20 CFR 404.601, 404.607, and 404.610

SSR 66-17c

EMERSON v. CELEBREZZE, U.S.D.C., M.D. of Ga. (Civil No. 1001) (6/7/65)

An individual orally inquired in February 1956, as to whether she qualified for widow's insurance benefits, and was advised o the deceased worker's lack of insured status and of her consequent ineligibility. She subsequently filed a written application for benefits in May 1962, and submitted evidence which was sufficient to establish additional earnings for the worker, giving him an insured status as of his date of death. Held, (1) the oral inquiry did not constitute the filing of an application since applications for benefits must be in writing, and (2) the Administration cannot be estopped from asserting the requirements for entitlement to benefits.
The claimant's entitlement to benefits can begin no earlier than May 1961, the twelfth month before the month in which her application was filed.

ELLIOTT, District Judge:

Plaintiff in this case is the widow of Samuel H. Emerson, who died in 1942. On February 14, 1956, the Plaintiff made inquiry in the social security office, in Columbus, Georgia, regarding her right to receive benefits as the widow of the deceased. At that time it appeared from the records of the Social Security Administration that the deceased wage earned had only five quarters of coverage to his credit. Employees in the social security office so advised the Plaintiff and she was told that because there were insufficient quarters of coverage there was no need to file a formal application and there the matter rested for a period of years. Nothing else transpired until May, 1962 * * *. A formal application was filed at that time and it was determined that the Plaintiff's husband did have sufficient quarters of coverage, the incorrectness of the records having apparently resulted from a failure on the part of the employer to properly report the employment. Pursuant to the applicable law, benefits were then accordingly awarded to the Plaintiff effective beginning May 1961. The Plaintiff now complains in this suit that, through no fault of her own and relying upon the advice given her by social security personnel, she was deprived of benefits due her from February 14, 1956, to May 1, 1961.

There is no controversy concerning the facts of this case. The missing quarters of coverage were not developed in the records of the Administration until May, 1962, when Mrs. Emerson filed her application for widow's benefits and pursued the matter. The records of the Administration initially reflected only five quarters of coverage and when this representation was made to Mrs. Emerson at the time she made inquiry in 1956 this was a correct representation. Mrs. Emerson made no effort at that time to supplement the records of the Administration and, as heretofore indicated, made no written application for benefits. Insofar as the representatives of the Administration were concerned, there was no reason to believe that the wage earner was insured during the period in question until May, 1962, when Mrs. Emerson formally raised the issue and further developed the records.

On October 24, 1963, the Hearing Examiner issued his decision disallowing the Plaintiff's claim for entitlement to benefits commencing earlier than May, 1961, and this decision of the Hearing Examiner became the final decision of the Secretary under § 205(g) of the Act (42 U.S.C. § 405(g)) when the Appeals Council of the Social Security Administration denied the Plaintiff's request to review the Hearing Examiner's decision. It is that decision which is now the subject of review by this Court.

The Hearing Examiner disallowed the claim on the basis of the undisputed fact that while earlier inquiry had been made, no application was filed until May, 1962. Section 202(e) of the Social Security Act, as amended, provides that the widow of an individual who dies fully insured upon filing an application for widow's insurance benefits and attaining the proper age may be awarded widow's insurance benefits, however, one of the requirements of the act is that an application be filed, and the Act further provides that such application must be in writing. The mere appearance and inquiry at a district office of the Social Security Administration, as was done in this case, does not constitute an application and there is no basis for allowing the claimant widow's benefits beginning earlier than is permitted under § 202(j) of the Act. That section permits an application to have retroactive effect for twelve months. Applying the law to the facts, no widow's benefits may be allowed to this claimant effective earlier than May, 1961, because no application was filed until May, 1962.

We recognize and regret the unfortunate result of the application of the law to the facts in this case, but the facts are uncontroverted and it is not within our province to modify the law. The evidence discloses that all of the prescribed conditions for entitlement of benefits were not met until May, 1962, and the representatives of the Administration did not wilfully and knowingly mislead the Plaintiff because the information given to her in 1956 was correct, as based upon the records available.

Counsel for the Plaintiff strongly urges upon this court the application of equitable principles as a basis for reversing the decision of the Secretary, but the right to benefits under the Social Security Act is accorded a claimant solely by statute rather than equitable principles and is conditioned upon compliance with that statute. Kurz v. Celebrezze, 225 F. Supp. 528 (E.D.N.Y., 1963). It has been held that if the failure of the claimant to file the necessary formal application was brought about as a result of misinformation given to the claimant by representatives of the Social Security Administration, that this would not authorize an award of benefits when the claimant had failed to comply with the formalities required by the statute. In Flamm v. Ribicoff, 203 F. Supp. 507 (S.D.N.Y., 1961), the Court said:

"But even assuming that he did receive 'misinformation' on which Mrs. Berger acted to her detriment, it is plain that estoppel will not lie against the Government under these circumstances. Parties dealing with the Government are charged with knowledge of and are bound by statutes and lawfully promulgated regulations despite reliance to their precuniary detriment upon incorrect information received from Government agents or employees. Failure to comply with the applicable statute and regulations precludes recovery against the Government 'no matter with what good reason' the claimant believed she had come within the requirements. Estoppel will not lie regardless of the financial hardship 'resulting from innocent ignorance.' Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 68 S. Ct. 1, 92 L. Ed. 10 * * *"

It will be noted that in the Flamm case, supra, there was a claim that the claimant had been misled by Government representatives, whereas in the case before us there is no claim that Mrs. Emerson received anything but correct advice based upon the records of the Administration, and if these records were in error, such error was not due to any action or inaction on the part of Government representatives. This absence of fault on the part of the government in the instant case precludes any recovery on the basis of an estoppel even if it should otherwise be urged as justified.

In summary, we hold that since a proper application was not filed until May, 1962, no entitlement to benefits could commence prior to May, 1961, and that the decision of the secretary should, therefore, be affirmed and his motion for summary judgment should be granted * * *

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