TN 12 (09-13)
PR 02905.019 Kansas
A. PR 02-108 Presumed Date of Death for Ronald D~, Deceased Number Holder, SSN~
DATE: May 23, 2002
The central question in this case is how to determine a person's date of death once you have determined that he/she can be presumed dead. When determining the person's date of death to be the date he/she left home, under Agency policy, one of the things you should consider is whether the missing person encountered some specific peril at the time of disappearance. Although the term “specific peril” normally connotes some sort of disastrous occurrence, it is not necessarily confined to a catastrophe of that nature. In this case, it is determined that there is sufficient evidence of a “specific peril” to find that the beneficiary died on the day he disappeared. Circumstances indicate that he was likely murdered.
You have asked for an opinion regarding the proper deemed date of death of a number holder that has been missing for over seven years. The number holder, Ronald D~, was disabled within the meaning of the Social Security Act, and was receiving disability benefits until he stopped cashing his benefits checks in 1985. Wuanita D~, Ronald's mother, as representative payee, saved all of Ronald's uncollected Social Security benefits in a bank account since that time. As Ronald's estate is now in probate in Kansas, the amount of overpayment, if any, owed to Social Security must be calculated. Our review of the law and the facts as you presented them indicates that it would be reasonable to conclude that the presumed date of death was on February 17, 1985.
Much of the information described below was gathered by the Kansas Bureau of Investigation (KBI) and is contained in an February 12, 1998 affidavit for a search warrant to look for Ronald's body at the Texas home of Jewel “W~`”~. In a telephone call on May 20, 2002, Joseph O~, an attorney retained by Ronald's mother, indicated that the search warrant was executed, but no body was found on the property. Mr. O~ also stated that the KBI investigation into Ronald's disappearance and G~'s possible involvement is ongoing.
On January 18, 1991, Wuanita D~ reported to the Reno County Sheriff's Office in Kansas that her son had last been seen or heard from during the early 1980s. She described Ronald as having an oversized head, blind in the left eye, and partially spastic and partially paralytic as the result of influenza, meningitis, encephalitis, and polio. She also said that he was bald or balding, and that balance problems required him to use two canes in order to walk. Ms. D~ said she had entrusted her son's care to a man named Jewel “W~” G~.
In early 1982, Ronald, apparently a talented gospel singer, and his mother attended a revival where Ronald met and befriended G~, who was the leader of a traveling singing gospel group. Ronald began traveling with the group to sing. While Ms. D~ initially traveled with the group, she had a “falling out” with G~, and was no longer permitted to travel with them. Ms. D~ later saw Ronald on August 25, 1982, at the funeral of Ronald's father. Ronald subsequently contacted his mother by telephone and mail from South Dakota and New York. On December 31, 1982, Ronald spoke with Ms. D~ via telephone, though the conversation was cut short by G~, who threatened to not let Ms. D~ see Ronald any more. From 1983 to 1985, Ronald's contact with his mother dwindled to nothing. In March 1983, Ms. D~ saw Ronald at a revival, but she did not speak with him. In September 1983, Joseph O~ found that Ronald had been seen by officials in Lewiston, Montana, and he appeared to be doing “okay.” The file contains the last letter from Ronald to his mother, dated February 17, 1985.
In November 1986, G~ was contacted by local Kansas police while on tour in that state. He indicated that Ronald was “not here,” and that he could not “violate a trust” by giving the police information on Ronald's whereabouts. He further indicated that there was not room for Ronald in his tour bus. Ronald also was absent from G~'s group in a 1987 appearance in Lawrence, Kansas. At this time, contact of Ronald's friends throughout the country revealed that no one had seen Ronald.
G~'s son, who is an attorney, claimed that Ronald worked for G~ until May 1988. However, there have been no earnings posted to Ronald's account during that time. G~'s son also stated that Ronald had left without telling where he planned to be in the future.
Social Security checks in Ronald's name, which were sent to a post office box leased by G~ in 1987 and 1988, were uncashed. No one has attempted to cash Social Security checks in Ronald's name, and no one has attempted to use his Social Security number. Ronald has not reapplied for benefits. In 1989, Ms. D~, who is Ronald's guardian and conservator, was also appointed as the representative payee for Ronald, and began depositing his Social Security checks into a savings account, which now totals about $50,000. In August 1995, Social Security noted that Ronald had not used his Social Security number in twelve years. In December 1996, benefits payments were stopped.
In February 1993, a Texas police officer contacted G~. G~ claimed he had last seen Ronald in the late 1980s or early 1990s, boarding a bus. G~ claimed that he and Ronald had argued, resulting in Ronald leaving the hotel where they had been staying.
Ronald's treating physician, on January 9, 1996, stated that Ronald could “get by” with regular chiropractic adjustments, Tylenol medication, hot packs, and the use of canes for mobility. Another non-examining physician reviewed Ronald's medical records, and opined that Ronald's diseases and ailments were not progressive and would not be likely to cause his death at Ronald's age. However, Ronald would have “great difficulty having a quality life without some assistance” such as help in performing everyday chores and errands, having someone look in on him on occasion, and using canes.
As indicated earlier, G~ is a suspect in Ronald's disappearance. Police have noted several suspicious circumstances around G~'s Texas home, such as witness reports of seeing Ronald in a wheelchair at G~'s residence, other witness reports of an empty wheelchair at the residence, and G~'s habit of digging in his yard at night. In contrast to witness reports of Ronald in G~'s Texas home, G~ claimed Ronald had never been in a wheelchair at his Texas home, and that the wheelchair was for his mother. In February 1998, G~ and his wife claimed that there had never been a wheelchair at their home. A neighbor stated that G~ told him that Ronald was “home with his mother.” Joseph O~ stated that the search warrant described above had been executed, but that Ronald's body was never found, nor any arrest made. O~ said that a desk had been found buried in G~'s back yard, and that the property now has a new owner, so that further searches might be conducted in the future. Police have been unable to convince G~ to submit to a polygraph test.
Determining the fact and date of death is governed by the regulations found at 20 C.F.R. §§ 404.720, 404.721 (2001).“Preferred evidence” of death includes a certified copy of a death certificate, a statement by a doctor or funeral home director, an official death report by an agency of the United States, or other evidence such as the signed statements of two people with knowledge of the death. See20 C.F.R. § 404.729(b-c). Because none of these preferred means of proving the death or date of death are available, 20 C.F.R. § 404.721 applies for presuming that a person is dead. Death may be presumed if there are [s]igned statements by those in a position to know and other records which show that the person has been absent from his or her residence and has not been heard from for at least 7 years. If the presumption of death is not rebutted pursuant to § 404.722, 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.
20 C.F.R. § 404.721 (2001). Therefore, it must first be determined if Ronald has been missing for at least seven years, without any rebutting evidence indicating he might be alive. See 20 C.F.R. § 404.722 (2001) (presumed death after absence of seven years can be rebutted by “evidence that establishes that the person is still alive or explains the individual's absence in a manner consistent with continued life rather than death”).
Ronald has clearly been missing for the requisite seven years. As described above, Ronald's mother last saw him in March 1983. The latest firm evidence of any contact between Ronald and his mother was in a February 1985 letter he wrote to his mother. In 1986, G~ claimed Ronald was “not here” and that there was no room for him on the tour bus. By 1987, Ronald clearly was no longer with the singing group. G~'s son claimed that he had employed Ronald as late as May 1988, but that evidence is contradicted by G~'s other statements. A missing persons report was filed on April 10, 1991. Between 1985 and the present time, Ronald has not used his Social Security number, no earnings have been posted to his account, he has never tried to cash or use any of his Social Security disability checks, and he has not reapplied to receive disability benefits. Thus, the last credible evidence that Ronald was alive is the letter dated February 17, 1985, sent to his mother.
As you noted, the main issue, therefore, is not whether Ronald can be presumed dead, but rather the exact date of his death for purposes of calculating the overpayment his estate owes. “The determination of date of death is an independent finding of fact to be made if the person has been presumed dead.” Cohn v. Secretary of Health Ed. and Welfare, 477 F.Supp. 54, 56 (D. Neb. 1979). In other words, the seven-year presumption is only a presumption of the fact of death, and does not establish the date of death. As noted above, there are three possibilities for establishing the date of death: the date of disappearance, the date ending seven years after last appearance, or some other date if there is evidence of some other date. See 20 C.F.R. § 404.721 (2001). This case is further complicated by the fact that there was no clearly demarcated “date of disappearance.”
Under common law, in Kansas and other jurisdictions, continued life is presumed. See Merriwether v. Apfel, 1999 WL 450899 (D. K~., May 11, 1999) aff'd 242 F.3d 389 (10th Cir. 2000) (table, text in Westlaw). See also Kan. Stat. Ann. § 58-712 (Kansas Uniform Simultaneous Death Act) (absent sufficient evidence that death occurred earlier, individual presumed dead if absent for continuous period of five years and not heard from, and absence not satisfactorily explained after diligent search). See also, MacMurray v. United States, 15 Cl.Ct. 323, 329-30 (1988) (government has burden to produce substantial evidence to rebut legal presumption of continuing life up to end of seven year period of absence; “[t]he statutory legal presumption is rebuttable by specific factual proof; and when credible proof is offered, the presumption disappears and a fact question arises.”) (applying Mississippi law). In order to establish an earlier date of death, common law requires that Ronald was in “specific peril” or “came within the range” of some fatal danger. Acosta v. United States, 320 F.2d 382, 384-85 (Ct. Cl. 1963) (normal presumption of continued life throughout seven year period of continued and unexplained absence not overcome where, e.g., no showing of “distinct peril or danger” encountered after disappearance).
The Social Security Administration's interpretation of the time of death are similar to those under common law. Under Agency policy, the presumed date of death may be moved to the date of disappearance if the missing person encountered some specific peril at the time of disappearance, was suicidal, was in such a poor state of health and was so destitute that survival was improbable for any length of time after disappearance, or the missing person was attentive to domestic duties and was attached to home life but disappeared suddenly and without explanation. Program Operations Manual System (POMS) GN 00304.050.6. See also, Edwards v. Califano, 619 F.2 865 (10th Cir. 1980) (death determination generally made under the regulations as opposed to under the common law).
Under both the common law and POMS, it is first necessary to determine the date Ronald disappeared. Ronald appears to have disappeared sometime around February 17, 1985, when he wrote his last letter to his mother. It is reasonable to believe that the date of Ronald's disappearance should be set as of this date. The evidence shows that after this date, Ronald no longer contacted his mother or his other friends, he did not take advantage of his disability payments, and there was no credible evidence that he was ever seen after that date.
The only person who has claimed to have seen Ronald after February 1985, G~, is a police suspect in Ronald's disappearance. Therefore, G~'s claims to have seen Ronald after February 17, 1985, are not persuasive in determining the proper date of Ronald's disappearance. It is noteworthy that G~'s claims regarding Ronald's disappearance varied considerably. Indeed, as noted above, G~'s statements were contradictory as both the date of Ronald's disappearance and the circumstances under which he was last seen. As early as November 1986, G~ told authorities that Ronald was “not here” and that he did not have room on his tour bus for Ronald. At another point G~ claimed that he had seen Ronald climb aboard a bus in 1985. By March 1996, G~ claimed he last saw Ronald in late 1985, and that he had returned to his hotel room to see a note from Ronald, stating that he was leaving. He apparently made no mention of an argument or of seeing Ronald leave on a bus. G~ claimed that he had kept the note, but that it had been destroyed in a house fire.
The statement by G~'s son, the attorney, that Ronald was a “full-time employee” of the elder G~ from 1977 to May 1988 is suspicious for several additional reasons. No earnings were posted to Ronald's account from 1977 to 1988. Presumably, by “full-time employee,” G~'s son meant that Ronald traveled with G~ as a singer, because this corresponded with part of the period Ronald clearly performed with the group, and because there is no indication that Ronald had any incentive or ability to work in any other capacity. G~'s son claimed that Ronald left G~'s employ in May 1988, but refused to discuss his future. Obviously, this account is considerably different from G~'s own accounts of Ronald's disappearance.
Having determined the date of disappearance to be February 17, 1985, it must next be determined whether Ronald's deemed date of death occurred on the day he disappeared, seven years after the date he disappeared, or some other date. For much the same reason that Ronald's date of disappearance was determined to be February 17, 1985, we believe that there is sufficient evidence of a “specific peril” to find that Ronald died on that date. Although the term“specific peril” normally connotes some sort of disastrous occurrence, it is not necessarily confined to a catastrophe of that nature. See, e.g., Saint Calle v. Prudential Ins. Co., 815 F.Supp. 679, 685 (S.D.N.Y.1993) (citing, e.g., In re Estate of Conrad, 440 N.Y.S.2d 991 (1981) (retired man who was close to family and friends and had no health, social, or legal problems who disappeared on voyage from Bahamas to Florida declared dead)). In Meriwether, the Kansas court determined that there was sufficient peril to presume that a man had died on the day he disappeared. In that case, the man's wife had died suddenly two years earlier, and his live-in sister had just told him she was moving out, and he was being treated for depression. The court agreed with the SSA's conclusion that the man might have felt himself to be a burden to others and committed suicide by driving his car into a river, despite the fact that the man's doctor had recently told him that he could function without his anti-depression medication and despite the fact that his sister had claimed he would not have killed himself by driving into a river because he hated water. See Meriwether, 1999 WL 450899.
The facts described above, most notably that G~'s story varied considerably each time he was asked about Ronald's whereabouts, suggests that Ronald faced a specific peril at the time of his disappearance. Also, while Ronald's physical disability was not expected to cause his death, he certainly would have needed considerable care and resources to stay alive. It seems likely that, given the fact that police have investigated Ronald's disappearance extensively, someone would have admitted to having cared for Ronald had he still been alive. Moreover, even though Ronald was no longer staying with G~ by the late eighties, Ronald has not made any attempt to take advantage of his disability payments or contact anyone he knew for help.
Analysis under the POMS is similar, supporting the common law conclusion that Ronald was dead as of the date he disappeared. There is no indication that Ronald was suicidal and obviously he cannot be said to have been an attentive family person who suddenly disappeared. However, as discussed under the common law, the ongoing investigation into G~'s possible involvement in Ronald's disappearance, combined with G~'s extremely variable statements regarding Ronald's current whereabouts, suggest that he was in “specific peril” at about the time he disappeared. Also, while not in such poor health so as to be expected to die, Ronald very clearly needed assistance in tasks of daily living. See POMS GN 00304.050.6. In the fact situation which you present, therefore, we believe that you would be justified in concluding that Ronald died on February 17, 1985.
Acting Chief Counsel, Region VII
Kevin B. M~
Assistant Regional Counsel