*2 Judge, BIGGS, Chief Before Judge, KALODNER, Circuit Judge. WRIGHT, District Judge. BIGGS, Chief appeal by Secretary an Health, Education and Welfare1 judgment of the District Court Pennsylvania Western District of re- versing its disallowance of claims Ann M. the widow of Charles W. provisions under the II of Title Age (Federal Old and Survivors Insur- Benefits) Security ance of the Social Act as amended. Specifically, (1) seeks: Benefits2; Step-
Mother’s Insurance Security functions of the Federal child the insured All individual entitled were transferred child’s insurance Administrator benefit if the wid- Health, living Secretаry ow Education Wel with the insuree at tlie Reorgan Section 5 of the 1953 Ms death. 42 fare U.S.C.A. (g). Plan No. effective ization 1953, Fed.Reg. 210(h) (2) 67 Stat. Section Act in following section 133z-15. states that widow shall U.S.C.A. be deemed to have been with her husband at Security 202(g) of the Social if, Section the time provides, a widow an indi- (1) Act are both members of the same fully died insured shall be en- who death, vidual household on the date if, (2) receiving regular to mother’s insurance benefits titled among she was contribu- conditions, other the time of from him tions toward her filing application date, care she has such Benefits3; (3) 202(d) (4), child’s Insurance Section U.S.C.A. § Payments.4 Lump-Sum (d) (4). Death following in- un- The widow’s were denied The record claims reflects *3 Age itially by disputed may and be summarized the Bureau of Old facts which Boyd Se- and were Survivors Insurance of the Social follows. Mr. Mrs. hearing curity A was mani'ied on 1952 when he Administration. Boyd agency years who 59 referee she Mr. then held before an was 35 old. and original by prior mar- deter- hacf had riage sustained the nine children a Bureau’s August disallowing Boyd’s claims. and mination Mrs. the claimant two. findings Boyd de- resi- Mrs. marital Review left her of the Referee’s Johnstown, Alley, by Appeals De- of 4 nied the dence at Pennsylvania, Brixner the Council partment Health, Wel- her own and moved into Education of quarters Place, insti- a short distance fare. was then at Lee The case at bar Boyd’s away Her pursuant home. to Sec- from tuted Charles below the court moving way § considered 205(g) 42 U.S.C.A. tion in no to of Act. the relations, summary repudiation 405(g), a connubial of her motion on a judgment by de- judgment but was motivаted friction entered the court Boyd chil- veloped her of appropriate favor between Mrs. and an order in Boyd’s ap- chil- Boyd. F.Supp. The dren on one side and Charles Mrs. 149 peal dren on the other. followed. by recovery Although a apparent the rec- from it is Act authorizes wage wage “living claim- the ord and the with” that the earner widow if she was living phys- death. ant were all times of his not at earner at the time ically abode, shows widow provides a in the same the record that statute further “living prac- Boyd wife been that Mr. would see his shall be deemed to tically every day, spend con- death and would time
with” husband at the her nights his wife’s of the siderable at members number of if both “were Boyd During period or Mrs. [if] home. gave of his household on the date regular receiving twins, contributions the time birth to and at she was again preg- Boyd’s support such death she Any (2), their 216(h) 42 U.S.C.A. nant. further evidence date.” Section n engaging validity after 416(h) (2). sexual intercourse § children is residence moved into her own claim on behalf were “liv- fact death struck obviated the children on whether the turns ing wage claim- the earner when wage re- or earner with” consummating act ant were the sexual support from ceiving of their one-half light views at In the of the her home. death. of his time earner at the 202(d) (4) provides any Section court ordered (3) had been lie age of support. who has not attained child 42 U.S. to her contribute to upon dependent shall be deemed (2). 416(h) § C.A. stepfather’s stepfather at time of the pertinent 202(d) inAct of the 3. Section (1) time the child was death if at such payment bene- provides with, (2) receiving at least one- years age) (under the child fits stepfather. support half of from such provided n of a fully individual insured 402(d) (4). § U.S.C.A. upon dependent in- such child such individual’s provides, such (i) dividual of the Act Section 402(d). n death. part, § 42 U.S.C.A. of an relevant the death 216(e) Act defines fully currently Section individual who died stepchild of a de- individual, equal include the an “child” insured amount stop- been such primary who has individual ceased such in- throe times individual’s year im- than paid less one lump- child аmount surance shall be day mediately preceding on which person sum to the determined to be the died. 42 .U.S.C.A. individual such widow deceased to have been 416(e). living with the deceased at the time of death. immediately findings supported by hereinafter expressed were not evi- agency necessary whether these determine dence and reversed determina- be sufficient to tion. alone would facts andMr. Initially, pointed it should be out that household members of the same “both provision dealing rights with the provided death” as of his the date stepchildren, supra, note and which (2). 216(h) Section recovery allows if child facts, attempt earner, with” In addition to does not sup- phrase. Therefore, his wife’s contribute to define the we continued allowed port. claimant, heart condition feel if Ann When M. give *4 money living Mrs. husband, he would was him earn her with Charles 1953, July Boyd per of prior month. W. that her two children a $60 living Boyd hospitalized marriage, because was who were with her were Charles earning power living condition, stepfather. also his Ac- heart with of his their expenses entirely off, cordingly, in- his the cut entire is bottomed case living Boyd income creased, of whether or and his source not Mrs. Boyd pension $126.- afforded with Mr. at the time of his death. was a meager of sum a Out 00 month. finding We conclude that the Referee’s required main- Boyd money, Mr. Boyd receiving regular that Mrs. was not himself, and provide home, tain his support contributions Boyd her from During period Mrs. children. his Boyd upheld upon cannot be review a receiving month a $146.73 of the whole record. Departmеnt of Pennsylvania from the immediately It must be noted Public Assistance. finding by was in that this the Referee condition, Mr. Despite financial finding fact, the nature an ultimate as Boyd perform his duties continued to nothing legal a infer more than family con- new best he could for Pioch, In re 3 ence from other facts. the tributing month twice to$5 $10 Cir., 1956, 235 While F.2d 903. it up before months until a few claimant true, Secretary argues, that as September From De- his death. 1954 to reviewing authority of the District gave 1954, Boyd Mrs. six cember may sub is limited in that Court provided Mrs. He also dollars cash. findings those its own factual stitute Boyd some to be used with furniture 205(g), Referee, Social Section address, paid her new about $8 Cir., Act; Folsom, Security 3 Ferenz v. Blue month for the Blue Cross and 1956, 46, 237 F.2d since ultimate facts Boyd Shield Insurance for Mrs. legal process reached must be children. reasoning legal upon signifi based primary evidentiary On the Referee cance to be afforded the basis of facts Boyd aspect of found was not facts this fact that administrative law-making Boyd finding aspect, death. with” Mr. of his has its at the time decision was founded is therefore reviewable. Goldman v. finding Folsom, Cir., 776, 779; Mr. and 3 246 F.2d Referee’s that Baumgartner States, 1953, house- not “members the same v. United 322 665, 671, hold” Boyd 64 88 at the time of death and Mrs. U.S. S.Ct. L.Ed. regular 1525; receiving Acheson, Cir., 1954, “was con- Lehmann v. 3 594; sup- Corp. 206 tributions port”. from him F.2d Galena Oaks Cir., Scofield, The Refeiee also found that since 218 v. F.2d living duty satisfy judicial children were with is to therefore Our her, required agency and since their claim them determination ourselves that viewing record, to be earner has with since warrant whole, contributing and a reasonable basis record as one-half of their Corp. support Na v. Universal Camera in law. could not recover. Board, 1951, Relations District ruled Referee’s tional Labor Court that .the giving Health, 474, 490, 456, 95 L.Ed. Education and Welfare in U.S. S.Ct. Questions 456; Jaffe, sanction to Referee’s decision to Judicial Review: (1956). Law, that effect. Harv.L.Rev. thought 404:1111(b) 20 C.F.R. otherwise. of Title District Court Section agree against up which I with the a flexible District Court. sets standard sufficiency con earner’s Judge Biggs Chief confined his has requires It must be tributions assessеd. single consideration to issue agency in the determination receiving regu- whether Mrs. “was sufficiency into take of contributions hus- lar contributions” her deceased surrounding circumstances “the account and on band at the death1 time when with both score has the Dis- determined that ap by the were received contributions plicant correctly the Ref- trict Court held that or her for his eree was not. erred in that she amount thereof.” complete I that deter- am accord mination. adequately record shows gainful am, however, apprehensive capable that the when *5 specifically employment con failure of rule this Court to he made substantial by presented was Ref- he the issue the After to his wife. tributions finding Boyd earning power cut hospitalized, eree’s his that Mrs. “living increased; expenses how with time her husband the off and they not ever, of his death” “were because he continued contribute Taking he could. wife’s as best members of the household at the same surrounding might circum the time his death”2 be construed into аccount acquiescence finding, contribu the of these de- stances at time as that with Boyd’s tions, must, spite undisputed the clear that we it is Mr. as the that fact Boyd performing conclusion of the Referee that death occurred while he was receiving regular contributions not marital act. the support was from Mr. finding The Referee’s that the deceased by view as erroneous either induced an “living earner was not with” Mrs. legal applied to standard to be finding Boyd is, course, ultimate an correct if such contributions fact, type referred of case supportable applied not standard “an as inference from the facts.” drawn case, order In record. either It is true with an to such in- be affirmed. Court must of the District ference, supported by if that it is sub- be so ordered. It will evidence, stantial could it not re- jected by the Court.3 District Judge KALODNER, (concur- Circuit “ * * * equally It is true that courts ring). responsibility now must assume more “living his wife A man isn’t with” for the reasonableness and fairness” of though of his death” even “at time agencies federal decisions of “than some engaged while sexual inter- he dies past” have shown courts and “Re- course with her. viewing courts be influenced must feeling startling That was the result reached are not to abdicate the 4 judicial Secretary conventional function.” in the instant case 46, 1956, 49, (h) (2) 237 F.2d certiorari 1. 216 denied Sec. of the Act. 1957, 1006, 569, U.S. 77 S.Ct. 1 L. 2. Ibid. Ed.2d reviewing authority Corp. 3. “The of the District 4. Universal Camera v. National La unlimited, may Board, 1951, Court is not 474, for it not bor Relations 490, 340 U.S. 456; substitute its inferences for those of the 71 S.Ct. L.Ed. supported by which Folsom, Cir., referee are substаn Goldman v. F. Folsom, Cir., tial evidence.” Ferenz v. 2d finding assessing whether the Referee’s de- Referee’s stated, As earlier “living requirement had that the with” cision substantial based on not been met was death of his Mr. at the with” evidence. was based they “members then that he decision reveals The Referee’s household.” “same household” construed term 216(h) (2) Social used deci- in Section Putting mildly, Referee’s “single Security Act, For mean under a something model. than less sion is roof”. mentioned example, even he never Boyd’s undisputed circumstance my opinion re- in that he erred engaged in while spect. death occurred intercourse of sexual the act Boyd. well stated: As the District Court so complex- “The involvements and all As to marriage underly ities even- on the “He died Referee said relationship do not lend themselves visiting 10, 1954, ing while of December rigid dogmatic interpreta- claimant.” evaluation of tion. To limit disclosed: record Here is what whether husband and wife were living together your husband “Q. you and Had in one household even- intercourse sexual sole under had consideration died. Yes, ing? my unduly how is, judgment, A. that’s one restricting roof door, giving next effect Mrs. Bloom shallow *6 half meaning significance on put helped underwear his to and half just put marriage it on ways, sanctity we could vows. of the up with pressures him ways, covered and The and which realities get the me to She asked are consequence blanket. an inevitable his forehead brought rubbed and she alcohol children into the household opened eyes lips previous marriages his gives and he аnd and born of twice.” mouth rise subtle to human conflicts and personality require clashes which corroboration, Bloom, Mrs. in the ingenuity and best most able resources and record, which is statement spouses to com- said: promise recog- and sublimate. I can evening “Then on the of death nize the circumstances of the claim- Boyd pounded Ann on the wall Mrs. loyalties ant and dual decedent’s to hurry and come me over. to marriage, their children and and of came over Mr. I to and Then zealous efforts their to reconcile and put on his head and water called cold preserve F.Supp. them both.” 149 opened eyes name he and page at I Then called the twice. mouth they police ambulance at once all out undisputed evidence The discloses that hour he was dead about an quarters on call into her moved own * * * helped Boyd put August, 1952, friction, because of in Boyds piece underware one aspects Mr. violence, on the which took get could on over we steрsons. which hips.” her her and adult between * moving Shortly her before she caused charge was, course, one them to arrested on the District Court taking He had threatened to kill her. he fully justified in into considera- give weight fined the local alderman and re- to Referee’s failure tion hearing During prevailed before the leased. at the circumstances to stepson, Boyd’s Charles W. Referee this very in death moment * it, spelling, punctuation, Mrs. Bloom’s. or lack are and “Q. Jr., Why you “I testified remember” when cannot didn’t move intо Alley? asked as whether had threatened Brixner boys A. He said the Boyd. kill to Mrs. didn’t me. want tionship. separated, man ued unbroken the separate quarters, August, 1952, humous child December, children on quent Between the testimony wife. 1954, they although they until Mr. time of her that the 22, 1954, May 30, chain and that birth lived Boyd’s Boyds and the marital 1955, together maintained moving their contin- post- rela- twin elo- not as in said he couldn’t leave his that’s how he come you could do. sick couldn’t could he “Q. “Q. Why [*] were half and live with What did he [*] work do, living? A. didn’t put there wasn’t much he [*] any time. it. more ->:(cid:127) you He say? He married He said you and ask [*] said A. family, he was where whаt me He relationship between were down at forth until He house couldn’t our correct ? A. and come didn’t August, ther at school sometimes each other- derstand, date of “Q. “Q. [*] “Q. “Q. was house, and I’d if I didn’t place, and stay Boyd testified, on a live I didn’t understand that. A. Well, Did Now refuted, our [*] go back and forth. either at our house or we our overnight? in the often permanent I had the babies and I every stay you house or together place. you ? he visited # He went work his house want to A. he went go middle over after and day. August, [*] go We death, I wаs your Brixner in A. to basis, is that go Friday you of week. He was you, I un- every day. [*] down he’d back Yes, and weekend, as follows: husband down testimony left seeing Alley from after [*] and ei- at A.2d requiring living the courts have where the Workmen’s ing with”, without upon of the marital tion or release of their tions, motive but And convenience of the to be import physically dwelling together some other only other is a er Thus but he had a It is leave.” “ 368, 369, *7 parties by inspecting ‘Living where pertinent one facet of the logic determined, and with constant they Pa.Supеr. Sheaffer v. Boyds estrangement as used in the Compensation Act,5 question it are dwell moving with’ house it was construed the term credulity is family under the same tie, resided, found ‘living note the whole not does Penn * * * held: it parties, separate and reasonable that in the fact, and wouldn’t is relationship, legal obliga- that or to Pennsylvania, recognition with’ each Pennsylvania Dairies, page consulting no strain find repudia- but picture. for the Wheth- always or homes that it for state roof. Inc., “liv- is ‘living “Q. ? were with’ each other his clothes A. Whеre were * * -» jpor jn cases, bring places. ^is class of He used his Both to beyond pajamas form the sub- at our house and his clothes we look go stance, appearances forth. to work from outward and He’d back place. from our realities behind them.” Pennsylvania living deceased Work- with her husband 5. Section 307 of was death, Compensation Act, time of his then men’s 77 P.S. at actually dependent upon provides follows: and receiv- portion compensation payable ing him a “No un- substantial of her shall support.” widow, unless she der this section man here was a sick Folsom, circumstance that D.C.S.D.N.Y. Healey v. receiving pension payments of $126.00 Ref F.Supp. 1955, 139 maintain which he a month out of “analogous” had instant cited as eree case, and children for himself and his wage home earner were and claimant receiving the time separated but married monthly Pennsylvania from the $146.73 Between an alcoholic. he was because Department She of Public Assistance. separation and the time eligible pay- for such assistance sporadic was 1951, he made earner’s death eligible ments; was not because had and home claimant’s visits to the pension payments. his The “facts would her and marital relations age day life” are of this were disappear. children Three then type family from un- far separation. situation is period during born public is finding assistance common—that his Referee based granted head because of illness where “living with” was not claimant “support” of a household cannot those his dеath these earner at undisputed time of dependent who are him. application in her facts: public her own benefits she stated that she made much of the Referee when he with her husband not stat- assistance extended to “ * * * died; application ing for “child’s in apparent in her is it “* * * willing benefits” she also stated Boyd] quite surance have [Mr. regularly my contribute public complete did not husband assistance furnish the substantially my support. Wo support chil- for the claimant death”; separated along of his at the timе lines His attitude dren. attorney finally, had stated place own indicated from took what Security Admin days in a letter to the Social married after he eleven wages hus and her istration that the claimant the claimant. At this time living together at the band averaging “were month some $240.00 demise, Healey’s un due to time of Mr. happy applied public assistance and he be daughter, had arisen differences which wife, her children and his parties.” Nancy.” tween the disposes the citation said be said What has been It must ap- finding public April 16, assistance fact that Referee’s ultimate totally unjustified evi- plication with” only inexplicable clearly at- quite need It an “at the time of death.” dences antagonism which should be said with to that titude of performance an ad- unsupported place no substan- *8 patent tial evidence function. but was also in ministrative disregard of the “facts of life”. which plain matter of the The fact Deci- finding in his With to mention Referee failed Referee’s the April 16, 1952, as the Boyd wage is, “at the sion time the * * * receiving discloses, a earner died was strike was record there not regular Boyd’s place employment of and the contributions from him Mr. toward might designed support” to, application this well be was added assistance by Judge Biggs: only period. did, the to what was said Chief cover strike grant Only a “one-time” of assistance Boyd It is true that from time Mr. the made time. was at the compelled working stop to because (September, 1953) piece of ill health until is the Referee’s Of the same (December 10, only 1954), Boyd he contrib- Mr. made eleven only Boyd’s Boyd uted payments small to Mrs. each Mrs. sums of $30.00 through support monthly hospitaliza- July, $8.00 from November — tion and medical of over a seven- insurance and 1953—a total $330.00 $5.00 period. at various But these con- What the Referee did $10.00 times. month against fact, mention, tributions a must the let alone find as assessed brought during period action in the Such shall be this illness States unable of district court of the United to work because judicial record shows for the the The district in which almost three months. ** period, plaintiff during working, As rеsides *. that when month; Secretary paid of its file a answer shall he twice the $30.00 wages. transcript copy proportion a certified the substantial including the evidence record the certainly on notice The Referee was findings decision which the frequent interruptions Mr. in complained of The court are based. excerpt following employment, as the power enter, upon shall have Boyd, a testimony Frank from the pleadings transcript the rec- (p. 81 deceased, establishes son N.T.):6 ord, modify- judgmеnt affirming, ing, reversing of the the decision wage record Well, his “Referee: Secretary, remand- with or without breakdown shows—I don’t have ing rehearing. The cause for a quarters reportings of the any findings Secretary as to in $3600 earned it shows he -—but fact, supported by substantial evi- if Boyds married [the ** dence, conclusive, shall be April, maximum 1952] that (Emphasis supplied.) 42 U.S.C.A. security. creditable under social 405(g). been he must So $2900. Referee’s determination ’52. for some time out of work Agency was affirmed held that Boyd: of the Most Frank “Mr. mother’s claimant not entitled work ’52 ’53 didn’t time in pay- lump-sum insurance nor benefits very good. ’53 been It must have require- ments because the with” when retired.” “Living ment not met.1 the Act was Con- only remains to be said. per- with” statute as enunciated ele- support flexible tribution to pe- specific tinent has claims light ment must be evaluated ap- meaning spelled culiar out pay”. “ability contributor’s plicable statutory sections. It Boyd supported record reveals that complied if, although be- circumstances Mrs. yond (1) claimant both and decedent were quantum his control diminished members of the same household its existence. but death, or on the date of receiving regular (2) she was contri- Judge WRIGHT, District CALEB M. sup- from him butions (dissenting). port date, on such presented (3) by any question precise he had been ordered court findings support. appeal Referee’s to contribute to her is whether supported evidence. substantial The Referee found claimant and the earner members were not provides: 205(g) of the Act Section of the same household on the date of any individual, “Any final after *9 upon death. This was based Secretary made after decision of evidence which demonstrated: hearing party, to which was a a * * * may wage a review such obtain earner resided Brixner at ** Alley; *. a decision civil action whereas claimant at time Secretary readily as a witness 6. Frank was called concedes three chil- scarcely marriage could be tlie Referee. He dren born of are entitled to this “friendly Thus, far Mrs. called a witness” as Child’s benefits. at insurаnce present monthly claimant was concerned. time receives applicable $162 benefits in the sum of claims 1. action does not involve Charleton, Betsy Boyd. Carleton and pursu wage earner’s natural children 402(d) 416(h) (2). 2. ant' to 42 since the § § U.S.C.A. U.S.C.A. wage Lee “I at am death resided es- earner’s not concerned that the wage get earner’s all times tate will Place. At Goldman belongings personal were I modest sum in a clothes and doubtful case. wage Alley concerned, however, am residence. so the Brixner many were of death date intentions at this con- earner’s controversies like arrangements per- tinually requiring be would administrative de- cision, no intention and there was this embarks manent part court substituting would be- judicial claimant course he and the household.3 judgment members come administrative in doubt- ful situations.” Secondly, held that at Referee Accordingly I dissent. re- claimant of death the ceiving regular de- contributions support. this On cedent point concluded Referee ceasing each, payments of $30 eleven in no year prior could over one substantial, notwith-
way
considered
during
period
wage
standing
this
earner
gainfully employed because
Receipt by
condition.
cardiac
severe
COMPANY,National Biscuit
&
SWIFT
totaling
pensions
earner
Company,
Atlantic &
and The Great
per
evidence
was sufficient
month
$126
Company, Appellants and
Pacific Tea
was in
indicate that
Examiner to
Cross-Appellees,
regular
type
position
to make some
v.
contribution.
America,
UNITED STATES of
Finally,
held that
Referee
Cross-Appellant.
Appelleе and
compelled by court
been
earner had not
7579.
No.
provide
order to
claimant.
Appeals
Court of
United States
record is uncontradicted
Circuit.
Fourth
was the case.
Reargued
25,
Against
background,
1958.
feel that
findings
supported
the Referee’s
12, 1958.
June
Decided
evidence,4
substantial
therefore
13,
Certiorari Denied Oct.
review
sub
Court on
erred in
District
evaluated, I concur with this Circuit’s Fols pronouncement in Fcrenz v. recent um,6 permissive bounds wherein clearly enunciated, and in review Judge in Goldman v. Hastie’s dissent
Folsom, particularly with
concluding below:7 forth observation set (Statement claimant, made Ann M. believe we ever would
3. “I don’t
together.
5, 1955).
liked to
Ho
a full-time homo
Jan.
down,
good
well to
have a
time too
settle
405(g).
4. 42
U.S.C.A.
4 Brixner
divided his time between
lie
Folsom, Cir., 1956,
Place,
237 F.2d
Forenz v.
Johnstown,
Alloy,
Lee
Pa. and 327
Johnstown,
domed
352 U.S.
certiorari
Pn.
distance of about
willing
*10
a full-time