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September 7, 1960


The opinion of the court was delivered by: John E. Miller, Chief Judge.

This is an action by the plaintiff, Martha Taylor, to review a final decision of the Secretary of Health, Education and Welfare, denying her application for dependent parent's insurance benefits under Sec. 202(h) of the Social Security Act, as amended. 42 U.S.C.A. § 402(h).

The plaintiff filed her application for benefits on August 14, 1958. In due course the application was administratively denied on October 15, 1958. Thereafter plaintiff requested a hearing before a Referee, and the hearing was duly held in Hot Springs, Arkansas, on April 27, 1959. On April 30, 1959, the Referee filed his decision denying the plaintiff's application. Plaintiff then sought a review of the Referee's decision, but on August 19, 1959, the Appeals Council of the Social Security Administration denied this request, and the decision of the Referee became the final decision of the defendant. It is this decision the court is now called upon to review under provisions of 42 U.S.C.A. § 405(g).

This action was filed on October 19, 1959, and on December 21, 1959, the defendant filed his answer, along with the transcript of the entire record of the proceedings pertaining to the plaintiff's claim. On July 22, 1960, the defendant filed his motion for summary judgment. Briefs, on behalf of both plaintiff and defendant, have been received and considered by the court along with the entire record.

The plaintiff is a resident of the City of Hot Springs in the Western District of Arkansas. She seeks to establish her claim for benefits based upon the wage record of her son, Jack T. Taylor.

On December 13, 1940, Jack T. Taylor entered the United States Army Air Corps. In February 1941 he started sending his mother $30 to $40 per month, however, he executed no formal allotment. In December 1941 he was sent overseas, and it is not clear whether these payments continued. On March 3, 1942, Jack T. Taylor was reported missing in action. At that time Mrs. Taylor was living with her daughter, June, who was employed as a waitress. After Jack was reported missing in action, Mrs. Taylor began receiving a $40 a month allotment, however this was discontinued in March 1943. In September 1945 Jack T. Taylor was declared officially dead by the Army.

The plaintiff filed a request for a lump-sum death payment, apparently under the provisions of 42 U.S.C.A. § 402(i). This lump-sum death payment was made, and the proceeds were divided between Mrs. Taylor and her former husband. The plaintiff did not file proof of dependency to establish benefits under 42 U.S.C.A. § 402(h), at that time.

Mrs. Taylor stated that in 1951 she read an article in a newspaper to the effect that parents of sons who were killed in World War II had until July 31, 1951, to file proof of support. Acting upon this information, Mrs. Taylor testified that she went to the Social Security Office in Sacramento, California, and inquired relative to whether she should file such proof. She stated that an employee in the office informed her that since she had already received the lump-sum death payment, that it was not necessary to file a proof of support form and that she would receive the parent's dependency benefits automatically upon reaching age 65.

On November 2, 1951, the plaintiff again inquired at the Social Security Office regarding the filing of a proof of support, and at this time she was informed that the deadline for filing such proof was July 31, 1951. Mrs. Taylor finally filed the proof of support along with her application for parent's benefits on August 14, 1958.

The Referee denied plaintiff's application on two grounds: (1) the proof of support had not been filed within the time authorized by law, and (2) the plaintiff failed to present satisfactory and competent evidence that she was 50 percent or more dependent upon her son at the time of his death.

The applicable law is found in 42 U.S.C.A. § 402(h), the pertinent provisions of which provide:

    "(h)(1) Every parent (as defined in this
  subsection) of an individual who died a fully insured
  individual after 1939, if such parent —

"(A) has attained retirement age,

    "(B)(i) was receiving at least one-half of his
  support from such individual at the time of such
  individual's death or, if such individual had a
  period of disability which did not end prior to the
  month in which he died, at the time such period began
  or at the time of such death, and (ii) filed proof of
  such support within two years after the date of such
  death, or, if such individual had such a period of
  disability, within two years after the month in which
  such individual ...

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