SSR 76-1c: SECTIONS 202(d) and (g) and 205(a) (42 U.S.C. 402(d) and (g) and 405(a)) -- SURVIVOR'S INSURANCE BENEFITS -- EVIDENCE OF DEATH -- ESTABLISHING DATE OF DEATH AFTER ABSENCE OF SEVEN YEARS

20 CFR 404.705

SSR 76-1c

Sullivan v. Weinberger, USDC W.D. OF N.C., C-C-74-167 (4/4/75) 1A Unempl. Ins. Rep. ¶ 14,233 (1975)

The wage earner ran from his home during flood conditions on February 25, 1961, when police arrived after he had shot one of his 12 children in the shoulder. He was not seen or heard from again, and a State court determined that he died of drowning on February 25, 1961.

Held: State court ruling as to date of death is not controlling in considering application for survivor's insurance benefits, and sufficient testimony and evidence exists to support conclusion that the wage earner did not die on February 25, 1961, and to support a presumption of death seven years after his disappearance under SSA Regulations No. 4, section 404.705.

McMILLAN, District Judge:

Claimant Lola B. Sullivan filed suit on August 12, 1974, for herself individually, and on behalf of her four minor children as guardian ad litem. The suit seeks children's benefits under Section 202(d)(1) of the Social Security Act and mother's benefits under Section 202(g)(1). The issue is the date of death of the wage-earner, Grady Sullivan, husband of the claimant. The hearing examiner ruled that the date of death should be presumed to be seven years after the date of Sullivan's disappearance. Claimants maintain that February 25, 1961, the date of disappearance, is the proper date of death, and they seek a ruling that they are entitled to benefits as of that date.

The records should that Grady Sullivan disappeared from his home near Jefferson, South Carolina, on February 25, 1961. On that date he had come home intoxicated and, having become upset with the behavior of one of his twelve children, shot her through the shoulder. The police were summoned and upon their arrival Sullivan ran from the house, never to be seen or heard from again. A great deal of rain had fallen for several days prior to Sullivan's disappearance, and the creek close to his home had risen considerably and flooded some areas. Additionally, there was in the vicinity an old mine hole which was very deep and full of water as a result of the rain.

On February 17, 1972, Judge J. A. Spruill of the Court of Common Pleas for Chesterfield County, South Carolina, ruled that Sullivan had died of drowning on or about February 27, 1960. His order was amended by Judge Robert W. Hayes of the Fourth Judicial Circuit of South Carolina on February 11, 1974, so as to change the date of death to February 25, 1961.

The court is not bound by the state court's determination of the date of death. Tobin v. United States Railroad Retirement Board, 286 F.2d 480 (6th Cir. 1961); Lahr v. Richardson, 328 F. Supp. 966 (N.D.Ill. 1971), aff'd, 476 F.2d 1088 (7th Cir. 1973). The rationale behind this rule was explained by the court in Nigro v. Hobby, 120 F. Supp. 16, 19 (D. Neb 1954):

The finding of the probate court does not under the principles of res judicata nor the principles of collateral estoppel prevent the issue of the time of the decedent's death from being considered and determined by the administrator in this action. The Federal Security Administrator was not a party to the Nebraska probate proceedings and the money sought to be recovered in this action was not part of the res over which the probate court exercised jurisdiction. The probate decree is, therefore, not controlling in this case.

Mrs. Sullivan first filed for survivor benefits on April 4, 1963, but her application was denied on that and several other occasions. A hearing examiner determined on April 25, 1974, that Sullivan had not died on February 25, 1961, but that his death should be presumed to have occurred seven years later, on February 25, 1968. The examiner ordered that the claimants were entitled to survivor benefits as of the later date, February 25, 1968. The Appeals Council affirmed this decision on July 11, 1974. Because Mrs. Sullivan not lives in Monroe, North Carolina, in this district, she sued in this court for review of the determination of the examiner.

Although from the transcript of the hearing one could reasonably conclude that Grady Sullivan had in fact died on February 25, 1961, there is enough testimony to the contrary to support the "substantial evidence" standard as interpreted by the Supreme Court in Richardson v. Perales, 402 U.S. 389 (1971). See also Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966). Similarly, there is sufficient evidence to support a presumption of death seven years after the disappearance, 20 C.F.R. § 404.705. Although claimants are obviously poor people who could certainly use the extra money, the record supports the examiner's findings, and the court should not, with its statutorily limited review, reverse the finding of the hearing examiner as to the date of Sullivan's death.

For these reasons the court grants the defendant's motion for summary judgment.