to the "ceremony"; or by sufficient proof of cohabitation and reputation of marriage so that a rebuttable presumption of marriage arises. McGrath's Estate at 311. The ALJ misconstrued Pennsylvania law by requiring the plaintiff to prove a combination of present tense agreement to become man and wife plus cohabitation and reputation, stating that "under the law of the Commonwealth of Pennsylvania, the three elements that must be proved in order to show a common-law marriage are an agreement to become husband and wife, cohabitation as husband and wife, and a holding out by the parties publicly that they are husband and wife." Decision of the ALJ at 3.
In this case plaintiff presented evidence of cohabitation and reputation in the form of doctor bills in the name of Miriam Murray and travel reservations in the names of Mr. and Mrs. Murray, the testimony of a neighbor, and a letter from one of plaintiff's relatives. In light of other evidence in the record, the ALJ held this evidence inadequate to support a finding of reputation as husband and wife and held there was no common-law marriage on that basis. Plaintiff also testified, however, that Murray gave her a wedding ring saying that he considered her his wife and that she responded in kind. If the ALJ were to find this evidence credible and find further that it showed the intent of the parties to be married at the present time, that alone would be sufficient evidence that a common-law marriage existed between plaintiff and Murray. Unfortunately, the ALJ did not make a specific finding on this issue.
In McGrath's Estate, supra, the Court held that the testimony of the surviving spouse to an agreement to be married at the present time, if credited by the factfinder, was sufficient evidence that a common-law marriage existed. Id. at 314. The spouse in McGrath testified to the "ceremony" she and the deceased had performed. She also presented evidence of cohabitation and reputation which the lower court had found insufficient to raise a presumption of marriage. The Pennsylvania Supreme Court held that such evidence had a place in the case however, i.e., it could corroborate the spouse's account of what had occurred and the factfinder could consider that evidence in determining whether the evidence of the marital agreement was credible. Id. at 315. It is within this context that the ALJ should have evaluated plaintiff's evidence of cohabitation and reputation. I will remand this case to the Secretary so that the requisite evaluation can be made as to the "ceremony" and the intent of the parties.
I must also express my concern about the state of the record in this case. The transcript of the hearing held by the ALJ is replete with "Inaudible" annotations, several indicating that the missing portions lasted for over a minute. It is possible that entire questions and answers were lost. Had I been required to resolve the substantial evidence question based on this transcript, I would have found it difficult, if not impossible, to do so. I have grave doubts that the ALJ will be able to resolve the issues on remand by reference to this transcript and a new hearing may be required.
It is the Secretary's obligation to provide an adequate record so that this court may make a meaningful review of the evidence supporting the Secretary's decision. The Secretary has failed to fulfill that obligation in this case.
This 21st day of November, 1983, upon consideration of the cross-motions for summary judgment, and after review of the entire record, it is
1. Plaintiff's Motion for Summary Judgment is DENIED;
2. Defendant's Motion for Summary Judgment is DENIED;
3. This matter is REMANDED to the Secretary for reconsideration.