20 CFR 404.601

SSR 68-68c

FANGMAN v. GARDNER, U.S.D.C., Neb., Civil No. 02798 (3- 13-68) (CCH U.I.R. Fed. Par. 15,029)

Where a worker pursuant to an application for old- age insurance benefits was awarded such benefit effective December 1961, his application then indicating he had no children under age 18, but who in fact then had such child, and in February 1966 the worker filed an application on behalf of his child held, while the worker in 1961 had a child who upon filing an application would have qualified for child's insurance benefits, the filing of an application is a condition precedent for entitlement and such child's retroactive entitlement to benefits (as provided by section 202(j)(1) of the Act) can begin no earlier than February 1965, the twelfth month before the month in which an application was filed on his behalf.

ROBINSON, Chief Judge.

THIS ACTION was instituted for review of a final decision of the Secretary of Health, Education and Welfare, pursuant to 42 U.S.C. 405 [g.] Both parties have alleged that no issue of facts exists and each moves for summary judgment.

It is plaintiff's position that he is entitled to collect social security benefits on behalf of his son, Michael P. Fangman, for the period beginning December, 1961 until the time when payments were actually commenced in February, 1966, effective February 1965.

The plaintiff, Richard J. Fangman reached age 65 in December 1961 and, pursuant to an application he filed for an old-age benefit under section 202[a] of the Social Security Act, 42 U.S.C. 402[a], he was awarded such benefit effective December, 1961. In his 1961 application it was indicated that he was married but that he had no children at that time who were under 18 years of age. In fact, he had a son, Michael, who was then 14 years old. * * *

Plaintiff explains the error on the 1961 application as the failure of the employee of the Social Security Office to ask him about any minor children and the employee's assumption that plaintiff was too old to have young children.

On February 4, 1966, the plaintiff filed an application for a child's benefit on behalf of his son Michael. The Social Security Administration determined that the plaintiff was entitled to benefits effective February, 1965, but that no amounts could be paid for any months prior to that date. Following the same determination by the Bureau of Hearings and Appeals of the Social Security Administration, this action was brought for review.

Section 202[d] of the Social Security Act, 42 U.S.C. 402[d], which provides for payment of child's insurance benefits, provides in part, as follows:

Every child . . . . of an individual entitled to old-age or disability insurance benefits . . . if such child --
[A] has filed an application for child's insurance benefits,
[B] at the time such application was filed was unmarried and [i] either had not attained the age of eighteen or [ii] was under a disability . . . , and
[C] was dependent upon such individual -- [i] if such individual is living, at the time such application was filed, . . .
shall be entitled to a child's insurance benefit for each month, beginning with the first month after August 1950 in which such child becomes so entitled to such insurance benefits . . .

Section 202[j][1] limits any retroactive payments which may be made under the above quoted section.

An individual who would have been entitled to a benefit under subsections [a] - [g] or [h] of this section for any month after August 1950 had he filed application therefor prior to the end of such month shall be entitled to such benefit for such month if he files application therefore (sic) prior to the end of the twelfth month immediately succeeding such month. . . .

"Applications" are defined in 20 CFR part 404 (Section 404.601 in Social Security Administration Regulations No. 4) to include properly executed forms provided by the Social Security Administration or a written statement indicating an intention to assert a claim for benefits.

Our decision in this case rests on four basic principles.

1. Where expressly provided, a person's eligibility for benefits under the Act is conditioned upon the filing of an application.

In our opinion the statutory language makes this condition clear. This mandatory condition was recognized and applied in a similar situation by the Tenth Circuit in Ewing v. Risher, 176 F.2d 641 at 644 [10th Cir., 1949].

Filing the application within the statutory time was a necessary incident of the right conferred by the act, and failing to comply therewith extinguished appellee's right to the lump-sum benefit. It is true that the statute is a remedial one and should be liberally administered to effectuate the congressional purpose, but the congressional purpose must be ascertained from the clear language of the act. While a liberal interpretation should be indulged, such policy does not warrant adopting a construction inconsistent with the clear wording of the act in order to prevent loss to a claimant resulting from a failure to file an application as required by the act.

More recently, Judge Knoch of the Seventh Circuit made the following observation in Bender v. Celebrezze, 332 F.2d 113 [7th Cir., 1964] at page 115:

The Social Security Act, 42 U.S.C. § 402[a] makes a filing of an application a substantive condition precedent to entitlement to benefits. [citing cases] There is only one written statement of application here which meets the standards of the Act, . . .

2. An application was not filed on behalf of Michael P. Fangman until February, 1966.

Even assuming that the plaintiff's theory is correct and that the Social Security Administration employee did take it upon his or herself to answer the inquiry concerning children in the negative, the plaintiff's undisclosed information cannot be held to rise to the dignity of an application. Whatever may be the true circumstance, the Court regards the error as extremely regretful, but it cannot supply a basis of plaintiff's recovery here. Medalia v. Folsom, 135 F.Supp. [D. Mass., 1955]. Estoppel may not be asserted against an agency of the United States under these circumstances. Federal Crop Ins. Crop. v. Merrill, 332 U.S. 380 [Idaho 1947]; Taylor v. Flemming, 186 F.Supp. 280 [W.D. Ark., 1960].

3. The Act expressly limits the retroactive payments which can be made on an application. See 42 U.S. § 402 [j][1]; Kurz v. Celebrezze, 225 F.Supp. 528 [E.D. N.Y., 1963], SSR 64-34c, C.B. 1964, p. 24; Barrysuk v. Ewing, 96 F.Supp. 779 [D. N.J., 1951]; Ewing v. Risher, 176 F.2d 641 [10th Cir., 1949.]

4. Equitable considerations and the Court's regret for the misfortune of the applicant cannot govern over the express provisions of the Act.

The time limitation imposed by 42 U.S.C. § 402 [j][1] clearly indicates that Congress wanted to limit back payments of claims which were otherwise eligible for the Act's benefits. It places upon the applicant the affirmative duty to become informed as to his rights, and assert his claims. In Kurz v. Celebrezze [supra at 530] the Court made the following comment:

On September 1, 1957, the requirement that a wife be living with her husband at the time of his death, was deleted from the Statute . . ., thus entitling the plaintiff to apply for benefits on or after that date. It is most unfortunate for her, that she did not become aware of the amendment of the statute until some four years later, when she filed a second application. If her plea were governed by equitable principles, she might have a plausible claim for relief. The fact is that her right to benefits is accorded her solely by statute and is conditioned upon compliance therewith.

Upon these conclusions we have determined that no material duplicate of fact exists and that the defendant is entitled to a summary judgment. Accordingly,

IT IS ORDERED that defendant's motion for summary judgment should be and is hereby sustained.

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