(Rescinded 7/14/95; see 60 FR 19163, 20 CFR 404.721(b))
EFFECTIVE DATE: 4/2/86
AR 86-10(10): Edwards v. Califano, 619 F.2d 865 (10th Cir. 1980) -- Interpretation of the Secretary's Regulation Regarding Presumption of Death -- Title II of the Social Security Act
Whether a presumption of death which must be rebutted by SSA arises under 20 C.F.R. 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.
Tenth (COLORADO, KANSAS, NEW MEXICO, OKLAHOMA, UTAH, WYOMING)
Edwards v. Califano, 619 F.2d 865 (10th Cir. 1980)
APPLICABILITY OF RULING:
- This ruling apples to determinations of decisions at all administrative levels (i.e., initial, reconsideration, administrative law judge hearing and Appeals Council).
DESCRIPTION OF CASE:
In 1975, Charlotte Edwards, the plaintiff in this case, applied for child's benefits on behalf of her two children on the account of John Richard Long, who was her former husband and the father of the children. In order to establish entitlement to benefits, the plaintiff sought to establish Long's death pursuant to the Secretary's presumption of death regulation, 20 C.F.R. 404.705(a), since Mr. Long had disappeared and she could not provide an official record of his death. The regulation stated:
- Whenever it is necessary to determine the death of an individual in order to determine the right of another to a monthly benefit or a lump-sum death payment under Section 202 of the Social Security Act, and such individual has been unexplainedly absent from his residence and unheard of for a period of 7 years, the Administration, upon satisfactory establishment of such facts and in the absence of any evidence to the contrary, will presume that, such individual has died.
The evidence showed that Mr. Long abandoned the plaintiff and their two children in 1964 and had no contact with them after that time. The evidence further showed that wages were posted to his Social Security record as late as March 31, 1964, but not thereafter, and that he lived with his brother James until June 1967, at which point he disappeared again. There was no evidence of family members having seen Mr. Long after the 1967 departure which occurred several months after a court order for child support was imposed on him. The record also established that Mr. Long had a drinking problem, and that his work history was erratic. A determination of Mr. Long's death had been made by the Oklahoma County District Court, based on the fact that he had been absent for seven years.
The plaintiff's application for child's benefits was denied at all levels of administrative appeal. The decision of the administrative law judge (ALJ) which stood as the final decision of the Secretary when the Appeals Council denied review, held that Mr. Long could not be presumed dead since his absence was not unexplained within the meaning of 20 C.F.R. 404.705(a).
Charlotte Edwards sought judicial review in the U.S. District Court for the Western District of Oklahoma which affirmed the decision of the Secretary. However, upon further appeal to the Court of Appeals for the Tenth Circuit, the Court of Appeals reversed the decision of the district court and awarded benefits to her for the children.
The Court of Appeals held that plaintiff had established the Mr. Long was "unexplainedly absent" within the meaning of the regulation, and that the Secretary had failed to rebut the presumption of death which thereby had arisen. Quoting from Johnson v. Califano, 607 F.2d 1178, 1182 (6th Cir. 1979) and referring to the law of the Third and Ninth Circuits, the court stated:
- When a Social Security applicant presents facts that establish that a wage earner has been absent from his residence and unheard of for a period of 7 years, a presumption of death arises under Regulation Section 404-705 . . . The burden then shifts to the Secretary to make an affirmative showing either that the "missing person is alive" or that the anomaly of the disappearance . . . [is] consistent with continued life.
STATEMENT AS TO HOW EDWARDS DIFFERS FROM SOCIAL SECURITY POLICY:
By the terms of 20 C.F.R. 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 plaintiff bears the burden of proving three elements to raise a presumption of an individual's death; namely, that the individual has disappeared, that the disappearance has lasted for seven ears, and that there is no apparent reason for the disappearance.
The decision of the Court of Appeals for the Tenth Circuit in Edwards 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 consistent with continued life rather than death.
EXPLANATION OF HOW SSA WILL APPLY THE EDWARDS DECISION WITHIN THE CIRCUIT:
This ruling applies only in cases in which the claimant resides in Colorado, Kansas, New Mexico, Oklahoma, Utah or Wyoming, at the time of the determination or decision at any level of administrative review, i.e., initial, reconsideration, administrative law judge hearing or Appeals Council review.
In cases which involve 20 C.F.R. 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 an explanation, other than death, to account for the individual's absence in a manner consistent with continued life rather than death.
Date of Publication
 SSR 80-10c is a ruling of nonacquiescence previously issued on the presumption of death issue with regard to the Sixth Circuits decision Johnson v. Califano, 607 F.2d 1178 (1978). A ruling of acquiescence now is being issued with regard to Johnson, which will supersede SSR 80-10c.
 Mrs. Edwards previously had filed an application for child's benefits on the same earnings record in 1972. This earlier application was not involved in the case.
 20 C.F.R. 404.705(a) has been revised and recodified at 20 C.F.R. 404.721(b) effective June 7, 1978. (See 20 C.F.R. 404.721(b) (1985). The revised regulation has eliminated "unexplainedly absent" and has substituted "absent from his or her residence for no apparent reason." The revision, however, do not change policy concerning the presumption of death.