In Beavers, the sole issue on appeal was whether a claimant was totally disabled from various back, leg and head pains. The ALJ therein found total disability based, in part, on the personal testimony of the claimant. Nonetheless, the present case is not fundamentally distinguishable from Beavers. Witness testimony did play a substantial role below. For example, the demeanor and testimony of plaintiff was directly relevant to the Secretary's determination that plaintiff's former husband may have vanished in order to escape certain difficulties in his marriage. Accordingly, the contrary findings of the ALJ are again "an important factor" for this Court to consider in its review of the Secretary's final decision. Consistent with the teachings of Universal Camera Corp., supra, 340 U.S. at 488, we hold that the findings of the ALJ "fairly detract from [the] weight" of the evidence relied upon by the secretary. CONCLUSION In light of the fact that the Secretary carried the burden of rebutting the presumption of death, and in the light of the contrary findings of the ALJ, we conclude that the Secretary's denial of plaintiff's application was not supported by substantial evidence. Once plaintiff initially established entitlement to the presumption of death, the Secretary was required to rebut the presumption by evidence that gave rise to positive explanations for the wage earner's disappearance. We find that the secretary failed to present such evidence. It is true that the record before us establishes that the wage earner Ross experienced severe marital and career difficulties. It is also true "that pre-departure evidence may support a finding that the wage earner's absence is not unexplained." Blew v. Secretary of HEW, supra, 484 F.2d at 893. However, in every persons' life there are difficulties which could, in the event of a disappearance, inferentially provide plausible explanations for an absence. Thus, evidence that such difficulties exist, taken alone, cannot adequately rebut a presumption of death. The Secretary is obligated to establish a more direct connection between the pre-departure difficulties and the proposed explanation of flight. In summary, when a social security applicant initially establishes entitlement to a presumption of death, the Secretary of HEW can rebut the presumption only by evidence that directly points to an explanation other than death for the wage earner's disappearance. See, e.g., Dowell v. Secretary of HEW, 386 F.2d 809 (6th Cir. 1967) (In Dowell, the Court concluded that there was substantial evidence to support the Secretary's finding that the wage earner had simply abandoned his household. However, the wage earner in Dowell had had a previous hisory of desertion and unexplained absences. Further, he had been arrested for assault and battery during the marriage, had served ten days in jail for nonsupport of his family, and had burned the family home. Finally, the wage earner, according to earnings' records, had been employed for a two-year perod subsequent to the time he had allegedly abandoned his family. These various pieces of evidence provided a direct link between the wage earner's marital difficulties and the Secretary's explanation of flight.) The judgment of the district court is affirmed. ENGEL, Circuit Judge, dissented. SECTIONS 202(d) and (g) and 205(a) (42 U.S.C. 402(d) and (g) and 405(a))- SURVIVOR'S INSURANCE BENEFITS-EVIDENCE OF DEATH-ESTABLISHING DATE OF DEATH AFTER ABSENCE OF SEVEN YEARS 20 CFR 404.705 SSR 76-1c Sullivan v. Weinberger, USDC W.D. OF N.C., C-C-74-167 (4/4/75) 1A Unempl. Ins. Rep. 114,233 (1975) The wage earner ran from his home during flood conditions on February 25, 1961, when police arrived after he had shot one of his 12 children in the shoulder. He was not seen or heard from again, and a State court determined that he died of drowning on February 25, 1961. Held: State court ruling as to date of death is not controlling in considering application fur survivor's insurance benefits, and sufficient testimony and evidence exists to support conclusion that the wage earner did not die on February 25, 1961, and to support a presumption of death seven years after his disappearance under SSA Regulations No. 4, section 404.705. MCMILLAN, District Judge: Claimant Lola B. Sullivan filed suit on August 12, 1974, for herself individually, and on behalf of her four minor children as guardian ad litem. The suit seeks children's benefits under Section 202(d) (1) of the Social Security Act and mother's benefits under Section 202(g) (1). The issue is the date of death of the wage-earner, Grady Sullivan, husband of the claimant. The hearing examiner ruled that the date of death should be presumed to be seven years after the date of Sullivan's disappearance. Claimants maintain that February 25, 1961, the date of disappearance, is the proper date of death, and they seek a ruling that they are entitled to benefits as of that date. The records shows that Grady Sullivan disappeared from his home near Jefferson, South Carolina, on February 25, 1961. On that date he had come home intoxicated and, having become upset with the behavior of one of his twelve children, shot her through the shoulder. The police were summoned and upon their arrival Sullivan ran from the house, never to be seen or heard from again. A great deal of rain had fallen for several days prior to Sullivan's disappearance, and the creek close to his home had risen considerably and flooded some areas. Additionally, there was in the vicinity an old mine hole which was very deep and full of water as a result of the rain. On February 17, 1972, Judge J.A. Spruill of the Court of Common Pleas for Chesterfield County, South Carolina, ruled that Sullivan had died of drowning on or about February 27, 1960. His order was amended by Judge Robert W. Hayes of the Fourth Judicial Circuit of South Carolina on February 11, 1974, so as to change the date of death to February 25, 1961. The court is not bound by the state court's determination of the date of death. Tobin v. United States Railroad Retirement Board, 286 F. 2d 480 (6th Cir. 1961); Lahr v. Richardson, 328 F. Supp. 966 (N. D. III. 1971), aff'd, 476 F. 2d 1088 (7th Cir. 1973). The rationale behind this rule was explained by the court in Nigro v. Hobby, 120 F. Supp. 16, 19 (D. Neb 1954): The finding of the probate court does not under the principles of res judicata nor the principles of collateral estoppel prevent the issue of the time of the decedent's death from being considered and determined by the administrator in this action. The Federal Security Administrator was not a party to the Nebraska probate proceedings and the money sought to be recovered in this action was not part of the res over which the probate court exercised jurisdiction. The probate decree is, therefore, not controlling in this case. Mrs. Sullivan first filed for survivor benefits on April 4, 1963, but her application was denied on that and several other occasions. A hearing examiner determined on April 25, 1974, that Sullivan had not died on February 25, 1961, but that his death should be presumed to have occurred seven years later, on February 25, 1968. The examiner ordered that the claimants were entitled to survivor benefits as of the later date, February 25, 1968. The Appeals Council affirmed this decision on July 11, 1974. Because Mrs. Sullivan now lives in Monroe, North Carolina, in this district, she sued in this court for review of the determination of the examiner. Although from the transcript of the hearing one could reasonably conclude that Grady Sullivan had in fact died on February 25, 1961, there is enough testimony to the contrary to support the "substantial evidence" standard as interpreted by the Supreme Court in Richardson v. Perales, 402 U.S. 389 (1971). See also Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966). Similarly, there is sufficient evidence to support a presumption of death seven years after the disappearance, 20 C.F.R. $404.705. Although claimants are obviously poor people who could certainly use the extra money, the record supports the examiner's findings, and the court should not, with its statutorily limited review, reverse the finding of the hearing examiner as to the date of Sullivan's death. For these reasons the court grants the defendant's motion for summary judgment. (PPD-2) PROOF OF AGE SSR 78-6 PROOF OF AGE - NEW DEVELOPMENT PURPOSE: To facilitate proof-of-age development. CITATIONS (AUTHORITY): Social Security Act, Section 205; Commissioner's Decision dated April 7, 1969; memorandum from the Office of Research and Statistics, Evaluation and Measurement System Staff, to the Office of Policy and Regulations dated October 10, 1975. PERTINENT HISTORY: The Social Security Administration has utilized Evaluation and Measurement System (EMS) statistical data to assist in developing evidence policies since 1968. In the proof-of-age area data from the EMS comprehensive evidence of age study is used to determine the validity of certain types of documents in establishing claimants' dates of birth. The types of proof that yield an acceptable error rate under certain conditions are regarded as "convincing;" i.e., if such proofs yield a low enough error rate, they may be used, in the event a public record of birth or church record of birth or baptism established or recorded before age five is unavailable, to establish the date of birth without a written determination. Findings from this study have enabled SSA to list several documents in the policy guidelines over the years that may be regarded as "convincing" where there is no discrepancy in file and the document is in substantial agreement with the BDP record (or in the absence of a Bureau of Data Processing record, a marriage record established before age thirty-six) and the claimant's allegation. Now, EMS data provide a statistical basis for including the 1930 census among these documents. POLICY DIRECTIVE STATEMENT: If no public record of birth or church record of birth or baptism established or recorded before age five is available, and there is no age discrepancy in the claims file, a 1930 United States Census may be used to establish a claimant's date of birth without a written determination if the age shown is in substantial agreement with the claimant's allegation and that shown in a BDP record established at least 5 years before the date of filing. (If there is no BDP record established 5 years before the date of filing, a marriage record established before age thirty-six may be substituted for the BDP record.) DOCUMENTATION: Documentation that no public record of birth or church record of birth or baptism established or recorded before age five is available. FURTHER INFORMATION: This will aid in developing the claims of numerous persons applying for benefits now for whom earlier evidence |