Before BIGGS, Chief Judge, KALODNER, Circuit Judge, and WRIGHT, District Judge.
This is an appeal by the Secretary of Health, Education and Welfare*fn1 from a judgment of the District Court for the Western District of Pennsylvania reversing its disallowance of claims of Ann M. Boyd, the widow of Charles W. Boyd under the provisions of Title II (Federal Old Age and Survivors Insurance Benefits) of the Social Security Act as amended.
Specifically, Mrs. Boyd seeks: (1) Mother's Insurance Benefits*fn2; Stepchild's Insurance Benefits*fn3; and (3) Lump-Sum Death Payments.*fn4
The widow's claims were denied initially by the Bureau of Old Age and Survivors Insurance of the Social Security Administration.A hearing was then held before an agency referee who sustained the Bureau's original determination disallowing Mrs. Boyd's claims. Review of the Referee's findings was denied by the Appeals Council of the Department of Health, Education and Welfare. The case at bar was then instituted in the court below pursuant to Section 205(g) of the Act. 42 U.S.C.A.§ 405(g), and on a motion for summary judgment the court entered judgment and an appropriate order in favor of Mrs. Boyd. 149 F.Supp. 925. The appeal followed.
The Act authorizes recovery by a widow if she was "living with" the wage earner at the time of his death. The statute further provides that a widow shall be deemed to have been "living with" her husband at the time of death if they "were both members of the same household on the date of his death or [if] she was receiving regular contributions from him toward her support on such date." Section 216(h)(2), 42 U.S.C.A. § 416(h)(2). The validity of Mrs. Boyd's claim on behalf of her children turns on whether the children were "living with" the wage earner or were receiving one-half of their support from the wage earner at the time of his death. Section 202(d)(4), 42 U.S.C.A. § 402(d)(4).
The record reflects the following undisputed facts which may be summarized as follows. Mr. and Mrs. Boyd were married on April 5, 1952 when he was 59 and she was 35 years old. Mr. Boyd had had nine children by a prior marriage and the claimant two. In August 1952, Mrs. Boyd left her marital residence at 4 Brixner Alley, Johnstown, Pennsylvania, and moved into her own quarters at Lee Place, a short distance away from Charles Boyd's home. Her moving was in no way to be considered a repudiation of her connubial relations, but was motivated by friction which developed between Mrs. Boyd and her children on one side and Charles Boyd's children on the other.
Although it is apparent from the record that the wage earner and the climant were not at all times living physically in the same abode, the record shows that Mr. Boyd would see his wife practically every day, and would spend a considerable number of nights at his wife's home. During this period Mrs. Boyd gave birth to twins, and at the time of Mr. Boyd's death she was again pregnant. Any further evidence of their engaging in sexual intercourse after Mrs. Boyd moved into her own residence is obviated by the fact that death struck the wage earner when he and the claimant were consummating the sexual act at her home. In the light of the views expressed immediately hereinafter it is not necessary to determine whether these facts alone would be sufficient to support a finding that Mr. and Mrs. Boyd were "both members of the same household on the date of his death" as provided by Section 216(h)(2).
In addition to these facts, Mr. Boyd continued to contribute to his wife's support. When his heart condition allowed him to earn money he would give Mrs. Boyd $60 per month. In July of 1953, Charles Boyd was hospitalized because of his heart condition, his earning power was entirely cut off, his expenses increased, and his only source of income was a pension which afforded him $126.00 a month. Out of this meager sum of money, Mr. Boyd was required to maintain his home, provide for himself, and his children. During this period Mrs. Boyd was receiving $146.73 a month from the Pennsylvania Department of Public Assistance.
Despite his financial condition, Mr. Boyd continued to perform his duties as best he could for his new family by contributing $5 to $10 twice a month to the claimant up until a few months before his death. From September 1954 to December 1954, he gave Mrs. Boyd six dollars in cash. He also provided Mrs. Boyd with some furniture to be used at her new address, and paid about $8 a month for the Blue Cross and Blue Shield Insurance for Mrs. Boyd and her children.
On the basis of these facts the Referee found that Mrs. Boyd was not "living with" Mr. Boyd at the time of his death. This decision was founded upon the Referee's finding that Mr. and Mrs. Boyd were not "members of the same household" at the time of death and that Mrs. Boyd "was not receiving regular contributions from him toward her support". The Referee also found that since Mrs. Boyd's children were living with her, and since their claim required them to be living with the wage earner since he was not contributing one-half of their support that they could not recover. The District Court ruled that the Referee's findings were not supported by the evidence and reversed the agency determination.
Initially, it should be pointed out that the provision dealing with the rights of stepchildren, note 3 supra, and which allows recovery if the child is "living with" the wage earner, does not attempt to define the phrase. Therefore, we feel that if the claimant, Ann M. Boyd, was living with her husband, Charles W. Boyd, that her two children by a prior marriage, who were living with her were also living with their stepfather. Accordingly, the entire case is bottomed on whether or not Mrs. Boyd was living with Mr. Boyd at the time of his death.
We conclude that the Referee's finding that Mrs. Boyd was not receiving regular contributions for her support from Mr. Boyd cannot be upheld upon a review of the whole record.
It must immediately be noted that this finding by the Referee was in the nature of an ultimate finding of fact, and is nothing more than a legal inference from other facts. In re Pioch, 3 Cir., 1956, 235 F.2d 903. While it is true, as the Secretary argues, that the reviewing authority of the District Court is limited in that it may not substitute its own factual findings for those of the Referee, Section 205(g), Social Security Act; Ferenz v. Folsom, 3 Cir., 1956, 237 F.2d 46, since ultimate facts must be reached by a process of legal reasoning based upon the legal significance to be afforded primary evidentiary facts this aspect of administrative fact finding has its law-making aspect, and is therefore reviewable. Goldman v. Folsom, 3 Cir., 1957, 246 F.2d 776, 779; Baumgartner v. United States, 1953, 322 U.S. 665, 671, 64 S. Ct. 1240, 88 L. Ed. 1525; Lehmann v. Acheson, 3 Cir., 1954, 206 F.2d 592, 594; Galena Oaks Corp. v. Scofield, 5 Cir., 1954, 218 F.2d 217. Our judicial duty therefore is to satisfy ourselves that the agency determination has warrant in the record, viewing that record as a whole, and a reasonable basis in law. Universal Camera Corp. v. National Labor Relations Board, 1951, 340 U.S. 474, 490, 71 S. Ct. 456, 95 L. Ed. 456; Jaffe, Judicial Review: Questions of Law, 69 Harv.L.Rev. 239 (1956).
Section 404:1111(b) of Title 20 C.F.R. sets up a flexible standard against which the sufficiency of the wage earner's contributions must be assessed. It requires the agency in the determination of the sufficiency of contributions to take into account "the surrounding circumstances with respect to both the time when the contributions were received by the applicant for his or her support and the amount thereof."
The record adequately shows that when Mr. Boyd was capable of gainful employment he made substantial contributions to his wife.After he was hospitalized, his earning power was cut off and his expenses increased; however, he continued to contribute to his wife's support as best he could. Taking into account the surrounding circumstances at the time of these contributions, as we must, it is clear that the conclusion of the Referee that Mrs. Boyd was not receiving regular contributions from Mr. Boyd toward her support was either induced by an erroneous view as to the legal standard to be applied to such contributions or if the correct standard were applied is not supportable by the record. In either case, the order of the District Court must be affirmed. It will be so ordered.
KALODNER, Circuit Judge (concurring).
A man isn't "living with" his wife "at the time of his death" even though he dies while engaged in sexual intercourse with her.
That was the startling result reached in the instant case by the Secretary of Health, Education and Welfare in giving sanction to the Referee's decision to that effect.
The District Court thought otherwise. I agree with the District Court.
Chief Judge Biggs has confined his consideration to the single issue as to whether Mrs. Boyd "was receiving regular contributions" from her deceased husband at the time of his death*fn1 and on that score has determined that the District Court correctly held that the Referee erred in finding that she was not. I am in complete accord with that determination.
I am, however, apprehensive that the failure of this Court to specifically rule upon the issue presented by the Referee's finding that Mrs. Boyd was not "living with her husband at the time of his death" because they "were not members of the same household at the time of his death"*fn2 might be construed as acquiescence with that finding, despite the undisputed fact that Mr. Boyd's death occurred while he was performing the marital act.
The Referee's finding that the deceased wage earner was not "living with" Mrs. Boyd is, of course, an ultimate finding of fact, referred to in this type of ...