Unpublished Disposition, 914 F.2d 262 (9th Cir. 1984)

Mrs. Rebecca Hernandez appeals the district court's grant of summary judgment in favor of the Secretary of Health and Human Services in her action for retroactive disability insurance benefits for her children under Title II of the Social Security Act, 42 U.S.C. §§ 401-433. She contends that the district court erred by finding that the children were entitled to benefits only from June 1983, one year before the month in which she filed her application for dependents' benefits, rather than retroactive to February 15, 1978, the date on which her husband, Mr. Aniseto Hernandez became eligible for benefits.

We have jurisdiction under 28 U.S.C. § 1291 and affirm.

* Mr. Aniseto Hernandez, an insured wage earner, applied for disability insurance benefits on November 29, 1978. The application indicated that he had become disabled due to arthritis as of February 15, 1978. At the time he filed his application, Mr. Hernandez and his wife had two children: Esperanza, aged eight, and Maria Victoria, aged six. Mr. Hernandez allegedly speaks Spanish, but very little English, and does not read either language. He filed his application by responding to questions from a Social Security Administration ("SSA") employee who spoke no Spanish. Mr. Hernandez signed an application form which indicated that he was married and had no dependent children. The application also included the names of his current and former wives, his date and place of birth, his three most recent employers, and other personal information.

After the SSA denied his claim, Mr. Hernandez appealed with the help of an attorney. He received two hearings before an administrative law judge ("ALJ"), and gave testimony which included information regarding his wife and two children. The claim determination was reversed on October 30, 1981 and Mr. Hernandez was declared disabled as of February 15, 1978. He received an award for retroactive benefits totaling approximately $18,000.

Subsequently, Mr. Hernandez became aware that the award for retroactive benefits included only the benefits available to him personally and did not include benefits for his dependents. Mrs. Hernandez filed an application for dependents' benefits for herself and the children on June 13, 1984. Benefits were awarded retroactive to June 1983, one year before the application was filed. Mr. Hernandez filed a formal request for reconsideration of the award date for the children, alleging that he had applied for benefits for them in 1978. At the hearing before an ALJ, Mr. Hernandez testified that he had meant to include his children when he applied for benefits in 1978, that their exclusion from the application must have been the result of a language barrier, and the he had signed the application without reading it because he did not read English. The ALJ found that because Mr. Hernandez had not made the necessary statement of intent to claim benefits on behalf of his children, no benefits were payable to them until June 1983, twelve months before the date on which Mrs. Hernandez actually applied for benefits on their behalf.

A federal magistrate granted the Secretary's motion for summary judgment. The district court adopted the magistrate's findings and entered judgment in the Secretary's favor.

II

We review grants of summary judgment de novo. Wolchuck v. Bowen, 871 F.2d 869, 872 (9th Cir. 1989). Judicial review of the Secretary's decision to deny benefits "is limited to a determination of whether the Secretary's findings of fact are supported by substantial evidence and whether the proper legal standards were applied." Id. (citing Driver v. Heckler, 779 F.2d 509, 510 (9th Cir. 1985)); 42 U.S.C. § 405(g).

It is well-settled that an SSA award of children's benefits is conditioned upon the proper filing of an application. 42 U.S.C. § 402(d) (1); Wolchuck, 871 F.2d at 871; Driver, 779 F.2d at 511. See generally 20 C.F.R. Sec. 404.603. Under the Secretary's regulations, such an application must be written and signed on a prescribed application form. 20 C.F.R. Sec. 404.610.

* Mrs. Hernandez first contends that because Mr. Hernandez had acknowledged--in the administrative hearings and on his 1978 tax return--that he had a wife and two children, he should be presumed to have intended to have claimed benefits to support the children despite his failure to include them in his 1978 written application.

We reject this argument. In the first place, oral statements to an ALJ do not qualify as "written statements of intent." See 20 C.F.R. Sec. 404.630 (1989). Similarly, a tax return or other document filed with an agency other than SSA does not qualify as an application or statement "received by an SSA employee at one of [the SSA's] offices or by an SSA employee who is authorized to receive it at a place other than one of [the SSA's] offices." 20 C.F.R. Sec. 404.614. The first written statement indicating an intent to claim children's benefits is Mrs. Hernandez's 1984 application. Accordingly, the Secretary is precluded from awarding retroactive children's benefits for more than one year before the month of that application. See 42 U.S.C. § 402(j) (1); 20 C.F.R. Sec. 404.621(a) (1) (i); Driver, 779 F.2d at 511.

B

Mrs. Hernandez's second claim appears to be that the SSA mishandled her husband's 1978 claim and thus should be equitably estopped from insisting upon strict compliance with valid regulations.

We reject this argument as well. We may invoke the doctrine of equitable estoppel against the government only in cases of affirmative misconduct; mere oversight or even negligence are insufficient. See, e.g., Schweiker v. Hansen, 450 U.S. 785, 788-90 (1981) (per curiam) (estoppel unwarranted where SSA employee erroneously told claimant she was ineligible for benefits); Morgan v. Heckler, 779 F.2d 544, 545-46 (9th Cir. 1985) (estoppel unwarranted where SSA employee erroneously told claimant she would be eligible for benefits without first inquiring about claimant's employment status); Simon v. Califano, 593 F.2d 121, 123 (9th Cir. 1979) (per curiam) (estoppel unwarranted where SSA trainee erroneously completed application form to indicate that claimant had no children without having asked claimant if she/he had children). Because the record contains no indication that the omission of the two children from Mr. Hernandez's 1978 application form amounted to affirmative misconduct, estoppel is inappropriate.¹ 

III

For these reasons the judgment of the district court is AFFIRMED. Both parties shall bear their own costs of appeal.