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WHEELER v. CALIFANO

December 27, 1978

Marilyn WHEELER, Plaintiff,
v.
Joseph A. CALIFANO, Jr., Secretary of Health, Education and Welfare, Defendant



The opinion of the court was delivered by: NEAHER; CADEN

MEMORANDUM OF DECISION AND ORDER

This action to review a denial of surviving childrens' insurance benefits under the Social Security Act was initially referred to a United States Magistrate to review the administrative record, hear the contentions of the parties, and report to the court his recommended disposition of the plaintiff's motion for judgment on the pleadings and the defendant Secretary's request that his determination be affirmed and the complaint be dismissed. That has been done and the matter is now before the court on the Magistrate's report recommending that the Secretary's determination be reversed and benefits be granted as sought by plaintiff, and on the Secretary's objections to that report and recommendation.

 After an independent searching review of the record, the court is in agreement with the Magistrate's ultimate conclusion that the presumption establishing the death of plaintiff's husband, 42 U.S.C.A. App. § 404.705, was not rebutted by substantial evidence rationally pointing to his continued life. The Magistrate's report as supplemented below is accepted as the opinion and decision of the court and made part hereof.

 The need for additional comment by the court arises from the stress placed by the Secretary, in his objections to the Magistrate's report, on the principles of law enunciated by Mr. Justice (then Circuit Judge) Stevens in Blew v. Richardson, 484 F.2d 889 (7 Cir. 1973), in which a wife's application for child's survivor benefits was denied despite the disappearance of her husband for more than seven years. A careful reading of the Blew opinion, however, reveals no conflict in applicable principles. This court does not question the principle articulated in Blew that pre-departure evidence of a motivation "that created a Probability of continued life notwithstanding the lack of any communication from the absentee for a prolonged period," Id. at 892-93 (emphasis supplied), may well be substantial enough to rebut the presumption of death. We agree also "that the Secretary may adduce evidence to contradict either the unexplained character of the absence or the fact that the individual has not been heard of for seven years." Id. at 893.

 The only difference between the Blew case and this one is that there the Secretary met his burden and here he did not. This is not a case where the evidence shows a husband, delinquent in support and of unstable character, who had to be arrested and brought to court before he signed an agreement to support his child, as was the case in Blew. Nor was there prompt flight following release from jail which rendered inescapable the inference that the husband's disappearance in Blew was an act of desertion and not the result of death. In denying benefits in this case, the Secretary pointed to no facts in the record which could rationally explain the absence of plaintiff's husband and thereby overcome the presumption.

 As Justice Stevens noted in Blew, 484 F.2d at 893, n.8, quoting from a North Carolina case:

 
"The strength of this presumption (of death) varies with the circumstances, its force depends on the character of the person, his attachment to his home, and the circumstances under which he left. . . . Evidence tending to show the desire of the absent person to conceal his identity . . . that he was a fugitive from justice, or any other fact or circumstance surrounding his disappearance tending to support or rebut the presumption is admissible."

 As appears from the Magistrate's report, plaintiff's husband here, although separated from her, was a good provider who voluntarily continued to support the family pursuant to their agreement, cared for and visited his children frequently, indicated his torment over their separation and was continuously employed until the time of his disappearance. The findings and conclusion adopted by the Secretary, namely, that the husband's sudden cessation of family visits and apparent change of jobs shortly before he vanished warrant the conclusion that he disappeared because "he did not want to support his family" (Tr. 8), are based on pure conjecture and not upon evidence which would rationally lead to such an inference.

 Accordingly, plaintiff's motion for judgment in her favor is granted and the Secretary's decision is reversed with the direction that benefits be paid to plaintiff in accordance with 42 U.S.C. § 402(d)(1), retroactive to the date of application.

 SO ORDERED.

 REPORT OF UNITED STATES MAGISTRATE IN RESPONSE TO ORDER DATED OCTOBER 17, 1977

 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 24, 1975, 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, John Wheeler, plaintiff's husband and father of three minor children, had been continuously and unexplainedly absent since October, 1967. Plaintiff's application was denied both on original consideration and later on reconsideration. Plaintiff then sought, and was granted, a hearing before an administrative law judge on February 17, 1977. The administrative law judge considered the case De novo and rendered a decision on March 7, 1977, finding plaintiff not entitled to benefits under the Act. On July 27, 1977, the Appeals Council upheld the administrative law judge's decision, thus making it the final decision of the Secretary. Plaintiff's complaint seeking review of the Secretary's decision was timely filed.

 FACTS

 The operative facts as revealed by the administrative record are as follows: *fn1" ...


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