(Rescinded 7/14/95; see 60 FR 19163, 20 CFR 404.721(b))
EFFECTIVE DATE: 4/2/86
AR 86-9(9): Secretary of Health, Education and Welfare v. Meza, 368 F.2d 389 (9th Cir. 1966); Gardner v. Wilcox, 370 F.2d 492 (9th Cir. 1966) -- 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 resi- dence 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.
NINTH (ALASKA, ARIZONA, CALIFORNIA, HAWAII, IDAHO, MONTANA, NEVADA, OREGON, WASHINGTON, GUAM, NORTHERN MARIANA ISLANDS)
Secretary of Health, Education and Welfare v. Meza, 368 F.2d 389 (9th Cir. 1966)
Gardner v. Wilcox, 370 F.2d 492 (9th Cir. 1966)
APPLICABILITY OF RULING:
- This ruling applies to determinations or decisions at all administrative levels (i.e., initial, reconsidera- tion, administrative law judge hearing and Appeals Council).
DESCRIPTION OF CASE(S):
In 1962, Lucy Meza, the plaintiff in this case, applied for mother's benefits for herself and child's benefits on behalf of her children on the earnings record of the worker, Domingo Meza, who was her husband, the natural father of two of her children, and the stepfather of two other children, born to her by a prior liaison. Since there was no record of the worker's death, Lucy Meza sought to establish his death pursuant to the Secretary's presumption of death regulation, 20 C.F.R. 404.705. This regula- tion stated:
- Whenever it is necessary to determine the death of an indi- vidual 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 evi- dence to the contrary, will presume that such individual has died.
Plaintiff had not seen Mr. Meza since June 19, 1948, when he left their home with his clothing, car, and a week's pay, while she was out shopping. Plaintiff stated that she and Mr. Meza were not having any particular marital or financial problems, that he did not have mental problems, and that he was not involved in criminal activities. The evidence showed that Mr. Meza was alive as late as the third quarter of 1954, when he was working for an employer in Houston, Texas who reported his earnings for Social Security purposes. Mr. Meza quit this job without notice or explanation on July 14, 1954, and has not been heard from since. Upon a petition filed by Lucy Meza to be appointed the adminis- tratrix of his estate, the Superior Court of Los Angeles County, California entered a decree on January 3, 1962 presuming Domingo Meza dead, as of June 19, 1955.
Lucy Meza's applications for child's and mother's benefits were denied initially and upon reconsideration, and after an administrative hearing. The hearing examiner held that the worker's absence was not unexplained within the meaning of 20 C.F.R. 404.705. The examiner based his conclusion on the fact that Mr. Meza was alive as late as 1954, that he quit his job in Houston at that time without notice, and that, in 1951, he had told the employer that he had no dependents and listed a fictitious (or at least erroneous) address on his work record. The examiner also stated that Mr. Meza may have been trying to avoid making child support payments to Lucy Meza or to his first wife, from whom he had been divorced in 1945.
The hearing examiner's decision stood as the final decision of the Secretary, and was appealed by Lucy Meza to the U.S. District Court for the Southern District of California. The district court reversed the decision of the Secretary and awarded benefits to plaintiff for herself and the children. Upon appeal by the Secretary, the Ninth Circuit Court of Appeals affirmed the decision of the district court.
Wanda Wilcox, the plaintiff in this case, applied for mother's benefits for herself and child's benefits on behalf of her children on the earnings record of the worker, Bill Wilcox, who was her husband and the natural father of three children born of the marriage. As in Meza, since there was no record of Mr. Wilcox' death, the plaintiff sought to establish the fact of his death pursuant to 20 C.F.R. 404.705.
Plaintiff and the worker were married in 1937, and he disappeared on March 30, 1953, while she was expecting their third child. The evidence showed that Mr. Wilcox was employed by the State National Guard in Washington. On March 30, 1953, he travelled from his home to another city in Washington to seek employment, having indicated a belief that his current job would be terminat- ed. The following day, the National Guard called plaintiff in an effort to reach Mr. Wilcox and told her that a sum of money under his charge was missing. When plaintiff reached her husband the following day by phone, he advised her he would come home to resolve matters. Instead, she received a letter from him on April 2, which reflected a confused state, advising her of where to find his car and ending with goodbye. Mr. Wilcox's car was found at the place designated by him in the letter he had sent to the plaintiff. The location of the car was near a river, which was swift and deep. A search was conducted, but his body was not discovered.
Wanda Wilcox's applications for child's and mother's benefits were denied initially, upon reconsideration, and after an admin- istrative hearing. The hearing examiner held that the worker's absence was not unexplained within the meaning of 20 C.F.R. 404.705, but was explained by the fact that he anticipated being charged with embezzlement.
The hearing examiner's decision stood as the final decision of the Secretary, and was appealed by Wanda Wilcox to the U.S. District Court for the Eastern District of Washington. The district court reversed the decision of the Secretary and awarded benefits to plaintiff for herself and the children. Upon appeal by the Secretary, the Court of Appeals for the Ninth Circuit vacated the judgment of the district court, and remanded the case to the Secretary for the hearing examiner to further develop evidence and make findings regarding the alternative probabili- ties for Mr. Wilcox's disappearance.
Regarding the presumption of death regulation, the court held that:
- [T]he true meaning of the regulation is that when 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 presumption can then be dissipated in two ways. One would be by presenting evidence that the missing person is alive. This is the kind of "evidence to the contrary" referred to in the regulation . . . The other showing would be by proof of facts that rationally explain the anomaly of the disappearance in a manner consistent with continued life.
In affirming the award of benefits by the district court, the Court of Appeals held that the Secretary had failed to meet the burden of showing an explanation, other than death, to account for the worker's disappearance in 1954. The court found that the wage postings to Mr. Meza's Social Security record through 1954 constituted "evidence to the contrary", within the meaning of the regulation, which rebutted the presumption that Mr. Meza died when he disappeared in 1948. However, in relation to the absence which began in 1954, the court stated that "there are no facts shown by the record that rationally explain the second disappear- ance at all, much less in a manner consistent with life."
Reiterating the standard it had set forth in Meza, the Court of Appeals held that the hearing examiner erred since he decided the case by applying the standard that "if any explanation [of the absence] is forthcoming, then it must be said as a matter of law that the absence is not unexplained." (emphasis in original) The court held that, on remand, the hearing examiner must consider the alternative probabilities of flight and suicide and, if flight should appear more likely, the probability of the subsequent death of the worker. Among other factors, the court directed the examiner to consider the absent individual's age, health, stability of character, extent and strength of family ties, and the efforts made by the FBI to find him.
STATEMENT AS TO HOW MEZA AND WILCOX 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 Ninth 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 MEZA AND WILCOX DECISIONS WITHIN THE CIRCUIT:
This ruling applies only to cases where the claimant resides in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, or the Northern Mariana 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. (See 20 C.F.R. 404.721(b) (1985).) 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).