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Rocker v. Celebrezze

decided: March 8, 1966.


Medina, Moore and Kaufman, Circuit Judge. Moore, Circuit Judge (concurring in the result).

Author: Kaufman

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.*fn1 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' 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.*fn2 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."*fn3 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,*fn4 Mathilde brought the instant action. We are satisfied that the District Judge properly refused to overturn the administrative denial of Mathilde's claim.


Foreseeing that 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),*fn5 established a two-step procedure for determining whether a claimant was the lawful spouse of a currently 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 procedure and included 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, 63 S. Ct. 454, 87 L. Ed. 626 (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 their 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.*fn6 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.*fn7 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 reciting that Nevada "was and still is my legal residence."*fn8

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.*fn9 Indeed, the rules governing the admission of evidence in administrative proceedings are considerably more relaxed.*fn10 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, 58 S. Ct. 1046, 82 L. Ed. 1540 (1938); John W. McGrath Corp. v. Hughes, 264 F.2d 314 (2d Cir.), cert. denied, 360 U.S. 931, 79 S. Ct. 1451, 3 L. Ed. 2d 1545 (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, 94 F.2d at 873, and John W. McGrath Corp. v. Hughes, supra, 264 F.2d 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 * * * 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 ...

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