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December 15, 1976

Mary HOLMES, as mother and natural guardian on behalf of Allen Thompson, Jr., an infant over the age of 14 years, Plaintiff,
Caspar W. WEINBERGER,1 Secretary of Health, Education, and Welfare, Defendant.

The opinion of the court was delivered by: PRATT

GEORGE C. PRATT, District Judge:

On January 20, 1975, an administrative law judge of the Social Security Administration (the Administration) held that plaintiff's son was entitled under 42 U.S.C. § 402(d) to surviving child's insurance benefits retroactive to 1967. But on May 5, 1975, the Administration's Appeals Council reversed. Acknowledging that plaintiff had contacted the Administration in 1967 in order to secure benefits on behalf of her son, the Council concluded that an oral claim could not constitute the statutorily mandated "application" for benefits, that a written statement indicating an intention to claim benefits had not been presented to the Administration until February of 1973, and that consequently, under 42 U.S.C. § 402(j)(1) which limits back-payment of benefits to the one-year period preceding the month of application, plaintiff's son was entitled to benefits retroactive only to February of 1972. Contending that her son's benefits should be retroactive to 1967, plaintiff brought this action under 42 U.S.C. § 405(g) for review of the Council's decision.

 Plaintiff and defendant Secretary of Health, Education and Welfare (the Secretary) have both moved for summary judgment. Since the court concludes that under the exceptional circumstances of this case plaintiff's oral efforts to obtain benefits for her son in 1967 constituted an "application" for the purposes of 42 U.S.C. §§ 402(d) & (j)(1), plaintiff's motion must be granted and the Secretary's denied.


 When plaintiff's common-law husband Allen Thompson, Sr. died in February of 1967, their minor son Allen Thompson, Jr. became eligible for surviving child's insurance benefits. Plaintiff therefore contacted the Administration in 1967 for the purpose of securing these benefits for her son. In fact, plaintiff testified that during that year she telephoned the Administration's office on numerous occasions and visited it twice. The administrative law judge's decision states that he "listened to and observed [her during her testimony] and [had] no reason to doubt that she made the inquiries alleged". And the Appeals Council acknowledged that "[her] statements in the record as to the circumstances concerning her attempt to secure benefits in 1967 are consistent" and that "[she] made numerous telephone inquiries about the 'claim' but was unsuccessful in obtaining any information because she did not have the deceased's social security number." Moreover, the record contains plaintiff's copies of two letters mailed to her by the Administration in July of 1967 which, in reference to "Allen Thompson", state respectively, "This is in regard to your inquiry on the above account," and "This is in regard to the above account." The Administration, however, was unable to locate either its own copies of these letters or any part of a related file; the record contains no evidence tending to justify the absence of these documents.

 The administrative law judge found that "[filing] of a formal application was delayed based on advice from the Administration to wait until the wage earner's [the decedent's] account number could be located." The Appeals Council not only left this finding undisturbed but also noted that "[administrative] procedure permits a person to file an application even though they [sic] do not have all the required information including a social security number."

 Plaintiff testified to her belief that on one of her visits to the Administration in 1967 she filled out and signed an application for benefits. However, when asked whether the application was the same color as the one she filled out six years later in 1973, she feely admitted that she did not think so. Possibly on the basis of this concession, the administrative law judge concluded that no "formal application" had been filed in 1967, *fn2" but, contrary to the implication of the Appeals Council, see Decision of Appeals Council at 5, he did not conclude that plaintiff had failed at that time to file any signed writing indicating her intent to claim benefits for her son.


 The Appeals Council nevertheless concluded (1) that plaintiff had failed to file any such writing, formal or informal, until years later and (2) that this factual conclusion mandated the denial of child's insurance benefits for the period from the death of plaintiff's husband through January of 1972. This court considers both of those conclusions unjustified, but since rejection of the second necessitates granting plaintiff summary judgment and rejection of the first would merely require remand, only the second will be fully considered here. *fn3"

 See Carnevale v. Gardner, 393 F.2d 889 (CA2 1968 n.8 ; cf. Singer v. Weinberger, 513 F.2d 176, 178 (CA9 1975); DePaepe v. Richardson, 464 F.2d 92, 99 (CA5 1972); Storck v. Weinberger, 402 F. Supp. 603, 607 (D.Md.1975); Smith v. Weinberger, 394 F. Supp. 1002, 1006-07 (D.Md.1975); Davis v. Weinberger, 390 F. Supp. 813, 816-18 (M.D.Pa. 1975).

 42 U.S.C. § 402(d)(1)(A) makes filing an application a prerequisite to entitlement for child's insurance benefits, and 42 U.S.C. § 402(j)(1) limits retroactive payment of such benefits to the one-year period preceding the month an application is filed.

 20 CFR § 404.601(c) states that "[unless] otherwise specified, the term 'application' refers only to an application on a form prescribed in [20 CFR] § 404.602 * * *." 20 CFR §§ 404.602 and 422.505 in turn indicate that the "prescribed" form for applications for child's insurance benefits is the "SSA-6" - the form which plaintiff concededly filed in 1973, if not also in 1967.

 20 CFR § 404.613(b) is currently the only regulation which specifies a means of applying for insurance benefits which does not entail the use of the prescribed form. This regulation provides:

 A written statement filed by a person that indicates an intention to claim on behalf of another person monthly benefits * * * is * * * considered to be the filing of ...

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