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Ferenz v. Folsom

decided: September 10, 1956.

CAROLINE B. FERENZ
v.
MARION B. FOLSOM, SECRETARY OF HEALTH, EDUCATION AND WELFARE, APPELLANT.



Author: Kalodner

Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.

KALODNER, Circuit Judge.

This is an appeal by the Secretary of Health, Education and Welfare ("Secretary")*fn1 from a judgment of the District Court for the Western District of Pennsylvania reversing its disallowance of claims of Caroline B. Ferenz, the widow of Joseph Ferenz, under the provisions of Title II (Federal Old Age and Survivors Insurance Benefits) of the Social Security Act, as amended.*fn2

The widow's claims were denied by the Bureau of Old Age and Survivors Insurance of the Social Security Administration on the ground that she was not living with her husband at the time of his death as required by the statute. A hearing was held before an agency referee to review the initial decision of the Bureau. The referee found, after hearing the widow's witnesses, that she had not been "living with" her husband at the time of his death as required by the Act and accordingly was not entitled to benefits. The widow's appeal to the Appeals Council of the Department of Health, Education and Welfare was denied and she brought suit in the court below to review the administrator's determination under the provisions of Section 205(g) of the Act.*fn3

The factual findings of the referee are set forth in the opinion of the District Court*fn4 and may be summarized as follows:

Mrs. Ferenz and her husband, Joseph Ferenz, were married in 1908 and remained married until Ferenz' death on July 5, 1951. In 1929 Mrs. Ferenz and her husband "separated and did not live together in the same household thereafter". Soon after this separation, Ferenz began living with a woman known as Agnes Smith who was married to a man named Oates. On several occasions Ferenz sought to persuade his estranged wife to rejoin him, but each time she refused to do so unless he left Mrs. Smith; Ferenz steadfastly refused to consent to this condition and he and Mrs. Smith lived together until he became ill and was hospitalized on June 26, 1951. At that time they were living in a house owned by Mrs. Smith. Ferenz died in the hospital a few days after admission.

On the day he was taken to the hospital he was visited by his daughter, Margaret D. Kasten. According to her testimony he then indicated regret for the life he had been leading and expressed concern as to whether he and his wife might be reconciled. Mrs. Kasten told her father she thought such a reconciliation could take place. Mrs. Kasten notified her mother of her father's concern and was informed by her mother that she would be willing to go back with him "if he got parted from this other woman."

Mrs. Ferenz never visited her husband in the hospital. She refrained from doing so because "she did not want any unpleasant incident which might have been occasioned if she met Mrs. Smith there." Mrs. Smith visited Ferenz every day that he was in the hospital. She was there at all times during visiting hours and was with him at the time he died. Ferenz mentioned nothing to her of any impending termination of their relationship nor of any desire on his part to reconcile with his wife.

No court order was ever entered requiring Ferenz to support his wife and there is no evidence in the record that he ever contributed to her support.

Notwithstanding its recognition of these facts, as found by the referee, the District Court [138 F.Supp. 449] reversed the administrative ruling on the ground that, because "The phrase 'living with' in Sec. 402(e)(1) of the Social Security Act should be broadly construed to accomplish the intent of Congress" and although "In the ordinary sense, the claimant and wage earner were not actually 'living with' each other at the time of the wage earner's death", since a "reconciliation was effected" the "wage earner and the claimant were 'living with' each other for the intent and purposes of the Social Security Act."

The Secretary on this appeal contends (1) there was no justification, on the evidence and findings before it for the District Court's conclusion that there had been a "reconciliation" and (2) even if there had been a reconciliation it would not be sufficient to qualify Mrs. Ferenz for widow's benefits.

On the score of the first contention the Secretary urges that the District Court failed to give proper weight to its inferences and conclusions and that not only are its actual findings final if supported by substantial evidence, but the inferences and conclusions drawn from the evidence are entitled to the same weight. He points to the fact that the District Court's finding that there "had been a reconciliation was contrary to the conclusion reached by the referee. The latter had found:

"The expressions of the wage earner regarding the resumption of living together and the surrounding circumstances raise considerable doubt in the mind of the referee that the wage earner honestly intended to resume living together with the claimant.According to the testimony the wage earner stated, in substance, that if he got out of the hospital he and the claimant would live together again. The claimant may take the position that the wage earner, by offering to resume living together with her, accepted the condition she had made under which she would live with him. That is, that he would terminate his relationship with Mrs. Smith. The fact is, and the referee so finds, that the wage earner to the time of his death did not terminate this relationship. The condition under which the claimant and wage earner might have become members of the same household was never met. The wage earner died in the hospital and his meretricious affair with Mrs. Smith ended only with his death."

The Secretary's first contention brings into sharp focus the jurisdiction of the District Court and the scope of its review of administrative ...


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