entitlement exists, even though remote. If it is later found that such person was eligible for benefits * * * at the time the record was made, this record shall, except where such person otherwise indicates, be deemed an application filed with the Bureau as of the date it is made: Provided, That an application on a prescribed form is also furnished to the Bureau. * * *.' Section 403.701(a) of the same Chapter of the Regulations requires the use of forms prescribed by the Bureau for the filing of applications but expressly refers to subdivision (k) of the same section, above quoted from.
From the foregoing it is apparent to this Court that in October 1953 when the plaintiff allegedly orally expressed to an employee of the Bureau his intention to apply for benefits under the Act, the sufficiency of an oral application was recognized in the Regulations provided, however, that it be followed by the filing of a written application upon the prescribed form. No time limit was then prescribed for compliance with the foregoing proviso; but on October 8, 1955 the promulgation of § 404.613 of the Regulations imposed the requirement that such written application form be filed within 90 days next succeeding the stated promulgation date. Such requirement was concededly not performed, because the written application was not filed until April 23, 1957.
The sole question before the Referee, as he stated at the outset of the hearing given to the plaintiff, was 'whether the claimant is entitled to old-age insurance benefits for any month prior to April, 1956.' This Court is not required or authorized to weigh the evidence before the Referee. The Act, 42 U.S.C.A. § 405(g), provides:
'The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a hearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, and where a claim has been denied by the Secretary or a decision is rendered under subsection (b) of this section which is adverse to an individual who was a party to the hearing before the Secretary, because of failure of the claimant or such individual to submit proof in conformity with any regulation prescribed under subsection (a) of this section, the court shall review only the question of conformity with such regulations and the validity of such regulations.'
One of the three essential prerequisites to plaintiff's entitlement to an old-age insurance benefit is that he shall have 'filed application for old-age insurance benefits or was entitled to disability insurance benefits for the month preceding the month in which he attained the age of 65.' 42 U.S.C.A. § 402(a)(3). Section 402(j)(1) requires an individual entitled to a benefit to file his application therefor prior to the end of the twelfth month immediately succeeding the month in which he became entitled to the benefit. See Coy v. Folsom, 3 Cir., 1955, 228 F.2d 276.
Before it becomes appropriate to determine the effect of the alleged absence of any written record by the Bureau's employee in its Jersey City office of plaintiff's claimed expression of intention to apply for benefits in October, 1953, it becomes necessary to determine whether there was substantial evidence before the Referee that such an expression of intention was actually made. The non-existence of a written record of such an expression of intention at the time and place claimed is, of course, not conclusive of whether such an expression occurred. Johnson v. Hobby, D.C.R.I.1955, 131 F.Supp. 497. To constitute an effective oral application under the regulations there must be at least a revelation of the claimant's identity together with an expression on his part that he intends to make claim for benefits under the Act. Medalia v. Folsom, D.C.Mass.1955, 135 F.Supp. 19. The Johnson case, supra, was decided on March 23, 1955, more than six months prior to the promulgation of § 404.613 of the Regulations. Although her formal application for benefits was filed March 4, 1953, plaintiff Johnson claimed that she had made an inquiry at the Bureau's office in January of that year, and contended that the inquiry constituted an expression of intention to apply for benefits. The Referee recognized that § 403.701(k)(1) of the Regulations permitted the establishment of a retroactive filing date for an application by means of an oral expression of intention to claim benefits, but held that there must be a written record of the expression of intention to claim benefits in order to establish a retroactive filing date. The Referee accordingly concluded that the absence of a record of the oral expression of intention in the Bureau precluded the award of benefits retroactively. Only because the Referee there based his decision solely on the non-existence of a written record with the Bureau of plaintiff's expression of intention, and in the absence of a specific finding whether plaintiff had established the fact of such expression by sufficient proof, the court remanded the cause for a rehearing and determination of that question. It was the Court's view that because the Referee had the opportunity to observe the plaintiff and of hearing her testimony and of determining the weight and credence to be given thereto, he should have made a specific finding respecting the critical question.
Such was not the situation in the present case. A summary of the testimony of the plaintiff, as set forth in the decision of the Referee, has been quoted above. The writer of this opinion has, himself, read the transcript of the testimony before the Referee and finds therein substantial basis for the Referee's refusal to find that the plaintiff made the oral statement of intention in October, 1953, upon which he presently relies. Howatt v. Folsom, 3 Cir., 1958, 253 F.2d 680; Livingstone v. Folsom, 3 Cir., 1956, 234 F.2d 75; Rhoads v. Folsom, 7 Cir., 1958, 252 F.2d 377.
There is, however, yet another ground upon which the decision of the Referee must be affirmed. As he points out in that decision, § 404.613 of the Regulations, which became effective with its publication in the Federal Register on October 8, 1955, did not rescind § 403.701(k), herein previously referred to, but provided that the latter section should remain effective for ninety days after the Federal Register publication aforesaid; provided that an application on the form prescribed in § 404.602 be filed within the ninety day period. Therefore, the Referee properly concluded that even if the Bureau had made a record of the plaintiff's alleged visit to its office in October, 1953, it would have been necessary for the plaintiff to file a formal application within 90 days of October 8, 1955, to render effective the October, 1953 date for the award of benefits. By the plaintiff's own admission, no formal application was filed by him prior to April 23, 1957. Consequently plaintiff's failure to comply with the Regulations applicable to his status and situation, precluded the retroactive extension of his benefits to a date prior to April, 1956. See Ruderman v. Flemming, 1958, 104 U.S.App.D.C. 225, 261 F.2d 373.
Defendant's motion for summary judgment must prevail for the reasons hereinabove stated, and an appropriate order may be presented in conformity therewith.