Under Illinois law, a guilty, but mentally ill finding is a felonious and intentional crime. The State of Illinois defines a mentally ill person as someone who is not insane but is suffering from a condition which at the time of the commission of the offense impairs that person's judgment, but not to the extent that he or she is unable to appreciate the wrongfulness of his or her behavior. Therefore, he or she has the capacity to form intent in commission of the offense.

You asked for an opinion on the date of death SSA can use when there is a conflict between the death certificate and the other evidence submitted. For the following reasons, we conclude that the date indicated by other evidence as the date of death may be used when there is a conflict.

BACKGROUND

On September 16, 1991, Mr. L~ (the number holder) died of a stab wound from his son, Mr. R~ (the claimant/beneficiary). Mr. R~ was 17-years-old at the time of the stabbing. In 1993 he was tried as an adult and found guilty but mentally ill of first degree murder. Mr. R~ was sentenced to twenty years in prison, and was released in October 2001 after having served half his time. A final release evaluation from June 2001 included diagnoses of schizophrenia-paranoid type, and borderline intellectual functioning.

DISCUSSION

Agency regulations provide that a person is not entitled to any survivor benefits on another person's record if he or she has been "convicted of a felony or an act in the nature of a felony of intentionally causing that person's death." 20 C.F.R. § 404.305(b). Further, the Program Operations Manual System ("POMS") defines felonious and intentional homicide as "[c]rimes committed by adults . . . that are considered intentional and legally felonious (or acts in the nature of a felony)." POMS GN 00304.060.B.2.a. For a first degree murder conviction, "intent [is] conclusively presumed." POMS GN 00304.065.B. Mr. R~ was convicted of first degree murder, so ordinarily his crime would be considered intentional. But his conviction came with a qualification: guilty, but mentally ill. Thus, the issue is whether a guilty, but mentally ill finding renders unintentional what would otherwise be a felonious, intentional crime. Under Illinois law, it does not.

Chapter 720, section 5/6-2 of the Illinois Criminal Code specifies that "[a] person who, at the time of the commission of a criminal offense, was not insane but was suffering from a mental illness, is not relieved of criminal responsibility for his conduct and may be found guilty but mentally ill." 720 ILCS 5/6-2(c). In addition, section (d) clarifies that "'mentally ill' means a substantial disorder of thought, mood, or behavior which afflicted a person at the time of the commission of the offense and which impaired that person's judgment, but not to the extent that he is unable to appreciate the wrongfulness of his behavior." 720 ILCS 5/6-2(d). Courts examining these sections have concluded that persons who were found "guilty, but mentally ill" intended their actions. See State Farm Fire & Cas. Co. v. Watters, 268 Ill. App. 3d 501, 508 (1994) (appeal denied, 208 Ill. Dec. 369 (1995)) (defendant's conviction of guilty but mental ill in related criminal action "established that he had the capacity to form the intent to commit the acts, that he knew what he was doing, and that he could distinguish right from wrong. Criminal convictions can be used in civil cases as prima facie evidence that the accused either intended the victim's injuries or knowingly caused them."); People v. Grice, 121 Ill. App. 3d 567, 568 (1984) ("This amendment establishes that a person can be 'mentally ill' and not yet legally insane, the distinction being that a person who is only mentally ill is held responsible for his acts."); In re Camden v. Camden, 115 B.R. 156, 158 (S.D. Ill. 1990) (citing People v. Grice and holding that "[s]ince a person found to be guilty but mentally ill could have conformed his conduct to the law," a guilty but mentally ill verdict in a criminal action would not preclude a determination of willful and malicious intent required under an insurance code provision in a subsequent bankruptcy action).

Also, it is of no consequence that in June 2001 Mr. R~ had borderline intellectual functioning and appeared to be suffering from schizophrenia, paranoid type. While these conditions may or may not have rendered him insane in June 2001, and possibly incapable of intending any of his actions in June 2001, the Illinois statute referenced above clarifies that the relevant period for assessing one's mental status is at "the time of the commission of the offense," and not some later date (i.e., June 2001). In short, Mr. R~ was determined to be mentally ill-not insane-when he stabbed his father, and these 2001 diagnoses (even if they may suggest that he was insane in 2001) have no bearing on Mr. R~' mental status ten years prior.

Nor does the fact that Mr. R~ was a minor when he committed his crime affect the above analysis. Mr. R~ was tried and convicted as an adult. But, in any event, under Agency regulations, it does not matter whether Mr. R~ was tried as a child or an adult:

If you were subject to the juvenile justice system, you may not become entitled to or continue to receive survivor's benefits or payments on the earnings record of any person, or receive any underpayment due a person, if you were found by a court of competent jurisdiction to have intentionally caused that person's death by committing an act which, if committed by an adult, would have been considered a felony or an act in the nature of a felony.

20 C.F.R. § 404.305(b). In addition, under the POMS, one is directed to "[c]onsider the child non-existent in determining the entitlement or benefit amounts of other survivors if the child is convicted of the intentional and felonious homicide of the NH." POMS GN 00304.070.

CONCLUSION

In sum, under Illinois law and the Agency's rules and regulations, Mr. R~' conviction of first degree murder for the death of his father was intentional and felonious homicide.

Donna L. C~

Regional Chief Counsel, Region V

By:____________________

Kyle K~

Assistant Regional Counsel

In the case of a missing person where the body is later found and there is a conflict between the date of death in the application and other evidence (including the preferred evidence of death), SSA can weigh the conflicting evidence and find the reasonable date of death based on other evidence.

You asked for an opinion on the date of death SSA can use when there is a conflict between the death certificate and the other evidence submitted. For the following reasons, we conclude that the date indicated by other evidence as the date of death may be used when there is a conflict.

BACKGROUND

According to the facts provided, James M~ (M~), the deceased number holder (NH), and a friend, Jay A. B~ (B~), went boating on the Sangamon River on December 26, 2003. Their boat hit a tree and capsized. B~ managed to make it to shore and contact authorities, reporting that he saw M~ hanging onto the side of the boat. When rescuers arrived, however, they found the boat near where it capsized, but no sign of M~.

Friends and family members of M~ continued searching up and down the banks of the river. On March 20, 2004, M~'s body was discovered in a tree, four to five feet above the current water level of the river. The body was found within a half-mile of the point where the boat capsized. The clothes on the body matched the description by B~ of the ones M~ had B~ wearing when he went into the river. Identification was made during an autopsy, which indicated that the cause of death was drowning. M~ died domiciled in Illinois.

The verdict at the coroner's inquest on March 31, 2004, indicates that M~ came to his death on March 20, 2004, due to drowning, when his boat capsized on December 26, 2003, on the Sangamon River. The jury ruled the death to be accidental. The Medical Examiner's - Coroner's Certificate of Death, dated March 31, 2004, also indicated M~'s date of death as March 20, 2004, and that the cause of death was due to accidental drowning.

On April 15, 2004, Kathaleen S~ filed a survivor's claim on behalf of Ashley M. M~, date of birth October 22, 1986. SSA awarded benefits to Ashley M~ effective March 2004 based on the death certificate. We have been asked whether the earlier date of December 26, 2003, may be considered the date of death, given the evidentiary conflicts in the record.

DISCUSSION

The Social Security Act does not discuss the evidence necessary for a claimant to demonstrate the death of an insured, but the Social Security Regulations and POMS provide guidance. According to POMS GN 00304.001C.1, proof of death is needed when "b. Conflicting reports raise a question about the month or year of death." The POMS goes on to state, "[t]here may be a conflict between the application (or other material in the file relating to the date of death) and other evidence. If such a conflict exists, accept the date indicated by the other evidence unless the discrepancy is material and is not satisfactorily explained. In this case obtain more evidence as to the correct date of death." POMS GN 00304.001C.3.

According to the application for benefits, Ms. S~ reported that M~'s date of death was March 20, 2004. The evidence provided included the verdict at the coroner's inquest on March 31, 2004, which indicated that M~ came to his death on March 20, 2004, due to drowning, when his boat capsized on December 26, 2003, on the Sangamon River. The Medical Examiner's - Coroner's Certificate of Death, dated March 31, 2004, also indicated M~'s date of death as March 20, 2004, and that the cause of death was due to accidental drowning. Finally, you provided newspaper articles which indicate that M~ disappeared after his boat capsized on December 26, 2003, and that he was missing until his body was found on March 20, 2004.

When an application for benefits is made on the record of a deceased person, SSA asks for evidence of the date and place of his death. 20 C.F.R. § 404.720(a). The best evidence of a person's death, or the "preferred evidence," includes a certified copy or extract from the public record of death, coroner's report of death, or verdict of a coroner's jury; or a certificate by the custodian of the public record of death. 20 C.F.R. § 404.720(b); see also POMS GN 00304.005B.1.d. In the instant case, the information you provided included a verdict of a coroner's jury and a death certificate. According to those documents, M~ died due to drowning as a consequence of his boat having capsized in a river on December 26, 2003; however, the documents also indicate the date of death as March 20, 2004. Thus, there appears to be an internal inconsistency regarding the date of death in the "preferred evidence."

Because there appears to be a conflict between the date of death in the application (March 20, 2004) and other evidence submitted regarding Mr. M~'s date of death (December 26, 2003 or March 20, 2004), SSA should consider the date of death indicated by the other evidence. See POMS GN 00304.001C.3. However, as indicated, the other evidence is not entirely clear regarding Mr. M~'s date of death.

Although we could not find any case on point, SSA's treatment of the date of death issue in disappearance situations, where no body was found, is instructive. According to SSR 99-1p, in a disappearance case, for the purposes of a NH's entitlement to benefits, the NH's death will be presumed to have occurred on the date of disappearance, the date ending the seven year period, ^[1] or some other date depending upon what the evidence shows is the most likely date of death. Thus, in the case of a missing person, SSA has the right to end benefits on the date of disappearance, barring convincing evidence that establishes a more likely date of death. Id.

In SSR 72-1c, which discusses the case of Lahr v. Richardson, 328 F.Supp. 996 (N.D. Ill. 1971) aff'd 476 F.2d 1088 (7th Cir. 1973), an old-age beneficiary who was mentally incompetent and in deteriorating mental condition disappeared from a nursing home in May 1961, and was neither seen nor heard from again. L~, 328 F.Supp. at 997. Monthly benefits continued to be paid to Henry L. on his father's behalf, through August 1963. Id. The NH was declared legally dead in May 1968, seven years after his disappearance, in the Circuit Court of Cook County, Illinois. Id. Because monthly social security payments are authorized to continue only while the recipient is living, with certain qualifications, any payments made after the month preceding NH's death were improper and should be returned. 42 U.S.C. § 402(a). The Agency, by a hearing examiner, determined that the probability that the NH died on or shortly after May 30, 1961, the date he disappeared from the nursing home, was greater than the probability that he survived for seven years. L~, 328 F.Supp. at 997. The examiner's opinion relied on the NH's expressed unhappiness at the nursing home, his failing mental condition, and the proximity of the nursing home to Lake Michigan. Id. The United States District Court for the Northern District of Illinois held that there was no reason to reverse the hearing examiner's decision, since it was based on substantial evidence. Id. Thus, the court allowed the Agency to find a different date of death than what was legally determined by a State court to be the NH's date of death, based on the evidence. See also Marshall v. Secretary of Health and Human Servs., No. 85-5241, 1986 WL 16334 (6th Cir. Jan. 30, 1986) (holding substantial evidence existed both to rebut the presumption that the wage earner survived the seven years following his disappearance and to support the ALJ's determination that it was more probable that the wage earner died on the date of his disappearance); Meriwether v. Apfel, No. 98-2172-KHV, 1999 WL 450899 (D. Kan. May 11, 1999) (Commissioner not equitably estopped from using the date of NH's disappearance as the date of his presumed death under 20 C.F.R. § 404.721(b)).

The Agency was also allowed to determine the date of death in a disappearance case based on the evidence presented in Sullivan v. Weinberger, No. C-C-C74-167, 1975 WL 4169 (W.D.N.C April 4, 1975) (discussed in SSR 76-1c). In that case, Lola Sullivan first filed an application seeking survivor's benefits under the Act in 1963. Id. at *1. Her application was denied on that and several other occasions. Id. at *1. According to the facts in Sullivan, the wager earner ran from his home during flood conditions on February 25, 1961, after having come home intoxicated and shooting one of his 12 children in the shoulder. Id. The wage earner was not seen or heard from again. Id. A State court determined that the wage earner died of drowning on February 25, 1961; there had Been flooding in the area. Id. The United States District Court for the Western District of North Carolina, in considering the application for survivor's insurance benefits, held that the State court's ruling as to the date of death was not controlling, and sufficient testimony and evidence existed to support a conclusion that the wage earner did not die on February 25, 1961, and to support a presumption of death seven years after his disappearance. Id. at 2. The court noted that it was not bound by the State court's determination of the date of death. Id. at 1. An Agency hearing examiner determined on April 25, 1974, that the wage earner had not died on February 25, 1961, but that his death should be presumed to have occurred seven years later on February 25, 1968. Id. at 1-2. The decision was affirmed by the Appeals Council. Id. at 1. The court held that, although from the transcript of the hearing, one could conclude that the wage earner had died on February 25, 1961, there was enough testimony to the contrary to support a presumption of death several years after the disappearance. Id. at 2.

As stated, although there is no precedent dealing with the specific facts at hand, the rationale from L~ and S~ shows that the Agency may accept a different determination regarding the date of death than deemed to be the legal date of death or the date of death found by a state court, where the evidence supports such a finding. Based on the rationale in those cases and in POMS GN 00304.001C.3., even in a case where a body has been found, if there is a conflict between the date of death in the application and other evidence (including the preferred evidence, which here was the verdict of the coroner's jury and death certificate, and the newspaper articles), SSA can weigh the conflicting evidence and find the reasonable date of death based on other evidence. In the instant case, because other evidence also reflected inconsistencies regarding the date of death, in balancing the evidence, SSA could reasonably find that M~'s date of death occurred on December 26, 2003, the date his boat capsized. In doing so, SSA could reasonably discount the March 20, 2004 date discussed in the verdict of the coroner's jury and death certificate based on the inconsistent rationale provided in such documents as well as the information provided in the newspaper articles.

CONCLUSION

We conclude that, in the instant case, given the evidentiary conflicts regarding the date of death in the various documents provided, SSA could reasonably find that the NH's date of death was December 26, 2003.