SSR 64-19c: SECTIONS 202(h)(1)(B) and 202(p). -- NONESTOPPEL OF ADMINISTRATION TO REQUIRE COMPLIANCE WITH STATUTORY REQUIREMENT FOR ENTITLEMENT
20 CFR 404.328 and 404.616
SSR 64-19c
CALDWELL v. CELEBREZZE, CCH UIR Vol. 1, Fed. Para. 14,650 (U.S.D.C. E.D. Ky. 10/26/62), appeal dismissed 2/21/63
- The claimant failed to submit within the prescribed time limit, proof that she had been receiving at least one-half of her support from her son at the time he died, as required by section 202(h) of the Act for entitlement to parent's insurance benefits on his earnings record. She contended that subsequent disallowance of her claim was incorrect, and alleged she had made timely inquiry at a social security office and that any failure to submit the proof within the prescribed period was caused by failure of Administration personnel to inform her that such proof was necessary. Held, (1) the claimant does not meet the requirements set forth in the Act for entitlement to parent's insurance benefits, and therefore is not entitled to such benefits; (2) the Administration cannot be estopped from asserting the statutory requirements for entitlement to benefits.
H. CHURCH FORD, District Judge:
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By this action, under section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), the plaintiff seeks a review of the final decision rendered in this action by the Secretary of Health, Education and Welfare on April 13, 1961, as set out in the decision of the Appeals Council by which the Secretary found and adjudged that the claimant, Mrs. Doshia Caldwell, did not timely file proof that at the time of the death of her son on November 29, 1947, her son was furnishing at least one-half of her support, as required by section 202(h)(1)(B) and (p) of the Act, 42 U.S.C. §§ 402(h)(1)(B) and (p) and consequently did not meet the requirements for her entitlement to parent's insurance benefits set forth in sections 202(h)(1)(B) and (p) of the Act, 42 U.S.C. §§ 402(h)(1)(B) and (p).
Upon examination of the transcript of the record in this proceeding and consideration of the briefs filed by counsel for the respective parties, I am of the opinion that the conclusions of law set out in the decision rendered by the Appeals Council are correct, and that the findings of fact made by the Secretary are supported by substantial evidence and are conclusive under the provisions of section 205(g) of the Act, 42 U.S.C. § 405(g).
For the reasons indicated, I am of the opinion that the claimant, Mrs. Doshia Caldwell, is not entitled to the parent's insurance benefits sought in this proceeding, and the defendant's motion for summary judgment should be sustained. Taylor v. Flemming, 186 F.Supp. 280.
Let judgment be entered accordingly.
[The decision made by the Appeals Council of the Bureau of Hearings and Appeals and affirmed by the District Court, follows.]
This case is before the Appeals Council upon its own motion to review the decision of the Hearing Examiner issued on October 17, 1960. The claimant was notified of such action by the Appeals Council and of her rights therein. The Hearing Examiner decided that the claimant was entitled to parent's insurance benefits on the basis of findings that the claimant had timely filed proof of support received by her from the wage earner and that at the time of the wage earner's death she was receiving at least one-half of her support from him.
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The claimant filed application for parent's insurance benefits on September 8, 1959, and on the same day filed "Parent's Certificate of Support" alleging that she was receiving at least one-half of her support from the wage earner at the time of his death on November 29, 1947. The claimant stated that her son had been in the Army until the month preceding his death and that to the best of her recollection he had sent her an allotment in the amount of $157 a month, which amount had been the sole support of the household consisting of the claimant, her husband, a daughter and a son. The claimant's application for parent's insurance benefits was denied by the Bureau of Old-Age and Survivors Insurance for the reason that she did not timely file proof of support received from the wage earner. The claimant contends that shortly after the death of the wage earner on November 29, 1947, she made inquiry at a district office of the Bureau and was advised that she could not draw benefits until she was 65 years of age. The claimant further contends that in 1956 she again visited a district office of the Bureau to inquire concerning benefits on the earnings record of the deceased wage earner and that similar inquiry was again made by her on June 14, 1958, but that on each visit to a district office of the Bureau she was advised that she had not attained retirement age and could not receive parent's insurance benefits.
As stated in the Hearing Examiner's decision, section 202(h) of the Act provides, as pertinent here, that in order for a parent to be entitled to parent's insurance benefits such parent must have been receiving at least one-half of his support from the wage earner at the time of such individual's death and must have filed proof of such support within two years after date of death.
Section 202(p) of the Act provides, as pertinent here, that in any case where there is failure to file proof of support within the period specified in section 202(h), and there is a satisfactory showing of good cause for failure to file such proof within such period, such proof shall be deemed to have been filed within such period if it is filed within two years following such period or with two years following August 1956, whichever is later. This would mean, as pertinent here, that the claimant could file proof of support received from the wage earner no later than August 31, 1958.
Section 404.720 of Regulations No. 4 provides, as pertinent here, that a parent who applies for monthly benefits based upon the wages and self-employment income of an individual shall submit evidence of receipt of at least one-half of his support from such individual; that such evidence shall be a signed statement by the parent that, at the time of the individual's death he was receiving at least one-half of his support from such individual, and that the statement shall set forth, as of the time of the individual's death and for a period of not less than one year prior to such time, the items expended and used for the parent's support and the value of each thereof, the amount of the parent's income, if any, and the items of contributions to the parent's support, the value and time of each, and by whom furnished.
The claimant does not contend that she filed written proof of support received from the wage earner prior to the "Parent's Certificate of Support" which she filed on September 8, 1959. She does contend, however, that she should be entitled to parent's insurance benefits, and apparently bases such contention on some type of estoppel arising from her alleged prior inquiries concerning entitlement to benefits on the deceased wage earner's earning record. The Hearing Examiner did not find that on or before August 31, 1958, the claimant had filed written proof of support received from the wage earner, but he did find that the claimant was prevented from filing such proof of support by the actions or representations of Bureau personnel. Therefore, the Hearing Examiner concluded that the claimant had made a timely effort to file the required proof of support and that such effort should be deemed a constructive filing of such proof of support.
* * * It is undisputed that the claimant did not file written proof of support within the period of time specified by law, that is, on or before August 31, 1958. The requirements of the statute are clear and mandatory. Therefore, since the timely filing of the proof of support is a condition precedent to entitlement to parent's insurance benefits, and since such condition has not been complied with by the claimant, the Appeals Council finds that the claimant did not timely file proof of support received from the wage earner at the time of his death.
* * * it is well established that the government cannot be estopped from insisting upon performance of statutory conditions precedent. Taylor v. Flemming, 186 F.Supp. 280 (W.D.Ark., 9/7/60).
Since the claimant did not timely file proof of support received from the wage earner at the time of his death, she has failed to meet all of the requirements for entitlement to parent's insurance benefits as set forth in section 202(h) of the Act. The Appeals Council finds that the evidence of record is insufficient to support the Hearing Examiner's finding that the deceased wage earner was furnishing at least one-half of the claimant's support at the time of the wage earner's death. However, it would serve no useful purpose to require the submission of additional evidence by the claimant with respect to that issue, inasmuch as there could be no entitlement to the benefits for which application was filed in view of the finding hereinabove made by the Appeals Council that the claimant did not timely file proof of support.
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It is the decision of the Appeals Council that the claimant is not entitled to the parent's insurance benefits for which she filed application. The decision of the Hearing Examiner is reversed.