Hastie, Van Dusen and Aldisert, Circuit Judges. Van Dusen, Circuit Judge (dissenting).
This appeal in an action arising under the Social Security Act, 42 U.S.C. § 405(g), presents, for initial impression in this circuit, an interpretation of 20 C.F.R. § 404.705, which creates a presumption of death after seven years' unexplained absence for the purpose of determining the rights of another to benefits under § 202 of the Act. The Secretary declined to apply the presumption, and denied the benefits. The district court reversed. The Secretary has appealed.
Claimant filed an application on January 14, 1969, for surviving child's insurance benefits for her two minor children pursuant to 42 U.S.C. § 402(d) (1). Her application was denied initially on the ground that she had failed satisfactorily to establish the death of her previous husband, John W. DeMasse, the father of the two children.
She requested a hearing, at which the following evidence was adduced: claimant was married to DeMasse in 1952, and had separated from him "at least twelve times." Her numerous suits for nonsupport resulted in DeMasse's receiving several short jail terms culminating in a one-year sentence commencing in June, 1960. DeMasse telephoned claimant on the day of his release, June 8, 1961, but claimant has not heard from him since that date. Attempts to locate him through his friends and acquaintances proved fruitless; the authorities have been unable to find him as well. There has been no record of any activity whatsoever under his Social Security number. Claimant asserted that DeMasse had borrowed money from loan sharks but had not repaid it, and that they had come looking for him prior to his prison sentence but not after his release. Claimant obtained a divorce in 1962 to marry her present husband. On December 31, 1968, she obtained an ex parte decree from the Philadelphia Orphan's Court granting her letters of administration based on the presumed death of DeMasse by reason of his absence for seven years.
After reviewing the evidence, the Hearing Examiner expressly found that "the evidence shows that no direct or indirect evidence of any nature whatsoever, from any source, has been obtained from or about Mr. John W. DeMasse since 1961." He concluded that "the circumstances in the case and all the evidence at hand support the legal presumption that Mr. John W. DeMasse is deceased, the time, place and manner of death being unascertainable by any known person."*fn1
Reviewing the case on its own motion, the Appeals Council reversed, emphasizing that 20 C.F.R. § 404.705 establishes a presumption of death after seven years only in the case of unexplained absences, and that there was an explanation for the wage earner's disappearance in this case. The Appeals Council reasoned:
Where the circumstances surrounding the departure of the missing person are such that his absence can reasonably be explained without inferring his death, his absence, notwithstanding its duration, is not "unexplained" within the meaning of the regulations. Death is not presumed where there is contrary evidence which reveals that a logical reason, other than death, exists to explain the absence of the missing individual.
Claimant filed this action seeking review of the Secretary's determination.
The district court, correctly perceiving the sole issue to be one of law, reversed the Secretary's decision, holding that the Secretary had "applied too strict a standard in this case." The court concluded that "the contention that a wage earner's disappearance for a period of more than seven years is explained by the suggestion that his absence was occasioned as the result of his attempting to avoid paying child support, is untenable." This appeal by the Secretary followed.
The Secretary contends that if he believes that there is a cogent explanation for the disappearance consistent with continued life, he can properly refuse to apply the presumption. Thus, in the Secretary's view, no affirmative evidence that the insured is alive is necessary. We disagree.*fn2
The Appeals Council's rationale virtually creates a presumption of life rather than death. There is nothing in the regulation which requires the claimant to refute every reasonable theory or explanation which may be potentially present or which the Secretary may suggest. As the Ninth Circuit has noted, such an interpretation would "place an impossible burden of showing a negative upon an applicant. . . ." Secretary of Health, Education and Welfare v. Meza, 368 F.2d 389, 392-393 (9th Cir. 1966). Thus, the Meza court reasoned that "the most that the applicant can be expected to do is to show . . . that the applicant has no explanation." The court went on to fashion the following rule: "When the facts show that a person has been absent from his residence and unheard of for a period of seven years, a presumption arises that he is dead." 368 F.2d at 392. See also, Gardner v. Wilcox, 370 F.2d 492, 494 (9th Cir. 1966); Miller v. Richardson, 321 F. Supp. 157, 159 (W.D.Pa.1970).*fn3
The presumption is not irrebuttable. As the court noted in Gardner v. Wilcox, supra, 370 F.2d at 494, once the presumption is established, "the burden of explanation then shifts to the Secretary, and the presumption can be dissipated 'by proof of facts that rationally explain the ...