AR 93-6(8): Brewster on Behalf of Keller v. Sullivan , 972 F.2d 898 (8th Cir. 1992)-- 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(Rescinded 7/14/95; see 60 FR 19163, 20 CFR 404.721(b))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 93-6(8)

EFFFECTIVE DATE: 08/16/93

Issue

Whether a presumption of death which must be rebutted by the Social

Security Administration (SSA) arises under 20 CFR 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

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

and 405(g)); 20 CFR 404.721(b).

Circuit

Eighth (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South

Dakota)

Brewster on Behalf of Keller v. Sullivan , 972 F.2d 898 (8th Cir.

1992)

Applicability of Ruling

This ruling applies to determinations or decisions at all administrative

levels (i.e., initial, reconsideration, Administrative Law Judge hearing

and Appeals Council review).

Description of Case

Plaintiff Sherry Brewster's husband, Joseph Keller, was a pilot and

airplane mechanic employed by Air Cortez, located in Ontario, California.

Keller has been missing since May 1980.

In 1981 and 1984, plaintiff filed applications for survivors' benefits on

behalf of the couple's two minor children. The evidence developed in

processing the claims showed that, in April 1980, Keller supposedly

piloted a company DC-3 airplane from Ontario, California to San Antonio,

Texas for modifications. Keller later telephoned the company president to

inform him that he had arrived in San Antonio and that he would return to

Ontario on May 9 or 10 after the modifications were completed. When Keller

failed to arrive, the company president called the San Antonio airport and

learned that Keller had never appeared, and further discovered that a

company credit card was missing. A police report was subsequently

filed.

company president to

inform him that he had arrived in San Antonio and that he would return to

Ontario on May 9 or 10 after the modifications were completed. When Keller

failed to arrive, the company president called the San Antonio airport and

learned that Keller had never appeared, and further discovered that a

company credit card was missing. A police report was subsequently

filed.

The Ontario police contacted the San Antonio police and learned that

Keller had been under investigation for drug smuggling. According to the

police report, the airplane had not landed at the San Antonio airport as

Keller had reported; rather, the plane had landed at an airport in Waco,

Texas, where Keller and a man named John Flowers had been from April 27

until May 9, 1980. On May 9, 1980, the airplane had refueled with 800

gallons of gasoline, which had been charged with the company credit card.

Drug agents reported seeing the airplane depart in a southerly direction,

and a confidential informant told police that the airplane might be

located in Barranquilla, Colombia, South America. The police report

further stated that plaintiff and Keller's brother had been informed that

Keller had died in an airplane crash in Colombia. The police terminated

their investigation and advised Keller's family to contact the United

States Consulate in South America.

Keller's family contacted the consulate and was informed that a DC- 3

airplane with two bodies had crashed on May 13, 1980, near Barranquilla,

but neither the airplane nor the bodies could be positively identified.

Keller's family was unable to supply adequate dental records to permit

identification. They attempted to secure dental records from the Veterans

Administration (VA), but because Keller had not been a claimant, the VA

had no records.

at a DC- 3

airplane with two bodies had crashed on May 13, 1980, near Barranquilla,

but neither the airplane nor the bodies could be positively identified.

Keller's family was unable to supply adequate dental records to permit

identification. They attempted to secure dental records from the Veterans

Administration (VA), but because Keller had not been a claimant, the VA

had no records.

During the course of their investigation, officers had searched Keller's

locker at Air Cortez, as well as his apartment. In the locker, officers

found a grenade and a driver's license and birth certificate in the name

of Emery Whitthram. Officers also learned that Keller had stated on

several occasions that he wanted "to chuck it all and move to Costa Rica."

The Secretary denied plaintiff's 1981 and 1984 applications on the ground

that she had failed to submit direct evidence that her husband was dead.

The Secretary further found that, because Keller had not yet been missing

for seven years, he could not be presumed dead under the regulations. In

May 1987, plaintiff filed a third application, relying on the presumption

of death created by 20 CFR 404.721(b). The regulation provides that, if a

claimant cannot prove that a person is dead, the Secretary will presume

death if the claimant offers "[s]igned statements by those in a position

to know and other records which show that the person has been absent from

his or her residence for no apparent reason, and has not been heard from,

for at least 7 years."

of death created by 20 CFR 404.721(b). The regulation provides that, if a

claimant cannot prove that a person is dead, the Secretary will presume

death if the claimant offers "[s]igned statements by those in a position

to know and other records which show that the person has been absent from

his or her residence for no apparent reason, and has not been heard from,

for at least 7 years."

In addition to the information previously submitted, plaintiff provided a

statement indicating that neither she nor her children had seen or heard

from Keller since May 1980, and that she believed he had died in an

airplane crash in Colombia, South America in May 1980. She also provided

statements from friends and relatives stating that they had not heard from

Keller since May 1980 and knew of no problems that would account for his

disappearance. Lastly, plaintiff submitted a statement from John Flowers'

father that he had not heard from his son since 1980.

Initially, plaintiff's application was granted, but the case was reopened

and, on reconsideration, the decision awarding benefits was reversed.

Plaintiff filed a request for a hearing and the Administrative Law Judge

(ALJ) upheld the denial, finding that plaintiff had not established that

Keller had disappeared for "no apparent reason." The ALJ found that, while

it was possible that Keller and Flowers had died in the plane crash, it

was also possible that Keller had gone into hiding because he was under

investigation for drug smuggling or because he had stolen the airplane and

credit card. The ALJ also noted the possibility that Keller had "arranged

the crash of the aircraft by use of a grenade modified in a similar way to

the one found among Keller's possessions." The Appeals Council upheld the

denial of benefits.

was also possible that Keller had gone into hiding because he was under

investigation for drug smuggling or because he had stolen the airplane and

credit card. The ALJ also noted the possibility that Keller had "arranged

the crash of the aircraft by use of a grenade modified in a similar way to

the one found among Keller's possessions." The Appeals Council upheld the

denial of benefits.

The district court for the District of Minnesota found that plaintiff had

not proved that Keller had been missing for "no apparent reason," and in

the alternative found that the Secretary had rebutted the presumption of

death.

Holding

In reversing the district court's holding, the Eighth Circuit Court of

Appeals held that under 20 CFR 404.721(b) a presumption of death arises

when a claimant proves a wage earner has not been seen or heard from for

seven years. The court observed that this rule is consistent with the

common-law origin of the presumption of death, noting that "it is unfair

to require that the affairs of other persons affected by those of the

missing person be held in abeyance indeterminately, especially when there

is a good chance the missing person is in fact dead." Also, the court

rejected the Secretary's position that the claimant must prove that a wage

earner's disappearance was for no apparent reason, stating that such a

requirement "virtually creates a presumption of life rather than

death."

affected by those of the

missing person be held in abeyance indeterminately, especially when there

is a good chance the missing person is in fact dead." Also, the court

rejected the Secretary's position that the claimant must prove that a wage

earner's disappearance was for no apparent reason, stating that such a

requirement "virtually creates a presumption of life rather than

death."

Additionally, the court rejected the Secretary's alternative argument that

the Agency had rebutted the presumption, stating that to rebut the

presumption of death "requires more from the Secretary than mere

conjecture as to possible explanations for the wage earner['s]

disappearance." Rather, the court said, the Secretary must set forth

evidence that "rationally explain[s] the anomaly of the disappearance in a

manner consistent with continued life." Accordingly, Keller's suspected

criminal activity, along with his stated desire to begin a new life in

Costa Rica, were insufficient in the court's view to overcome the

presumption of death. The court also pointed to other "strong

circumstantial evidence that Keller is dead."

Statement as to How Brewster Differs From Social Security

Policy

By the terms of 20 CFR 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 claimant bears the

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

death: (1) the individual has disappeared; (2) the disappearance has

lasted for seven years; and (3) there is no apparent reason for the

disappearance.

sidence 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 claimant bears the

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

death: (1) the individual has disappeared; (2) the disappearance has

lasted for seven years; and (3) there is no apparent reason for the

disappearance.

The decision of the Court of Appeals for the Eighth Circuit in Brewster 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 that is consistent with continued life rather than death.

Explanation of How SSA Will Apply The Decision Within The Circuit

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

Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota or South

Dakota at the time of the determination or decision at any administrative

level, i.e. , initial, reconsideration, Administrative Law Judge

hearing or Appeals Council review.

In cases which involve the application of 20 CFR 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 that is consistent with continued life

rather than death.