UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Susan Branch

v. Civil No. 17-cv-098-LM Opinion No.

Acting Commissioner of the US Social Security Administration

O R D E R

Claimant Susan Branch seeks judicial review of the decision

of the Acting Commissioner of the Social Security

Administration, denying her application for widow’s survivor

benefits under

(e). Branch argues, among other

things, that the decision of the Administrative Law Judge

(“ALJ”) was not supported by substantial evidence. For the

reasons that follow, the court affirms the decision of the

Acting Commissioner.

STANDARD OF REVIEW

In reviewing the final decision of the Acting Commissioner

in a social security case, the court “is limited to determining

whether the ALJ deployed the proper legal standards and found

facts upon the proper quantum of evidence.” Nguyen v. Chater,

(1st Cir. 1999); see also Seavey v. Barnhart,

(1st Cir. 2001). The court defers to the ALJ’s factual findings as long as they are supported by substantial

evidence.

(g); see also Fischer v. Colvin,

(1st Cir. 2016). Questions of law presented by the

ALJ’s decision are reviewed de novo. See Fischer,

.

BACKGROUND

The following facts are taken from the parties’ joint

statement of facts (doc. no. 13), unless otherwise noted. In

April 2013, Branch applied for widow’s survivor benefits on the

basis of her marriage to Jonathan Branch. Branch stated in her

application for benefits that they had been married from

April 20, 2003 to July 6, 2003, when Jonathan passed away. Her

application was denied on the ground that she had not been

married for the minimum nine months required to qualify for such

benefits. See

(c)(1)(E);

(a)(1).

Branch requested reconsideration, arguing that she had a

marriage of the requisite length because she and Jonathan had

been in a common law marriage prior to their legal marriage.

Branch’s request for reconsideration was denied, after which she

sought a hearing before an ALJ.

The ALJ held a hearing in September 2014. Branch was

represented by counsel. The ALJ examined whether Branch could

2 qualify for benefits on the basis of her 2003 legal marriage.

The ALJ also considered whether Branch’s relationship with

Jonathan prior to 2003 qualified as a common law marriage under

New Hampshire law. Finally, the ALJ considered another avenue

for benefits: a surviving spouse is entitled to benefits, even

if the marriage was shorter than nine months, where “[a]t the

time of [the] marriage the insured was reasonably expected to

live for 9 months, and the death of the insured was accidental.”

(a)(2)(i).

At the hearing, Branch testified regarding her claim that

she and Jonathan had been in a common law marriage long before

their legal marriage in 2003. Branch and Jonathan began living

together in 1985. Jonathan had three boys from a previous

marriage, and Branch had two. Branch and her sons maintained a

separate living space in one unit of a duplex, and Jonathan and

his sons maintained a separate living space in the other unit.

At some point after moving in, Branch and Jonathan installed a

door between the units so they could move between their units.

Branch testified that this arrangement allowed them to live

together as a family while also ensuring that the children had

their own private spaces.

Branch also explained the reasons for their legal marriage

in 2003. Initially, they decided not to marry because they were

3 both self-employed and believed that the “Marriage Penalty Act”

would negatively affect their finances. When Jonathan’s cancer

progressed in March 2003, Jonathan told Branch that he wanted

her to have his name and, concerned about her finances, wanted

to ensure that she would be entitled to Social Security

benefits. They thus decided to marry in April 2003, and Branch

changed her surname from Curter to Branch.

Branch submitted other evidence for the ALJ’s

consideration. In one letter, Jamie Branch—one of Jonathan’s

sons—states that everyone “moved about as a single family” in

the duplex, and that Branch and Jonathan shared a bedroom.

Admin. Rec. at 75. In another letter, a family friend attests

that Branch and Jonathan had a “loving relationship” and that

they maintained “unique living arrangements.”

. Other

documentary evidence of note includes Jonathan’s 2002 will, in

which he refers to Branch as his “fiancée.”

.

The ALJ denied Branch’s application for benefits. In order

to have a common law marriage under New Hampshire law, the

parties must have, for the three years preceding one partner’s

death, “(1) cohabited; (2) acknowledged each other as husband

and wife; and (3) [been] generally reputed to be husband and

wife in their community.” In re Estate of Bourassa,

(N.H. 2008). Regarding acknowledgement, the ALJ

4 determined that Branch “knew she was not married” prior to the

legal marriage in 2003. Admin. Rec. at 15. In support, the ALJ

noted that Branch and Jonathan had explicitly declined to marry

to avoid certain tax penalties, and that Jonathan had referred

to Branch as his fiancée in his will. The ALJ also appears to

have considered the requirement of general reputation: the ALJ

noted that the family friend, who had described the loving

relationship between Jonathan and Branch, “did not mention that

the two held themselves out as husband and wife.”

Based on his review of the evidence, the ALJ made the

following findings: (1) Branch “formally married” Jonathan on

April 1, 2003; (2) the marriage did not last nine months prior

to Jonathan’s death in July 2003; (3) Jonathan’s death was not

accidental and he was not expected to live as long as nine

months at the time of the marriage; and (4) Branch and

Jonathan’s relationship prior to their legal marriage did not

constitute a common law marriage under New Hampshire law.

Branch requested review from the Appeals Council. After

the Appeals Council denied the request, Branch appealed to this

court.

5 DISCUSSION

On appeal, Branch does not contend that she qualifies for

survivor benefits solely by virtue of her legal marriage in

2003. Rather, Branch asserts that she qualifies for such

benefits on the basis of her alleged common law marriage to

Jonathan, and she argues that the ALJ erred in a number of

respects when he concluded otherwise. She raises the following

arguments: (1) the ALJ’s decision on common law marriage is not

supported by substantial evidence; (2) the ALJ failed to provide

any reason why he disbelieved Branch’s testimony; and (3) the

ALJ erroneously prohibited Branch’s friend from testifying at

the hearing. The court addresses each of Branch’s arguments in

turn, but it begins by setting forth the law applicable to

survivor benefits and common law marriage in New Hampshire.

Under section 402, the widow of “an individual who died a

fully insured individual” is entitled to widow’s insurance

benefits, so long as certain requirements are met.

(e)(1). To be considered the widow of an insured

individual under the statute, the claimant must satisfy one of a

number of alternative conditions. See

(c)(1);

(a). As is relevant here, a claimant is deemed

to be the widow of an insured individual if her marriage to the

insured lasted for at least nine months immediately before the

6 insured died.1

(a)(1); see also

(c)(1)(E).

To determine the validity and length of a marriage, the

court looks to the law of the state in which the insured

individual was domiciled at the time of death. See

(h)(1)(A)(i);

, 404.345. An

applicant’s common law marriage to an insured individual, if

recognized in the domicile state, can operate as a valid

marriage for purposes of obtaining widow’s insurance benefits.

See

; see also Gainey v. Barnhart,

(8th Cir. 2002); Renshaw v. Heckler,

(2d Cir. 1986).

The parties agree that New Hampshire law is applicable.

“New Hampshire is a jurisdiction which does not recognize the

validity of common-law marriages except to the limited extent

provided by RSA 457:39.” Bourassa,

. That

statute, which has existed in substantially the same form since

the mid-19th century, provides, “Persons cohabiting and

1 A person seeking survivor benefits may also qualify as a widow if “[a]t the time of [the] marriage the insured was reasonably expected to live for 9 months, and [the person] had been previously married to the insured for at least 9 months.”

(a)(2)(iii). Branch appears to argue that she satisfies this condition. Because it is premised on the validity of her alleged common law marriage, her argument is unavailing for the reasons set forth in this order.

7 acknowledging each other as husband and wife, and generally

reputed to be such, for the period of 3 years, and until the

decease of one of them, shall thereafter be deemed to have been

legally married.” RSA 457:39; see also De Lisle v. Smalley,

(N.H. 1949).

As noted above, a person seeking to invoke this provision

must establish that, for the three years preceding the

significant other’s death, she and her significant other “(1)

cohabited; (2) acknowledged each other as husband and wife; and

(3) were generally reputed to be husband and wife in their

community.” Bourassa,

. This three-part inquiry

is fact-intensive. See, e.g., In re Estate of Brewster, No.

2016-0444,

, at *1 (N.H. May 16, 2017)

(unpublished opinion); Bourassa,

.

It is important to emphasize that the record establishes

that Branch and Jonathan maintained a loving, committed

relationship for many years. Nevertheless, that is not the

relevant test for determining whether a common law marriage

exists under RSA 457:39—the inquiry is more technical and

demanding.

For example, to establish the second element,

acknowledgement, the surviving partner must show that the couple

acknowledged—that is, openly declared—that they were husband

8 and wife. See Bourassa,

(describing

acknowledgement as “an open declaration”). It is not enough for

a couple to conduct themselves as though they are husband and

wife. They must openly declare that they are husband and wife.

This is because, under RSA 457:39, “the conduct of cohabitation

assumes at death the aspect of legality or illegality, according

to whether the declarations of the parties . . . have avowed or

disavowed the existence of a legal relationship.”

(internal

brackets omitted).

The case of Bourassa is illustrative. There, the New

Hampshire Supreme Court affirmed the probate court’s finding

that the parties had not acknowledged each other as husband and

wife and, consequently, did not meet an essential requirement

for a common law marriage. See

. The court

reached this conclusion notwithstanding that the couple lived

together for approximately a decade and had a child. See

. Instead, in evaluating the probate court’s findings, the

New Hampshire Supreme Court highlighted the evidence showing

that the parties had, throughout their relationship, publicly

denied that they were married. See

. Although the

surviving partner argued that the couple’s conduct over the

years amounted to an acknowledgement that they were husband and

wife, the court found the evidence to be equivocal in that

9 respect. Further, the court cautioned that only in “rare cases”

can a couple’s conduct, by itself, constitute an acknowledgement

that they are husband and wife.

(internal quotation

marks omitted).

The third element, general reputation, involves a similar

analysis. The question is whether the couple was generally

known in the community as husband and wife. See In re Estate of

Buttrick,

(N.H. 1991). Relevant evidence may

include testimony from family and friends attesting to their

belief that the couple was married. See

.

In light of the stringent requirements of RSA 457:39, the

court is not persuaded the ALJ erred in denying Branch’s claim

for benefits.2 And, having reviewed the record, the court

concludes that there is substantial evidence supporting the

ALJ’s findings on the elements of acknowledgement and general

reputation. Without those necessary elements, Branch’s claim on

common law marriage fails. See Bourassa,

.

With respect to the second element, there was sufficient

evidence to support the ALJ’s conclusion that, prior to their

2 On December 13, 2017, this court ordered the parties to file supplemental memoranda on certain legal issues related to the operation of RSA 457:39. Because the court concludes that the ALJ reasonably determined that Branch and Jonathan were not in a common law marriage, the court may assume that RSA 457:39 could otherwise afford Branch relief under these circumstances, and it need not address those legal issues.

10 legal marriage, neither Branch nor Jonathan acknowledged each

other as husband and wife. Branch testified that she and

Jonathan specifically declined to marry prior to 2003, from

which the ALJ reasonably inferred that Branch did not declare

herself to be married during that time. The ALJ’s conclusion is

further bolstered by the fact that Jonathan referred to Branch

as his fiancée in his will, which was executed shortly before

their legal marriage. See Delisle v. Smalley,

, 869-

70 (N.H. 1949) (stating that declaration in decedent’s will—that

she was “not legally married” to surviving partner—was relevant

to the issue of acknowledgement).

Similarly, with respect to the third element, substantial

evidence supports the ALJ’s conclusion that Branch and Jonathan

were not generally reputed to be married in the community. As

the ALJ noted, the family friend did not state that Branch and

Jonathan referred to themselves as husband and wife; rather,

Branch described Jonathan to the friend as her “soul mate” and

“explained that they had been dating for some time.” Admin.

Rec. at 77 (emphasis added). The family friend does not suggest

that he believed they were married. And while the remaining

letters overwhelmingly demonstrate that Branch and Jonathan had

a serious, loving relationship, the letters do not show that the

couple was generally believed to be married in the community.

11 Compare Buttrick,

(upholding finding of common

law marriage where evidence showed family and friends overheard

the cohabitant refer to the decedent as “hubby” and actually

believed that they were a married couple).

Branch responds with two procedural arguments. First, she

argues that the ALJ erred by rejecting or ignoring, without

explanation, her testimony supporting her claim. Branch

highlights the following exchange from the hearing, which

consists of a few conclusory statements about the nature of the

couple’s relationship:

Q So from 1985 until 2003, you were together as a family. Did you consider yourselves to be married?

A We did.

Q And did you hold yourself out as a married couple?

A We did.

Q Your friends thought you were married?

A Friends thought we were married.

. At no point before or after this testimony does

Branch actually assert that she and Jonathan openly declared

themselves to be husband and wife prior to their legal marriage.

Nor does she describe how they held themselves out as a married

couple.

Although the ALJ did not expressly address Branch’s

testimony and explain the basis on which he rejected it, an ALJ

12 is not required to “address every piece of evidence.” Johansen

v. Barnhart,

(7th Cir. 2002). It is enough

that the ALJ articulate “at some minimum level” his analysis of

the record “so that the reviewing court can follow his

reasoning.”

The ALJ’s decision satisfies that standard.

It is evident from the ALJ’s decision that the ALJ relied on

specific evidence in the record—and not on Branch’s statements

noted above—to reach his decision. The court discerns no error

in this respect.3 See Arrington v. Berryhill, No. 17-1047,

, at *1 (1st Cir. Feb. 5, 2018) (stating that it is the

ALJ’s prerogative to resolve conflicts in the evidence).

Branch next contends that the ALJ erred by barring Branch’s

friend from testifying at the hearing. As an initial matter,

the record is unclear on what occurred with respect to this

friend. There is nothing in the transcripts, ALJ’s decision, or

other records of the proceedings to verify whether the ALJ

barred Branch’s friend from testifying and, if so, why he did

so. The only evidence on this question appears in Branch’s

request for Appeals Council review, in which she states that her

3 Moreover, the ALJ may have found Branch credible as a general matter, but may have concluded that her conclusory testimony was not sufficient to meet the burden of demonstrating a common law marriage under New Hampshire law, which is especially demanding where the surviving partner seeks to do so on the basis of the couple’s conduct. See Bourassa,

.

13 friend “was not allowed into the hearing.” Admin. Rec. at 122.

In his decision, the ALJ mentions that a friend appeared with

Branch at the hearing, but he does not suggest that he

prohibited the friend from testifying.

Branch’s argument concerning this witness is unpersuasive.

First, to the extent the ALJ did prohibit the friend from

testifying, it does not appear from the record that Branch

objected to the ALJ’s ruling. Therefore, any objection is

waived. See Bonner v. Colvin,

(D.

Mass. 2015) (“[H]aving failed to object [to the ALJ’s

hypothetical questions] during the administrative hearing,

Plaintiff has waived this argument.”); see also Mills v. Apfel,

(1st Cir. 2001). Second, and more importantly,

Branch makes no proffer as to what this friend would actually

say; she merely suggests that “[a] testifying friend could have”

assisted the ALJ in determining whether Branch and Jonathan held

themselves out as husband and wife. Doc. no. 8-1 at 7. Absent

a detailed proffer, the court cannot conclude that this alleged

error warrants a remand. See Ward v. Comm’r of Social Sec.,

(1st Cir. 2000) (“[A] remand [to the ALJ] is not

essential if it will amount to no more than an empty

exercise.”).

14 In sum, the ALJ’s decision on common law marriage was

supported by substantial evidence. Accordingly, in the absence

of a common law marriage, Branch cannot satisfy the nine-month

requirement, and the ALJ properly denied benefits. See

(a)(1).

CONCLUSION

For the foregoing reasons, Branch’s motion to reverse (doc.

no. 8) is denied. The Acting Commissioner’s motion to affirm

(doc. no. 11) is granted.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

March 29, 2018

cc: All Counsel of Record

15