Branch v. US Social Security Administration, Acting Commissioner

Filing 20

///ORDER denying 8 Motion to Reverse Decision of Commissioner; granting 11 Motion to Affirm Decision of Commissioner. Clerk shall enter judgment and close the case. So Ordered by Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Susan Branch
v.

Civil No. 17-cv-098-LM
Opinion No. 2018 DNH 070

Acting Commissioner of
the US Social Security Administration

O R D E R
Claimant Susan Branch seeks judicial review of the decision
of the Acting Commissioner of the Social Security
Administration, denying her application for widow’s survivor
benefits under 42 U.S.C. § 402(e).

Branch argues, among other

things, that the decision of the Administrative Law Judge
(“ALJ”) was not supported by substantial evidence.

For the

reasons that follow, the court affirms the decision of the
Acting Commissioner.
STANDARD OF REVIEW
In reviewing the final decision of the Acting Commissioner
in a social security case, the court “is limited to determining
whether the ALJ deployed the proper legal standards and found
facts upon the proper quantum of evidence.”

Nguyen v. Chater,

172 F.3d 31, 35 (1st Cir. 1999); see also Seavey v. Barnhart,
276 F.3d 1, 9 (1st Cir. 2001).

The court defers to the ALJ’s

factual findings as long as they are supported by substantial
evidence.

42 U.S.C. § 405(g); see also Fischer v. Colvin, 831

F.3d 31, 34 (1st Cir. 2016).

Questions of law presented by the

ALJ’s decision are reviewed de novo.

See Fischer, 831 F.3d at

34.
BACKGROUND
The following facts are taken from the parties’ joint
statement of facts (doc. no. 13), unless otherwise noted.

In

April 2013, Branch applied for widow’s survivor benefits on the
basis of her marriage to Jonathan Branch.

Branch stated in her

application for benefits that they had been married from
April 20, 2003 to July 6, 2003, when Jonathan passed away.

Her

application was denied on the ground that she had not been
married for the minimum nine months required to qualify for such
benefits.

See 42 U.S.C. § 416(c)(1)(E); 20 C.F.R.

§ 404.335(a)(1).
Branch requested reconsideration, arguing that she had a
marriage of the requisite length because she and Jonathan had
been in a common law marriage prior to their legal marriage.
Branch’s request for reconsideration was denied, after which she
sought a hearing before an ALJ.
The ALJ held a hearing in September 2014.
represented by counsel.

Branch was

The ALJ examined whether Branch could
2

qualify for benefits on the basis of her 2003 legal marriage.
The ALJ also considered whether Branch’s relationship with
Jonathan prior to 2003 qualified as a common law marriage under
New Hampshire law.

Finally, the ALJ considered another avenue

for benefits: a surviving spouse is entitled to benefits, even
if the marriage was shorter than nine months, where “[a]t the
time of [the] marriage the insured was reasonably expected to
live for 9 months, and the death of the insured was accidental.”
20 C.F.R. § 404.335(a)(2)(i).
At the hearing, Branch testified regarding her claim that
she and Jonathan had been in a common law marriage long before
their legal marriage in 2003.
together in 1985.

Branch and Jonathan began living

Jonathan had three boys from a previous

marriage, and Branch had two.

Branch and her sons maintained a

separate living space in one unit of a duplex, and Jonathan and
his sons maintained a separate living space in the other unit.
At some point after moving in, Branch and Jonathan installed a
door between the units so they could move between their units.
Branch testified that this arrangement allowed them to live
together as a family while also ensuring that the children had
their own private spaces.
Branch also explained the reasons for their legal marriage
in 2003.

Initially, they decided not to marry because they were

3

both self-employed and believed that the “Marriage Penalty Act”
would negatively affect their finances.

When Jonathan’s cancer

progressed in March 2003, Jonathan told Branch that he wanted
her to have his name and, concerned about her finances, wanted
to ensure that she would be entitled to Social Security
benefits.

They thus decided to marry in April 2003, and Branch

changed her surname from Curter to Branch.
Branch submitted other evidence for the ALJ’s
consideration.

In one letter, Jamie Branch—one of Jonathan’s

sons—states that everyone “moved about as a single family” in
the duplex, and that Branch and Jonathan shared a bedroom.
Admin. Rec. at 75.

In another letter, a family friend attests

that Branch and Jonathan had a “loving relationship” and that
they maintained “unique living arrangements.”

Id. at 77.

Other

documentary evidence of note includes Jonathan’s 2002 will, in
which he refers to Branch as his “fiancée.”

Id. at 79.

The ALJ denied Branch’s application for benefits.

In order

to have a common law marriage under New Hampshire law, the
parties must have, for the three years preceding one partner’s
death, “(1) cohabited; (2) acknowledged each other as husband
and wife; and (3) [been] generally reputed to be husband and
wife in their community.”
704, 706 (N.H. 2008).

In re Estate of Bourassa, 949 A.2d

Regarding acknowledgement, the ALJ

4

determined that Branch “knew she was not married” prior to the
legal marriage in 2003.

Admin. Rec. at 15.

In support, the ALJ

noted that Branch and Jonathan had explicitly declined to marry
to avoid certain tax penalties, and that Jonathan had referred
to Branch as his fiancée in his will.

The ALJ also appears to

have considered the requirement of general reputation: the ALJ
noted that the family friend, who had described the loving
relationship between Jonathan and Branch, “did not mention that
the two held themselves out as husband and wife.”

Id.

Based on his review of the evidence, the ALJ made the
following findings: (1) Branch “formally married” Jonathan on
April 1, 2003; (2) the marriage did not last nine months prior
to Jonathan’s death in July 2003; (3) Jonathan’s death was not
accidental and he was not expected to live as long as nine
months at the time of the marriage; and (4) Branch and
Jonathan’s relationship prior to their legal marriage did not
constitute a common law marriage under New Hampshire law.
Branch requested review from the Appeals Council.

After

the Appeals Council denied the request, Branch appealed to this
court.

5

DISCUSSION
On appeal, Branch does not contend that she qualifies for
survivor benefits solely by virtue of her legal marriage in
2003.

Rather, Branch asserts that she qualifies for such

benefits on the basis of her alleged common law marriage to
Jonathan, and she argues that the ALJ erred in a number of
respects when he concluded otherwise.

She raises the following

arguments: (1) the ALJ’s decision on common law marriage is not
supported by substantial evidence; (2) the ALJ failed to provide
any reason why he disbelieved Branch’s testimony; and (3) the
ALJ erroneously prohibited Branch’s friend from testifying at
the hearing.

The court addresses each of Branch’s arguments in

turn, but it begins by setting forth the law applicable to
survivor benefits and common law marriage in New Hampshire.
Under section 402, the widow of “an individual who died a
fully insured individual” is entitled to widow’s insurance
benefits, so long as certain requirements are met.
§ 402(e)(1).

42 U.S.C.

To be considered the widow of an insured

individual under the statute, the claimant must satisfy one of a
number of alternative conditions.
C.F.R. § 404.335(a).

See 42 U.S.C. § 416(c)(1); 20

As is relevant here, a claimant is deemed

to be the widow of an insured individual if her marriage to the
insured lasted for at least nine months immediately before the

6

insured died.1

20 C.F.R. § 404.335(a)(1); see also 42 U.S.C.

§ 416(c)(1)(E).
To determine the validity and length of a marriage, the
court looks to the law of the state in which the insured
individual was domiciled at the time of death.

See 42 U.S.C.

§ 416(h)(1)(A)(i); 20 C.F.R. §§ 404.344, 404.345.

An

applicant’s common law marriage to an insured individual, if
recognized in the domicile state, can operate as a valid
marriage for purposes of obtaining widow’s insurance benefits.
See 20 C.F.R. § 404.726; see also Gainey v. Barnhart, 299 F.3d
1004, 1006 (8th Cir. 2002); Renshaw v. Heckler, 787 F.2d 50, 52
(2d Cir. 1986).
The parties agree that New Hampshire law is applicable.
“New Hampshire is a jurisdiction which does not recognize the
validity of common-law marriages except to the limited extent
provided by RSA 457:39.”

Bourassa, 949 A.2d at 706.

That

statute, which has existed in substantially the same form since
the mid-19th century, provides, “Persons cohabiting and

A person seeking survivor benefits may also qualify as a
widow if “[a]t the time of [the] marriage the insured was
reasonably expected to live for 9 months, and [the person] had
been previously married to the insured for at least 9 months.”
20 C.F.R. § 404.335(a)(2)(iii). Branch appears to argue that
she satisfies this condition. Because it is premised on the
validity of her alleged common law marriage, her argument is
unavailing for the reasons set forth in this order.
1

7

acknowledging each other as husband and wife, and generally
reputed to be such, for the period of 3 years, and until the
decease of one of them, shall thereafter be deemed to have been
legally married.”

RSA 457:39; see also De Lisle v. Smalley, 63

A.2d 240, 240-41 (N.H. 1949).
As noted above, a person seeking to invoke this provision
must establish that, for the three years preceding the
significant other’s death, she and her significant other “(1)
cohabited; (2) acknowledged each other as husband and wife; and
(3) were generally reputed to be husband and wife in their
community.”

Bourassa, 949 A.2d at 706.

is fact-intensive.

This three-part inquiry

See, e.g., In re Estate of Brewster, No.

2016-0444, 2017 WL 2791699, at *1 (N.H. May 16, 2017)
(unpublished opinion); Bourassa, 949 A.2d at 706-07.
It is important to emphasize that the record establishes
that Branch and Jonathan maintained a loving, committed
relationship for many years.

Nevertheless, that is not the

relevant test for determining whether a common law marriage
exists under RSA 457:39—the inquiry is more technical and
demanding.
For example, to establish the second element,
acknowledgement, the surviving partner must show that the couple
acknowledged—that is, openly declared—that they were husband

8

and wife.

See Bourassa, 949 A.2d at 707 (describing

acknowledgement as “an open declaration”).

It is not enough for

a couple to conduct themselves as though they are husband and
wife.

They must openly declare that they are husband and wife.

This is because, under RSA 457:39, “the conduct of cohabitation
assumes at death the aspect of legality or illegality, according
to whether the declarations of the parties . . . have avowed or
disavowed the existence of a legal relationship.”

Id. (internal

brackets omitted).
The case of Bourassa is illustrative.

There, the New

Hampshire Supreme Court affirmed the probate court’s finding
that the parties had not acknowledged each other as husband and
wife and, consequently, did not meet an essential requirement
for a common law marriage.

See id. at 706-08.

The court

reached this conclusion notwithstanding that the couple lived
together for approximately a decade and had a child.
706.

See id. at

Instead, in evaluating the probate court’s findings, the

New Hampshire Supreme Court highlighted the evidence showing
that the parties had, throughout their relationship, publicly
denied that they were married.

See id. at 707-08.

Although the

surviving partner argued that the couple’s conduct over the
years amounted to an acknowledgement that they were husband and
wife, the court found the evidence to be equivocal in that

9

respect.

Further, the court cautioned that only in “rare cases”

can a couple’s conduct, by itself, constitute an acknowledgement
that they are husband and wife.

Id. at 707 (internal quotation

marks omitted).
The third element, general reputation, involves a similar
analysis.

The question is whether the couple was generally

known in the community as husband and wife.
Buttrick, 597 A.2d 74, 76 (N.H. 1991).

See In re Estate of

Relevant evidence may

include testimony from family and friends attesting to their
belief that the couple was married.

See id. at 76-77.

In light of the stringent requirements of RSA 457:39, the
court is not persuaded the ALJ erred in denying Branch’s claim
for benefits.2

And, having reviewed the record, the court

concludes that there is substantial evidence supporting the
ALJ’s findings on the elements of acknowledgement and general
reputation.

Without those necessary elements, Branch’s claim on

common law marriage fails.

See Bourassa, 949 A.2d at 706.

With respect to the second element, there was sufficient
evidence to support the ALJ’s conclusion that, prior to their

On December 13, 2017, this court ordered the parties to
file supplemental memoranda on certain legal issues related to
the operation of RSA 457:39. Because the court concludes that
the ALJ reasonably determined that Branch and Jonathan were not
in a common law marriage, the court may assume that RSA 457:39
could otherwise afford Branch relief under these circumstances,
and it need not address those legal issues.
2

10

legal marriage, neither Branch nor Jonathan acknowledged each
other as husband and wife.

Branch testified that she and

Jonathan specifically declined to marry prior to 2003, from
which the ALJ reasonably inferred that Branch did not declare
herself to be married during that time.

The ALJ’s conclusion is

further bolstered by the fact that Jonathan referred to Branch
as his fiancée in his will, which was executed shortly before
their legal marriage.

See Delisle v. Smalley, 69 A.2d 868, 869-

70 (N.H. 1949) (stating that declaration in decedent’s will—that
she was “not legally married” to surviving partner—was relevant
to the issue of acknowledgement).
Similarly, with respect to the third element, substantial
evidence supports the ALJ’s conclusion that Branch and Jonathan
were not generally reputed to be married in the community.

As

the ALJ noted, the family friend did not state that Branch and
Jonathan referred to themselves as husband and wife; rather,
Branch described Jonathan to the friend as her “soul mate” and
“explained that they had been dating for some time.”
Rec. at 77 (emphasis added).

Admin.

The family friend does not suggest

that he believed they were married.

And while the remaining

letters overwhelmingly demonstrate that Branch and Jonathan had
a serious, loving relationship, the letters do not show that the
couple was generally believed to be married in the community.

11

Compare Buttrick, 597 A.2d at 76-77 (upholding finding of common
law marriage where evidence showed family and friends overheard
the cohabitant refer to the decedent as “hubby” and actually
believed that they were a married couple).
Branch responds with two procedural arguments.

First, she

argues that the ALJ erred by rejecting or ignoring, without
explanation, her testimony supporting her claim.

Branch

highlights the following exchange from the hearing, which
consists of a few conclusory statements about the nature of the
couple’s relationship:
Q

So from 1985 until 2003, you were together as a
family. Did you consider yourselves to be married?

A

We did.

Q

And did you hold yourself out as a married couple?

A

We did.

Q

Your friends thought you were married?

A

Friends thought we were married.

Id. at 131.

At no point before or after this testimony does

Branch actually assert that she and Jonathan openly declared
themselves to be husband and wife prior to their legal marriage.
Nor does she describe how they held themselves out as a married
couple.
Although the ALJ did not expressly address Branch’s
testimony and explain the basis on which he rejected it, an ALJ
12

is not required to “address every piece of evidence.”
v. Barnhart, 314 F.3d 283, 287 (7th Cir. 2002).

Johansen

It is enough

that the ALJ articulate “at some minimum level” his analysis of
the record “so that the reviewing court can follow his
reasoning.”

Id.

The ALJ’s decision satisfies that standard.

It is evident from the ALJ’s decision that the ALJ relied on
specific evidence in the record—and not on Branch’s statements
noted above—to reach his decision.
in this respect.3

The court discerns no error

See Arrington v. Berryhill, No. 17-1047, 2018

WL 818044, at *1 (1st Cir. Feb. 5, 2018) (stating that it is the
ALJ’s prerogative to resolve conflicts in the evidence).
Branch next contends that the ALJ erred by barring Branch’s
friend from testifying at the hearing.

As an initial matter,

the record is unclear on what occurred with respect to this
friend.

There is nothing in the transcripts, ALJ’s decision, or

other records of the proceedings to verify whether the ALJ
barred Branch’s friend from testifying and, if so, why he did
so.

The only evidence on this question appears in Branch’s

request for Appeals Council review, in which she states that her

Moreover, the ALJ may have found Branch credible as a
general matter, but may have concluded that her conclusory
testimony was not sufficient to meet the burden of demonstrating
a common law marriage under New Hampshire law, which is
especially demanding where the surviving partner seeks to do so
on the basis of the couple’s conduct. See Bourassa, 949 A.2d at
707.
3

13

friend “was not allowed into the hearing.”

Admin. Rec. at 122.

In his decision, the ALJ mentions that a friend appeared with
Branch at the hearing, but he does not suggest that he
prohibited the friend from testifying.
Branch’s argument concerning this witness is unpersuasive.
First, to the extent the ALJ did prohibit the friend from
testifying, it does not appear from the record that Branch
objected to the ALJ’s ruling.
waived.

Therefore, any objection is

See Bonner v. Colvin, 153 F. Supp. 3d 465, 477 (D.

Mass. 2015) (“[H]aving failed to object [to the ALJ’s
hypothetical questions] during the administrative hearing,
Plaintiff has waived this argument.”); see also Mills v. Apfel,
244 F.3d 1, 8 (1st Cir. 2001).

Second, and more importantly,

Branch makes no proffer as to what this friend would actually
say; she merely suggests that “[a] testifying friend could have”
assisted the ALJ in determining whether Branch and Jonathan held
themselves out as husband and wife.

Doc. no. 8-1 at 7.

Absent

a detailed proffer, the court cannot conclude that this alleged
error warrants a remand.

See Ward v. Comm’r of Social Sec., 211

F.3d 652, 656 (1st Cir. 2000) (“[A] remand [to the ALJ] is not
essential if it will amount to no more than an empty
exercise.”).

14

In sum, the ALJ’s decision on common law marriage was
supported by substantial evidence.

Accordingly, in the absence

of a common law marriage, Branch cannot satisfy the nine-month
requirement, and the ALJ properly denied benefits.

See 20

C.F.R. § 404.335(a)(1).

CONCLUSION
For the foregoing reasons, Branch’s motion to reverse (doc.
no. 8) is denied.

The Acting Commissioner’s motion to affirm

(doc. no. 11) is granted.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
March 29, 2018
cc:

All Counsel of Record

15