F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 24 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
GENIA M. BROUGHAM, for herself and as next friend of Cacey R. Brougham and Adam S. Brougham,
Plaintiff-Appellant,
v. No. 98-6034 (D.C. No. 96-CV-1345) KENNETH S. APFEL, Commissioner, (W.D. Okla.) Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before ANDERSON , KELLY , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Plaintiff-appellant Genia M. Brougham appeals the district court’s
judgment upholding the denial of social security survivors’ benefits to her and her
children, based on the earnings of the deceased wage earner, Ronald J. McGuffin,
Jr. We affirm.
The administrative law judge (ALJ) found that Ms. Brougham had not
established the existence of a common-law marriage and, therefore, she was not
entitled to benefits as Mr. McGuffin’s widow and her children were not entitled
to benefits as his stepchildren. The Appeals Council denied the request for
review, and the ALJ’s decision became the final decision of the Commissioner.
The district court affirmed the Commissioner’s decision on November 18, 1997.
For entitlement to social security benefits, a claimant who relies on the
validity of a common-law marriage must show that the insured worker’s state of
legal domicile would recognize the marriage. See 20 C.F.R. §§ 404.344, 404.345,
404.726. Preferred evidence of a common-law marriage with a deceased consists
of signed statements from the applicant and two of the deceased’s blood relatives.
Alternative evidence, including statements from other individuals, may be offered
if preferred proof is not available. See 20 C.F.R. § 404.726(b)(2).
-2- Common-law marriages are recognized by Oklahoma, Mr. McGuffin’s state
of domicile. Such a marriage “requires competent parties, who enter the
relationship by mutual agreement, exclusive of all others, consummating
arrangement [sic] by cohabitation and open assumption of marital duties, and such
relationship must be established by evidence that is clear and convincing.”
Mueggenborg v. Walling , 836 P.2d 112, 113 (Okla. 1992) (quotation omitted).
On appeal, Ms. Brougham contends there is a lack of substantial evidence
to support the ALJ’s determination that no common-law marriage existed between
her and Mr. McGuffin. She points to evidence in the record which could support
a conclusion that the parties had agreed to be married, had generally lived
together in Oklahoma from September 1987 until his death in February 1993, and
had represented to others that a marriage existed.
There is, however, also evidence to the contrary. Mr. McGuffin’s mother
could have provided preferred evidence of a common-law marriage between
Ms. Brougham and her son. Instead, she denied the existence of such a
relationship in a signed statement asserting that Mr. McGuffin had maintained
his permanent residence with her and his father and also that Ms. Brougham’s
“welfare records” would show Ms. Brougham’s claim that she “lived alone
as head of house and no one contributed to her or her children’s support.”
Appellant’s App. at 98. Although Ms. Brougham attacks these statements as
-3- biased, they are consistent with the listing of his parents’ mailing address on
Mr. McGuffin’s 1993 Wage and Tax Statement, see id. at 95, and the description
of Ms. Brougham as “other,” rather than spouse, on an income tax return
prepared for 1990, see id. at 71.
Additionally, the mother’s disclosure concerning Ms. Brougham’s welfare
records is corroborated by a statement of a caseworker from the department of
human services relating that, during a home visit, Ms. Brougham had introduced
Mr. McGuffin as “just a friend,” and Ms. Brougham never admitted to the
caseworker that Mr. McGuffin was living in her home. Because Ms. Brougham
“never came forth about [the] relationship, the [department of human services]
never considered him as part of the family.” Id. at 53. 1
“We review the [Commissioner’s] decision to determine whether [his]
factual findings are supported by substantial evidence in the record viewed as a
whole and whether [he] applied the correct legal standards. Substantial evidence
1 Although Ms. Brougham does not deny the truth of these hearsay statements, she attempts to minimize their impact. See Descheenie ex rel. Descheenie v. Bowen , 850 F.2d 624, 628 (10th Cir. 1988) (“Hearsay evidence is presumptively unreliable and forms a particularly faulty basis for the fact finder to establish trustworthiness.”) (quotations omitted). We note, however, that “hearsay evidence is not per se inadmissible” in social security proceedings, Trujillo v. Richardson , 429 F.2d 1149, 1152 (10th Cir. 1970); see also 42 U.S.C. § 405(b)(1) (“Evidence may be received at any hearing before the Commissioner of Social Security even though inadmissible under rules of evidence applicable to court procedure.”). Moreover, as we have explained, the statements are not the sole evidence supporting the ALJ’s determination.
-4- is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. We do not reweigh the evidence.” Castellano v. Secretary
of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994) (quotations and
citations omitted).
There is substantial evidence to support the ALJ’s conclusion that
Ms. Brougham failed to establish a common-law marriage, and, accordingly,
we will not disturb it. Specifically, we note that Ms. Brougham has adopted
inconsistent positions on her marital state, depending on whether she is seeking
welfare benefits during Mr. McGuffin’s lifetime, or survivors’ benefits after his
death. The ALJ was entitled to take this inconsistency into account in weighing
the evidence. See Warren v. Secretary of Health & Human Servs. , 868 F.2d 1444,
1446 (5th Cir. 1989) (stating that plaintiff’s “own testimony in support of her
contention that a common law marriage existed” was, “at a minimum, undermined
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 24 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
GENIA M. BROUGHAM, for herself and as next friend of Cacey R. Brougham and Adam S. Brougham,
Plaintiff-Appellant,
v. No. 98-6034 (D.C. No. 96-CV-1345) KENNETH S. APFEL, Commissioner, (W.D. Okla.) Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before ANDERSON , KELLY , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Plaintiff-appellant Genia M. Brougham appeals the district court’s
judgment upholding the denial of social security survivors’ benefits to her and her
children, based on the earnings of the deceased wage earner, Ronald J. McGuffin,
Jr. We affirm.
The administrative law judge (ALJ) found that Ms. Brougham had not
established the existence of a common-law marriage and, therefore, she was not
entitled to benefits as Mr. McGuffin’s widow and her children were not entitled
to benefits as his stepchildren. The Appeals Council denied the request for
review, and the ALJ’s decision became the final decision of the Commissioner.
The district court affirmed the Commissioner’s decision on November 18, 1997.
For entitlement to social security benefits, a claimant who relies on the
validity of a common-law marriage must show that the insured worker’s state of
legal domicile would recognize the marriage. See 20 C.F.R. §§ 404.344, 404.345,
404.726. Preferred evidence of a common-law marriage with a deceased consists
of signed statements from the applicant and two of the deceased’s blood relatives.
Alternative evidence, including statements from other individuals, may be offered
if preferred proof is not available. See 20 C.F.R. § 404.726(b)(2).
-2- Common-law marriages are recognized by Oklahoma, Mr. McGuffin’s state
of domicile. Such a marriage “requires competent parties, who enter the
relationship by mutual agreement, exclusive of all others, consummating
arrangement [sic] by cohabitation and open assumption of marital duties, and such
relationship must be established by evidence that is clear and convincing.”
Mueggenborg v. Walling , 836 P.2d 112, 113 (Okla. 1992) (quotation omitted).
On appeal, Ms. Brougham contends there is a lack of substantial evidence
to support the ALJ’s determination that no common-law marriage existed between
her and Mr. McGuffin. She points to evidence in the record which could support
a conclusion that the parties had agreed to be married, had generally lived
together in Oklahoma from September 1987 until his death in February 1993, and
had represented to others that a marriage existed.
There is, however, also evidence to the contrary. Mr. McGuffin’s mother
could have provided preferred evidence of a common-law marriage between
Ms. Brougham and her son. Instead, she denied the existence of such a
relationship in a signed statement asserting that Mr. McGuffin had maintained
his permanent residence with her and his father and also that Ms. Brougham’s
“welfare records” would show Ms. Brougham’s claim that she “lived alone
as head of house and no one contributed to her or her children’s support.”
Appellant’s App. at 98. Although Ms. Brougham attacks these statements as
-3- biased, they are consistent with the listing of his parents’ mailing address on
Mr. McGuffin’s 1993 Wage and Tax Statement, see id. at 95, and the description
of Ms. Brougham as “other,” rather than spouse, on an income tax return
prepared for 1990, see id. at 71.
Additionally, the mother’s disclosure concerning Ms. Brougham’s welfare
records is corroborated by a statement of a caseworker from the department of
human services relating that, during a home visit, Ms. Brougham had introduced
Mr. McGuffin as “just a friend,” and Ms. Brougham never admitted to the
caseworker that Mr. McGuffin was living in her home. Because Ms. Brougham
“never came forth about [the] relationship, the [department of human services]
never considered him as part of the family.” Id. at 53. 1
“We review the [Commissioner’s] decision to determine whether [his]
factual findings are supported by substantial evidence in the record viewed as a
whole and whether [he] applied the correct legal standards. Substantial evidence
1 Although Ms. Brougham does not deny the truth of these hearsay statements, she attempts to minimize their impact. See Descheenie ex rel. Descheenie v. Bowen , 850 F.2d 624, 628 (10th Cir. 1988) (“Hearsay evidence is presumptively unreliable and forms a particularly faulty basis for the fact finder to establish trustworthiness.”) (quotations omitted). We note, however, that “hearsay evidence is not per se inadmissible” in social security proceedings, Trujillo v. Richardson , 429 F.2d 1149, 1152 (10th Cir. 1970); see also 42 U.S.C. § 405(b)(1) (“Evidence may be received at any hearing before the Commissioner of Social Security even though inadmissible under rules of evidence applicable to court procedure.”). Moreover, as we have explained, the statements are not the sole evidence supporting the ALJ’s determination.
-4- is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. We do not reweigh the evidence.” Castellano v. Secretary
of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994) (quotations and
citations omitted).
There is substantial evidence to support the ALJ’s conclusion that
Ms. Brougham failed to establish a common-law marriage, and, accordingly,
we will not disturb it. Specifically, we note that Ms. Brougham has adopted
inconsistent positions on her marital state, depending on whether she is seeking
welfare benefits during Mr. McGuffin’s lifetime, or survivors’ benefits after his
death. The ALJ was entitled to take this inconsistency into account in weighing
the evidence. See Warren v. Secretary of Health & Human Servs. , 868 F.2d 1444,
1446 (5th Cir. 1989) (stating that plaintiff’s “own testimony in support of her
contention that a common law marriage existed” was, “at a minimum, undermined
by her [welfare] application,” which maintained that she did not live with the
deceased and he did not support her); cf. Rascon v. US West Communications,
Inc. , 143 F.3d 1324, 1332 (10th Cir. 1998) (statements made in a social security
disability application do not constitute an automatic bar to an ADA disability
discrimination claim, but they may constitute evidence relevant to a determination
of whether the employee is able to perform the essential functions of the job, with
or without reasonable accommodation).
-5- Ms. Brougham also asserts that the ALJ misconstrued Oklahoma law and
added to her burden of proof by requiring a showing that the parties lived together
as husband and wife “over an extended, uninterrupted period of time.”
Appellant’s App. at 13. Although the requirement of “extended, uninterrupted”
cohabitation is not found in Oklahoma state law, the additional language is
incidental to the resolution of this case. The ALJ’s determination did not hinge
on the length of uninterrupted time Ms. Brougham and Mr. McGuffin lived
together. Accordingly, the contention that the ALJ improperly construed
Oklahoma law does not change our analysis. See Descheenie ex rel. Descheenie
v. Bowen , 850 F.2d 624, 628 (10th Cir. 1988) (holding that error that had “shaped
the outcome” of the agency’s decision cannot be characterized as harmless);
cf. Diaz v. Secretary of Health & Human Servs. , 898 F.2d 774, 777 (10th Cir.
1990) (stating effect of error in hypothetical posed to vocational expert was
minimal and not grounds for reversal).
-6- After a review of the entire record, we AFFIRM the judgment of the district
court.
Entered for the Court
Stephen H. Anderson Circuit Judge
-7-