(Rescinded 7/14/95; see 60 FR 19163, 20 CFR 404.721(b))
EFFECTIVE DATE: 4/2/86
AR 86-6(3): Aubrey v. Richardson, 462 F.2d 782 (3rd Cir. 1972); Shelnutt v. Heckler, 723 F.2d 1131 (3rd Cir. 1983) -- 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.
Section 205(a) and 205(g) of the Social Security Act (42 U.S.C. 405(a) and 405(g)); 20 C.F.R. 404.721(b); SSR 80-10c 
THIRD (DELAWARE, NEW JERSEY, PENNSYLVANIA, VIRGIN ISLANDS)
- Aubrey v. Richardson, 462 F.2d 782 (3rd Cir. 1972)
- Shelnutt v. Heckler, 723 F.2d 1131 (3rd Cir. 1983)
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(S):
In 1969, Florence Aubrey, the plaintiff in this case, applied for child's benefits for her two minor children, on the earnings record of the worker, John W. DeMasse, who was her former husband and their father. Since there was no record that Mr. DeMasse had died, the plaintiff sought to establish the fact of his death pursuant to the Secretary's presumption of death regulation, 20 C.F.R. 404.705, 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 seven 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.
Plaintiff married Mr. DeMasse in 1952, separated from him "at least twelve times," and filed numerous suits against him for nonsupport, as a result of which he served several short jail terms. Mr. DeMasse was last heard from on June 8, 1961, the day of his release from the latest jail sentence, at which time he telephoned the plaintiff. Since that date, attempts to locate him through friends and acquaintances and by the authorities proved fruitless. No earnings were posted to his Social Security earnings record after his disappearance. There also was evidence that Mr. DeMasse had borrowed money from loan sharks which he had not repaid, and that they had come looking for him prior to his prison sentence, but not after his release. Plaintiff obtained a divorce from Mr DeMasse in 1962, and an ex parte decree from the Philadelphia Orphans Court granting her letters of administration, based on his presumed death, in 1968.
After being denied initially and upon reconsideration, Florence Aubrey's application for child's benefits was allowed by the hearing examiner. However, reviewing the case on its own motion, the Appeals Council issued a final decision which denied benefits on the basis that the disappearance was not "unexplained" within the meaning of 20 C.F.R. 404.705 and, therefore, that the worker's death was not established.
Florence Aubrey sought judicial review in the U.S. District Court for the Eastern District of Pennsylvania which reversed the Secretary's decision and awarded benefits to her for the children. The Secretary appealed to the Court of Appeals for the Third Circuit which affirmed the decision of the district court.
Martha Shelnutt, the plaintiff in this case, applied for mother's benefits for herself and child's benefits for her daughter on the earnings record of the worker, James Shelnutt, who was her former husband and the child's father. Plaintiff contended that Mr. Shelnutt's death should be presumed, by application of 20 C.F.R. 404.721(b).
Mr. Shelnutt was a self-employed stockbroker who was last heard from when he left his home in Seattle in April 1971, telling his family that he was going to a silver mine in Idaho on business. He took with him enough luggage for a short trip and approximately $18,000 in cash from investors. After his disappearance, the Seattle police issued a warrant for his arrest on charges of grand larceny. Subsequently, plaintiff obtained a divorce from Mr. Shelnutt in Washington and obtained a Court of Chancery decree of his presumed death in Delaware.
Martha Shelnutt's applications for mother's and child's benefits were denied at all levels of the administrative appeals process. The ALJ found that Mr. Shelnutt could not be presumed dead under 20 C.F.R. 404.721(b) since evidence of marital and financial difficulties and the arrest warrant concerning the disappearance of funds constituted an explanation other than death which accounted for his continued absence.
The ALJ's decision stood as the final decision of the Secretary, and Martha Shelnutt sought judicial review in the U.S. District Court for the District of Delaware which affirmed the Secretary's decision. Martha Shelnutt then appealed to the Court of Appeals for the Third Circuit which reversed the decision of the district court and awarded benefits to plaintiff for herself and her child.
Relying on Ninth Circuit case law in Secretary of Health, Education and Welfare v. Meza, 368 F.2d 389, 392 (9th Cir. 1966), the Third Circuit Court of Appeals held that "[W]hen the facts show that a person has been absent from his residence and unheard of for a period of seven years, a presumption arises that he is dead." The court citing Gardner v. Wilcox, 370 F.2d 492, 494 (9th Cir. 1966) added that the presumption having been established, "[t]he burden of explanation then shifts to the Secretary, and the presumption can be dissipated 'by proof of facts that rationally explain the anomaly of the disappearance in a manner consistent with continued life.'"
The court further stated that when the Secretary infers an explanation from conflicting facts, the explanation must be supported by facts "which do -- not merely may -- 'rationally explain the anomaly of the disappearance in a manner consistent with continued life.'" Specifically, the court found that the fact that Mr. DeMasse had sought to avoid child support payments, and the fact that he had served prison sentences for desertion and non-support constituted too conjectural an explanation for disappearance to rebut the presumption of death.
Reiterating its holding in Aubrey, the Court of Appeals held that the "burden of proof is dispositive" and requires judgment for the plaintiff where "[e]ach side has advanced a plausible scenario -- the Secretary that Shelnutt fled marital and financial problems by absconding with other people's money, and the claimant that her husband was killed while on a legitimate business trip, possibly by someone who knew he was carrying a large sum of cash." In finding for the plaintiff the court pointed to the fact that the evidence did not establish that the worker's financial or marital difficulties were more serious than they had been for a long time prior to the disappearance.
STATEMENT AS TO HOW AUBREY AND SHELNUTT DIFFER 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 decisions of the Court of Appeals for the Third Circuit in the above cases hold 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 AUBREY AND SHELNUTT DECISIONS WITHIN THE CIRCUIT:
This ruling applies only in cases in which the claimant resides in Delaware, New Jersey, Pennsylvania or the Virgin Islands 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 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 presumption 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.
 20 C.F.R. 404.705 was recodified, without revision, at 20 C.F.R. 404.705(a) effective December 18, 1974, and was revised and recodified at 20 C.F.R. 404.721(b) effective June 7, 1978. The revised regulation eliminated "unexplainedly absent" and substituted "absent from his or her residence for no apparent reason." The revision, however, did not change policy concerning the presumption of death.
 Hearing examiners now are known as administrative law judges (ALJ's).
 The court contrasted its conclusion in Aubrey with its decision in Miller v. Richardson, 457 F.2d 378 (1972). In Miller, the evidence showed that the worker left the family home shortly after a woman, whom he had been seeing, also disappeared, and that he phoned his wife several days after his disappearance to state that he intended to begin a new life in California. On these facts, the Court of Appeals affirmed the Secretary's decision on substantial evidence grounds finding that Miller's disappearance was not unexplained and implicit in his departure was an intention to continue living.