On Appeal from the United States District Court for the District of Delaware.
Weis, Higginbotham, and Sloviter, Circuit Judges.
In this case we must decide whether the evidence on record is sufficient under the Social Security Act to overcome the presumption of death of a wage earner who has been missing for more than seven years. The appellants, the wife and daughter of the insured, James B. Shelnutt, applied for mother's and child's insurance benefits on his Social Security record. The Department of Health and Human Services (HHS) denied the claim, and the district court affirmed.
The circumstances of Shelnutt's disappearance have never been proven, but the known facts are not in dispute. Shelnutt, a self-employed stockbroker in Seattle, left home in April 1971, telling his family that he was going to a silver mine in Idaho on business. He took enough luggage for a short trip and some money from investors, which, although not a matter of record, appellants estimate at no more than $18,000. Appellants' Reply Brief at 4. Shelnutt was never reported in Idaho, and has not been seen or heard from since.
After his disappearance the Seattle police issued a warrant for his arrest on charges of grand larceny. The record contains no further evidence concerning the purpose of the trip or the allegations in the arrest warrant.
Shortly after Shelnutt's disappearance, Martha E. Shelnutt obtained a divorce, which she attributed to a desire not to be liable for his debts, since Washington is a community property state. She later moved to Delaware, and in 1979 obtained an ex parte Court of Chancery decree declaring James B. Shelnutt presumed dead. Mrs. Shelnutt and her youngest child, Sarah, then applied for mother's and child's insurance under Title II of the Social Security Act, 42 U.S.C. §§ 402(d) and (g). Following administrative denial and exhaustion, appellants filed suit. The district court granted summary judgment for the Secretary.
The regulations promulgated by the Secretary set forth the proof of evidence of death needed to show eligibility. See 20 C.F.R. § 404.720. If the claimant cannot prove the person is dead, the regulations provide for a presumption of death under certain circumstances, one of which is an unexplained absence of seven years. Section 404.721 provides in relevant part:
If you cannot prove the person is dead but evidence of death is needed, we will presume he or she died at a certain time if you give us the following evidence:
(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. If there is no evidence available that he or she is still alive, we will use as the person's date of death either the date he or she left home, the date ending the 7 year period, or some other date . . . .
20 C.F.R. § 404.721(b) (emphasis added).*fn1
The claimant's burden under this section is minimal. In Aubrey v. Richardson, 462 F.2d 782 (3d Cir. 1972), we established that section 404.721(b) (then section 404.705) requires no affirmative showing from a claimant; to hold otherwise would defeat the purpose of the presumption. Id. at 784 & n.3; see also Johnson v. Califano, 607 F.2d 1178, 1182 (6th Cir. 1979). Thus "the most that the applicant can be expected to do is to show . . . . that the applicant has no explanation." Aubrey, 462 F.2d at 784 (quoting Secretary of Health, Education and Welfare v. Meza, 368 F.2d 389, 392 (9th Cir. 1966)). The Administrative Law Judge here erred in stating that the claimant was required to (and did not) establish an unexplained absence. The district court correctly concluded that under Aubrey, Mrs. Shelnutt and her daughter were entitled to the presumption, and the Secretary so concedes before us.
Once the presumption is raised, the burden of explanation shifts to the Secretary. Aubrey v. Richardson, 462 F.2d at 784. At that point, it may be rebutted "by proof of facts that rationally explain the anomaly of the disappearance in a manner consistent with continued life." Meza, 368 F.2d at 392; see also Aubrey, 462 F.2d at 784; Gardner v. Wilcox, 370 F.2d 492, 494 (9th Cir. 1966). This burden may be satisfied by direct evidence that the missing person is alive or by evidence establishing a motive for desertion. E.g., Blew v. Richardson, 484 F.2d 889, 892-93 (7th Cir. 1973). This standard requires affirmative evidence rather than speculation. See Aubrey, 462 F.2d at 785; see also Autrey v. Harris, 639 F.2d 1233, 1235 (5th ...