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MILLER v. RICHARDSON

December 28, 1970

Edythe D. MILLER, Plaintiff,
v.
Elliot RICHARDSON, Secretary of Health, Education, and Welfare, Defendant


Gourley, District Judge.


The opinion of the court was delivered by: GOURLEY

This action is brought by plaintiff under Section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), to review a final decision of the Secretary of Health, Education and Welfare denying plaintiff's claim for widow's insurance benefits under Title II of the Social Security Act on the ground that plaintiff failed to establish the death of her husband. The final decision of the Secretary in this case is a decision rendered by a hearing examiner on December 5, 1969 which became the final decision of the Secretary when the Appeals Council denied plaintiff's request for review on March 9, 1970.

 Under the Social Security Regulations, an applicant for benefits may establish the death of a wage earner in two ways. 20 C.F.R. § 404.704 provides for the introduction of direct evidence of death such as a public record of death or the statements of persons having personal knowledge of the same. 20 C.F.R. § 404.705 enables an applicant to raise a presumption of death and 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 lumpsum death payment under section 202 of the act, and such individual has been unexplainedly absent from his residence and unheard of for a period of seven 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."

 It was the finding of the hearing examiner that plaintiff failed to introduce direct evidence of death and that the presumption of death provided by 20 C.F.R. § 404.705 did not apply, since the absence of appellee's husband for more than seven years was not unexplained.

 The facts relating to the disappearance are not disputed. Plaintiff and the wage earner were married on December 21, 1935. Children were born of the marriage, and plaintiff and the wage earner lived together for more than twenty years. On May 17, 1957, the wage earner left home without any prior explanation. Plaintiff and her children returned home from church and found him gone. He had taken all of his clothing, his wife's new skillet, her coat, and the family automobile. The wage earner was forty-nine or fifty years of age at the time and was in good health. A few days after the wage earner left, he called the family home to report that he was on his way to California to visit one of their sons and to establish a new home for the family. He never contacted the son living in California nor has he contacted plaintiff or their children since that time.

 Plaintiff testified before the Hearing Examiner that she had heard that her husband had run off with another woman named Dorothy McDonald, who lived about twenty miles away. She stated she had been told that her husband had been dating this woman, who also was married. In an Affidavit, the husband of Dorothy McDonald stated that his wife disappeared on or about May 14, 1957 and has not been heard from since.

 Both plaintiff and the husband of Dorothy McDonald have made efforts to locate their spouses. Plaintiff had a warrant issued for her husband, but it has never been served because he could not be found. She registered his name with the Missing Persons Bureau but the Bureau found nothing. The Department of Welfare also has conducted a search through Social Security numbers and accounts to no avail. Mr. McDonald has attempted to trace the license number of the wage earner's vehicle through the records of the highway departments of most of the States of the Union but has found nothing.

 After plaintiff's Social Security claim was denied initially and on reconsideration by the Bureau of Retirement and Survivors Insurance and before the hearing examiner conducted the hearing, plaintiff sought a determination in the Orphans' Court of Allegheny County, Pennsylvania, that her husband presumptively was dead. The Opinion of the Orphans' Court was offered as an exhibit at the hearing. The Opinion reads in part as follows:

 
"In other testimony, Mrs. Miller revealed that the presumed decedent's sister called and related to her that he was going on double dates with her and another woman. Her testimony further revealed that on the date after his alleged disappearance, to-wit, May 18, 1957, the husband of the other woman called her, relating to her that the presumed decedent had been dating his wife, and that she had disappeared also. Her testimony further revealed that she reported this to the police and Missing Persons Bureau without success, and to this date has neither seen nor heard from the presumed decedent."

 On the basis of the aforequoted and other factual findings, the Orphans' Court concluded that the wage earner's absence was not unexplained and denied the relief requested by plaintiff.

 Pertaining to the scope of judicial review, Section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), provides in relevant part:

 
"Any individual, after any final decision of the Secretary * * * may obtain a review of such decision by a civil action * * *. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * *."

 Under this Section, the Court is limited to "ascertaining whether on the record as a whole there is substantial evidence to support the Secretary's findings of fact." Goldman ...


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