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SECTIONS 202(d) (1) (A) and 202(j) (1) (42 U.S.C. 402(d) (1) (A) and 402(j) (1)) APPLICATIONS—FILING PREREQUISITE TO ENTITLE

MENT-RETROACTIVITY-ESTOPPEL

20 CFR 404.320(a) (2) and 404.607(a)

JOHNSON v. WEINBERGER, 572F.2d 697 (9th Cir. 1975)

SSR 79-2c

At the time of the wage earner's death in July 1957, the Social Security Act did not provide benefits for a child adopted after the death of the wage earner by the wage earner's surviving spouse. In August 1957, the wage earner's surviving spouse completed the adoption of a child whom she and the wage earner had started to adopt prior to the wage earner's death. Also the surviving spouse applied for and received a lump-sum death payment in the same month. No claim was filed on behalf of the child. One year later, in 1958, Congress amended the Social Security Act to provide benefits for children adopted by the surviving spouse after the death of a wage earner.

Fifteen years later the adopted child filed for benefits; they were awarded for the period beginning with the 12 months before the month the application was filed. The claimant now contends that even though no application was filed at an earlier date, he should receive benefits from the time the law was amended. He argues that he has a vested interest in the benefits which could not be divested by failing to file; that his incapacity (as a minor) should excuse his failure to file; and that estoppel applies because Social Security Administration employees prepared the documents filed by the surviving spouse. Held, an application is a substantive requirement for entitlement and in accordance with section 202(j) (1) of the Social Security Act, benefits may be retroactive only for 12 months from the date of the filing of an effective application. Further held, incapacity does not excuse failure to file. Further held, estoppel is inapplicable because the Social Security Administration is not mandated to review processed claims in light of subsequent amendments that grant further benefits.

ANDERSON, Circuit Judge:

The central issue on appeal is whether filing is a substantive condition to receiving benefits under the Social Security Act when the applicant is a minor seeking retroactive benefits. We hold it is and affirm the district court's grant of summary judgment upholding the Secretary's denial of retroactive benefits beyond one year.

In July 1957, Richard and Patricia Potts were in the process of adopting appellant, then an infant, when the wage earner, Mr. Potts, died. In August 1957, Mrs. Potts completed the adoption. At the same time, she applied for and later received lump-sum death benefits under the Social Security Act. A claim was not filed on appellant's behalf.

Fifteen years later appellant filed for and was granted Child Survivorship Benefits. Since 1958, when Congress amended the Act, appellant has been eligible for monthly benefits, but pursuant to 42 U.S.C. § 402(j) (1),' benefits were paid retroactively for only 12 months.

"'"'(j) Application for monthly insurance benefits. (1) An individual who would have been entitled to a benefit under subsection (a), (b), (c), (d), (e), (f), (g), or (h) 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 prior to the end of the twelfth month immediately succeeding such month."

42 U.S.C. § 402(j) (1).

Appellant first contends he had a vested interest in the benefits which could not be divested by failing to file. This contention ignores the explicit language of § 402 which makes filing a condition of entitlement. Other courts have consistently held that a potential beneficiary's interest in the fund is not an accrued property right. Flemming v. Nestor, 363 U.S. 603 (1960); Guarino v. Celebrezze, 336 F.2d 336, 338 (3d Cir. 1964). And we agree: filing is a substantive condition of eligibility. Clark v. Celebrezze, 344 F.2d 479, 481 (1st Cir. 1965), cert. denied, 385 U.S. 817 (1966); Bender v. Celebrezze, 332 F.2d 113, 115 (7th Cir. 1964). Congressional intent is unmistakable: § 402(j) (1) explicitly limits retroactive benefits to one year prior to filing. See Ewing v. Risher, 176 F.2d 641 (10th Cir. 1949) (construing § 402(h) which provided for retroactive payments for three months and which was amended and redesignated § 402(j) in 1950).

Incapacity does not excuse failure to file. See Coy v. Folsom, 228 F.2d 276, 278-79 (3d Cir. 1955) (mental incompetence); cf. Stanton v. Weinberger, 502 F.2d 315 (10th Cir. 1974) (applies rule, by implication, to minor child). Though this conclusion may seem harsh, we must follow the plain mandate of Congress when, as here, it is acting within its powers to prescribe conditions and limitations as a means of preserving the fiscal integrity of the fund. See Flemming v. Nestor, 363 U.S. at 61112; cf. Stanton v. Weinberger, 502 F.2d at 320 (nondiscriminatory, rational classifications are a valid means of furthering government's legitimate interest in fund's integrity); Ewing v. Risher, 176 F.2d at 644 (Congress may define and restrict statutory rights by imposing time limits).

Appellant also contends an estoppel arises because Social Security Administration employees prepared the document for Mrs. Potts and were aware of the child's status. Whatever merit this argument may have in the abstract,' it is here inappropriate since the amendments which made appellant eligible for benefits were passed a year after Mrs. Potts filed. Cf. Kurz v. Celebrezze, 225 F.Supp. 528 (E.D.N.Y. 1963). The Social Security Administration is not duty bound to review every processed claim in light of subsequent amendments which grant further benefits. Cf. Thompson v. Richardson, 452 F.2d 911, 915 (2d Cir. 1971); 1 CCH Unempl. Ins. Rep. ¶ 12,555 at 1309-10 (1976).

211

*" (d) Child's insurance benefits. (1) Every child (as defined in section 416(e)) of an individual entitled to old-age or disability insurance benefits, or of an individual who dies a fully or currently insured individual, if such child

(A) has filed 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 18 or was a full-time student and had not attained the age of 22, or (ii) is under a disability (as defined in section 223(d) ) which began before he attained the age of 22, and (C) was dependent upon such individual

shall be entitled to a child's insurance benefit...."

42 U.S.C. § 402(d) (1).

'Ct, Filice v. Celebrezze, 319 F.2d 443, 446 (9th Cir. 1963); Feil v. Gardner, 281 F.Supp. 983, 985 (E.D. Wis. 1968), aff'd per curiam, 402 F.2d 481 (1968); Flamm v. Ribicoff, 203 F.Supp. 507, 510 (S.D.N.Y. 1961).

Appellant's other contentions have been examined closely and determined to be meritless.

AFFIRMED.

SECTION 205(a) (42 U.S.C. 405(a))- APPLICATIONS-EFFECTIVE FILING REQUIREMENT FOR ENTITLEMENT TO BENEFITS

20 CFR 404.601 and 404.613

SSR 77-14c

Goff v. Weinberger, (1975-1976 transfer Binder) 1A U.I.R. 14,470 (D. Conn. 1975), aff'd 538 F.2d 309 (2d Cir. 1976), cert. denied 45 U.S. L.W. 3302 (Oct. 18, 1976)

Although no formal written application was filed for benefits on behalf of the children until January 1971, the claimant alleges her attorney made telephone contact in July 1959 with the Social Security office. Claimant contends that she was dissuaded from filing an application for benefits in 1959 because of alleged false advice given in a telephone conversation by an employee of the local Social Security office to her attorney, and that because of such false advice, her attorney's oral inquiry should be considered tantamount to a written statement of intent to file an application for benefits, and further that benefits should be payable from the date of death of the wage earner. Held, only a written expression of intent to claim benefits can be accepted and considered as a valid application under the law.

CLARIE, Chief Judge:

This action was brought pursuant to § 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), requesting judicial review of a final decision of the Secretary of Health, Education and Welfare. The Appeals Council reversed the Administrative Law Judge's decision, which had allowed dependents' insurance benefits to the plaintiff and her children retroactive to March 31, 1959. The case comes before the Court on cross-motions for summary judgment pursuant to Rule 56, Fed. R. Civ. P. No remaining factual issues exist to be resolved and the case can now be decided as a matter of law. The legal issue presented is whether or not the record contains substantial evidence to support the Secretary's denial action of survivor's insurance benefits for any month prior to January, 1970; and whether or not any valid application was filed with the Social Security Administration prior to January, 1971. The Court finds that the Secretary's findings are supported by substantial evidence and his decision is therefore affirmed.

Facts

At the time of Clayton E. Wooley's death, he was married to the plaintiff, Nellie T. Goff. He died on March 31, 1959 from injuries suffered during the course of his employment by the State of Connecticut

and was covered at the time by Workmen's Compensation. At that time the couple had three living children, a stepchild, Jane (Woolley) Turgeon, born June 1, 1949, married during May 1969; James Woolley, born February 3, 1953, and Patricia Woolley, born October 19, 1955.

The plaintiff concedes that no written application for Social Security benefits was formally filed in writing in behalf of the children until January 28, 1971. The defendant awarded payments for one year retroactively back to January, 1970, to the two minor children, James and Patricia, both of whom were under 18 years of age.

The plaintiff thereafter married her present husband, Joseph P. Goff, in 1962. She complains that she and the children should have been qualified to receive benefits commencing on March 31, 1959. Immediately after the death of her husband on March 31, 1959, she applied under Connecticut State Law § 5-144, for Workmen's Compensation and received an award for herself and said children. For that purpose she was represented by retained counsel and consulted him on the question of whether or not she and the children were entitled to receive Social Security Benefits. The attorney stated in an attached affidavit, that he had telephoned the New Britain Social Security Office sometime during July, 1959, to inquire as to the family's eligibility and was informed by a Social Security employee, that since she and the children were already receiving benefits under the State Workmen's Compensation Act, they did not qualify for Social Security insurance benefits.

She now claims that since she was dissuaded from filing in 1959, through the alleged false advice given by an employee of the agency to her attorney, the latter's oral inquiry should be considered tantamount to a written statement of intent to file an application for benefits, as required by § 404.613 of Regulation No. 4. In fact, the Administrative Law Judge here made his finding that the oral telephone inquiry made by the plaintiff's attorney, of which no record could be found, constituted a lawful statement of intent, within the meaning of the Social Security regulations and justified a finding that the claim of the mother and children was valid and effective on March 31, 1959.

Discussion of Law

Title 42 U.S.C. § 405(a) vests in the Secretary the right to make and promulgate procedural regulations to administer the Act.' Under these regulations, 20 C.F.R. § 404.601(d) provides:

"... an individual has not 'filed an application' for purposes of
sections 202, 216(i), or 223 of the Act... until an application
on a form prescribed in § 404.602 has been filed in accordance
with the regulations in this subpart."

142 U.S.C. § 405(a) provides: "Rules and regulations. The Secretary shall have full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this title, which are necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder."

20 C.F.R. § 404.601(e) provides:

"

"The term 'to execute an application' (or a written statement, request, or notice...) means the completion and signing of the application (or written statement, request, or notice).... In furtherance of the foregoing policy, § 404.613 of these regulations provides, that if an individual files a written statement with the Social Security Administration, which indicates an intention to claim benefits and such statement bears his signature, the filing of such statement shall be considered to be the filing of an application for such benefits. Thus the administrative purpose of the Act and its supporting regulations were specifically designed to assure, that only a written expression of intent to claim Social Security benefits should be accepted and considered as a valid application under the law. This case is clearly distinguishable from from the case of Tuck v. Finch, 430 F.2d 1075 (4th Cir. 1970), cited by the plaintiff, and the plaintiff concedes that no written record exists in the Social Security office to confirm that an application, written or oral, was ever filed.

The Social Security Act, supplemented by its regulations, was intended to eliminate or at least reduce to a minimum the possibility of fraud, confusion, and laxity in its administration. The vastness of the program makes it essential to adhere to the written application procedure, if there is to be an orderly and controllable system of management for approving claims and paying out insurance benefits.

The plaintiff claims that the defendant is estopped from denying relief, because the agency's own employee dissuaded her from filing a written application. Furthermore, she claims that since the Administrative Law Judge, its own agency employee, found in her favor, the Government has thereby waived any procedural non-compliance by her in failing to file the required written application.

The Government cannot be estopped in this manner from insisting upon the performance of statutory conditions precedent, by the unauthorized acts of a local Social Security office employee.

"But even assuming that he did receive "misinformation' in
which... 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 knowl-
edge of and are bound by statutes and lawfully promulgated
regulations despite reliance to their pecuniary 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; Walker-Hill Co. v. United States, 162 F.2d 259 (7
Cir. 1947), cert. den. 332 U.S. 771, 68 S.Ct. 85, 92 L.Ed. 356;

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