James v. United States, 185 F.2d 115, 22 A.L.R. 2d 830 (4 Cir. 1950)." Flamm v. Ribicoff, 203 F.Supp. 507, 510 (S.D.N.Y. 1961).

Also see, McIndoe v. United States, 194 F.2d 602, 603 (9th Cir. 1952); and Taylor v. Flemming, 186 F.Supp. 280, 284 (W.D. Arkansas 1960).

While the Administrative Law Judge found that the telephone inquiry made by the plaintiff's attorney constituted a statement of intent on the part of the plaintiff to file for benefits within the meaning of § 404.613, that conclusion was in fact an interpretation of a rule of law applied to the factual circumstances as the judge found them. To press beyond and claim that his ruling, as an employee of the agency, constituted an actual waiver of the defendant's position, so as to estop it from denying benefits, would destroy the quasi-judicial character of the Administrative Law Judge. It would also unduly curb the Secretary's clear statutory right to an effective review of final rulings, pursuant to 42 U.S.C. § 405(b). This statute provides in part:

"The Secretary is further authorized, on his own motion, to hold such hearings and conduct such investigations and other proceedings as he may deem necessary or proper for the administration of this title." (Emphasis added).

Such a construction would also unduly limit the right to a full judicial review under 42 U.S.C. § 405(g); a result never contemplated by the Congress.

The factual situation found to exist here does not conform to the essential requirements of the Social Security Regulations, 20 C.F.R. §§ 404.602 and 404.613. Failure of the plaintiff to file a timely application under the rules is not simply a non-essential procedural requirement, it is a substantial and basic requirement of the regulations.

"In examining the regulations promulgated by the Secretary of Health, Education, and Welfare, the Court refers to pertinent provisions of 20 C.F.R. § 404.601 et seq. Under § 404.601, it is required that an individual file an application on a form prescribed by the Administration. Section 404.607(b) provides for benefits retroactive for one year from the date of filing. Section 404.608 sets out the guideline that a written statement, request, notice or application is deemed 'a filing,' but only on the date it is received by the local office. In addition, such a statement must be reduced to the prescribed form within certain periods for it to be effective." Parker v. Finch, 327 F.Supp. 193, 195 (N.D. Ga. 1971).

The defendant Secretary is charged with the duty to weigh the evidence, to resolve material complaints in the testimony and to determine the cases accordingly. Moss v. Gardner, 411 F.2d 1195 (4th Cir. 1969); Staples v. Gardner, 357 F.2d 922 (5th Cir. 1966); Stumbo v. Gardner, 365 F.2d 275 (6th Cir. 1966); Rhinehart v. Finch, 438 F.2d 920 (9th Cir. 1971). The findings of the Secretary are conclusive, if supported by substantial evidence and a proper application of the law.

The Court adopts the findings and decisions of the Appeals Council (Tr. 4-10) as affirmed by the Secretary of Health, Education, and Welfare. The Court finds that the Secretary's determinations were supported by substantial evidence, as required under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Newman v. Celebrezze, 310 F.2d 780 (2d Cir. 1962); Dondero v. Celebrezze, 312 F.2d 677 (2d Cir. 1963). The defendant's motion for summary judgment is granted. SO ORDERED.

FAMILY RELATIONSHIPS

SECTIONS 202(e); 216(c) and (h) (1) (A) and (B) (42 U.S.C. 402(e); 416(c) and (h) (1) (A) and (B))-WIDOW'S INSURANCE BENEFITS-FAMILY RELATIONSHIPS-STATUS OF DEEMED SPOUSE

20 CFR 404.335, 404.345 and 404.346

DAVIS v. CALIFANO, 603 F. 2d 618 (7th Cir. 1979)

SSR 80-9c

The wage earner married his first wife in 1922 in Tennessee. After his desertion 16 years later, the wife obtained a "divorce from bed and board," a legal order of separation. A decree of absolute divorce was never obtained. In 1942 the wage earner married his second wife, the claimant, and moved to Illinois where they lived until his death in 1972. In January 1973, the claimant applied for benefits as a disabled widow. Three months later, the first wife applied for benefits and became entitled as the legal widow. The final decision of the Social Security Administration denied the claimant's application for benefits since her marriage to the wage earner was not a valid marriage but only a deemed valid marriage under section 216(h) (1) (B) of the Social Security Act and, as such, entitled the claimant to benefits only if no legal spouse was entitled to benefits. The district court affirmed the legal widow's entitlement, but awarded a share of widow's insurance benefits to the claimant as a deemed spouse. The Circuit Court of Appeals held: (1) the wage earner's first wife must be considered the legal widow since a divorce a vinculo matrimonii was never issued and, therefore, no valid marriage could exist between the claimant and the wage earner; and (2) benefits to the claimant could not be paid under the deemed spouse provision of section 216(h) (1) (B) of the Act after the entitlement of the legal widow was established.

WOOD, Circuit Judge:

Henry Davis, a truckdriver, died in 1972. One year later his two wives applied for widow's insurance benefits under the Social Security Act, 42 U.S.C. § 401 et seq. The Secretary of Health, Education and Welfare ruled that the first wife, Novella, was the "legal" widow. The second wife, Mary, filed this action against the Secretary in federal district

court. The district court judge, while finding that Novella was the "legal" widow, ordered that the two wives split the widow's insurance benefits. The Secretary appealed the district court's order, and Mary crossappealed. We note jurisdiction under 28 U.S.C. § 1291.

In 1922 Henry Davis married Novella Harrison in Orbion County, Tennessee. In 1938, three years after their fifth child was born, Henry deserted the family, and on grounds of abandonment Novella obtained a "divorce from bed and board," a legal order of separation in Dresden, Tennessee.' Novella never asked for a decree of absolute divorce and remained in Tennessee. She continued to use the name Mrs. Henry Davis and raised the five children alone.

In 1940 while employed as an interstate truckdriver, Henry met Mary Day, in Martin, Tennessee. He told her that he had been previously married to Novella Davis, that they were divorced in Dresden, Tennessee,2 and that he was jailed on one occasion for failure to make "alimony" payments.3 Mary never examined, nor did she ask to see, the actual divorce decree. In 1942 in St. Louis, Missouri, Henry and Mary were married and they immediately moved to Chicago where they resided for the next thirty years. They were divorced in 1954 in Illinois but remarried in 1955. For the next 17 years Henry and Mary lived together continuously as husband and wife until Henry's death in 1972. No children resulted from Henry's second marriage.

After Henry's death Mary applied in January 1973 for Social Security disabled widow's insurance benefits on the account of Henry, the wage earner. The present controversy began in April 1973 when, also on Henry's account, Novella applied for widow's insurance benefits.

Under the Social Security Act, widow's insurance benefits are payable to the widow or the surviving divorced wife of an individual who died fully insured if the wife (a) has not married, (b) has attained age 60, or has reached 50 years of age but has not yet attained age 60 and is under a disability, and (c) has filed an application, 42 U.S.C. § 402(e). The term "widow" means the surviving wife of the insured, 42 U.S.C. § 416(c).

'The decree, dated June 15, 1938, declared: "It is therefore ordered, adjudged and decreed by the Court that the complainant be given and can have a divorce from 'bed and board' from the defendant, with the reservation that the complainant may be granted an absolute divorce at a subsequent term."

'Before the administrative law judge at the original hearing on January 6, 1975, Mary Davis answered the following questions under oath:

Q: When and where do you believe [Novella Davis] was divorced from him or he from her?

A: It would have to be Dresden, Tennessee. Have to be. He had a bed and board divorce. Q: Huh?

A: He had a bed and board divorce.

At the second, supplemental hearing on May 13, 1977, Mary testified again:

Q: Did [Henry Davis] ever qualify, when he said divorce, by saying a legal separation or separate maintenance, or bed - and board divorce. How did he characterize the

A: He said he was divorced, that was it.

'Henry was actually incarcerated for his failure to make separate maintenance payments.

There are two methods for qualifying for widow's insurance benefits. A spouse qualifies under the state marital status test, which looks to the law of the state of the insured worker's domicile at the time of the worker's death, if the courts of that state would find either that: (a) the two were "validly married," or (b) the applicant, although not validly married, may be considered the widow "if such applicant would, under the laws applied by such courts in determining the devolution of intestate personal property, have the same status with respect to the taking of such property as a... widow." 42 U.S.C. § 416(h) (1) (A).*

If an applicant cannot pass the state marital status test, the applicant may still receive widow's benefits under the "purely 'federal' marital status test." Martin, Social Security Benefits for Spouses, 63 Cornell L. Rev. 789, 818 (1978). Congress established this test in 1960 by amending the Act to provide benefits to individuals who, because of a legal impediment under state law, had invalid marriages and were consequently ineligible to receive benefits. See S. Rep. No. 1856, 86th Cong., 2d Sess., reprinted in [1960] U.S. Code Cong. & Ad. News 3608, 3629. Section 416(h) (1) (B), generally known as the "deemed spouse" provision, requires that: (a) the applicant married the wage earner in good faith, without knowing of the legal impediment to the validity of the marriage, (b) the applicant was living with the wage earner at the time of his death, and (c) no other widow "is or has been entitled to a benefit" under the state marital status test. 42 U.S.C. § 416(h) (1) (B)."

'Section 416(h) (1) (A) states:

An applicant is the... widow... of a fully or currently insured individual for purposes of this subchapter if the courts of the State in which such insured individual is domiciled at the time such applicant files an application, or, if such insured individual is dead, the courts of the State in which he was domiciled at the time of death, or, if such insured individual is or was not so domiciled in any State, the courts of the District of Columbia, would find that such applicant and such insured individual were validly married at the time such applicant files such application or, if such insured individual is dead, at the time he died. If such courts would not find that such applicant and such insured individual were validly married at such time, such applicant shall, nevertheless be deemed to be the ... widow... of such insured individual if such applicant would, under the laws applied by such courts in determining the devolution of intestate personal property, have the same status with respect to the taking of such property as a ... widow... of such insured individual.

'Section 416(h) (1) (B) provides in relevant part:

[If] it is established to the satisfaction of the Secretary that such applicant in good faith went through a marriage ceremony with [the wage earner] resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage, and such applicant and the insured individual were living in the same household at the time of the death of such insured individual... such purported marriage shall be deemed to be a valid marriage. The provisions of the preceding sentence shall not apply (i) if another person is or has been entitled to a benefit... on the basis of the wages and self-employment income of such insured individual and such other person is (or is deemed to be) a... widow... of such insured individual under subparagraph (A) [the state law test] at the time such applicant files the application, or (ii) if the Secretary determines, on the basis of information brought to his attention, that such applicant entered into such purported marriage with such insured individual with knowledge that it would not be a valid marriage. The entitlement to a monthly benefit... based on the wages and self-employment income of such insured individual, of a person who would not be deemed to be a ... widow... of such insured individual but for this subparagraph, shall end with the month before the month (i) in which the Secretary

A "legal impediment" to the validity of a purported marriage is defined as resulting from either the lack of dissolution of a previous marriage or a defect in the marriage ceremony. 42 U.S.C. § 416(h) (1) (B). See also S. Rep. No. 1856, 86th Cong., 2d Sess., reprinted in [1960] U.S. Code Cong. & Ad. News 3608, 3629 and 3685. Section 416(h) (1) (B) also includes a clause for terminating the payments of a deemed widow once the "legal widow" has made a formal application for widow's benefits, 42 U.S.C. § 416(h) (1) (B).

Mary's initital application was denied at both the initital and reconsideration levels because Mary failed to meet the disability requirement under the Social Security Act, 42 U.S.C. § 402(e). In 1975 Mary's application was reviewed, a hearing was held and an administrative law judge in Chicago decided that Mary was not entitled to widow's benefits because she was neither disabled nor the legal widow of Henry. In April 1976 the administrative law judge's decision was affirmed by the Social Security Appeals Council and adopted as the final decision of the Secretary of Health, Education and Welfare.

Pursuant to 42 U.S.C. § 405(g), Mary Davis filed suit in district court in June 1976 seeking review of the Secretary's decision denying her claim for widow's disability insurance benefits. Mary sought a reversal of the Secretary's decision claiming, among other things, that (1) the Secretary erroneously placed the burden of proof on the plaintiff to prove dissolution of a previous marriage, (2) the Secretary's decision was unsupported by substantial evidence, and (3) the deemed spouse exception in 42 U.S.C. § 416(h) (B), inoperable if a legal widow was eligible for benefits, violated the equal protection and due process guarantees of the Fifth Amendment.

The district court referred the case to a magistrate, and upon a motion by the Secretary, the magistrate remanded the case on April 11, 1977, for further administrative proceedings on the issues of whether Mary was disabled and whether she was the legal widow of the deceased wage earner, Henry Davis. Following a second hearing the second administrative law judge issued a recommended decision on May 25, 1977. In his decision the administrative law judge commented on IIlinois law:

There can be no doubt that in Illinois a divorce from an earlier marriage will be presumed in order to sustain the validity of a second marriage. Sparling v. Industrial Commission, 48 III. 2d 332 (1971); Johnson v. Johnson, 114 III. 611 (1885); Coal Run Coal Co. v. Jones, 127 III. 379 (1889); Schmisseur v. Beatrie, 147 III. 210 (1893); Cole v. Cole, 153 III. 585 (1894); Winter v. Dibble, 251 III. 200 (1911); Matthes v. Matthes, 198 III. App. 515

(Cont.)

certifies... that another person is entitled to a benefit. . . . For purposes of this subparagraph, a legal impediment to the validity of a purported marriage includes only an impediment (i) resulting from the lack of dissolution of a previous marriage or otherwise arising out of such previous marriage or its dissolution, or (ii) resulting from a defect in the procedure followed in connection with such purported marriage.