619 F.2d 865 (10th Cir. 1980), 79-1295, Edwards v. Califano

Docket Nº:79-1295.
Citation:619 F.2d 865
Party Name:Charlotte Diane EDWARDS for Debora A. Long and Clayton D. Long, Plaintiff- Appellant, v. Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant-Appellee.
Case Date:April 11, 1980
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 865

619 F.2d 865 (10th Cir. 1980)

Charlotte Diane EDWARDS for Debora A. Long and Clayton D.

Long, Plaintiff- Appellant,

v.

Joseph A. CALIFANO, Jr., Secretary of Health, Education and

Welfare, Defendant-Appellee.

No. 79-1295.

United States Court of Appeals, Tenth Circuit

April 11, 1980

Argued and Submitted Jan. 25, 1980.

Page 866

Jack Gray, Oklahoma City, Okl., for plaintiff-appellant.

Stanley M. Ericsson, Atty., Dept. of Health, Education, and Welfare, Baltimore, Md. (Barbara Allen Babcock, Asst. Atty. Gen., Washington, D.C., Larry D. Patton, U. S. Atty., S. Paul Richards, Asst. U. S. Atty., Oklahoma City, Okl., and Randolph W. Gaines, Chief of Litigation, Dept. of Health, Education, and Welfare, Baltimore, Md., with him, on brief), for defendant-appellee.

Before HOLLOWAY, McWILLIAMS and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

Charlotte Diane Edwards (Edwards) appeals on behalf of her two minor children, Debora A. and Clayton D., from a judgment affirming the decision of the Secretary of Health, Education and Welfare (Secretary) denying a claim for child insurance benefits under Section 202(d) of the Social Security Act, 42 U.S.C.A. § 402(d). Section 202(d) provides in pertinent part:

for payment of child's insurance benefits for every child of an individual who dies a fully or currently insured individual, if an application for such benefits has been filed, or at the time such application was filed, the child was unmarried, and had not attained the age of 18, or was a full time student and had not attained the age of 22, or is under a disability (as defined in Section 223(d)) which began before he attained age 18 and was dependent upon such individual at the time of death.

(R., Vol. I at p. 7).

A brief review of the background facts will facilitate our disposition on appeal.

Edwards' former husband, John Richard Long (Long) abandoned her and their two minor children in 1964 and has not contacted Edwards since that time. On November 30, 1972, Edwards filed an application on behalf of her two children for surviving child's insurance benefits based on the earnings record of Long. This application was denied. Thereafter, on December 2, 1975, Edwards filed a second application.

Edwards' second application was initially denied. It was again denied on reconsideration. Edwards then requested a hearing before an administrative law judge (ALJ), who, after a hearing, concluded that she was not entitled to surviving child's benefits on behalf of her children. In presenting her case to the ALJ, Edwards argued that Long was presumptively dead under 20 C.F.R. § 404.705(a), infra, since he had not been seen for over seven years and wage records compiled for Long by the Social Security Administration stopped after the first quarter of 1968. The decision of the ALJ became the final decision of the Secretary when it was affirmed by the Appeals Council on March 13, 1978.

In rendering the decision denying Edwards surviving child's benefits for her children, the ALJ entered the following findings:

1. The claimant, Charlotte Diane Edwards, on behalf of Debora A. and Clayton D. Long, filed an application on December 2, 1975 (with an intent to file on April 16, 1975) for surviving child's benefits on the wage earner, John R. Long's record.

2. The wage earner, John R. Long, was born March 10, 1940.

3. The wage earner, John R. Long, has a total of 33 quarters of coverage credited to his wage record.

4. The wage earner, John R. Long, is fully insured as of the date of this decision.

5. John Richard Long and Charlotte Diane Edwards were married on September 11, 1959, and to this union two children were born, namely, Debora Ann Long, born December 14, 1960, and Clayton Dale Long, born June 13, 1962.

6. John Richard Long absented himself from his home in Imperial Beach, California in 1964, and did there abandon his wife, Charlotte Diane, and his two minor children, Debora and Clayton Long.

Page 867

7. The wage earner, John Richard Long, has worked in various states throughout the United States after his disappearance in 1964.

8. The wage earner, John Richard Long, has been seen by other family members after his disappearance in 1964.

9. The evidence does not convincingly establish that the claimant was presumably dead in 1964 or as late as March 31, 1968, or any date thereafter.

10. The wage earner's absence from home after more than seven years is not unexplained within the meaning of Section 404.705 of Social Security Regulations No. 4; therefore cannot be presumed to be dead.

(R., Vol. I at pp. 20-21).

20 C.F.R. § 404.705(a), the regulation referenced in the ALJ's finding number 10, provides:

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 establishment of such facts and in the absence of any evidence to the contrary, will presume that such individual has died.

On appeal, the District Court affirmed the ALJ's denial of benefits. In so doing, the District Court found and concluded, inter alia :

The final administrative decision herein is that while John Richard Long has been absent from home for more than seven years, his absence is not unexplained within the meaning of 20 C.F.R. § 404.705(a) and he therefore cannot be presumed to be dead. Evidence in the administrative record establishes that John Richard Long was alive after he abandoned his wife and their children in 1964. Wage records show earnings by John Richard Long through the first quarter of 1968. There is also evidence that John lived with his brother James until departing in June of 1967, several months after a state court order imposed a $100.00 per month child support obligation on John. James also stated that he felt John was still alive as late as 1975. The record further establishes that John Richard Long had a drinking problem and had an erratic work record at a variety of jobs through the country.

On the other hand, there is evidence in the record that John Richard Long is dead. Such evidence consists primarily of the statements and testimony of Plaintiff to this effect and the determination of the Oklahoma County District Court that John Richard Long is dead because of his absence of seven years. However, the decree of the Oklahoma County District Court is not binding on either the Secretary or this Court for the...

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