Miller v. Richardson, 71-1294.
| Decision Date | 10 March 1972 |
| Docket Number | No. 71-1294.,71-1294. |
| Citation | 457 F.2d 378 |
| Parties | Edythe D. MILLER, Appellant, v. Elliott RICHARDSON, Secretary of Health, Education and Welfare. |
| Court | U.S. Court of Appeals — Third Circuit |
Tom M. Lytton, Pittsburgh, Pa., for appellant.
Richard L. Thornburgh, U.S. Atty., David M. Curry, Pittsburgh, Pa., for appellee.
Before ADAMS, GIBBONS, and JAMES ROSEN, Circuit Judges.
The sole issue on this appeal is whether, taking the record as a whole, there was substantial evidence to support the finding of the Department of Health, Education and Welfare (HEW) that Edythe D. Miller's husband could not be presumed dead.
Plaintiff-appellant, Edythe D. Miller, began a proceeding before HEW to collect widow's insurance benefits under 42 U.S.C. § 402(e). The hearing examiner denied her request, and his decision became final in 1970 when the Appeals Council denied Mrs. Miller's petition for review. Suit was then commenced in the district court to review the decision of the hearing examiner under 42 U.S.C. § 405(g). The district court granted defendant's motion for summary judgment,1 and Mrs. Miller appealed.
The facts developed at the proceeding before the hearing examiner showed that after twenty-two years of marriage, Mrs. Miller's husband permanently left the household on May 17, 1957. Aside from a telephone call received from him several days later, Mr. Miller has not been seen nor heard from since. Additional evidence showed that Mr. Miller had been going out with a Mrs. MacDonald, and had been on several "double dates" with this woman, together with his sister and a friend. Mrs. Miller heard that her husband had in fact gone off with Mrs. MacDonald, and indeed the evidence established that Mrs. MacDonald disappeared several days prior to Mr. Miller's departure.
Mrs. Miller reported her husband's disappearance to the police department and sought the aid of the Pennsylvania Department of Public Welfare to locate him. Mr. MacDonald attempted to locate his wife and Mr. Miller by tracing the license number of the automobile in which Mr. Miller drove off. All efforts to find Mr. Miller were unsuccessful. Mrs. Miller commenced a proceeding in the Orphans' Court of Allegheny County, Pennsylvania to have Mr. Miller declared a presumed decedent. In a decree issued March 25, 1969, the Orphans' Court denied the petition.
Based on the evidence, the hearing examiner found that Mr. Miller's disappearance was not unexplained, and that implicit in his departure was an intention to continue living. He therefore held that Mrs. Miller was not entitled to receive widow's benefits. The regulation governing the receipt of benefits by a widow when her husband has disappeared provides as follows:
"Whenever it is necessary to...
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Evans v. Secretary of Health, Education & Welfare
...v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Miller v. Richardson, 321 F.Supp. 157 (D.C.Pa. 1970), aff'd 457 F.2d 378 (3rd Cir. 1972); 6 A.L.R.Fed. 76-133. Secondly, plaintiff contends that the A.L.J., in preventing the burden of going forward with the evidence from shift......
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Aubrey v. Richardson, 71-1538.
...whether on the record as a whole there is substantial evidence to support the Secretary's findings of fact.'" See Miller v. Richardson, 457 F.2d 378 page 379 (3d Cir.). The findings of the Appeals Council in this case, contained in these extracts from its opinion, are supported by substanti......
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Beum v. Weinberger, Civ. No. 74-82.
...life. Other recent United States Court of Appeals cases which have dealt with the application of 20 C.F.R. 404.705 are Miller v. Richardson, 457 F.2d 378 (Third Cir. 1972), Dowell v. Gardner, 386 F.2d 809 (Sixth Cir. 1967) and Christen v. Secretary of Health, Education & Welfare, 439 F.2d 7......
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