You have asked whether the Agency can presume that a man missing at sea is dead, prior
to the passage of seven years, when the State of Oregon issued a death certificate
recognizing a presumption of death, not the fact of death, and the Coast Guard issued
a letter stating that the man was "lost at sea and is presumed dead."[1]
FACTUAL BACKGROUND
Kenneth F. T~, a commercial fisherman, was last reported to be fishing on August 27,
2003, while sailing alone on his vessel, the C-Lady. He has not been seen or heard
from since that date. He was 61 years old. His third wife, Brenda T~, has filed for
survivors' benefits for herself and Kenneth's stepson, Joshua L~, and a lump-sum death
benefit. Kenneth has a twelve-year old daughter who lives with Kenneth's second wife,
Barbara T~. Barbara has not yet filed for benefits, but there is a notation in the
file that she intends to file.
Brenda stated that Kenneth called her in the morning and in the evening when he was
fishing. She last heard from Kenneth on August 27, 2003. Donald J~, another commercial
fisherman, states that he often went fishing in a "partner boat" in the vicinity of
Kenneth's vessel during the season (three to seven weeks long). According to Mr. J~,
Kenneth was known by his peers to be a sober person and the best fisherman in his
class. As a general rule, when both men were out at sea, they kept in constant contact.
The day before Kenneth went missing, Mr. J~ reports that a storm was rising. [2] He and Kenneth discussed returning to port the next day because of the storm. Mr.
J~ went to another area to fish and then returned to port as the storm hit. He could
not contact Kenneth. The boats were only half full of fish when contact was lost.
Typically, neither fisherman would go to shore without a full boat. However, this
storm forced Mr. J~ in, despite his "competition" with Kenneth to fill his boat up
first. Mr. J~ felt that Kenneth had a good marital relationship with Brenda and had
no reason to leave his home life (he noted that Kenneth and Brenda had moved into
a new dwelling and that Kenneth purchased a new truck). Mr. J~ speculates that the
C-Lady caught fire, because the life ring that was found was burned.
Mr. J~ stated that Brenda contacted him when she did not hear from Kenneth. Mr. J~
then contacted the Coast Guard on September 3, 2003. Starting September 3, 2003, and
going through September 10, 2003, the Coast Guard searched by air and sea, but found
only a floating life ring (on September 7th, near Crescent City, California), with
no other evidence of wreckage. The life ring was burned. On September 30, 2003, the
Coast Guard issued a letter stating that Kenneth was "lost at sea and presumed dead."
Gina P. D~, the Harbormaster of Bandon, Oregon, states that she last spoke by phone
to Kenneth, on July 23, 2003, while he was off the coast at Coos Bay (just north of
Bandon). He was ordering parts for his boat. Ms. D~ believes that Kenneth was an excellent
mariner and fisherman, with a reputation in his community for steadiness, sobriety,
and industry. He frequently went out alone on two to three-week fishing trips, but
maintained good communication with his wife as to his whereabouts. Ms. D~ states that
she believes Kenneth would not abandon his family or go away without notification.
He had a beautiful commercial boat and home, and took excellent care of his possessions.
Bonnie T~, Kenneth's first wife, and the mother of some of Kenneth's children, states
that she was in telephone contact with Kenneth in early August 2003, as he headed
out on a two to four-week fishing trip on the open ocean. He planned to see his daughters
and grandchildren.
Bonnie and Kenneth had been married for nineteen years. She stated that she had often
fished with him and knew his practices. She reported that, during bad weather, he
would normally shut down the engine and drift. It was Bonnie's understanding that
the Coast Guard found a burned life ring with a melted and charred rope. Thus, she
speculated that the C-Lady burned while Kenneth was asleep, drifting in the bad weather.
He was regarded as one of the top fishermen on the coast, had not had a drink in four
years, and, while at sea, stayed in touch with Brenda and his oldest son.
Brian T~, Kenneth's son, states that he last saw his father in February 2002, after
the fishing season, unloading gear. His father was never out of communication more
than one day at a time and maintained a solid reputation for steadiness, sobriety,
and industry. However, Kenneth could not swim.
On October 10, 2003, a local Internet newspaper, theworldlink.com, which claims it
serves the great south coast of Oregon, reported a fall beach cleanup set for October
17, 2003. The paper, in coordination with Brenda, asked volunteers to look for debris
from C-Lady. The paper reported that Kenneth had not been heard from since August
29th, and that a life ring was found floating near Crescent City, on the northern
California coast.
On December 10, 2003, the Oregon State Medical Examiner issued a death certificate
stating as the cause - "Presumed drowned (body not recovered)." The death certificate
shows the time of the presumed drowning as "unknown", the date of the presumed drowning
as August 28, 2003, and the place of presumed drowning as "off coast of Coos Bay,
Oregon."
DISCUSSION
The Social Security Act, 42 U.S.C. § 402, is silent on how a claimant is to demonstrate
the death of the insured. The regulations and the Program Operations Manual System
(POMS) fill in the gap.
A claimant must produce either "preferred evidence" of the fact of death under 20
C.F.R. § 404.720(b) and POMS GN 00304.005, or "secondary evidence" of the fact of death under 20 C.F.R. § 404.720(c) and POMS
GN 00304.015.
Section 404.720(b) states:
Preferred evidence of death. The best evidence of death is -
(1) 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;
(2) A statement of the funeral director, attending physician, intern of the institution
where death occurred;
(3) A certified copy or extract from an official report or finding of death made by
an agency or department of the United States; or
(4) If death occurred outside the United States, an official report of death by the
United States Consul or other employee of the State Department; or a copy of the public
record of death in the foreign country.
POMS GN 00304.005 states that "[p]referred evidence of death must be obtained if available." This provision
lists the above documents as preferred evidence.
Section 404.720(c) states:
Other evidence of death. If you cannot provide the preferred evidence of a person's death, you will be asked
to explain why and to give us other convincing evidence such as: the signed statements
of two or more people with personal knowledge of the death giving the place, date,
and cause of death.
POMS GN 00304.015 states:
1. Signed Statements
Obtain signed statements of people (preferably not related to the claimant) who have
personal knowledge of the death (i.e., those who saw the body). Include in the statement:
* relationship to the deceased, if any;
* basis for the identification of the deceased;
* occupation, age, sex and race of the deceased;
* date and place of death;
* date and place of the viewing of the body;
* cause of death, if known;
* whether anyone else saw the body;
* why a public record of death or statement of attending physician cannot be obtained.
2. Other evidence
Ask the claimant to submit any other evidence of probative value whenever the statements
cannot be obtained or doubt still remains as to the death.
A federal agency, the Coast Guard, issued a letter concluding that Kenneth is "lost
at sea and presumed dead." The Oregon State Medical Examiner issued a death certificate
stating that the immediate cause of death was "Presumed drowned (body not recovered)."
Two cases establish that this documentation is not sufficient evidence of death in
fact. See Daubert v. Sullivan, 905 F.2d 266, 270 (9th Cir. 1990); see also Carter v. Bowen, 738 F.Supp.1418, 1419 (N.D. Ga. 1987). In D~, an Alaskan coroner's jury determined that the number holder, who disappeared from
his residence years earlier and was known to be dealing drugs, was presumed dead.
The state issued a certificate of presumed death, making it clear that the certificate
would be amended to indicate the fact of death if the body were discovered. The Social
Security Administration, considering this case for purposes of survivors' benefits,
determined that the evidence before the coroner's jury, and the conclusions of that
jury, did not establish the particular date, place, and cause of death, that is, death
in fact, and so denied the claim. The appellate court upheld the requirement and finding
that the claimant needed to present evidence of death in fact. See D~, 905 F.2d at 270. In C~, a federal district court in Georgia (persuasive, but not binding in the Ninth Circuit)
held that the cause of death documented in a state death certificate must indicate
more than presumed death in order to create a binding presumption death for purposes
of Social Security survivors' benefits. See C~, 738 F.Supp. at 1419.
Where there is no preferred or secondary evidence of the fact of death and the body
has not been recovered, POMS GN 00304.025 directs the field office to "establish the death based on circumstantial evidence."
This POMS provision further states:
The amount of evidence needed to establish death as the inevitable conclusion from
all of the circumstances of the disappearance will depend on the facts developed.
There is no prescribed amount of time [that] must pass before a death can be established
based on circumstantial evidence.
If the disappearance was due to a drowning, POMS 00304.025B.3a directs the field office
to develop the evidence under POMS 00304.025B.2 and to "[g]et statements from at least
three eyewitnesses." If there were no eyewitnesses, the field office is directed to
"get statements from other people familiar with the disappearance." Id.
POMS 00304.025B.2 is captioned "Evidence-Body Not Recovered" and reads, in pertinent
part:
The amount and type of evidence in any case will depend on judgment. Obtain the following,
as appropriate:
If evidence is statements from the claimant and persons with knowledge about the missing
person, then obtain statements on Form SSA-795 which provide the following information
as appropriate:
* identification of person making statement
* the date, time, place and circumstances in which the missing person was last seen
* information about pertinent evidence or knowledge, its source and basis
* information about the continued absence from his or her residence, place of employment
or business and places customarily frequented
* information about any search for the missing person, including search of death records
* information about any reasons (or lack of reasons) which might have led the missing
person to falsify their disappearance, such as financial, family or mental problems
* remarks and actions of the missing person before the disappearance
* names and addresses of family members or friends that the missing person would likely
contact
* opinions as to whether death was the probable result of the circumstances in which
the missing person was last seen or whether survival was likely.
If evidence is investigations conducted by Federal, State, or local agencies, then
document attempts to locate the missing person conducted by other agencies. For example:
Reports of searches by the FBI, Coast Guard or police.
If evidence is newspaper reports, then obtain reports about the person's disappearance
and/or any search for the body which may provide information.
When circumstantial evidence does not establish the fact of death as an inevitable
conclusion, the death may be presumed after seven years have elapsed since the disappearance.
See 20 C.F.R. § 404.721(b); POMS GN 00304.050.
Here, Kenneth's professional acquaintances (Mr. J~ and Ms. D~) submitted statements
about his habits and character at sea. Mr. J~ also described the details of his last
contact with Kenneth on August 27, 2003 and a rising storm. The storm was bad enough
for Mr. J~ to go to port on August 28, 2003.
Brenda gave a statement about her daily contacts with Kenneth while he was at sea,
and that her last contact with him was on August 27, 2003. Kenneth's first wife of
nineteen years also gave a statement about Kenneth's habits and that he planned to
see his daughters and grandchildren. There is no specific basis to question any reporter's
credibility.
Kenneth was missing for five days before Coast Guard was notified. The Coast Guard
investigated the disappearance and conducted an extensive search by aircraft and watercraft.
The life ring from Kenneth's boat was found. There is evidence that it was burned,
suggesting a possible accident. The Coast Guard concluded that Kenneth "is believed
to be lost at sea and is presumed dead." The Coast Guard had authority to investigate
marine casualties and "to decide as closely as possible, the cause of the casualty,
including the cause of death." See 46 U.S.C. § 6301(1) and 46 C.F.R. Ch. I, Subch. A, Pt. 4.
The State Medical Examiner issued a death certificate stating that Kenneth is "presumed
drowned (body not recovered)." Oregon law states: "When a death is presumed to have
occurred within this state but the body cannot be located, a certificate of death
may be registered by the state register only upon received from the State Medical
Examiner." OR. REV. STAT.§ 432.307(7).
Finally, a local Internet newspaper described Kenneth's disappearance and asked volunteers
for the "Great Oregon Fall Beach Cleanup" to look for boat debris.
There appears to be circumstantial evidence establishing that Kenneth drowned on or
around August 28, 2003, the date used in the death certificate. However, if you wish
to further develop the record, you could explore whether any insurance claims were
filed and, if so, whether they were paid, and whether Kenneth's estate was probated
and, if so, the disposition of the estate.