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April 21, 1982


The opinion of the court was delivered by: BIUNNO

 This is a suit to review a final decision of the Secretary denying plaintiff's claim for widow's insurance benefits under Title II of the Social Security Act, as amended.

 It comes before the court on defendant's motion for summary judgment, an inartistic but convenient procedural device to calendar the case for hearing without encumbering it with the inapplicable steps of discovery and pretrial conference used for the regular trial list. Under the statute providing for judicial review, 42 USC § 405(g), the record of the proceedings before the agency is to be filed with the answer, see Villines v. Harris, 487 F. Supp. 1278 (D.N.J. 1980).

 When the answer and record are filed, the practice in this District is for the agency to bring on a motion for summary judgment, nominally under F.R.Civ.P. 56, with a brief. The plaintiff then submits an answering brief and the matter is heard on the date noticed.

 The review here is in the nature of a review on a common law writ of certiorari, and is analogous to an action for prerogative writ in the Superior Court of New Jersey to review a decision of a State administrative agency, under N.J. Const. 1947, Art. 6, sec. 5, par. 4, and N.J. Court Rule R. 2:2-3(a), which employs the machinery of an "appeal" although the proceeding is actually an invocation of the original jurisdiction of the Superior Court. See N.J. Const. 1947, Art. 6, sec. 5, par. 3.

 Another difference is that the prerogative writ power of the N.J. Superior Court derives from the state's constitution and may not be regulated by legislation, see Fischer v. Tp. of Bedminster, 5 N.J. 534, 76 A.2d 673 (1950); State v. Rivers, 16 N.J. Super. 159, 84 A.2d 16 (App. 1951), while the authority of this court is entirely statutory.

 The third difference is that on a review here under § 405(g), the test is whether the challenged findings of fact are supported by "substantial evidence" in the record. If they are, the statute directs that the findings be "conclusive" here. Dobrowolsky v. Califano, 606 F.2d 403, at 406 (CA3, 1979). See, also, Morsemere S & L Assn. v. Marston, 500 F. Supp. 1253 (D.N.J. 1980) for a discussion of various modes and kinds of judicial review.

 The Supreme Court has defined "substantial evidence" as being "relevant evidence which a reasonable mind might accept as sufficient to support the conclusions", Richardson v. Perales, 402 U.S. 389, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971).

 It is also to be kept in mind that proceedings before administrative agencies are not governed by the Federal Evidence Rules, see Fed. Ev. Rule 1101, the main difference being that ordinarily hearsay evidence is routinely received, although the ancient and widely recognized rules of privilege probably apply, see Wearly v. FTC, 462 F. Supp. 589 (D.N.J. 1978), vacated as not ripe, 616 F.2d 662 (CA3, 1980), cert. den. 449 U.S. 822, 101 S. Ct. 81, 66 L Ed 2d 25, after remand, 503 F. Supp. 174 (D.N.J. 1980). Compare N.J. Ev. Rule 2(1), N.J.S. 2A:84A-16, making privilege rules applicable "in all cases and to all proceedings, places and inquiries, whether formal, informal, public or private, as well as to all branches of government and by whomsoever the same may be conducted, and none of said provisions shall be subject to being relaxed."

 For the differences between judicial review by courts that may exercise original jurisdiction and those that may not, see the discussion in McNeil v. McDonough, 515 F. Supp. 113, at 127-129 (D.N.J. 1980), affd. 648 F.2d 178 (CA3, 1981).

 The concept of "substantial evidence" as a test on review also subsumes the applicable law governing the burden of persuasion in the agency proceeding. Thus, if the party challenging the action below had the burden of persuasion, as by a preponderance, and the evidence is conflicting such that the finder of fact might reasonably consider it to be insufficient to carry the burden, then the finding is regarded as "supported by substantial evidence" even though the opposing testimony, taken by itself, might not reach the level specified. This pattern appears most often in cases where the evidence offered in support of the burden is open to questions of credibility, ambiguity or equivocal meaning, or other matters going to the weight of the evidence. Evidence lawfully received need not be accepted as true merely because it is admissible.


 The decision of the Appeals Council, which became the final decision of the Secretary, was that plaintiff was not the widow of the deceased wage earner, Patrick J. McMorrow, and so is not entitled to widow's benefits. Although expressed as an affirmative finding of a negative fact, the court reads the finding as one that plaintiff had failed to carry her burden of persuasion to establish her status as the widow of the deceased wage earner.

 Since the agency has the responsibility to see to it that public funds are disbursed only to those entitled to receive them by law, the expression probably calls for something more than might be sufficient to make out a "proof case" on an application for default judgment under F.R.Civ.P. 55(b)(2), but not much more. The United States does have some protection against concocted claims by reason of 18 USC § 1001.

 The entitlement provision is found in 42 USC § 402(e)(1). It entitles the "widow" of a deceased wage earner to insurance benefits on his social security account if she has attained age 60, has applied for widow's benefits, and is not entitled to equivalent insurance benefits on her own social security account.

 The term "widow" is defined by 42 U.S.C. § 416 (c) as the surviving wife of an individual, who was married to him for at least 9 months before his death. There are other alternative definitions not applicable here.

 The law governing the status of marriage, and other facets of family law such as annulment, divorce, custody of children, alimony, support and maintenance, equitable distribution, and the like, has historically been governed by the law of the States and not by federal law. The federal district courts do not ordinarily deal with such matters. See Watson v. Manhattan etc. Authority, 487 F. Supp. 1273 (1980); Johanning v. Johanning, 509 F. Supp. 770 (D.N.J. 1981). The authority to deal with that branch of the law is no doubt among the powers reserved to the States by Amend. X, U.S. Const.

 However, in the exercise of its delegated powers, the Congress is undoubtedly authorized to deal with subjects ordinarily matters of state law as an incident to its delegated powers. See U.S. Const. Art. I, sec. 8, cl. 18 (the "necessary and proper" clause). Thus, in carrying out federal powers by the enactment of the Social Security laws, it is necessary and proper for the Congress to define the term "widow", and to establish modes of proof thereof, in connection with claims for "widow's benefits" created by the statute to be executed and administered.

 Such provisions, then, are a matter of federal law, not state law, even though in the process the Congress directs that state law be looked to in one particular or another.

 Thus, whether a claimant is a "widow" for the purpose of entitlement to federal funds as widow's benefits is governed by 42 USC § 416(h). That section sets out a number of tests or standards which, if met, establish a claimant as a "widow". These are:

. . . If the courts of the State in which the deceased wage earner was domiciled at death would regard the parties as validly married at that time; or
. . . If the claimant would have the status of a widow under the laws of intestacy applicable to the personal property of the deceased wage earner; or
. . . If the applicant, in good faith, participated in a ceremonial marriage resulting in a purported marriage with the deceased wage earner which would have been a valid marriage but for the existence of an impediment thereto which was not known to the applicant at the time of the ceremony, AND if the applicant and the deceased wage earner were living in the same household at the time of the latter's death.

 This third alternative is limited. It has no application if another applicant is found eligible for widow's benefits under either of the first two alternatives. See 42 USC § 416(h)(1)(A) and (B).

 Thus, the issue on this review is whether the record shows substantial evidence to support the final decision that plaintiff had failed to establish that she was the widow of Patrick J. McMorrow and consequently not entitled to widow's benefits under the Social Security Act.

 The facts of record.

 Putting to one side items in the record adverse to plaintiff's claim, including matters of credibility, the evidence adduced in support of her claim showed the following history.

 Plaintiff was born April 15, 1910 in Ohio as Isabel R. DeLeo, and had SS No. 579-09-5890 on her own account (Application for Retirement Benefits filed 6/16/77, Exh. AC-4, Tr.p.176; Application for Supplemental Security Income filed 3/9/78, Exh. AC-6, Tr.p. 183).

 Patrick J. McMorrow was born November 24, 1905 in New York, and had S.S. No. 107-32-8696 on his account (Application for Retirement Insurance Benefits filed 9/17/71, Exh. AC-3, Tr. p. 172). He died on September 22, 1978 at Holy Name Hospital in Bergen County, N.J. of an acute myocardial infarction due to arteriosclerotic heart disease, with chronic obstructive lung disease as a contributing factor (Certificate of Death, Exh. 5, Tr. p. 103).

 DeLeo and McMorrow met in New York. He was living at the time on 96th St., and she lived on 72nd St. (Tr.p.48) (Tr.p.57). They met in a restaurant and had breakfast together a couple of Sundays, and she told him she had just come out of a hospital where she had been about 3 years for a mental breakdown (Tr. p.58).

 McMorrow had a vacation and told her he loved her well enough to marry (Tr.p.49). They drove from New York to Provincetown (Cape Cod), Mass. with a fishing buddy of McMorrow's, Melvin Davis, who lived in New ...

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