SSR 67-10c: SECTIONS 202(b) and 216(h)(1)(A). -- RELATIONSHIP -- VALIDITY OF DIVORCE -- DOMICILE OF THE WORKER

20 CFR 404.1101-404.1103

SSR 67-10c

ROCKER v. CELEBREZZE , 358 F.2d 119 (2d Cir., 1966)

KAUFMAN, Circuit Judge :

Mathilde Rocker appeals from a judgment, upholding the denial by the

Secretary of Health, Education and Welfare of her application for Social

Security Benefits as the "wife" of wage earner, Louis P.

Rocker. [1] We affirm.

The record in this case reveals a marital history not uncommon,

unfortunately, in contemporary society. Mathilde and Louis were married in

New York in September 1918. After raising four children and living

together for more than thirty years, they were legally separated. In April

1960, Louis moved to Las Vegas, Nevada, and, after residing there for five

months, he sued for divorce. The Nevada decree purporting to dissolve

Louis and Mathilde's marriage recited that Mathilde had been duly and

regularly served with summons and process in the action, had failed to

appear and Louis had proved that "for more than six weeks immediately

preceding the commencement of [the] action and ever since, [Louis] has

been an actual and bona fide resident of the County of Clark, State of

Nevada . . ."

Mathilde did not passively accept this determination. Instead, she

instituted suit in the Supreme Court of New York for a judgment declaring

the Nevada decree invalid and affirming her continued status as Louis's

wife. While Louis failed to appear in this action, the New York Court

found that the Nevada decree was based upon defective jurisdiction because

copies of the summons and complaint in that divorce proceeding had not

been personally served upon Mathilde; they had been left, it was

determined, in the mail slot of the door of her

apartment. [2] For this reason,

the Court ruled that Louis and Mathilde "are husband and wife and that

said marriage has not been dissolved by any Court of competent

jurisdiction in this or any other State of the United States."

d complaint in that divorce proceeding had not

been personally served upon Mathilde; they had been left, it was

determined, in the mail slot of the door of her

apartment. [2] For this reason,

the Court ruled that Louis and Mathilde "are husband and wife and that

said marriage has not been dissolved by any Court of competent

jurisdiction in this or any other State of the United States."

Armed with the New York judgment, Mathilde, on January 8, 1963, having

recently attained the age of sixty-two, filed an application for Social

Security benefits as Louis'

"wife." [3] The Chief of the

Claims Authorization Section of the Social Security Administration denied

Mathilde's claim because the law of Louis' domicile, Nevada, was

controlling and that state would find the marriage had been effectively

terminated. Upon review, the Chief of the Reconsideration Section of the

Social Security Administration and, later, a Hearing Examiner, after a

full hearing, arrived at the same result. When the Appeals Council of the

Bureau of Hearings and Appeals refused further consideration because "a

formal review would not result in a modification of the conclusion reached

by the Hearing Examiner," and the Hearing Examiner's holding consequently

became the decision of the Secretary of Health, Education and

Welfare, [4] Mathilde brought the

instant action. We are satisfied that the District Judge properly refused

to overturn the administrative denial of Mathilde's claim.

I.

use "a

formal review would not result in a modification of the conclusion reached

by the Hearing Examiner," and the Hearing Examiner's holding consequently

became the decision of the Secretary of Health, Education and

Welfare, [4] Mathilde brought the

instant action. We are satisfied that the District Judge properly refused

to overturn the administrative denial of Mathilde's claim.

I.

Foreseeing the problems relating to marital status would arise in the

administration of the Social Security Act, Congress in § 216(h)(1)(A), 42

U.S.C. § 416(h)(1)(A), [5] established a two-step procedure for determining whether a claimant was

the lawful spouse of a[n] * * * insured individual at the time the

application was filed and thereby entitled to benefits under the Act. At

the outset, a determination had to be made as to the domicile of the

insured at the time the claimant filed her application. Then, in

accordance with the law of that domicile, it was necessary to decide

whether the claimant would be considered the "wife" of the insured at the

time she filed for benefits.

It is true that in reviewing the claim, the Hearing Examiner failed to

articulate a precise finding as to Louis' domicile on January 8, 1963, the

date of Mathilde's filing. But, while an explicit determination would have

facilitated our consideration of this appeal, its absence is not fatal. We

believe that the finding was implicit in the Examiner's ultimate

conclusion for he proceeded to the second step of the statutory analysis

and determined that the Nevada divorce was valid on the crucial day even

when considered in the light of the subsequent New York decree. The

Examiner, with his expertise, was, without question, familiar with the

two-step nature of the statutory test; indeed, he recited the relevant

portions of the Act in his opinion.

onclusion for he proceeded to the second step of the statutory analysis

and determined that the Nevada divorce was valid on the crucial day even

when considered in the light of the subsequent New York decree. The

Examiner, with his expertise, was, without question, familiar with the

two-step nature of the statutory test; indeed, he recited the relevant

portions of the Act in his opinion.

Thus, if there is substantial evidence in the record to support the

implicit finding, we cannot properly overturn the conclusion that Louis

was a domiciliary of Nevada at the time Mathilde filed her claim for

Social Security benefits. In so holding, we are guided by § 205(g) of the

Act, 42 U.S.C. § 405(g), which defines the limited scope of our review.

"The findings of the Secretary as to any fact, if supported by substantial

evidence, shall be conclusive . . . ." See also Pirone v. Flemming ,

183 F. Supp. 739 (S.D.N.Y. 1959), aff'd per curiam , 278 F.2d 508

(2d Cir. 1960); Shapiro v. Ribicoff , 316 F.2d 262 (2d Cir. 1963).

Nor is there any purpose in sending the case back simply to make an

explicit finding on something we can properly conclude from the record. S.E.C. v. Chenery Corp. , 318 U.S. 80 (1943); see Fassilis v.

Esperdy , 301 F.2d 429 (2d Cir. 1962).

The evidence before the Examiner disclosed that in early 1960, Louis, who

had been a self-employed stock broker, liquidated his business and sold

his seat on the New York Stock Exchange to Eastman Dillon, Union

Securities and Company ("Eastman Dillon"). Louis informed his customers of

the sale, noted that in his absence he was leaving his accounts in good

hands and, in order to bring about continuity of business, explained that

he planned "to 'get off [his] feet' for several months and take a vacation

on the advice of [his] doctor . .

eat on the New York Stock Exchange to Eastman Dillon, Union

Securities and Company ("Eastman Dillon"). Louis informed his customers of

the sale, noted that in his absence he was leaving his accounts in good

hands and, in order to bring about continuity of business, explained that

he planned "to 'get off [his] feet' for several months and take a vacation

on the advice of [his] doctor . . . [and] after [his] return [would] be

associated with [Eastman Dillon]." Whatever Louis' motivations were in

writing as he did to his former customers, the fact is that shortly after

the sale, Louis moved to Las Vegas and became a customer's man in Eastman

Dillon's branch office there.

It also appears that, although Nevada required a residence of only six

weeks to establish a domicile for divorce, Louis actually resided in Las

Vegas for five months before instituting his divorce action in September

1960. [6] Mathilde, on the other

hand, testified before the Hearing Examiner that her son had told her that

Louis' personal effects were in an apartment in New York on December 7,

1960. But, in contrast, there was evidence that on September 15, 1960,

Louis registered to vote in Nevada, on November 4, 1960, he married one

Norma Wiesen in that state and, on February 21, 1961, he applied for old

age insurance benefits in the Social Security District Office in Las

Vegas, giving notice that he was terminating his employment and embarking

upon a vacation of travel. [7] Specifically, with respect to Louis' domicile on the critical day when

Mathilde filed her claim for Social Security benefits, the record

contained his written statement, executed at the request of the Social

Security Administration, on March 29, 1964, in Jerusalem, Israel, on a

form issued and approved by the Administration, and reading that Nevada

"was and still is my legal

residence." [8]

fically, with respect to Louis' domicile on the critical day when

Mathilde filed her claim for Social Security benefits, the record

contained his written statement, executed at the request of the Social

Security Administration, on March 29, 1964, in Jerusalem, Israel, on a

form issued and approved by the Administration, and reading that Nevada

"was and still is my legal

residence." [8]

We recognize, as we have indicated, that in conducting the administrative

hearing, the trial examiner was not obliged to apply the rigid rules of

evidence utilized in a formal

trial. [9] Indeed, the rules

governing the admission of evidence in administrative proceedings are

considerably more relaxed. [10] Consequently, hearsay is generally admissible if reliable and may be given

such probative force as is warranted. N.L.R.B. v. Remington Rand ,

94 F.2d 862 (2d Cir.), cert. denied , 304 U.S. 576 (1938); John

W. McGrath Corp. v. Hughes , 264 F.2d 314 (2d Cir.), cert.

denied , 360 U.S. 931 (1959). In the instant case, we believe the

Examiner did not improperly credit Louis' written assertion of a Nevada

domicile in response to the Administration's queries. It was the kind of

evidence which a reasonable mind might accept; see N.L.R.B. v.

Remington Rand, supra at 873, and John W. McGrath Corp. v. Hughes,

supra at 316. Louis really had little interest in the outcome of a

proceeding to determine Mathilde's eligibility for Social Security

benefits. Indeed, his statement -- written on a form prepared by the

Department of Health, Education and Welfare and forwarded to him in Israel

for completion -- indicated clearly on its face that the document was to

be utilized "in determining the right [of Mathilde] to or the amount of

Federal old-age . .

utcome of a

proceeding to determine Mathilde's eligibility for Social Security

benefits. Indeed, his statement -- written on a form prepared by the

Department of Health, Education and Welfare and forwarded to him in Israel

for completion -- indicated clearly on its face that the document was to

be utilized "in determining the right [of Mathilde] to or the amount of

Federal old-age . . . benefits." Moreover, above the line on which Louis

affixed his signature, there appeared in black print the warning: "Knowing

that anyone making a false statement or representation of a material fact

[in connection with an application for Social Security benefits] . . .

commits a crime punishable under Federal law, I certify that the above

statements are true." Given this and other evidence which the Examiner

apparently credited, and the absence of anything in the record to indicate

that Louis ever returned to resume residence in New York after leaving in

1960, we would be exceeding our reviewing authority if we found that there

was not substantial evidence before the Hearing Examiner to support his

conclusion that on and after January 8, 1963, Mathilde was not entitled to

benefits as Louis' "wife."[]

II.

In considering the second prong of the statutory analysis required by §

216(h)(1)(A), [11] a

determination was necessary as to the status of Louis and Mathilde's

marriage under the law of Nevada, in light of the New York judgment.

idence before the Hearing Examiner to support his

conclusion that on and after January 8, 1963, Mathilde was not entitled to

benefits as Louis' "wife."[]

II.

In considering the second prong of the statutory analysis required by §

216(h)(1)(A), [11] a

determination was necessary as to the status of Louis and Mathilde's

marriage under the law of Nevada, in light of the New York judgment.

It is clear that if Mathilde had not been properly served in Louis'

divorce action, Nevada would deny the effectiveness of its own decree

because of defective jurisdiction. La Potin v. La Potin , 75 Nev.

264 (1959). But, here, a conflict existed between the affidavit of the

process server filed in the Nevada divorce suit, stating that Mathilde had

been personally served, and Mathilde's testimony in the New York suit,

asserting that process had been left in her mailbox. Since this dispute

was essentially one of credibility which the Hearing Examiner, based on

evidence before him, resolved against Mathilde, we cannot fault his

conclusion that Nevada obtained jurisdiction over Louis' suit for

divorce.

Finally, we must consider the effect of the New York declaration

pronouncing the Nevada divorce invalid. The Nevada Supreme Court in Colby v. Colby , 78 Nev. 150, cert. denied , 371 U.S. 888

(1962), held that for purposes of its internal law, Nevada will uphold its

own decree in the fact of a contradictory judgment by a sister state. On

facts not dissimilar to those presented here, the Court in Colby observed that "Analysis demands the conclusion that [the out-of-state

spouse] does not here ask us to merely accord full faith and credit to the

[foreign state's] decree [of invalidity]. Instead, we are asked to give it

greater credit and respect than the prior decree of our own State lawfully

entered. Full faith and credit does not require, nor does it contemplate,

such action from us." 78 Nev. at 157.

nalysis demands the conclusion that [the out-of-state

spouse] does not here ask us to merely accord full faith and credit to the

[foreign state's] decree [of invalidity]. Instead, we are asked to give it

greater credit and respect than the prior decree of our own State lawfully

entered. Full faith and credit does not require, nor does it contemplate,

such action from us." 78 Nev. at 157.

It would not be advisable, we believe, for this Court to attempt to

resolve sister-state conflicts in matrimonial actions in a collateral

proceeding for Social Security benefits. See Wondsel v.

Commissioner , 350 F.2d 339 (2d Cir. 1965); Estate of Borax v.

Commissioner , 349 F.2d 666 (2d Cir. 1965), cert. denied , _____

U.S. _____ (1966). By defining "wife" as it has in Section 216(h)(1)(A),

Congress has deliberately chosen to make federal holdings in this area

rest upon determination of marital status by the appropriate state. And,

upon our understanding that Nevada is entitled "to give its divorce

decrees absolute and binding finality, within the confines of its

borders," Williams v. North Carolina (II), 325 U.S. 226, 239 (1945)

(concurring opinion), we believe that Judge Bryan correctly resolved the

conflict-of-laws problem by determining that Nevada, as the "appropriate"

state, would uphold its own decree. He, therefore, properly approved the

Hearing Examiner's conclusion that Mathilde was not Louis' "wife" within

the meaning of the Social Security Act and consequently was not entitled

to the benefits which flowed from such status.

We have considered the other contentions advanced on this appeal and find

them to be without merit.

Affirmed.

appropriate"

state, would uphold its own decree. He, therefore, properly approved the

Hearing Examiner's conclusion that Mathilde was not Louis' "wife" within

the meaning of the Social Security Act and consequently was not entitled

to the benefits which flowed from such status.

We have considered the other contentions advanced on this appeal and find

them to be without merit.

Affirmed.

[1] Mathilde Rocker commenced

this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. §

405(g). Upon cross-motions for summary judgment, the District Court

granter her motion and remanded the case for further administrative

consideration; on reargument, however, Judge Bryan set aside his prior

ruling and granted the government's motion for summary judgment upon

finding that the record supported the conclusion that Mathilde, under

Nevada law, was not Louis's "wife" when her application for benefits was

filed.

[2] The affidavit of service

filed in the Nevada action stated that Mathilde had been personally

served.

[3] Mathilde claimed Social

Security benefits as Louis' "wife" pursuant to § 202(b) of the Social

Security Act, 42 U.S.C. § 402(b).

[4] See 20 C.F.R. § 404.951.

[5] Section 216(h)(1)(A)

provides in pertinent part:

[6] The Manager of Blair House

so testified at the divorce proceeding; he said that he had observed Louis

as a "permanent guest" of Blair House daily for a period of five months,

except for a two week interval when the Manager was on vacation.

t to § 202(b) of the Social

Security Act, 42 U.S.C. § 402(b).

[4] See 20 C.F.R. § 404.951.

[5] Section 216(h)(1)(A)

provides in pertinent part:

[6] The Manager of Blair House

so testified at the divorce proceeding; he said that he had observed Louis

as a "permanent guest" of Blair House daily for a period of five months,

except for a two week interval when the Manager was on vacation.

[7] Other evidence before the

Examiner showed that Louis had applied for a passport before Nevada

granted the divorce; that sometime in 1961, Louis left Nevada for an

extended trip on the European continent (which might explain why

registered letters which Mathilde sent to his Las Vegas address were

returned undelivered); that during his absence from New York, Louis

maintained in New York a bank account from which payments were made to

Mathilde; that an employee of Eastman Dillon periodically mailed these

checks at Louis' direction; moreover, that Louis employed a New York firm

of accountants to file his income tax returns and utilized, as a mailing

address, his brother-in-law's residence in New York.

[8] This statement was admitted

by the Hearing Examiner over Mathilde's objection. The Examiner correctly

noted, "the rules of evidence which are ordinarily followed in the courts

are not observed here."

Louis' written statement together with the other evidence indicating

Louis' intention to be domiciled in Nevada were credited by the Chief of

the Reconsideration Section of the Social Security Administration whose

opinion concluded that "Mr. Rocker was domiciled in Nevada at the time

Mathilde V. Rocker filed her application for wife's benefits on January 8,

1963."

It should be noted that no objection was made to the admissibility before

the Hearing Examiner of the exhibit containing the opinion of the Chief of

the Reconsideration Section although it was partially grounded on Louis'

written statement.

ion concluded that "Mr. Rocker was domiciled in Nevada at the time

Mathilde V. Rocker filed her application for wife's benefits on January 8,

1963."

It should be noted that no objection was made to the admissibility before

the Hearing Examiner of the exhibit containing the opinion of the Chief of

the Reconsideration Section although it was partially grounded on Louis'

written statement.

[9] The Regulation which defines

generally the admissibility of evidence at Social Security Administrative

Hearings provides: "Evidence may be received at the hearing even though

inadmissible under rules of evidence applicable to court procedure . . ."

20 C.F.R. § 404.928.

[10] See, generally, II Davis,

Administrative Law, §§ 1405, 1407 (1958).

[11] See n. 5, supra .