SSR 63-37c: SECTION 202(d)(1). -- APPLICATION -- WRITTEN EXPRESSION OF INTENT TO FILE

20 CFR 404.601 and 404.610

SSR 63-37c

SMALTZ v. RIBICOFF, U.S.D.C., W.D. of Mo., W.Div. (Civil No. 13686,

9/27/62) (CCH UIR-I, Fed. Par. 14,623)

FLOYD R. GIBSON, Judge:

This is an action brought under Section 205(g) of the Social Security Act

as amended (Section 405(g), Title 42, U.S.C.) to review a final decision

of the defendant by denying a request for review of a Hearing Examiner's

decision denying plaintiffs claim for childhood disability benefits

allegedly due him under the provisions of Section 202(d)(1) of the Social

Security Act.

The facts are fairly simple and are not in dispute. Plaintiff's father

and mother were divorced in 1955, and the custody of plaintiff was awarded

the mother, his next friend in this action. On September 10, 1957, George

D. Smaltz, plaintiff father, filed an application with the local Social

Security Administration Office for disability payments. This application

was denied, and Mr. Smaltz thereafter took the necessary administrative

steps, which resulted in a final denial of his claim on October 22, 1959.

Mr. Smaltz subsequently appealed this final decision to this Court, which

reversed the final one made on May 12, 1960. Smaltz v. Ribicoff, No.

12599, U.S. Dist Ct., W.D. Mo., W.D. At the time of making his original

applications before the Administration Mr. Smaltz indicated on his

application that he was unmarried and had a child under 18 years of

age.

Subsequent to Mr. Smaltz's original application Section 202(d)(1) of the

Social Security Act (Section 402(d)(1), Title 42, U.S.C.) was amended in

November 1958, to provide that children of persons entitled to disability

benefits could receive benefits under the act effective with, but not

prior to September 1958. [1] Subsection (j) of this same section provided that the benefits to such a

child would be paid retroactively for the twelve months prior to the date

of such child's application, if the parent's disability had existed that

long before the application.

children of persons entitled to disability

benefits could receive benefits under the act effective with, but not

prior to September 1958. [1] Subsection (j) of this same section provided that the benefits to such a

child would be paid retroactively for the twelve months prior to the date

of such child's application, if the parent's disability had existed that

long before the application.

Without going into detail, it may be said that the record of the hearing

before the Hearing Examiner showed that plaintiff's mother read a

newspaper article describing the amendment to the law, and went, with

plaintiff, to the local office of the Social Security Administration,

where she spoke to someone there as to the possibility of plaintiff

receiving benefits because of his father's alleged disability. She was

told at that time that as far as the Administration was concerned

plaintiff had no claim, as his father's disability claim had been denied.

Plaintiff's mother could not specifically fix the date of this visit,

except to state that it was sometime in 1958, shortly after she had seen

the newspaper article which described the 1958 amendment. Plaintiff's

mother testified that she made at least one other visit to the office, at

which time approximately the same conversation was held. At none of these

visits did plaintiff's mother file a written application for benefits for

plaintiff. On July 14, 1960 plaintiff's father, having learned of his

success in this Court, returned to the local office to discuss his claim,

at which time one of the employees there, noting that Mr. Smaltz's

application stated that he had a minor child and find that Mr. Smaltz had

succeeded in having the final decision of the Agency reversed by the

Court, suggested that Mr. Smaltz file a written statement of his intention

to file a claim on behalf of this minor child. This was filed on that

date

office to discuss his claim,

at which time one of the employees there, noting that Mr. Smaltz's

application stated that he had a minor child and find that Mr. Smaltz had

succeeded in having the final decision of the Agency reversed by the

Court, suggested that Mr. Smaltz file a written statement of his intention

to file a claim on behalf of this minor child. This was filed on that

date. The rules of the Administration allow a party claimant to file such

a written statement of intent, and the date of this statement is then

allowed to serve as the date of formal filing of the claim, for purposes

of determining when the claim was

filed. [2]

Consequently, plaintiff's claim was allowed, after plaintiff's mother had

filed formal claim on August 11, 1960. The claim was made effective as of

July 1959, twelve months prior to the filing of the statement of intent to

file a claim on plaintiff's

behalf. [3]

Plaintiff claims that he is entitled to benefits as of November 1958, the

date on which the amended section 202(d) took effect, because, as he

contends, when his mother visited the office and inquired into the

possibility of his claim, defendant's employees should have realized that

plaintiff's father might ultimately have been decided to have been

disabled, in which case plaintiff would have been entitled to benefits

from the date of filing of the claim, and the failure of defendant's

employees to take such a claim renders the oral expression of plaintiff's

mother tantamount to a written claim, which, being applied retroactively,

would entitle plaintiff to benefits from the original effective date of

the amendment, November 1958.

Defendant has filed a motion for summary judgment.

It appears to the Court that Section 202(d)(1) and 202(j) of the Act, and

the regulations promulgated thereunder, clearly contemplate that any

applications for claims shall be in writing, and that no oral statements

may qualify as such an application.

plaintiff to benefits from the original effective date of

the amendment, November 1958.

Defendant has filed a motion for summary judgment.

It appears to the Court that Section 202(d)(1) and 202(j) of the Act, and

the regulations promulgated thereunder, clearly contemplate that any

applications for claims shall be in writing, and that no oral statements

may qualify as such an application.

Although the Court feels that it is unfortunate that a situation such as

the instant one can occur, we feel that to allow plaintiff to prevail in

the case at bar would establish a precedent which might be termed

undesirable.

In an operation with a scope of that conducted by the Social Security

Administration formality becomes a necessity if accurate records are to be

kept. This further becomes apparent when the date of the filing of an oral

application such as plaintiff contends existed must be determined. In the

instant case, plaintiff's mother could designate no specific date as that

when she appeared at the local office, thus no specific date could be

determined from which the benefits could become effective. It is within

the authority delegated to the Social Security Administration to require

than any claims be submitted to it in writing, and the Court is not

disposed to qualify this power by holding that in certain circumstances an

oral manifestation of an attempt to file an application might have the

effect of a formal application or a written statement of intent to file a

formal application.

within

the authority delegated to the Social Security Administration to require

than any claims be submitted to it in writing, and the Court is not

disposed to qualify this power by holding that in certain circumstances an

oral manifestation of an attempt to file an application might have the

effect of a formal application or a written statement of intent to file a

formal application.

While the parties have indicated in their briefs that they do not feel

that any factual issues are present, and this case has been dealt with

primarily on the legal issue of whether an oral statement of intent to

file a claim can serve as a basis for a formal filing of a claim, the

Court has read and considered the record of the proceedings before the

Hearing Examiner in this case and the Court does find that there is

substantial evidence to support the findings of fact made by the Hearing

Examiner.

For the above-stated reasons, defendant's motion for summary judgment is

hereby granted, and no error being found in the action of the Hearing

Examiner, his decision is affirmed.

[1] The amending act, PL 85-840,

enacted August 28, 1958, provided for entitlement to child's insurance

benefits on the earnings record of a person entitled to disability

insurance benefits, effective September 1958, "but only if an application

for such [child's insurance] benefits is filed on or after the date of

enactment of this Act." [Ed.]

[2] See SSR 62-28, C.B. 1962, p.

83, concerning conditions under which a written statement indicating an

intention to claim benefits may be deemed to be an application for

benefits. [Ed.]

[3] Under section 202(j)(1), an

application filed in one month may entitle the claimant to benefits for as

many as 12 months before the month of filing. The entitlement begins with

the first of those 12 months in which the claimant could, upon filing an

application, have become entitled to benefits. See SSR 62-1, C.B. 1962, p.

19 [Ed.]