Mary J. Cunningham v. Patricia R. Harris, Secretary of Health and Human Services

ALBERT V. BRYAN, Senior Circuit Judge,

dissenting:

As the majority opinion quite clearly explains, appellant Mary J. Cunningham (the claimant) cannot recover widow’s Social Security insurance benefits unless she proves by substantial evidence that at the time of the death of her husband, Richard Cunningham (the wage earner), the two were “living in the same household.” While I do not find she should succeed, I do concede that, in view of the tolerance of Section 216(h)(1)(B) of the Social Security Act, 42 U.S.C. § 416 (h)(1)(B), she was qualified to make the claim, even though the wage earner was not proved free from his earlier marriage. However, I dissent from the majority’s award of benefits to the claimant.

In my evaluation the record fully warranted the judgment of the District Court upholding the decision of the Secretary that the claimant and the wage earner were not living in the same household when he died. My reasons are these:

1. The Secretary’s findings are made conclusive by the Act and I perceive no infirmity in them on the evidence.

2. The Administrative Law Judge (ALJ), after a close and full hearing of the *245 evidence, found on the evidence and concluded in law, with the Appeals Council and the Secretary approving, that the claimant had no entitlement to the insurance benefits.

3. On appointment by the District Court, its Magistrate examined the testimony before the ALJ of the witness or witnesses adduced on behalf of the claimant and held that the claimant and the wage earner were not living in the same household when the husband died.

4. With the Magistrate’s report coming on for hearing before the Court, District Judge Gordon declared:

The Court has appropriately reviewed plaintiff’s objections and finds that they do not change the substance of the Magistrate’s Findings and Recommendations which are hereby adopted.

The majority recognizes the generally controlling force of these determinations but rejoins that they stem from “an erroneous interpretation of the law” by the ALJ and hence do not enjoy the presumption of correctness accorded them by law. The error assigned is the ALJ’s holding that the absence of the husband was not “temporary” under Section 404.1112(c), Social Security Regulation No. 4. * The Regulation entitled “Absences other than temporary” is said to be inapplicable since the evidence shows that both the wage earner and his wife expected his return home on Saturday. However, the ALJ had explicitly found that “the preponderance of evidence fails to establish that the claimant and the wage earner reasonably expected to resume physically living together at some time in the near future and prior to the wage earner’s death.”

But when invoking expectancy as a consideration, the testimony on which the claimant relies proves with at least equal force that the wish of these two persons was to live apart. Indeed, that it was their preference is tellingly manifested by the couple’s conduct between the time of their marriage on August 29, 1953 and the husband’s death, August 29, 1959. While on three or four occasions they had had “spats” wherein the two had temporarily separated, they each time had “made up,” returning to a common household. However, in the last such incident, the claimant testified that she had told her husband to leave, that he had left on Monday and that-he had called on Friday to announce his intention to return home the following day. He asked her, she continues, if she wanted to see him and she said, “No.” He had been living with his sister in the same city during that week and died Saturday, the day of his appointed return.

At all events, whether they were “living in the same household” or expected to do so was a question of fact primarily for the ALJ to resolve. His finding had the support of at least substantial evidence. It was made after the claimant testified before him in person. Consequently, he had the opportunity and duty to ascertain the claimant’s credibility by applying the same standards as would a jury. He did not believe her “in view of the many ambiguities and inconsistencies perceived to be present in both the claimant’s testimony and the documentary evidence herein under consideration.” The District Judge’s approval of the Magistrate’s conclusions to the same effect certainly are not “clearly erroneous,” and so must stand. Fed.R.Civ.P. 52(a).

I would affirm the judgment now on appeal.

The Regulation as relevant gives ground for the ALJ’s finding that the separation was not merely temporary: “A finding of temporary absence would not be justified ... when the parties had ceased to live in the same place of abode because of marital difficulties and had not resumed living together before death.” Although the 1980 amendment has no play here, at most it introduces expectancy as a possible consideration, but the ALJ, to repeat, found there was no adequate proof here of such an expectancy.