20 CFR 404.601 and 404.610

SSR 63-37c

SMALTZ v. RIBICOFF, U.S.D.C., W.D. of Mo., W.Div. (Civil No. 13686, 9/27/62) (CCH UIR-I, Fed. Par. 14,623)

Where, during the pendency of a claimant's appeal from a disallowance of his application for disability insurance benefits, an oral inquiry was made at a local office of the Social Security Administration concerning eligibility of claimant's son to child's insurance benefits, under the provision of the Act granting child's insurance benefits to children of individuals entitled to disability insurance benefits, and where subsequently, the court decided claimant's appeal in his favor, held, the oral inquiry does not constitute the filing of an application on behalf of the child, since under the Act and the Social Security Administration Regulations applications for benefits are required to be in writing.


This is an action brought under Section 205(g) of the Social Security Act as amended (Section 405(g), Title 42, U.S.C.) to review a final decision of the defendant by denying a request for review of a Hearing Examiner's decision denying plaintiffs claim for childhood disability benefits allegedly due him under the provisions of Section 202(d)(1) of the Social Security Act.

The facts are fairly simple and are not in dispute. Plaintiff's father and mother were divorced in 1955, and the custody of plaintiff was awarded the mother, his next friend in this action. On September 10, 1957, George D. Smaltz, plaintiff father, filed an application with the local Social Security Administration Office for disability payments. This application was denied, and Mr. Smaltz thereafter took the necessary administrative steps, which resulted in a final denial of his claim on October 22, 1959. Mr. Smaltz subsequently appealed this final decision to this Court, which reversed the final one made on May 12, 1960. Smaltz v. Ribicoff, No. 12599, U.S. Dist Ct., W.D. Mo., W.D. At the time of making his original applications before the Administration Mr. Smaltz indicated on his application that he was unmarried and had a child under 18 years of age.

Subsequent to Mr. Smaltz's original application Section 202(d)(1) of the Social Security Act (Section 402(d)(1), Title 42, U.S.C.) was amended in November 1958, to provide that children of persons entitled to disability benefits could receive benefits under the act effective with, but not prior to September 1958.[1] Subsection (j) of this same section provided that the benefits to such a child would be paid retroactively for the twelve months prior to the date of such child's application, if the parent's disability had existed that long before the application.

Without going into detail, it may be said that the record of the hearing before the Hearing Examiner showed that plaintiff's mother read a newspaper article describing the amendment to the law, and went, with plaintiff, to the local office of the Social Security Administration, where she spoke to someone there as to the possibility of plaintiff receiving benefits because of his father's alleged disability. She was told at that time that as far as the Administration was concerned plaintiff had no claim, as his father's disability claim had been denied. Plaintiff's mother could not specifically fix the date of this visit, except to state that it was sometime in 1958, shortly after she had seen the newspaper article which described the 1958 amendment. Plaintiff's mother testified that she made at least one other visit to the office, at which time approximately the same conversation was held. At none of these visits did plaintiff's mother file a written application for benefits for plaintiff. On July 14, 1960 plaintiff's father, having learned of his success in this Court, returned to the local office to discuss his claim, at which time one of the employees there, noting that Mr. Smaltz's application stated that he had a minor child and find that Mr. Smaltz had succeeded in having the final decision of the Agency reversed by the Court, suggested that Mr. Smaltz file a written statement of his intention to file a claim on behalf of this minor child. This was filed on that date. The rules of the Administration allow a party claimant to file such a written statement of intent, and the date of this statement is then allowed to serve as the date of formal filing of the claim, for purposes of determining when the claim was filed.[2]

Consequently, plaintiff's claim was allowed, after plaintiff's mother had filed formal claim on August 11, 1960. The claim was made effective as of July 1959, twelve months prior to the filing of the statement of intent to file a claim on plaintiff's behalf.[3]

Plaintiff claims that he is entitled to benefits as of November 1958, the date on which the amended section 202(d) took effect, because, as he contends, when his mother visited the office and inquired into the possibility of his claim, defendant's employees should have realized that plaintiff's father might ultimately have been decided to have been disabled, in which case plaintiff would have been entitled to benefits from the date of filing of the claim, and the failure of defendant's employees to take such a claim renders the oral expression of plaintiff's mother tantamount to a written claim, which, being applied retroactively, would entitle plaintiff to benefits from the original effective date of the amendment, November 1958.

Defendant has filed a motion for summary judgment.

It appears to the Court that Section 202(d)(1) and 202(j) of the Act, and the regulations promulgated thereunder, clearly contemplate that any applications for claims shall be in writing, and that no oral statements may qualify as such an application.

Although the Court feels that it is unfortunate that a situation such as the instant one can occur, we feel that to allow plaintiff to prevail in the case at bar would establish a precedent which might be termed undesirable.

In an operation with a scope of that conducted by the Social Security Administration formality becomes a necessity if accurate records are to be kept. This further becomes apparent when the date of the filing of an oral application such as plaintiff contends existed must be determined. In the instant case, plaintiff's mother could designate no specific date as that when she appeared at the local office, thus no specific date could be determined from which the benefits could become effective. It is within the authority delegated to the Social Security Administration to require than any claims be submitted to it in writing, and the Court is not disposed to qualify this power by holding that in certain circumstances an oral manifestation of an attempt to file an application might have the effect of a formal application or a written statement of intent to file a formal application.

While the parties have indicated in their briefs that they do not feel that any factual issues are present, and this case has been dealt with primarily on the legal issue of whether an oral statement of intent to file a claim can serve as a basis for a formal filing of a claim, the Court has read and considered the record of the proceedings before the Hearing Examiner in this case and the Court does find that there is substantial evidence to support the findings of fact made by the Hearing Examiner.

For the above-stated reasons, defendant's motion for summary judgment is hereby granted, and no error being found in the action of the Hearing Examiner, his decision is affirmed.

[1] The amending act, PL 85-840, enacted August 28, 1958, provided for entitlement to child's insurance benefits on the earnings record of a person entitled to disability insurance benefits, effective September 1958, "but only if an application for such [child's insurance] benefits is filed on or after the date of enactment of this Act." [Ed.]

[2] See SSR 62-28, C.B. 1962, p. 83, concerning conditions under which a written statement indicating an intention to claim benefits may be deemed to be an application for benefits. [Ed.]

[3] Under section 202(j)(1), an application filed in one month may entitle the claimant to benefits for as many as 12 months before the month of filing. The entitlement begins with the first of those 12 months in which the claimant could, upon filing an application, have become entitled to benefits. See SSR 62-1, C.B. 1962, p. 19 [Ed.]

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