Green v. Shalala

• Decision Date: 30 March 1995
• Docket Number: No. 94-2824,94-2824
• Citation: 51 F.3d 96
• Parties: Judy Anne GREEN, individually and as mother and next friend of John J. Green and John J. Green, Plaintiffs-Appellants, v. Donna E. SHALALA, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 96

51 F.3d 96

47 Soc.Sec.Rep.Ser. 291

Judy Anne GREEN, individually and as mother and next friend of John J. Green and John J. Green, Plaintiffs-Appellants, v. Donna E. SHALALA, Secretary of Health and Human Services,

Defendant-Appellee.

No. 94-2824.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 14, 1994.

Decided March 30, 1995.

Frank H. Byers (argued), Fuller, Hopp, McCarthy, Quigg & Byers, Decatur, IL, for plaintiffs-appellants.

David H. Hoff, Asst. U.S. Atty., Office of the U.S. Atty., Urbana Div., Urbana, IL, and Robert C. Stephens (argued), Department of Health and Human Services, Region V, Office of the Gen. Counsel, Chicago, IL, for defendant-appellee.

Before COFFEY, RIPPLE and KANNE, Circuit Judges.

RIPPLE, Circuit Judge.

In 1984, John Charles Green, husband of the appellant Judy Anne Green, disappeared from his home and never returned. Mrs. Green waited seven years and then, believing her husband to be dead, applied for child survivor insurance benefits on behalf of her youngest child, John J. Green. After a hearing conducted by an administrative law judge ("ALJ"), the Secretary of Health and Human Services denied her claim. The district court affirmed the denial. We now vacate the district court's judgment because the ALJ did not discuss important evidence and therefore his decision cannot be considered based on substantial evidence.

I BACKGROUND

On the morning of January 4, 1984, Mr. Green left his home in Decatur, Illinois to attend to his store, Little John's Water Bed Shop. He never returned. That day, Mrs. Green found a note from her husband, apologizing for "all the problems." Two days later, Mr. Green's parents received an envelope postmarked Louisville, Kentucky containing letters for Mrs. Green and the children as well as the keys to the truck Mr. Green had been driving. The truck was found at a bus station in Champaign, Illinois.

The letter to Mrs. Green read:

Here are some of the keys house store Buick Desk and warehouse. I won't go (Admin.R., Ex. 9). In the letter to his children Mr. Green wrote:

into it again but as you can tell I have failed again. I won't be back please make the best of your life and the kids.

I am sorry for what I have done to you guys. Remember I Love all of you very very much and will alwise [sic] miss you my thoughts are with you. I am sorry I lied to you when I first came back and told you I would never do this again. I didn't think I would. It is all my fault. Judy and all 3 of you have been wonderful it is nothing that any of you did. I am just a failure at work, home and father and as such I think it would be best if I left.

Much Love and Luck alwise [sic]

Your Father

John

(Admin.R., Ex. 9).

After Mr. Green's disappearance, Mrs. Green discovered that the business was in serious financial trouble. A check to a major supplier was not honored by the bank and twenty customers filed complaints with the Illinois Attorney General regarding merchandise for which they had paid but which never had been delivered. The Attorney General filed a civil action against Mr. Green, but the suit was dismissed without prejudice because Mr. Green could not be located and therefore could not be served.

During the past ten years, Mr. Green has not attended any family function including his children's graduations from high school and college, his daughter's marriage, and the festivities surrounding the birth of his grandchild. Mr. Green also did not respond to his wife's filings for divorce and bankruptcy in 1985 and 1987 respectively; notice of each action was published in the local newspaper. He did not attend his parents' funerals or claim the inheritance left to him. The Circuit Court of Macon County, Illinois declared Mr. Green legally dead on July 2, 1991. Mrs. Green also received the proceeds from a life insurance policy on the ground that her husband was presumed dead.

In February 1991, Mrs. Green filed for child survivor benefits on behalf of her son John Jason Green. ¹ In April 1992, the ALJ held a hearing and subsequently denied the claim on the ground that Mr. Green's disappearance was not unexplained. The ALJ stated that Mr. Green had a history of disappearing to avoid prosecution. The ALJ noted that, in 1978, Mr. Green had left for work and had not returned home. Using the name Terry North, he lived for eighteen months in missions in Reno, Nevada and Eugene, Oregon. On that earlier occasion, because he had filed a false loan application prior to his departure, he was charged with theft upon his return. He was placed on probation and successfully completed the term. The ALJ also noted that, even though the Illinois Attorney General had dismissed the charges against Mr. Green for customer fraud allegedly committed prior to his second departure, those charges could be refiled if he returned. The ALJ also concluded that the investigations conducted by the Attorney General's office and the County Sheriff's office were not thorough and did not establish Mr. Green's death. The notes to Mrs. Green and to the children did not include an indication that Mr. Green contemplated suicide; rather, the letters expressly stated that Mr. Green would always miss them and would not return. Finally, the ALJ determined that Mr. Green's failure to attend important family gatherings was not persuasive.

In April 1993, the Appeals Council denied Mrs. Green's request for review. She then filed a complaint in the district court. Both parties moved for summary judgment. Mrs. Green argued that the ALJ erred in concluding that a presumption of death is raised only when it is established that a person has been absent for seven years and the absence is unexplained. She also contended that the Secretary's decision was not supported by substantial evidence and that the Secretary erred in failing to explain Mr. Green's continued absence or to consider the death certificate issued by the Circuit Court of Macon County, Illinois. The district court rejected

these arguments and granted summary judgment for the Secretary.

II ANALYSIS

We review a district court's grant of summary judgment de novo. Schultz v. General Elec. Capital Corp., 37 F.3d 329, 333 (7th Cir.1994). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Id.

A. The Burden of Proof and Presumption of Death

Title Two of the Social Security Act provides for the payment of insurance benefits to the child "of an individual who dies a fully or currently insured individual." 42 U.S.C. Sec. 402(d)(1). Where the claimant for such benefits cannot establish the individual's death, see 20 C.F.R. Sec. 404.720 (1990), the person will be presumed dead based upon submission of the following evidence:

(a) A certified copy of, or extract from, an official report or finding by an agency or department of the United States that a missing person is "presumed to be" dead as set out in Federal law (5 U.S.C. Sec. 5565)....

(b) Signed statements by those in a position to know and other records which show that the person has been absent from his or her residence for no apparent reason, and has not been heard from, for at least 7 years....

20 C.F.R. Sec. 404.721.

The parties in this case dispute how the burden of production should be allocated between them in determining whether a person should be presumed dead. In his decision, the ALJ stated: "In order for there to be a presumption of death, the absence must be unexplained." Mrs. Green contends that she is required to show only that the missing person has been absent for seven years for the presumption to apply. The burden then shifts to the Secretary, she argues, to prove that the individual is alive or to provide an explanation to account for the individual's absence in a manner consistent with continued life. The Secretary, on the other hand, interprets Sec. 404.721(b) to place the burden of production on the claimant to show that the insured person has not been heard from for at least seven years and that he has been absent for no apparent reason before the presumption is invoked.

The courts of appeals that have addressed this issue ² have all accepted the interpretation advocated by Mrs. Green. Indeed, the Secretary has issued acquiescence rulings, agreeing to abide by that standard for claimants residing in those circuits. ³ However, the Secretary continues to adhere to her original interpretation of Sec. 404.721(b) in cases arising in the Seventh Circuit. ⁴ The Secretary contends that her interpretation should be accorded great deference and that it is appropriate to rest the burden of establishing that the wage earner's disappearance is "unexplainable" on the claimant because the family member is in possession of the facts.

An agency's interpretation of its own regulation must be given "controlling weight unless it is plainly erroneous or inconsistent with the regulation." Thomas Jefferson Univ. v. Shalala, --- U.S. ----, ----, 114 S.Ct. 2381, 2386, 129 L.Ed.2d 405 (1994) (citations omitted). Therefore, the court must defer to the Secretary's interpretation unless an "alternative reading is compelled by the regulation's plain language or by other indications of the Secretary's intent at the time of the regulation's promulgation." Id. (quoting Gardebring v. Jenkins, 485 U.S. 415, 430, 108 S.Ct. 1306, 1314, 99 L.Ed.2d 515 (1988)). Deference, however, is not synonymous with acquiescence, Batanic v. Immigration & Naturalization Service, 12 F.3d 662, 665 (7th Cir.1993), and "requires us to accept only those agency interpretations that are reasonable in light of the principles of construction courts normally employ." Pettibone Corp. v. United States, 34 F.3d 536, 541 (7th Cir.1994) (quoting EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 260, 111 S.Ct. 1227, 1236-37, 113 L.Ed.2d 274 (1991) (Scalia, J., concurring in part and concurring in the judgment)).

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