(Rescinded 7/14/95; see 60 FR 19163, 20 CFR 404.721(b))
EFFECTIVE DATE: 4/2/86
AR 86-11(11): Autrey v. Harris, 639 F.2d 1233 (5th Cir. 1981) -- 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.
ELEVENTH (ALABAMA, FLORIDA, GEORGIA)
Autrey v. Harris, 639 F.2d 1233 (5th Cir. 1981)
APPLICABILITY OF RULING:
- This ruling applies to determinations or decisions at all administrative levels (i.e., initial, reconsideration, administrative law judge hearing and Appeals Council).
DESCRIPTION OF CASE:
In 1970, Leona Autrey, the plaintiff in this case, applied for child's benefits on behalf of her son and two daughters on the earnings record of the worker, Herman George Fisher. Mr. Fisher was the natural father of plaintiff's son and the adoptive father of her two daughters. Mr. Fisher disappeared in 1969. The plaintiff sought to establish the fact of his death in accordance with the Secretary's presumption of death regulation, 20 C.F.R. 404.704(a), which 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 evidence of such facts and in the absence of any evidence to the contrary, will presume that such individual has died.
Plaintiff was divorced from Mr. Fisher in 1967, but testified that there was no hostility and that both she and the children had frequent contact with him after the divorce until 1969 when he disappeared. Mr. Fisher was last heard from when he left the Kansas City airport, piloting a small plane, and radioed an airport for weather information for a flight to Las Vegas. The plane has never been found.
Leona Autrey's application for child's benefits for her children based on the worker's earnings record was denied initially and upon reconsideration. On her further appeal to the administrative hearing level, the administrative law judge (ALJ) ruled against her, on the basis that she had not proven that Mr. Fisher's disappearance was "unexplained" within the meaning of 20 C.F.R. 404.705(a). The ALJ held that personal, legal and familial difficulties constituted sufficient explanation for the disappearance and identity change. The ALJ based this conclusion on the fact that Mr. Fisher had failed to file income tax returns in the three years before his disappearance, evidence of minor family difficulties, and, a suggestion that he was attempting to avoid making child support payments. The ALJ's decision stood as the final decision of the Secretary.
Upon plaintiff seeking judicial review, the U.S. District Court for the Eastern District of Texas affirmed the Secretary's decision. Plaintiff then appealed to the Court of Appeals for the Fifth Circuit. The Court of Appeals heard the appeal and reversed the decision of the district court.
Regarding the presumption of death regulation, the court held that:
- The presumption of death under this regulation attached when the claimant presents facts sufficient to establish that the wage earner has been absent from his residence and unheard of for 7 years. Nothing in the regulation requires the claimant to refute every reasonable theory or explanation offered by the Secretary.
- Aubrey v. Richardson, 462 F.2d 782, 784 (3rd Cir. 1972). Once the applicant creates the presumption, the burden shifts to the Secretary to rebut it.
Following the formulation of the Ninth Circuit Court of Appeals in Secretary of Health, Education and Welfare v. Meza, 368 F.2d 389, 392 (9th Cir. 1966), the Fifth Circuit held that the Secretary could overcome the presumption either (i) by presenting evidence that the person is alive or (2) by proving facts "that rationally explain the anomaly of the disappearance in a manner consistent with continued life."
Citing Aubrey v. Richardson, 462 F.2d 782 (3rd Cir. 1972) and Meza, the court stated that the burden on the Secretary "requires more than mere conjecture as to possible explanations." 639 F.2d at 1235. In this case, the court held that Mr. Fisher's failure to file tax returns even before his disappearance, his attempts to avoid child support payments and alleged minor family difficulties were insufficient to rebut the presumption, and did not justify a conclusion that he had feigned disappearance and changed his identity.
STATEMENT AS TO HOW AUTREY 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 years, and that there is no apparent reason for the disappearance.
The decision of the Court of Appeals for the Fifth Circuit in Autrey 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 AUTREY DECISION WITHIN THE CIRCUIT:
This ruling applies only in cases in which the claimant resides in Alabama, Florida, or Georgia 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 under the Autrey holding 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.
Date of Publication
 SSR 80-10c is a ruling of nonacquiescence previously issued on the presumptions of death issue with regard to the Sixth Circuit's decision in Johnson v. Califano, 607 F.2d 1178 (1979). A ruling of acquiescence now is being issued with regard to Johnson, which will supersede SSR 80-10c.
 Autrey is a Fifth Circuit case. However, the Eleventh Circuit formerly was part of the Fifth Circuit and Fifth Circuit decisions issued before October 1, 1981, which Autrey was, are precedent for the Eleventh Circuit. See Bonner v. City of Prichard, Alabama, 661 F.2d 1206 (11th Cir. 1981).
 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, did not change policy concerning the presumption of death.