(Rescinded 7/14/95; see 60 FR 19163, 20 CFR 404.721(b))
EFFECTIVE DATE: 4/2/86
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 residence 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.
Section 205(a) and 205(g), (42 U.S.C. 405(a) and 405(g)); 20 C.F.R. 404.721(b); SSR 80-10c
SIXTH (MICHIGAN, OHIO, KENTUCKY, TENNESSEE)
Johnson v. Califano, 607 F.2d 1178 (6th Cir. 1979)
In 1973, Geraldine Johnson applied for child's benefits on behalf of her daughter, Kathy Ross on the earnings record of the worker, Danny D. Ross, Kathy's father. Since there was no record of Mr. Ross' death, the plaintiff sought to establish the fact of his death pursuant to the Secretary's presumption of death regulation, 20 C.F.R. 404.705(a), which stated:
Ms. Johnson and Mr. Ross met in 1964 and had a short-lived and tumultuous relationship. Mr. Ross was a heavy drinker and, throughout their relationship, the couple was accustomed to violent physical fights. Ms. Johnson and Mr. Ross were married in December 1964, at which time Ms. Johnson was five months pregnant with Kathy. The last time Ms. Johnson saw Mr. Ross was in 1965, when he visited his two-week old daughter. Ms. Johnson had stated that Mr. Ross showed no fatherly affection for his new-born child and spent a part of the visit at a house of ill- repute. The last time Ms. Johnson heard from Mr. Ross was in November 1965, when he sent her a letter from his army service post in Germany.
Early in 1066, the Army reassigned Mr. Ross to a new service post in Thailand. Along with the reassignment, he was given thirty days leave in the United States and was scheduled to report to San Francisco on February 10, 1966. However, Mr. Ross failed to report as scheduled. The last known trace of Mr. Ross was on February 14, 1966, when he picked up his Army paycheck in Washington, D.C. He was classified as AWOL on March 3, 1966, and as a deserter on April 1, 1966. Since the disappearance, Mr. Ross' parents have not heard from him and no wage earnings have been reported under his Social Security number.
Ms. Johnson's application was denied initially and upon reconsideration. On her further appeal to the hearing level, the administrative law judge (ALJ) found that Ms. Johnson had established the worker's death in accordance with 20 C.F.R. 404.705(a) and awarded benefits to her for her child. However, Ms. Johnson appealed this decision to the Appeals Council on the ground that the ALJ had incorrectly set the date for the award of benefits. The Appeals Council granted review, found that the evidence of record provided "logical reasons" other than death to explain the prolonged absence of Mr. Ross (e.g., the desire either to avoid court martial for desertion or to escape the difficulties of his marriage), and reversed the award of benefits.
Ms. Johnson sought judicial review in the U.S. District Court for the Western District of Kentucky which reversed the decision of the Secretary. The Secretary then appealed to the Court of Appeals for the Sixth Circuit, which affirmed the district court decision.
Regarding the presumption of death regulation, the court adopted the following rule:
Following the formulation of the Ninth Circuit Court of Appeals in Secretary of Health, Education and Welfare v. Meza, 368 F.2d 389, 392 (9th Cir. 1966), the Sixth Circuit held that the Secretary could overcome the presumption by making an affirmative showing either that the "missing person is alive" or that "the anomaly of the disappearance [is] consistent with continued life."
The court recognized that pre-departure evidence may support a finding that the worker's absence is not unexplained. However, it found that the mere presence of difficulties, from which a plausible explanation for a disappearance may be inferred, is insufficient, to rebut a presumption of death. To rebut such a presumption, the court held that the Secretary must establish a more direct explanation of flight. On the facts of the instant case, the court held that evidence regarding Mr. Ross' marital and career difficulties was insufficient to rebut the presumption and did not justify a conclusion that he had feigned disappearance and changed his identity.
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 means that a claimant 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 decision of the Court of Appeals for the Sixth Circuit in Johnson holds 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.
This ruling applies only in cases in which the claimant resides in Michigan, Ohio, Kentucky or Tennessee at the time of the determination of 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
 20 C.F.R. 404.705(a) has been 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 has eliminated "unexplainedly absent" and has substituted "absent from his or her residence for no apparent reason." The revision, however, did not change policy concerning the presumption of death.
 The Court of Appeals referred to the facts in Dowell v. Gardner, 386 F.2d 809 (6th Cir. 1967) as an example of evidence that points sufficiently directly to an explanation other than death for a worker's disappearance. In , the court, without discussing the evidentiary burdens of the parties, affirmed the final decision of the Secretary denying child's benefits where the worker (1) deserted the child of an earlier marriage, (2) burned the trailer which was the family residence of the current claimants after his wife filed for divorce, and (3) had wages posted to his earnings record in the year following his disappearance.
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