to the Secretary for the hearing examiner to further develop

evidence and make findings regarding the alternative probabili- ties for

Mr. Wilcox's disappearance.

HOLDINGS:

Meza

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

dren. Upon appeal by the Secretary, the Court of Appeals for

the Ninth Circuit vacated the judgment of the district court, and remanded

the case to the Secretary for the hearing examiner to further develop

evidence and make findings regarding the alternative probabili- ties for

Mr. Wilcox's disappearance.

HOLDINGS:

Meza

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

In affirming the award of benefits by the district court, the Court of

Appeals held that the Secretary had failed to meet the burden of showing

an explanation, other than death, to account for the worker's

disappearance in 1954. The court found that the wage postings to Mr.

Meza's Social Security record through 1954 constituted "evidence to the

contrary", within the meaning of the regulation, which rebutted the

presumption that Mr. Meza died when he disappeared in 1948. However, in

relation to the absence which began in 1954, the court stated that "there

are no facts shown by the record that rationally explain the second

disappear- ance at all, much less in a manner consistent with life."

Wilcox

Reiterating the standard it had set forth in Meza , the Court of

Appeals held that the hearing examiner erred since he decided the case by

applying the standard that "if any explanation [of the absence] is

forthcoming, then it must be said as a matter of law that the absence is

not unexplained." (emphasis in original) The court held that, on remand,

the hearing examiner must consider the alternative probabilities of flight

and suicide and, if flight should appear more likely, the probability of

the subsequent death of the worker. Among other factors, the court

directed the examiner to consider the absent individual's age, health,

stability of character, extent and strength of family ties, and the

efforts made by the FBI to find him.

STATEMENT AS TO HOW MEZA AND WILCOX DIFFER FROM SOCIAL

SECURITY POLICY:

and suicide and, if flight should appear more likely, the probability of

the subsequent death of the worker. Among other factors, the court

directed the examiner to consider the absent individual's age, health,

stability of character, extent and strength of family ties, and the

efforts made by the FBI to find him.

STATEMENT AS TO HOW MEZA AND WILCOX 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.

The decisions of the Court of Appeals for the Ninth 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 MEZA AND WILCOX DECISIONS WITHIN THE CIRCUIT:

This ruling applies only to cases where the claimant resides in Alaska,

Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington,

Guam, or the Northern Mariana 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.

DECISIONS WITHIN THE CIRCUIT:

This ruling applies only to cases where the claimant resides in Alaska,

Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington,

Guam, or the Northern Mariana 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

[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. (See 20 C.F.R. 404.721(b) (1985).) 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).