Sarah Brown v. Carolyn Colvin

FILED

NOT FOR PUBLICATION

SEP 30 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SARAH W. BROWN, No. 15-16863

Plaintiff - Appellant, D.C. No. 3:14-cv-02051-VC

v.

MEMORANDUM*

CAROLYN W. COLVIN, Commissioner

of Social Security,

Defendant - Appellee.

Appeal from the United States District Court

for the Northern District of California

Vince G. Chhabria, District Judge, Presiding

Submitted September 28, 2016**

Before: PREGERSON, LEAVY, and OWENS, Circuit Judges.

Sarah W. Brown appeals pro se the district court’s judgment affirming the

Commissioner of Social Security’s denial of her application for spouse’s

retirement insurance benefits under Title II of the Social Security Act. We have

*

This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3.

**

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

jurisdiction under 28 U.S.C. § 1291. We review de novo, Molina v. Astrue, 674

F.3d 1104, 1110 (9th Cir. 2012), and we affirm.

The wife of an individual entitled to old-age insurance benefits is herself

entitled to a spouse’s insurance benefits if she has attained age 62 and is not

entitled to old-age benefits on her own account. 42 U.S.C. § 402(b)(1); 20 C.F.R.

§ 404.330. An applicant is the wife of the insured “if the courts of the State in

which such insured individual is domiciled at the time such applicant files an

application . . . would find that such applicant and such insured individual were

validly married at the time such applicant files such application.” 42 U.S.C.

§ 416(h)(1)(A)(i).

Brown contends that due to her mental incompetency, a divorce decree

issued in the District of Columbia in 1973 is invalid, and therefore she is still

married to the insured individual on whose account she applied for a spouse’s

benefit in 2007. Brown’s contention lacks merit. Substantial evidence supports

the administrative law judge’s determination that Brown was not the wife of the

insured when she applied for benefits because the courts of Virginia, the state

where the insured was domiciled, would give full faith and credit to the divorce

judgment. See U.S. Const. art. IV, § 1; V.L. v. E.L., 136 S. Ct. 1017, 1020 (2016)

(per curiam).

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For purposes of full faith and credit, the divorce judgment on its face

appears valid, and therefore the jurisdiction of the Superior Court of the District of

Columbia to enter the judgment must be presumed. See V.L., 136 S. Ct. at 1020.

Brown, who bears the burden of proof under Virginia law, has not overcome this

presumption by her presentation of extrinsic evidence of her mental incapacity to

receive notice and participate in the divorce proceeding. See Gibson v. Gibson,

364 S.E.2d 518, 521 (Va. Ct. App. 1988). In the District of Columbia, “[a]n

individual is presumed both to be competent and to have the capacity to make legal

and other decisions.” Mitchell v. Gales, 61 A.3d 678, 686 (D.C. 2013) (citing D.C.

Code § 21-2002(d)). In that jurisdiction, a judgment entered against an

incompetent party is voidable, rather than void, and thus may be corrected only by

direct review, and not by collateral attack. Id. at 685-86. Accordingly, the divorce

judgment is res judicata in the District of Columbia. See Hupp v. Hupp, 391

S.E.2d 329, 332 (Va. 1990) (holding that because a Pennsylvania support judgment

made an issue of paternity res judicata in Pennsylvania, relitigation of that issue in

Virginia was barred). The administrative law judge did not err in concluding that

the courts of Virginia would give the District of Columbia divorce judgment full

faith and credit and would find that Brown was not married to the insured when

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she applied for spouse’s retirement insurance benefits in 2007. See 42 U.S.C.

§ 416(h)(1)(A)(i).

The administrative law judge did not abuse his discretion in denying

Brown’s request for subpoenas, and did not fail to fulfill his duty to fully and fairly

develop the record. See 20 C.F.R. § 404.950(d)(1); McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2010).

AFFIRMED.

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