Appeal from judgment of United States District Court for Eastern District of New York, I. Leo Glasser, J., affirming determination of Secretary of Health and Human Services that appellant was not entitled to Social Security survivors insurance benefits because record did not support presumption that appellant's husband was dead under 29 C.F.R. § 494.721(b), despite absence for more than seven years without having been heard from. Appellant argues that existence of logical explanation for husband's absence other than death does not prevent presumption from arising, and that Secretary failed to rebut presumption.
Feinberg, Chief Judge, Oakes, Circuit Judge and Pollack, District Judge.*fn*
Gloria Mando appeals from the judgment of the United States District Court for the Eastern District of New York, I. Leo Glasser, J., affirming the determination of the Secretary of Health and Human Services that appellant and her two children were not entitled to Social Security survivors insurance benefits. The district court held that, although appellant's husband had been absent and not heard from for at least seven years, his death would not be presumed under the applicable regulation because the record supplied a sufficient reason other than death to explain his absence. Appellant argues that the existence of a reasonable explanation other than death for her husband's absence does not prevent the presumption from arising and that the Secretary did not introduce sufficient evidence to rebut the presumption.
For reasons given below, we reverse and remand.
Appellant applied for survivors insurance benefits on behalf of herself and her children in April 1980. Since she did not have direct proof of her husband's death, she sought to rely on the presumption of death provided by 20 C.F.R. § 404.721(b). That regulation provides:
If you cannot prove the person is dead but evidence of death is needed, we will presume he or she died at a certain time if you give us the following evidence:
(b) Signed statements by those in a position to know and other records which show that the person has been absent from his or her residence for no apparent reason, and has not been heard from, for at least 7 years. If there is no evidence available that he or she is still alive, we will use as the person's date of death either the date he or she left home, the date ending the 7 year period, or some other date depending upon what the evidence shows is the most likely date of death.
Appellant claimed that her husband disappeared on October 13, 1972, and has not been heard from since.
After appellant's application was denied initially and on reconsideration, she received a hearing before the administrative law judge (ALJ). At that time, she introduced documentary and testimonial evidence as follows: She and her husband were married in 1969. He had held a succession of low paying jobs, yet had been able to support his family comfortably and to buy his wife "expensive jewelry and . . . nice clothes." Appellant expressed her belief that her husband was involved in "some other type of business that he never told me about" because he spent much more than the income from his low-paying jobs. He would go back to his old neighborhood, East New York, daily to see friends and to attend to "business", which he refused to discuss with her because he did not want "anybody to mess with me" if anything went wrong. He introduced her to some of the people he associated with, who dressed expensively and appeared to her to be "gangster types of people" involved in "some kind of racket."
When her husband left home for the last time on the morning of October 13, 1972, appellant was seven months pregnant with the couple's second child. Her husband told her he had to see someone to take care of some business and departed with nothing other than the clothes he was wearing. He was last seen when he borrowed his brother-in-law's car, which was later found abandoned at LaGuardia Airport. He telephoned that evening and told appellant he would be home in about an hour. He also asked her what she was doing, and as she described the conversation, "I told him I was painting the ceiling in the bathroom and he says to get off the ladder . . . I might fall, I was pregnant and he didn't want to chance that." There was uncontested evidence that her husband loved her and their daughter, was a good family man and was looking forward to the arrival of their second child, who he hoped would be a boy.
Though somewhat alarmed, appellant did not immediately report her husband missing because occasionally in the past he had unexpectedly left for a day or two, sometimes with the explanation that he was going to a card game. Two days later, appellant's sister-in-law filed a missing person report with the police. Appellant submitted documents indicating that "all efforts" by the Missing Persons Bureau of the New York City Police Department had produced no result, that the case was still active, that her husband was not an inmate in a New York State correctional institution and that no earnings had been posted to his Social Security record after 1967, five years prior to his disappearance. In May 1980, appellant made a search of death records, which produced no results. She also provided statements from her husband's mother, brother, sister, father-in-law and landlord in which each affirmed that he or she had not seen, heard from or heard about her husband since his disappearance and did not know of his whereabouts. For example, his brother stated that "the circumstances [of] his disappearance seem questionable to me, but I'm certain that I would have heard or seen him." His brother also stated that "he knew people I would not associate with."
Appellant expressed her assumption that her husband had been involved with organized crime and suggested the possibility that he had been killed. In a written statement, appellant said that on the same day that her husband was reported missing to the police, she went to the neighborhood in East New York frequented by her husband to search for him and questioned people who knew the two of them. In her words, "They acted as if they didn't know my husband [and] me. I persisted in my questioning -- telling them I had been out to dinner [with] them. They finally admitted ...