The opinion of the court was delivered by: BRAMWELL
BRAMWELL, District Judge.
This is an action, pursuant to 42 U.S.C. § 405(g), to review the final determination of the Secretary of Health, Education, and Welfare which denied survivor's benefits to plaintiff's three children. Both parties have moved for an order granting judgment on the pleadings pursuant to Rule 12(c), Fed.R.Civ.P.
On April 29, 1971, plaintiff filed an application for surviving childrens' insurance benefits under the Social Security Act, 42 U.S.C. § 402(d)(1), on the ground that wage-earner, Larry Kurtz, plaintiff's former husband and father of three minor children, had been continuously and unexplainedly absent since his disappearance on January 30, 1964. The transcript, upon which this Court must base its decision, reveals that Kurtz, who had been recently divorced from his wife, Mrs. Lazarus, the plaintiff herein, was living with his parents and working at the same job from 1955 until his disappearance. In 1962, Kurtz had begun gambling, and had incurred considerable gambling debts. He and his family had been threatened, allegedly by bookmakers. Kurtz had no record of arrest nor any known trouble with the law; the record evidences that the wage-earner was a non-drinker, devoted to his children and close to his family.
On January 28, 1964, Kurtz went to work as usual. He collected his pay, went out to lunch, and never returned, leaving his belongings behind. He mailed a note to his mother stating that he had to leave town for a few days. Numerous efforts aimed at finding Kurtz were made in the eleven years since he disappeared, but to no avail. No income has ever been reported for Kurtz at any Social Security office. In short, Kurtz has vanished.
Kurtz's wife, the plaintiff Lazarus (subsequently remarried), initially and prematurely applied for benefits on behalf of her three children in 1966. Citing the facts set forth above, she was advised that it was necessary to wait seven years from the date her former husband disappeared. In 1971, she reapplied. A first determination denied benefits. The plaintiff sought an administrative hearing to review the case. Testimony was heard before Administrative Law Judge Powell. Judge Powell's decision was that wage-earner Kurtz must be presumed dead, pursuant to 20 C.F.R. 404.705 which provides:
Whenever it is necessary to determine the death of an individual in order to determine the right of another to a . . . benefit . . ., and such individual has been unexplainedly absent from his residence and unheard of for a period of seven years, the Administration, upon satisfactory establishment of such facts and in the absence of any evidence to the contrary, will presume that such individual has died.
Judge Powell's decision, which afforded benefits to the claimants herein, was reviewed and reversed by the Social Security Administration Appeals Council on its own motion. In its reversal, the Appeals Council held that:
Where the circumstances surrounding the departure of the missing person are such that his absence can be reasonably explained without inferring his death, his absence, notwithstanding its duration, is not "unexplained" within the meaning of the regulation. (R. 17).
The Appeals Council formulated its "explanation" as follows:
The wage earner's evident domestic problems . . ., his heavy debt . . ., and his affiliation with the underworld, which constituted a threat to his family, add up to a combination of problems which provide a reasonable explanation for his continued absence without tidings. (R. 8)
The opinion cited Dowell v. Gardner, 386 F.2d 809 (6th Cir. 1967), a case in which an insured individual's absence for an extensive period was, in fact, explained. The Appeals Council rejected the contention of plaintiff herein that, were Kurtz alive, the close family relationships which he had cherished would have impelled him to establish some minimal contact with parents or children during his "hiding-out."
The Appeals Council relied in part on an unsworn statement of one William Fromick, as expressed in a memorandum of a telephone conversation between a Social Security employee and Mr. Fromick. Fromick claimed first, that wage-earner Kurtz had co-signed a loan for him in April, 1964, four months after Kurtz's contact with his family had ceased and, second, that he had seen Kurtz at Madison Square Garden in July, 1964. Six months had elapsed between Kurtz's last contact with his family and this purported "sighting". According to the Council, what might have constituted evidence of Kurtz's death (i.e., the lack of contact between close family members) was weakened by the Fromick evidence that Kurtz was alive for six months and, during that time, failed to communicate with his family. The Council opined that Kurtz's absence could be explained as an effort "to protect his parents from molestation from the underworld. When it became clear . . . that neither his wife nor parents were aware of his whereabouts, the threats ceased." (R. 8)
The decision of the Appeals Council stands as the final determination of the Secretary of Health, Education, and Welfare. 42 U.S.C. § 405(g) requires this court to affirm the findings of the ...