SSR 68-68c: SECTIONS 202(d)(1)(A) and 202(j)(1). -- APPLICATION FOR CHILD'S BENEFITS -- FILING OF APPLICATION AS A CONDITION OF ENTITLEMENT -- RETROACTIVE EFFECT

20 CFR 404.601

SSR 68-68c

FANGMAN v . GARDNER, U.S.D.C., Neb., Civil No. 02798 (3- 13-68) (CCH

U.I.R. Fed. Par. 15,029)

ROBINSON , Chief Judge .

THIS ACTION was instituted for review of a final decision of the

Secretary of Health, Education and Welfare, pursuant to 42 U.S.C. 405 [g.]

Both parties have alleged that no issue of facts exists and each moves for

summary judgment.

It is plaintiff's position that he is entitled to collect social security

benefits on behalf of his son, Michael P. Fangman, for the period

beginning December, 1961 until the time when payments were actually

commenced in February, 1966, effective February 1965.

The plaintiff, Richard J. Fangman reached age 65 in December 1961 and,

pursuant to an application he filed for an old-age benefit under section

202[a] of the Social Security Act, 42 U.S.C. 402[a], he was awarded such

benefit effective December, 1961. In his 1961 application it was indicated

that he was married but that he had no children at that time who were

under 18 years of age. In fact, he had a son, Michael, who was then 14

years old. * * *

Plaintiff explains the error on the 1961 application as the failure of

the employee of the Social Security Office to ask him about any minor

children and the employee's assumption that plaintiff was too old to have

young children.

On February 4, 1966, the plaintiff filed an application for a child's

benefit on behalf of his son Michael. The Social Security Administration

determined that the plaintiff was entitled to benefits effective February,

1965, but that no amounts could be paid for any months prior to that date.

Following the same determination by the Bureau of Hearings and Appeals of

the Social Security Administration, this action was brought for review.

Section 202[d] of the Social Security Act, 42 U.S.C. 402[d], which

provides for payment of child's insurance benefits, provides in part, as

follows:

effective February,

1965, but that no amounts could be paid for any months prior to that date.

Following the same determination by the Bureau of Hearings and Appeals of

the Social Security Administration, this action was brought for review.

Section 202[d] of the Social Security Act, 42 U.S.C. 402[d], which

provides for payment of child's insurance benefits, provides in part, as

follows:

Section 202[j][1] limits any retroactive payments which may be made under

the above quoted section.

"Applications" are defined in 20 CFR part 404 (Section 404.601 in Social

Security Administration Regulations No. 4) to include properly executed

forms provided by the Social Security Administration or a written

statement indicating an intention to assert a claim for benefits.

Our decision in this case rests on four basic principles.

1. Where expressly provided, a person's eligibility for benefits under

the Act is conditioned upon the filing of an application.

In our opinion the statutory language makes this condition clear. This

mandatory condition was recognized and applied in a similar situation by

the Tenth Circuit in Ewing v. Risher , 176 F.2d 641 at 644 [10th

Cir., 1949].

More recently, Judge Knoch of the Seventh Circuit made the following

observation in Bender v. Celebrezze , 332 F.2d 113 [7th Cir., 1964]

at page 115:

2. An application was not filed on behalf of Michael P. Fangman until

February, 1966.

mandatory condition was recognized and applied in a similar situation by

the Tenth Circuit in Ewing v. Risher , 176 F.2d 641 at 644 [10th

Cir., 1949].

More recently, Judge Knoch of the Seventh Circuit made the following

observation in Bender v. Celebrezze , 332 F.2d 113 [7th Cir., 1964]

at page 115:

2. An application was not filed on behalf of Michael P. Fangman until

February, 1966.

Even assuming that the plaintiff's theory is correct and that the Social

Security Administration employee did take it upon his or herself to answer

the inquiry concerning children in the negative, the plaintiff's

undisclosed information cannot be held to rise to the dignity of an

application. Whatever may be the true circumstance, the Court regards the

error as extremely regretful, but it cannot supply a basis of plaintiff's

recovery here. Medalia v. Folsom , 135 F.Supp. [D. Mass., 1955].

Estoppel may not be asserted against an agency of the United States under

these circumstances. Federal Crop Ins. Crop. v. Merrill , 332 U.S.

380 [Idaho 1947]; Taylor v. Flemming , 186 F.Supp. 280 [W.D. Ark.,

1960].

3. The Act expressly limits the retroactive payments which can be made on

an application. See 42 U.S. § 402 [j][1]; Kurz v. Celebrezze , 225

F.Supp. 528 [E.D. N.Y., 1963], SSR 64-34c, C.B. 1964, p. 24; Barrysuk

v. Ewing , 96 F.Supp. 779 [D. N.J., 1951]; Ewing v. Risher , 176

F.2d 641 [10th Cir., 1949.]

4. Equitable considerations and the Court's regret for the misfortune of

the applicant cannot govern over the express provisions of the Act.

The time limitation imposed by 42 U.S.C. § 402 [j][1] clearly indicates

that Congress wanted to limit back payments of claims which were otherwise

eligible for the Act's benefits. It places upon the applicant the

affirmative duty to become informed as to his rights, and assert his

claims. In Kurz v. Celebrezze [supra at 530] the Court made the

following comment:

s provisions of the Act.

The time limitation imposed by 42 U.S.C. § 402 [j][1] clearly indicates

that Congress wanted to limit back payments of claims which were otherwise

eligible for the Act's benefits. It places upon the applicant the

affirmative duty to become informed as to his rights, and assert his

claims. In Kurz v. Celebrezze [supra at 530] the Court made the

following comment:

Upon these conclusions we have determined that no material duplicate of

fact exists and that the defendant is entitled to a summary judgment.

Accordingly,

IT IS ORDERED that defendant's motion for summary judgment should

be and is hereby sustained.