Young v. Secretary of Health and Human Services

• Decision Date: 08 April 1986
• Docket Number: No. 84-3959,84-3959
• Citation: 787 F.2d 1064
• Parties: , Unempl.Ins.Rep. CCH 16,786 Gloria YOUNG; Alicia Young; Nicholas Young, Plaintiffs-Appellants, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1064

787 F.2d 1064

13 Soc.Sec.Rep.Ser. 222, Unempl.Ins.Rep. CCH 16,786

Gloria YOUNG; Alicia Young; Nicholas Young, Plaintiffs-Appellants, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee.

No. 84-3959.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 25, 1985.

Decided April 8, 1986.

Paul Mancino, Jr. (argued), Cleveland, Ohio, for plaintiffs-appellants.

Randolph Baxter, Chief, Appellate Litigation Div., Cleveland, Ohio, Richard J. French, Mary Lee Pilla, Asst. U.S. Atty. (argued), for defendant-appellee.

Before KEITH, KRUPANSKY and MILBURN, Circuit Judges.

KRUPANSKY, Circuit Judge.

Plaintiff-appellant Gloria Young (Young) filed applications with the Social Security Administration in 1978 for mother's insurance benefits pursuant to 42 U.S.C. Sec. 402(g)(1) and child's insurance benefits pursuant to 42 U.S.C. Sec. 402(d)(1) on behalf of her children Nicholas and Alicia Young, minor appellants herein, claiming entitlement for all based upon the wage earner status of decedent, Eddie Ivey, Jr. (Ivey). The applications were denied initially and on reconsideration. The administrative law judge (ALJ), in October of 1981, determined after a hearing that none of the appellants were entitled to benefits. He concluded that appellant Young failed to support her allegation that a common law marriage had existed between her and Ivey under Ohio law and that minor appellants did not qualify as Ivey's "children" within the meaning of the Social Security Act. The Appeals Council declined to review the ALJ's decision in March of 1982 and it became the final decision of the Secretary. The district court adopted the recommendation of the magistrate and granted judgment in favor of the Secretary on December 8, 1983 and denied rehearing on October 30, 1984.

The record evidence disclosed that the deceased wage earner, Ivey, died on May 30, 1978. His death certificate reflected that he was single and domiciled in Ohio. It is not disputed that Young and Ivey were never ceremonially married before Ivey's death. The record incorporated an HEW Statement of Marital Relationship completed by Young on August 10, 1978 wherein she stated that she had been living with Ivey in Cleveland, Ohio from approximately April of 1965. She explained in that statement that this cohabitation was not continuous because they "would get mad and separate from time to time." On the questionnaire, she indicated that she and Ivey had no understanding that their relationship was permanent or would continue for any particular period of time or how it would be terminated. Additionally, she indicated that she did not consider herself married to Ivey merely because they were living together. In her statement to HEW, Young explained that she and Ivey were never formally married because Ivey "had a drinking problem and [she] told him when he quit drinking [she] would marry him." She also stated that she refused to assume his name because she "insisted on using [her] own last name." An HEW Child Relationship Statement also included in the record and signed by Young on August 11, 1978 failed to disclose any adequate acknowledgment on the part of Ivey of the paternity of either Nicholas or Alicia.

Young testified at the hearing that she and Ivey began cohabitating in 1965. Nicholas was born August 9, 1966 and Alicia was born December 13, 1967. Alicia's birth certificate named Ivey as the child's father; however, there was no identification of a father on the birth certificate of Nicholas. Young testified that prior to 1967, she and the children had depended totally on Ivey for support. Young explained that she had subsequently worked as a postal clerk from 1967 through 1974, during which time she and the children had not depended on Ivey. Since terminating her employment with the Post Office, she had held part-time employment, although the primary source of support for her and the children consisted of welfare payments. She testified that Ivey had been steadily employed until 1975 at a restaurant or in various laundries. Between 1975 and 1977, he had held part-time employment. Young testified before the ALJ that when Ivey had worked he contributed to the household expenses. She testified that Ivey had lived with her and the children subject to periods of separation until approximately November of 1977, at which time he departed. Young also stated that before his death at the end of May of 1978, Ivey had visited her home sometime during January or February of 1978.

Based on this record, appellants charged on appeal that: (1) the Secretary's determination that a common law marriage had not existed under Ohio law between Ivey and Young was not supported by substantial evidence; (2) the denial of benefits to the children was not supported by substantial evidence; (3) the Social Security Act's definition of "child" was unconstitutional; and (4) the Ohio intestate statute's treatment of illegitimate children was unconstitutional.

The standard applied by this court in reviewing a determination by the Secretary is whether the decision is supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); 42 U.S.C. Sec. 405(g). Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). See also Ellis v. Schweiker, 739 F.2d 245, 248 (6th Cir.1984). The existence of substantial evidence to support the Secretary's findings must be based on the record as a whole. Allen v. Califano, 613 F.2d 139, 145 (6th Cir.1980); Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir.1978). A reviewing court does not conduct a de novo examination of the evidence and it is not free to substitute its findings of fact for those of the Secretary if substantial evidence supports those findings and inferences. O'Banner v. Secretary of HEW, 587 F.2d 321, 323 (6th Cir.1978); Skalet v. Finch, 431 F.2d 452, 453 (6th Cir.1970).

In considering Young's charge that the Secretary erred in refusing to recognize the existence of a common law marriage between her and Ivey under Ohio law, this court's attention is initially directed to 42 U.S.C. Sec. 402(g), which authorizes payment of mother's insurance benefits to the surviving spouse of a deceased wage earner provided certain other requirements set out therein are satisfied. A prerequisite for qualifying as a surviving spouse, pursuant to the provisions set out in 42 U.S.C. Sec. 416(a)(2) and Sec. 416(c), is that the claimant be "the surviving wife of an individual." The Social Security Act applies the laws of the state wherein the wage earner was domiciled at death, as interpreted by the courts of that state, to determine whether the claimant and the deceased wage earner had been validly married for purposes of the statute. 42 U.S.C. Sec. 416(h)(1)(A).

Ohio law controls resolution of the marriage issue. It is conceded that Young and Ivey had not entered into a ceremonial marriage. However, Ohio recognizes common law marriage under certain circumstances:

A mutual agreement of marriage in praesenti made by parties competent to contract, accompanied and followed by cohabitation as husband and wife, as a result of which the parties are treated and reputed as husband and wife in the community in which they reside, constitutes a common-law marriage.

Markley v. Hudson, 143 Ohio St. 163, 54 N.E.2d 304, 307 (1944). See also Nestor v. Nestor, 15 Ohio St.3d 143, 472 N.E.2d 1091, 1094 (1984).

The ALJ, in examining the evidence, concluded that, although Ivey and Young had lived together for extended, intermittent periods of time, the record failed to establish that they had entered into a marriage contract in praesenti or that they had held themselves out in the community as husband and wife. The ALJ observed that Young had not considered herself married to Ivey; she had repeatedly stated that she would have married Ivey only if and when he stopped drinking; the two had often lived separately and had not been living together at the time of Ivey's death; Young had consistently used her maiden name and the two children were identified by her maiden name; and Ivey's death certificate had identified him as single. Accordingly, this court concludes that substantial evidence supported the Secretary's determination that no marriage, ceremonial or common law, existed between Young and Ivey.

This court next directs its attention to the minor appellants' contention that the denial of benefits to them as surviving children was not supported by substantial evidence.

The Social Security Act mandates the satisfaction of three basic criteria to qualify a child for surviving child's insurance benefits of an insured, namely, the child must: (1) have filed an application for such benefits; (2) have been unmarried at the time of the filing and must have been either: (i) under eighteen years of age or a fulltime elementary or secondary school student under nineteen, or (ii) under a disability which began before age 22; and (3) have been dependent upon the deceased parent at the time of the parent's death. 42 U.S.C. Sec. 402(d)(1). The Act further defines "dependency" in 42 U.S.C. Sec. 402(d)(3). ¹ In effect, the statute provides that legitimate children are "deemed dependent." Illegitimate children are deemed legitimate and therefore "deemed dependent" only if they qualify as "children" of the deceased wage earner within the meaning of 42 U.S.C. Sec. 416(h)(2)(B) or (h)(3).

Section 416(h)(2)(B) in turn initially refers to the immediately preceding provision embodied in Sec. 416(h)(2)(A). Section 416(h)(2)(A) provides in pertinent part as follows:

(2)(A) In determining whether an applicant is the child or parent of a fully or currently insured...