APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
Adams and Weis, Circuit Judges, and Debevoise,*fn* District Judge
DEBEVOISE, District Judge:
This case involves the review of a final decision of the Secretary of Health and Human Services denying plaintiff's, Nancy Lampkins McNeal's, application for survivor's insurance benefits. The wage earner, McKenzie Dunklin, Jr., died in 1971. Plaintiff claimed that she and Dunklin had entered into a common-law marriage in 1963 and that he was the father of her daughter, Benita Lampkins, born the same year. On June 30, 1979 plaintiff filed an application for survivors' social security benefits for herself and her daughter. Both applications were denied initially and on reconsideration. Plaintiff requested and was granted an administrative hearing and a de novo review of her application.
The Administrative Law Judge determined that a valid common-law marriage did not exist between plaintiff and Dunklin, that Dunklin was the father of plaintiff's child Benita but that he was not living with the child or contributing to her support at the time of his death. Therefore, the Administrative Law Judge concluded that the application for survivors' insurance benefits should be denied. The decision became final when the Appeals Council found no basis for review.
Plaintiff instituted suit in the District Court. Cross-motions for summary judgment were filed and the United States Magistrate to whom the matter had been referred recommended that the Secretary's motion be granted. After considering plaintiff's objections, the District Court adopted the Magistrate's Report and Recommendation and granted the Secretary's motion. This appeal followed.
We conclude that the District Court correctly determined that there was substantial evidence to support the Secretary's finding that a common-law marriage between plaintiff and Dunklin had not existed, and in that respect the judgment of the District Court will be affirmed. We also conclude that the Administrative Law Judge applied an erroneous legal standard to determine whether Dunklin was contributing to Benita's support at the time of his death, and in that respect the judgment of the District Court will be vacated with directions to remand this case to the Secretary for further proceedings consistent with this opinion.
It appears that plaintiff and Dunklin lived together from April 1963 until sometime in 1965. Benita had been born to plaintiff on March 30, 1963. The Administrative Law Judge found that Dunklin was Benita's father. After Dunklin left plaintiff and his daughter he made some contributions to his daughter's support. There is evidence in the record that from time to time Dunklin gave plaintiff money for Benita's benefit, e.g., payments of $30 three or four times a year, and that occasionally he bought her groceries, clothing and toys.
Dunklin's earnings were minimal. According to his earnings record they were: