A Nebraska court's finding that a claimant is "not responsible by reason of insanity," meets SSA's requirement that a claimant's killing of the deceased wage earner is not "intentional," within the meaning of 20 C.F.R. ' 404.305(b). SSA would, therefore, be justified in awarding benefits to a claimant on the deceased wage earner's record based on such a conviction.

You have asked for advice as to whether the finding that David L. T~ was "not responsible by reason of insanity" (NRRI) in the December 1, 2001 homicide of the deceased wage earner, Jimmie R. T~, constituted "felonious and intentional homicide," thereby precluding him from an award of disabled adult child's benefits (DAC) on Mr. T~'s earnings record. We have reviewed the material that you provided and have researched the relevant provisions of Nebraska law as it pertains to a finding of "not responsible by reason of insanity." We have also considered the pertinent provisions of the Social Security Act, Social Security regulations, Social Security Rulings (SSR), and the Program Operations Manual System (POMS). For the reasons discussed below, we believe that you would be justified in awarding benefits, however, payment of those benefits must be suspended until David is released from state custody.

Background

The evidence you provided shows that David was charged with First Degree Murder and Using a Deadly Weapon to Commit a Felony in the shooting death of his father. You have attached to your request a copy of the Judgment entered by the District Court of Dawson County, Nebraska, on June 17, 2002, in Case No. CR01162, State of Nebraska vs. David Lyn T~. That judgment states in pertinent part:

Upon consideration of the matter, the Court finds that the Defendant has proved all elements of the insanity defense by the greater weight of the evidence and the Defendant is found to be not responsible by reason of insanity of the acts described in the information filed herein on December 12, 2001. The Court finds that at the time of the events described in the Information, the Defendant suffered from paranoid schizophrenia, had hallucinations, paranoid delusions, schizophrenic ambivalence, psychosis and he misinterpreted reality. By virtue of his mental illness, the Defendant did not have mental capacity at the time of the acts alleged in the Information to understand the nature and consequences of his actions, nor did he have mental capacity to distinguish between right and wrong. Defendant has established beyond a preponderance of the evidence that at the time of the commission of the offense described in the Information he was insane. By reason of the Court's finding that the Defendant is not responsible by reason of insanity, the Defendant is acquitted of the charges described in the Information.

Analysis

Social Security Administration (SSA) regulations provide in pertinent part:

 

Person's death caused by an intentional act. You may not become entitled to or continue to receive any survivor's benefits or payments on the earnings record of any person, or receive any underpayment due a person if you were 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) (2004). The Agency defines "intent" as used in this provision as "a wish or an expectancy that an act will have a certain result" or "the presence of will in the commission of a criminal act where the individual is fully aware of the nature and probable consequences of the act which is to be done." POMS GN 00304.060. Felonious and intentional homicide is defined as "crimes committed by adults that are considered intentionally and legally felonious [.]" Id.

In Nebraska, murder in the first degree is defined as killing another person

 

(1) purposely and with deliberate and premeditated malice, or (2) in the perpetration of or attempt to perpetrate any sexual assault in the first degree, arson, robbery, kidnapping, hijacking of any public or private means of transportation, or burglary, or (3) by administering poison or causing the same to be done; or if by willful and corrupt perjury or subornation of the same he or she purposes procures the conviction and execution of any innocent person.

 

Neb. Rev. St. § 29-2203 states in pertinent part: "Any person ... may plead that he or she is not responsible by reason of insanity at the time of the offense and in such case the burden shall be upon the defendant to prove the defense ... by a preponderance of the evidence." The two elements of the defense of insanity under Nebraska law are (1) that the defendant had a mental disease and (2) that the defendant did not understand the nature and consequences of his or her actions or did not know the difference between right and wrong with respect to what he or she was doing. State v. Clark, 637 N.W.2d 671, 675 (2002), citing State v. Hurst, 594 N.W.2d 303 (1999). In this case, David successfully met his burden to establish the insanity defense. Id. at 674-75.

SSA policy generally excludes from the list of intentional homicides the following types of cases: (1) homicides that result from accidents; (2) homicides where the killing is the result of self defense; and (3) homicides where the claimant was insane or under the influence of drugs or alcohol, to the extent that the claimant was unaware of the nature and consequences of the act, when he or she killed the insured person. POMS GN 00304.065A; SSR 89-6c. Because the court found David "not responsible by reason of insanity," we believe that SSA may properly find that David's killing of his father was not "intentional," within the meaning of

20 C.F.R. ' 404.305(b).

You also noted in your memorandum of March 2, 2005, that payment of David's benefits under a prior award of Title II disability benefits on his own earnings record have been suspended because he is currently confined at the Lincoln Regional Center in Lincoln, Nebraska. Benefits to an inmate found "not responsible by reason of insanity" will be suspended while the inmate is confined by court order in an institution at public expense in connection with a verdict or finding that he is not guilty by reason of insanity. See 42 U.S.C. § 402(x)(1)(A)(ii); see also POMS GN 02607.310.1.b.

After finding that David was "not responsible by reason of insanity," see Neb. Rev. St. § 29-2203, the court conducted a hearing in accordance with

Neb. Rev. St. § 29-3701 to determine whether there was probable cause to believe that David was dangerous to himself or others by reason of his mental illness or defect, or would be so dangerous in the foreseeable future, as demonstrated by omissions, threats or overt acts. See also Neb. Rev. Sts. §§ 29-3702 through 3704. The court found that David was dangerous to himself or others by reason of mental illness or defect. He was therefore remanded for inpatient confinement at the Lincoln Regional Center, a locked and secure regional center facility. The court included in its order the very limited conditions under which David could leave this facility. Not until the court finds that David is no longer dangerous to himself or others by reason of mental illness or defect and will not be so dangerous in the foreseeable future, will the court order him unconditionally released from court-ordered treatment.

Neb. Rev. St. § 29-3703(2). Thus, we believe that David is confined and is subject to the Title II suspension rules with respect to any award of benefits on his father's earnings record.

In summary, we believe that you would be justified in awarding benefits to David as a DAC. At the same, you may properly suspend payment of benefits until David is released from state custody pursuant to a valid court order.

Frank V. S~ III

Chief Counsel, Region VII

By /s/ Teresa J. S~

Teresa J. S~

Assistant Regional Counsel

Based on the laws of New Mexico, it is our opinion that SSA may establish the date of a number holder's death as the date the number holder was reported missing, rather than the subsequent date the remains were found.

This memorandum is in response to the Kansas City Regional Commissioner's request the Office of the General Counsel's legal opinion regarding whether SSA may establish date of a New Mexico number holder's death as the date the number holder was reported missing, rather than the subsequent date the body was found. For the reasons stated below, it is our opinion that the date of death for the number holder may be established as the date that he was reported missing.

The facts of this case establish that Adrian J. Q~ was last seen on August 18, 1989 at a creek in the Briars Peak area. He was distraught because of a separation from his wife and was a known alcoholic. He was reported as missing on August 18, I989. Social Security benefits which the number holder had been receiving since January 1978 were suspended, but life benefits continued to be paid to his wife and children. A report from the Office of the Medical Investigator for the State of New Mexico reveals that a skeleton and complete set of dentures were found scattered around a small stream west of San Geranimo, west of Las Vegas. Anthropology and postmortem examination reports presumptively identified the, so remains as those of Adrian Q~. It was estimated that death had occurred two to six years prior to discovery of the remains. The New Mexico Certificate of Death states that Mr. Q~ was "pronounced" dead on July 21, 1994.

We believe the unique circumstances of this case require application of two sections of applicable New Mexico statutory law dealing with actual evidence of death where there are remains of the decedent,

45-1-107. Evidence of death or status. In addition to the rules of evidence in courts of general jurisdiction, the following rules relating to a determination of death and status apply:

(A) ... (B) a certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death purportedly occurred is prima facie evidence of the fact, place, date and time of death and the identity of the decedent; (C) a certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, that an individual is missing, detained, dead or alive is prima facie evidence of the status and of the dates, circumstances and place disclosed by the record or report; (D) in the absence of prima facie evidence of death pursuant to Subsections (B) or (C) of this section, the fact of death may be established by clear and convincing evidence, including circumstantial evidence[.]

N.M. STAT. ANN. §45-1-107 (Michie 1993).

Because the evidence from the Office of the Medical Investigator for the State of New Mexico includes skeletal remains and an official death certificate providing prima facie evidence of the fact and date of death. subsection (B) of the statute is applicable. The death certificate, apparently, requires a pronouncement or declaration of date of death. However, because State evidence also contains anthropology and postmortem examination reports presumptively identifying the remains as those of Mr. Q~ and providing prima facie evidence of dates and circumstances of death disclosed by the report, subsection (C) of the statute is also applicable.

Thus, although Mr. Q~ was not pronounced dead for purposes of subsection (B) until July 21, 1994, it would be permissible to establish an earlier date of death under subsection (C). This would be based upon the discussion in the anthropology examination of the two to six year period (1988 to 1992) during which death could have occurred. The number holder was reported missing on October 12, 1989, which falls within this time period. Accordingly, because there is evidence which may be considered under both subsections (B) and (C), subsection (C) may be given preference to allow more flexibility in establishing the date reported missing as the date of death.

Because the remains of the number holder have been "presumptively' identified, an alternative approach to allow establishing the date that Mr. Q~ was reported missing as the date of death would be to consider this case under the applicable presumption of death statutes and regulations. First, New Mexico statutory law provides the following:

(E) an individual whose death is not established pursuant to Subsection (A), (B), (C), or (D) of this section, who is absent for a continuous period of five years, during which he has not been heard from and whose absence is not satisfactorily explained after diligent search or inquiry [,] is presumed to be dead. His death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining.. that death occurred earlier;...

N.M. STAT. ANN. §45-1-107 (Michie 1993). Thus, the presumption of death at the end of five years is rebuttable by sufficient evidence that the death occurred earlier. Here, the anthropology and postmortem examinations of the remains of Q~ show that when found on July 21, 1994, he had been dead at for least two, but no more than six years. We believe this report is sufficient evidence under New Mexico statutory law to rebut the presumption Set out in subsection (E) and allow SSA to determine that the death occurred in August 1989, when Mr. Q~ was last seen, or October 12, 1989, when he was reported missing.

Second, although at common law, a prescribed period of unexplained absence raises the presumption of death, it appears to be the general rule in the Tenth Federal Judicial Circuit that this unexplained absence raises no presumption as to the precise date or death. See Kansas City Life Ins. Co. v. Marshall, 84 Colo. 71,268 P. 529 (1928); The Praetorians v. Phillips, 184 Okla. 521, 88 P.2d 647(1939). Rather, the determination of date of death is a clearly separate issue from the presumption of death and is to be judged as a matter of fact according to the circumstances. See Modern Woodmen of America v. Gerdom, 72 Ken. 391. 82 P. 1100, later app., 77 Ken 401, 94 P. 788 (1908). See also Roth v. Carlson, 138 F.2d 753 (7th Cir. 1943), cert. denied, 321 U.S. 789 (1944); Fidelily Mutual Life Assurance v. Mettler, 185 U.S. 308 (1902); Davie v. Briggs, 97 U.S. 628 (1878).

The facts and circumstances of this case, particularly the medical investigators' report establishing a period of time within which death reasonably could have occurred, supports a conclusion that Q~ died up to six years prior to the discovery of the remains. Because Q~ was reported missing five years prior to the discovery of the remains, under common law, the date of death may be adjudged as the date reported missing.

Third, it is widely agreed that the Commissioner's regulation should be interpreted consistent with the common law origin of the presumption of death. Brewster on Behalf of Keller v, Sullivan, 972 F.2d 898, 902 (8th Cir. 1992); Edwards v. Califano, 619 F.2d 865,869 (10th Cir. 1980). Examination of the Social Security regulation discussing evidence to presume a person is dead reveals the following:

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: (a) A certified copy of, or extract from an official report or finding by an agency or department of the United States that a missing person is presumed to be dead as set out in Federal law (5 U.S.C. 5565). Unless we have other evidence showing an actual date of death, we will use the date he or she was reported missing as the date of death (emphasis added). (b) Signed statements by those in a position to know and other records to show that the person has been absent from Iris 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.

20 C.F.R. §404.721. Although subsection (a) of this regulation does not directly apply to the facts of this claim because there is not a report from a United State government agency or department. it may be inferred from the language of this subsection that establishing the date of death as the date of disappearance is appropriate because there is no other evidence showing an actual date of death. 120 C.F.R. §404.721(a). Moreover, although subsection (b) does not directly apply because there are identified remains and a death certificate, it does permit establishing the date of death as the date the person left home or based upon evidence showing the most likely date of death. Therefore, the Social Security regulation on presumption of death may be interpreted as permitting SSA to establish the date of death as the date Mr. Q~ was reported missing.

Therefore, in our opinion, SSA may establish the date of death as the date the number holder was reported missing, August 18, 1989, given the report of the medical investigators and in light of the statutory and common law.