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. §
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.
Mrs. Taylor was born January 20, 1896. She was married to M.D.
Taylor, and on March 10, 1920, Jack T. Taylor was born. In
addition to her son, she also had two daughters. Mrs. Taylor had
been employed as a practical nurse. However, she sustained a back
1926, which has made it virtually impossible for her to perform
this work except for short intervals. In 1936 Mrs. Taylor
obtained a divorce in the Chancery Court of Garland County,
Arkansas, from M.D. Taylor. There was no provision in the divorce
decree for alimony or maintenance, and apparently Mr. Taylor did
not contribute anything to the plaintiff's support. Following the
divorce, Mrs. Taylor lived with various relatives in Texas and in
California. During this period Jack T. Taylor was employed in the
Civilian Conservation Corps. Mrs. Taylor received some money from
her son's CCC allowance. She was employed from time to time as a
practical nurse, and various family members also contributed to
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 ...