SSR 64-19c: SECTIONS 202(h)(1)(B) and 202(p). -- NONESTOPPEL OF ADMINISTRATION TO REQUIRE COMPLIANCE WITH STATUTORY REQUIREMENT FOR ENTITLEMENT

20 CFR 404.328 and 404.616

SSR 64-19c

CALDWELL v. CELEBREZZE , CCH UIR Vol. 1, Fed. Para. 14,650

(U.S.D.C. E.D. Ky. 10/26/62), appeal dismissed 2/21/63

H. CHURCH FORD, District Judge:

* * * * * * *

By this action, under section 205(g) of the Social Security Act, 42

U.S.C. § 405(g), the plaintiff seeks a review of the final decision

rendered in this action by the Secretary of Health, Education and Welfare

on April 13, 1961, as set out in the decision of the Appeals Council by

which the Secretary found and adjudged that the claimant, Mrs. Doshia

Caldwell, did not timely file proof that at the time of the death of her

son on November 29, 1947, her son was furnishing at least one-half of her

support, as required by section 202(h)(1)(B) and (p) of the Act, 42 U.S.C.

§§ 402(h)(1)(B) and (p) and consequently did not meet the requirements for

her entitlement to parent's insurance benefits set forth in sections

202(h)(1)(B) and (p) of the Act, 42 U.S.C. §§ 402(h)(1)(B) and (p).

Upon examination of the transcript of the record in this proceeding and

consideration of the briefs filed by counsel for the respective parties, I

am of the opinion that the conclusions of law set out in the decision

rendered by the Appeals Council are correct, and that the findings of fact

made by the Secretary are supported by substantial evidence and are

conclusive under the provisions of section 205(g) of the Act, 42 U.S.C. §

405(g).

For the reasons indicated, I am of the opinion that the claimant, Mrs.

Doshia Caldwell, is not entitled to the parent's insurance benefits sought

in this proceeding, and the defendant's motion for summary judgment should

be sustained. Taylor v. Flemming , 186 F.Supp. 280.

Let judgment be entered accordingly.

[The decision made by the Appeals Council of the Bureau of Hearings and

Appeals and affirmed by the District Court, follows.]

n that the claimant, Mrs.

Doshia Caldwell, is not entitled to the parent's insurance benefits sought

in this proceeding, and the defendant's motion for summary judgment should

be sustained. Taylor v. Flemming , 186 F.Supp. 280.

Let judgment be entered accordingly.

[The decision made by the Appeals Council of the Bureau of Hearings and

Appeals and affirmed by the District Court, follows.]

This case is before the Appeals Council upon its own motion to review the

decision of the Hearing Examiner issued on October 17, 1960. The claimant

was notified of such action by the Appeals Council and of her rights

therein. The Hearing Examiner decided that the claimant was entitled to

parent's insurance benefits on the basis of findings that the claimant had

timely filed proof of support received by her from the wage earner and

that at the time of the wage earner's death she was receiving at least

one-half of her support from him.

* * * * * *

The claimant filed application for parent's insurance benefits on

September 8, 1959, and on the same day filed "Parent's Certificate of

Support" alleging that she was receiving at least one-half of her support

from the wage earner at the time of his death on November 29, 1947. The

claimant stated that her son had been in the Army until the month

preceding his death and that to the best of her recollection he had sent

her an allotment in the amount of $157 a month, which amount had been the

sole support of the household consisting of the claimant, her husband, a

daughter and a son. The claimant's application for parent's insurance

benefits was denied by the Bureau of Old-Age and Survivors Insurance for

the reason that she did not timely file proof of support received from the

wage earner. The claimant contends that shortly after the death of the

wage earner on November 29, 1947, she made inquiry at a district office of

the Bureau and was advised that she could not draw benefits until she was

65 years of age

ance

benefits was denied by the Bureau of Old-Age and Survivors Insurance for

the reason that she did not timely file proof of support received from the

wage earner. The claimant contends that shortly after the death of the

wage earner on November 29, 1947, she made inquiry at a district office of

the Bureau and was advised that she could not draw benefits until she was

65 years of age. The claimant further contends that in 1956 she again

visited a district office of the Bureau to inquire concerning benefits on

the earnings record of the deceased wage earner and that similar inquiry

was again made by her on June 14, 1958, but that on each visit to a

district office of the Bureau she was advised that she had not attained

retirement age and could not receive parent's insurance benefits.

As stated in the Hearing Examiner's decision, section 202(h) of the Act

provides, as pertinent here, that in order for a parent to be entitled to

parent's insurance benefits such parent must have been receiving at least

one-half of his support from the wage earner at the time of such

individual's death and must have filed proof of such support within two

years after date of death.

Section 202(p) of the Act provides, as pertinent here, that in any case

where there is failure to file proof of support within the period

specified in section 202(h), and there is a satisfactory showing of good

cause for failure to file such proof within such period, such proof shall

be deemed to have been filed within such period if it is filed within two

years following such period or with two years following August 1956,

whichever is later. This would mean, as pertinent here, that the claimant

could file proof of support received from the wage earner no later than

August 31, 1958.

of good

cause for failure to file such proof within such period, such proof shall

be deemed to have been filed within such period if it is filed within two

years following such period or with two years following August 1956,

whichever is later. This would mean, as pertinent here, that the claimant

could file proof of support received from the wage earner no later than

August 31, 1958.

Section 404.720 of Regulations No. 4 provides, as pertinent here, that a

parent who applies for monthly benefits based upon the wages and

self-employment income of an individual shall submit evidence of receipt

of at least one-half of his support from such individual; that such

evidence shall be a signed statement by the parent that, at the time of

the individual's death he was receiving at least one-half of his support

from such individual, and that the statement shall set forth, as of the

time of the individual's death and for a period of not less than one year

prior to such time, the items expended and used for the parent's support

and the value of each thereof, the amount of the parent's income, if any,

and the items of contributions to the parent's support, the value and time

of each, and by whom furnished.

The claimant does not contend that she filed written proof of support

received from the wage earner prior to the "Parent's Certificate of

Support" which she filed on September 8, 1959. She does contend, however,

that she should be entitled to parent's insurance benefits, and apparently

bases such contention on some type of estoppel arising from her alleged

prior inquiries concerning entitlement to benefits on the deceased wage

earner's earning record. The Hearing Examiner did not find that on or

before August 31, 1958, the claimant had filed written proof of support

received from the wage earner, but he did find that the claimant was

prevented from filing such proof of support by the actions or

representations of Bureau personnel

alleged

prior inquiries concerning entitlement to benefits on the deceased wage

earner's earning record. The Hearing Examiner did not find that on or

before August 31, 1958, the claimant had filed written proof of support

received from the wage earner, but he did find that the claimant was

prevented from filing such proof of support by the actions or

representations of Bureau personnel. Therefore, the Hearing Examiner

concluded that the claimant had made a timely effort to file the required

proof of support and that such effort should be deemed a constructive

filing of such proof of support.

* * * It is undisputed that the claimant did not file written proof of

support within the period of time specified by law, that is, on or before

August 31, 1958. The requirements of the statute are clear and mandatory.

Therefore, since the timely filing of the proof of support is a condition

precedent to entitlement to parent's insurance benefits, and since such

condition has not been complied with by the claimant, the Appeals Council

finds that the claimant did not timely file proof of support received from

the wage earner at the time of his death.

* * * it is well established that the government cannot be estopped from

insisting upon performance of statutory conditions precedent. Taylor v.

Flemming , 186 F.Supp. 280 (W.D.Ark., 9/7/60).

Since the claimant did not timely file proof of support received from the

wage earner at the time of his death, she has failed to meet all of the

requirements for entitlement to parent's insurance benefits as set forth

in section 202(h) of the Act. The Appeals Council finds that the evidence

of record is insufficient to support the Hearing Examiner's finding that

the deceased wage earner was furnishing at least one-half of the

claimant's support at the time of the wage earner's death

of his death, she has failed to meet all of the

requirements for entitlement to parent's insurance benefits as set forth

in section 202(h) of the Act. The Appeals Council finds that the evidence

of record is insufficient to support the Hearing Examiner's finding that

the deceased wage earner was furnishing at least one-half of the

claimant's support at the time of the wage earner's death. However, it

would serve no useful purpose to require the submission of additional

evidence by the claimant with respect to that issue, inasmuch as there

could be no entitlement to the benefits for which application was filed in

view of the finding hereinabove made by the Appeals Council that the

claimant did not timely file proof of support.

* * * * * * *

It is the decision of the Appeals Council that the claimant is not

entitled to the parent's insurance benefits for which she filed

application. The decision of the Hearing Examiner is reversed.