SSR 66-17c: SECTIONS 202(e)(1) and 202(j)(1). -- APPLICATION -- ORAL INQUIRY ABOUT BENEFITS -- NONESTOPPEL OF ADMINISTRATION

20 CFR 404.601, 404.607, and 404.610

SSR 66-17c

EMERSON v. CELEBREZZE, U.S.D.C., M.D. of Ga. (Civil No. 1001)

(6/7/65)

ELLIOTT, District Judge :

Plaintiff in this case is the widow of Samuel H. Emerson, who died in

1942. On February 14, 1956, the Plaintiff made inquiry in the social

security office, in Columbus, Georgia, regarding her right to receive

benefits as the widow of the deceased. At that time it appeared from the

records of the Social Security Administration that the deceased wage

earned had only five quarters of coverage to his credit. Employees in the

social security office so advised the Plaintiff and she was told that

because there were insufficient quarters of coverage there was no need to

file a formal application and there the matter rested for a period of

years. Nothing else transpired until May, 1962 * * *. A formal application

was filed at that time and it was determined that the Plaintiff's husband

did have sufficient quarters of coverage, the incorrectness of the records

having apparently resulted from a failure on the part of the employer to

properly report the employment. Pursuant to the applicable law, benefits

were then accordingly awarded to the Plaintiff effective beginning May

1961. The Plaintiff now complains in this suit that, through no fault of

her own and relying upon the advice given her by social security

personnel, she was deprived of benefits due her from February 14, 1956, to

May 1, 1961.

of the employer to

properly report the employment. Pursuant to the applicable law, benefits

were then accordingly awarded to the Plaintiff effective beginning May

1961. The Plaintiff now complains in this suit that, through no fault of

her own and relying upon the advice given her by social security

personnel, she was deprived of benefits due her from February 14, 1956, to

May 1, 1961.

There is no controversy concerning the facts of this case. The missing

quarters of coverage were not developed in the records of the

Administration until May, 1962, when Mrs. Emerson filed her application

for widow's benefits and pursued the matter. The records of the

Administration initially reflected only five quarters of coverage and when

this representation was made to Mrs. Emerson at the time she made inquiry

in 1956 this was a correct representation. Mrs. Emerson made no effort at

that time to supplement the records of the Administration and, as

heretofore indicated, made no written application for benefits. Insofar as

the representatives of the Administration were concerned, there was no

reason to believe that the wage earner was insured during the period in

question until May, 1962, when Mrs. Emerson formally raised the issue and

further developed the records.

On October 24, 1963, the Hearing Examiner issued his decision disallowing

the Plaintiff's claim for entitlement to benefits commencing earlier than

May, 1961, and this decision of the Hearing Examiner became the final

decision of the Secretary under § 205(g) of the Act (42 U.S.C. § 405(g))

when the Appeals Council of the Social Security Administration denied the

Plaintiff's request to review the Hearing Examiner's decision. It is that

decision which is now the subject of review by this Court.

ment to benefits commencing earlier than

May, 1961, and this decision of the Hearing Examiner became the final

decision of the Secretary under § 205(g) of the Act (42 U.S.C. § 405(g))

when the Appeals Council of the Social Security Administration denied the

Plaintiff's request to review the Hearing Examiner's decision. It is that

decision which is now the subject of review by this Court.

The Hearing Examiner disallowed the claim on the basis of the undisputed

fact that while earlier inquiry had been made, no application was filed

until May, 1962. Section 202(e) of the Social Security Act, as amended,

provides that the widow of an individual who dies fully insured upon

filing an application for widow's insurance benefits and attaining the

proper age may be awarded widow's insurance benefits, however, one of the

requirements of the act is that an application be filed, and the Act

further provides that such application must be in writing. The mere

appearance and inquiry at a district office of the Social Security

Administration, as was done in this case, does not constitute an

application and there is no basis for allowing the claimant widow's

benefits beginning earlier than is permitted under § 202(j) of the Act.

That section permits an application to have retroactive effect for twelve

months. Applying the law to the facts, no widow's benefits may be allowed

to this claimant effective earlier than May, 1961, because no application

was filed until May, 1962.

We recognize and regret the unfortunate result of the application of the

law to the facts in this case, but the facts are uncontroverted and it is

not within our province to modify the law. The evidence discloses that all

of the prescribed conditions for entitlement of benefits were not met

until May, 1962, and the representatives of the Administration did not

wilfully and knowingly mislead the Plaintiff because the information given

to her in 1956 was correct, as based upon the records available.

facts are uncontroverted and it is

not within our province to modify the law. The evidence discloses that all

of the prescribed conditions for entitlement of benefits were not met

until May, 1962, and the representatives of the Administration did not

wilfully and knowingly mislead the Plaintiff because the information given

to her in 1956 was correct, as based upon the records available.

Counsel for the Plaintiff strongly urges upon this court the application

of equitable principles as a basis for reversing the decision of the

Secretary, but the right to benefits under the Social Security Act is

accorded a claimant solely by statute rather than equitable principles and

is conditioned upon compliance with that statute. Kurz v. Celebrezze,

225 F. Supp. 528 (E.D.N.Y., 1963) . It has been held that if the

failure of the claimant to file the necessary formal application was

brought about as a result of misinformation given to the claimant by

representatives of the Social Security Administration, that this would not

authorize an award of benefits when the claimant had failed to comply with

the formalities required by the statute. In Flamm v. Ribicoff, 203 F.

Supp. 507 (S.D.N.Y., 1961) , the Court said:

It will be noted that in the Flamm case, supra, there was a claim

that the claimant had been misled by Government representatives, whereas

in the case before us there is no claim that Mrs. Emerson received

anything but correct advice based upon the records of the Administration,

and if these records were in error, such error was not due to any action

or inaction on the part of Government representatives. This absence of

fault on the part of the government in the instant case precludes any

recovery on the basis of an estoppel even if it should otherwise be urged

as justified.

son received

anything but correct advice based upon the records of the Administration,

and if these records were in error, such error was not due to any action

or inaction on the part of Government representatives. This absence of

fault on the part of the government in the instant case precludes any

recovery on the basis of an estoppel even if it should otherwise be urged

as justified.

In summary, we hold that since a proper application was not filed until

May, 1962, no entitlement to benefits could commence prior to May, 1961,

and that the decision of the secretary should, therefore, be affirmed and

his motion for summary judgment should be granted * * *