#### Claudette KNOTT, Plaintiff, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant.

No. CIV S-02-1105 JFM.

United States District Court, E.D. California.

April 18, 2003.

*1229Joan Allison Jennings, Law Office of Joan Jennings, Sacramento, CA, for Plaintiff.

Michael R. Power, Bobbie J. Montoya, United States Attorney, Sacramento, CA, for Defendant.

*AMENDED*ORDER1

MOULDS, United States Magistrate Judge.

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) denying plaintiffs claim for divorced spouse’s benefits as a deemed spouse under § 416(h)(1) of the Social Security Act (“Act”). The case is before the undersigned pursuant to 28 U.S.C. § 636(c). For the reasons that follow, the court will grant plaintiffs motion for summary judgment, remand the action to the Commissioner for an award of benefits, and deny the Commissioner’s cross motion for summary judgment.

In a decision dated August 16, 2000, the ALJ determined plaintiff was not entitled *1230to divorced spouse’s benefits. The ALJ’s decision became the final decision of the Commissioner when the Appeals Council denied plaintiffs request for review on March 23, 2002. The ALJ found that plaintiff filed an application for divorced wife’s benefits on October 11, 1996, that plaintiff does not meet the ten-year duration of marriage requirement because her marriage to the wage earner was void; and that plaintiff is not the divorced wife of the wage earner within the meaning of the Social Security Act and regulations. (Administrative Transcript (“Tr.”) at 14.) Plaintiff contends that she was a deemed or putative spouse under California law and the Social Security Act and Regulations, and thus is entitled to divorced spouse benefits. 42 U.S.C. § 416(h); 20 CFR §§ 404.331; 404.345; 404.346.

The court reviews the Commissioner’s decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. *Copeland v. Bowen,*861 F.2d 536, 538 (9th Cir.1988), *citing Desrosiers v. Secretary of Health and Human Services,*846 F.2d 573, 575-76 (9th Cir.1988). Substantial evidence means more than a mere scintilla of evidence, but it is less than a preponderance, *Saelee v. Chater,*94 F.3d 520, 521 (9th Cir.1996), *citing Sorenson v. Weinberger,*514 F.2d 1112, 1119 n. 10 (9th Cir.1975). “It means such evidence as a reasonable mind might accept as adequate to support a conclusion.” *Richardson v. Perales,*402 U.S. 389, 402, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971), *quoting Consolidated Edison Co. v. N.L.R.B.,*305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). The record as a whole must be considered. *Howard v. Heckler,*782 F.2d 1484, 1487 (9th Cir.1986).

In the instant case, the facts are undisputed; the sole issue here is a question of law: whether plaintiff is entitled to receive divorced spouse’s benefits.

Plaintiffs eligibility for wife’s benefits is governed by 42 U.S.C. § 402, which provides that a wife or divorced wife of an individual entitled to benefits shall also be entitled to those benefits if she:

> (A) has filed application for wife’s insurance benefits;

> (B) has attained age 62 ...,

> (C) in the case of a divorced wife, is not married, and

> (D) is not entitled to old-age or disability insurance benefits....

*Id.*Defendant argues that plaintiff is not a “divorced wife” for purposes of the Social Security Act. Title 42 U.S.C. § 416(d) provides additional definitions:

> (d) Divorced spouses; divorce

> (1) The term “divorced wife” means a woman divorced from an individual, but only if she had been married to such individual for a period of 10 years immediately before the date the divorce became effective.

> (8) The terms “divorce” and “divorced” refer to a divorce a vinculo ma-trimonii.

42 U.S.C. § 416(d).

Under 20 C.F.R. § 404.331, an applicant is entitled to wife’s benefits as a divorced wife of an insured person if the applicant was married to the insured under State law as described in § 404.345 or was deemed to be validly married as described in § 404.346. Section 404.345 provides:

> To decide your relationship as the insured’s wife or husband, we look to the laws of the State where the insured had a permanent home when you applied for wife’s or husband’s benefits.... If you and the insured were validly married under State law at the time you apply for wife’s or husband’s benefits or at the time the insured died if you apply for *1231widow’s, widower’s, mother’s, or father’s benefits, the relationship requirement will be met.

*Id.*

Langston Knott was domiciled in California at the time plaintiff discovered his prior marriage and at the time she filed the instant action. Under California law, a marriage is void or voidable if entered into by a person who was not divorced from his previous spouse. Cal. Fam.Code §§ 2201, 2210. The Sacramento County Superior Court recognized that plaintiff and Lang-ston Knott had not been validly married under California state law, and granted plaintiff a final judgment of nullity on May 27,1980. (Tr. 46.)

However, one can be a putative spouse under California law if one spouse believed, in good faith, that he or she was a party to a valid marriage. *Vallera v. Vallera,*21 Cal.2d 681, 134 P.2d 761 (1943); *Miller v. Johnson,*214 Cal.App.2d 123, 29 Cal.Rptr. 251 (1963). Once a putative spouse learns that her marriage is invalid, she loses her protected status with respect to subsequently acquired property. *Lazzarevich v. Lazzarevich,*88 Cal.App.2d 708, 718, 200 P.2d 49 (1948). Given plaintiffs good faith belief in the validity of her marriage, this court finds that plaintiff was a putative spouse of Langston Knott.

Defendant makes much of the distinction between void and voidable marriages. However, under California law, no distinction is drawn between void and voidable marriages in the context of putative spouses. Good faith parties to either void or voidable marriages are putative spouses under California law. *See Estate of Leslie,*37 Cal.3d 186, 191, n. 4, 207 Cal.Rptr. 561, 689 P.2d 133 (1984).

California law employs the putative spouse doctrine generously. A surviving putative spouse has been held to be a surviving spouse within the meaning of Government Code § 21364. *Adduddell v. Board of Administration,*8 Cal.App.3d 243, 87 Cal.Rptr. 268 (1970). Government Code § 21364 entitles a surviving spouse to special death benefits under the Public Employees’ Retirement Law. The court in *Adduddell*found it would be “illogical and inconsistent” for the legislature to intend a putative spouse is a surviving spouse under § 201, but not a surviving spouse under Government Code § 21364. *Addud-dell,*8 Cal.App.3d at 249-50, 87 Cal.Rptr. 268.

A surviving putative spouse has also been held to be a surviving widow within the meaning of former Labor Code § 4702 (Stats.1969, ch. 65, section 1, at 187), and thus was entitled to recover workers’ compensation death benefits. *Brennfleck v. Workmen’s Comp.App. Bd.,*3 Cal.App.3d 666, 84 Cal.Rptr. 50 (1970); *see also Neureither v. Workmen’s Comp.App. Bd.,*15 Cal.App.3d 429, 433, 93 Cal.Rptr. 162 (1971).

Putative spouses have also been awarded spousal benefits under the Social Security Act. *Slobodnik v. Bowen,*Unempl. Ins. Rep. (CCH) ¶ 14194A, 1988 WL 252076 (C.D.Cal.); *Fontana v. Callahan,*999 F.Supp. 304 (E.D.N.Y.1998). In *Slobod-nik,*a 67-year-old applicant who was married to an insured person for thirteen years prior to the annulment of their marriage was a “divorced” spouse, for the purpose of entitlement to benefits as a divorced spouse, notwithstanding that the insured person was of unsound mind at the time of the marriage, so that no valid marriage ever existed, and that under the law of California, the applicant’s domicile during her marriage to the insured person, the annulment related back to erase the marriage from the outset. *Slobodnik,*1988 WL 252076. The *Slobodnik*court reasoned that Congress had intended, in providing benefits to divorced spouses, to protect persons such as the applicant, who spent a good part of their lives in mar*1232riages that were dissolved when they were far along in years. *Id.*

In *Fontana,*the applicant for wife’s insurance benefits as a former spouse of a recipient of disability insurance benefits under the Social Security Act had been in a deemed valid marriage with recipient, and thus could receive benefits, even though claimant’s marriage to recipient had been annulled because recipient’s first wife had not received personal service in connection with a Mexican divorce, rendering the divorce invalid. *Fontana,*999 F.Supp. 304. The *Fontana*court reasoned that the applicant’s marriage would have been valid but for recipient’s prior marriage, and claimant had gone through the marriage ceremony in good faith. *Fonta-na v. Callahan,*999 F.Supp. 304, 57 Soc. Sec. Rep. Serv. 116 (E.D.N.Y.1998).

Putative surviving spouses have also been awarded spousal benefits under the Social Security Act. *Aubrey v. Folsom,*151 F.Supp. 836, 840 (N.D.Cal.1957) and *Speedling v. Hobby,*132 F.Supp. 833, 836 (N.D.Cal.1955). In *Speedling,*the court held that a putative widower satisfied the requirements of § 416(h)(1) where the deceased wage earner left only quasi-community property in his estate but did not answer whether such putative widower would qualify as to a deceased wage earner’s separate property. *Speedling,*132 F.Supp. at 836. The Aubrey court resolved this in 1957 by finding that, “irrespective of the nature of the property in the estate of the deceased wage earner, the surviving ‘putative’ spouse in California qualifies as a widow under the provisions of section 416(h)(1), and thus ... [was] entitled to ‘mother’s insurance benefits’ under section 402(g).” *Aubrey,*151 F.Supp. at 840. This holding was further confirmed by the California Supreme Court in 1984. *Estate of Leslie,*37 Cal.3d 186, 207 Cal.Rptr. 561, 689 P.2d 133 (1984) (a surviving putative spouse is entitled to succeed to a share of the decedent’s separate property as well as the quasi-marital property.)

Moreover, putative spouses have been awarded spousal benefits under the civil service retirement statute (5 U.S.C. § 8341), *Brown v. Devine,*574 F.Supp. 790, 792 (N.D.Cal.1983), and under the Longshoremen’s and Harbor Workers’ Compensation Act (33 U.S.C. § 901, *et seq.), Powell v. Rogers,*496 F.2d 1248, 1250 (9th Cir.1974), *cert. den.,*419 U.S. 1032, 95 S.Ct. 514, 42 L.Ed.2d 307 and *Holland America Insurance Company v. Rogers,*313 F.Supp. 314, 317-18 (N.D.Cal.1970). In the instant case, plaintiff was awarded a portion of Langston Knott’s civil service retirement benefit as the United States Office of Personnel Management found plaintiff was entitled to her marital share of her former spouse’s retirement benefits. (Tr. 91.)

However, even if plaintiff cannot establish a valid marriage under state law, she may still be entitled to wife’s benefits based upon a “deemed valid marriage.” Under 20 C.F.R. § 404.346, an applicant is deemed to have been a wife if:

> in good faith, you went through a marriage ceremony with the insured that would have resulted in a valid marriage except for a legal impediment. A legal impediment includes only an impediment which results because a previous marriage had not ended at the time of the ceremony or because there was a defect in the procedure followed in connection with the intended marriage.... Good faith means that at the time of the ceremony you did not know that a legal impediment existed, or if you did know, you thought that it would not prevent a valid marriage.

*Id.*

This provision tracks the language of 42 U.S.C. § 416(h)(1)(B)®, which provides that:

> *1233[when an] applicant is not the wife, divorced wife, widow, surviving divorced wife, husband, divorced husband, widower, or surviving divorced husband of [the insured], but it is established ... that such applicant in good faith went through a marriage ceremony with such individual resulting in a purported marriage between them which, but for a legal impediment not known to the applicant at the time of such ceremony, would have been a valid marriage, then ... such purported marriage shall be deemed to be a valid marriage.

*Id.*Plaintiffs marriage to Langston Knott would have been valid but for his prior marriage to Jacquelyn L. Allen. (Tr. 55, 51.) The Administrative Law Judge determined plaintiff went through a marriage ceremony with Langston Knott in good faith, and the evidence in the record supports this conclusion. (Tr. 51.)

Section 416(h)(1)(B)® of Title 42 also provides that:

> [I]n the case of any person who would be deemed ... a wife, widow, husband, or widower of the insured individual, such marriage shall not be deemed to be a valid marriage unless the applicant and the insured individual were living in the same household at the time of the death of the insured individual or (if the insured individual is living) at the time the applicant files the application.

*Id.*Similarly, 20 C.F.R. § 404.346 states that “[t]o be entitled to benefits as a wife, husband, widow, or widower as the result of a deemed valid marriage, you and the insured must have been living in the same household ... at the time you apply for benefits.” *Id.*Defendant argues that these provisions require plaintiff to have been living with Langston Knott at the time she applied for benefits.

That argument is without merit. The provisions relied on by defendant apply only to applicants who would be entitled to benefits as a “wife, husband, widow, or widower,” not as a divorced spouse. Both Title 42 and the C.F.R. distinguish applicants who are entitled to wife’s or husband’s benefits as a divorced spouse from applicants who are entitled to wife’s, husband’s, widow’s or widower’s benefits. *See*20 C.F.R. § 404.330 — 404.335; 42 U.S.C. § 416(a)-(h). A divorced spouse need not reside with her ex-husband at the time she applies for benefits in order to receive benefits.

Defendant further argues that plaintiff is not a divorced spouse because she was not granted a proper divorce, but only an annulment. A divorce is defined in 42 U.S.C. § 416 as the “legal dissolution of a marriage by a court.” Black’s Law Dictionary 494 (7th ed.1999.) The annulment of plaintiffs marriage to Langston Knott restored the parties to the status of unmarried persons. Cal. Fam.Code § 2212(a). Under California law, a judgment of nullity of marriage is conclusive only as to the parties to the proceeding and those claiming under them. Cal. Fam. Code § 2212(b).

The Code of Federal Regulations considers the situation of an ex-spouse from a deemed valid marriage that is void “because a previous marriage had not ended at the time of the ceremony.” 20 C.F.R. § 404.346. It further provides that such a person can qualify for benefits as a divorced spouse. 20 C.F.R. § 404.331(a)(1). Under California law, a union void because a previous marriage had not ended at the time of the ceremony is dissolved through annulment. *Goff v. Goff,*52 Cal.App.2d 23, 125 P.2d 848 (1942); *See, also*Cal. Family Code §§ 2201, 2210, 2212; *Estate of Vargas,*36 Cal.App.3d 714, 111 Cal.Rptr. 779 (1974). Defendant’s definition of divorce would prohibit a spouse divorced from a deemed marriage in California from applying for *1234divorced wife’s benefits, while allowing those benefits to an applicant whose former spouse resides in a state that dissolves bigamous unions through divorce rather than annulment. Defendant’s reading eviscerates the statute and elevates form over substance. “Whether the decree issued by the State court is called a divorce or annulment under State law is irrelevant to the economic situation faced by the individual where the decree has the legal effect of terminating the marriage.” *Slo-bodnik,*1988 WL 252076.

Defendant cites the Program Operations Manual (“POMS”) GN 00305.085 for the proposition that plaintiff is excluded from consideration as a divorced spouse. (Deft’s October 31, 2002 Mem. Ps & As at 7.) Only the Social Security Act, the regulations thereunder and applicable case law are binding on this court. POMS is an internal Social Security Administration manual, for the internal use of Social Security Administration employees, and has no legal force and does not bind the Social Security Administration. *Schweiker v. Hansen,*450 U.S. 785, 789, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981) (per curiam). Although it may provide persuasive authority in some instances, this court does not find it persuasive here. The statement that “[d]ivorced putative spouse’s benefits cannot be paid based on an annulment or separation,” contained in the general section pertaining to divorced spouses, is trumped by the federal regulation requiring this determination to be made under state law. Under California law, as noted above, plaintiff is entitled to putative spouse status and thus entitled to divorced spouse benefits either as a putative spouse or via her deemed valid marriage.

Defendant further argues that plaintiff does not qualify under the California Policy found in section C because she does not fall within the narrow exception for illiterate individuals ignorant of California laws and customs (POMS GN 00305.085(C)(2)). However, a close reading of section C(l) reveals that the primary change that occurred on February 4, 1983 was to discontinue the consideration of common-law marriages. In addition, defendant reads the new section too narrowly. The pertinent passage reads: “Effective for claims finally adjudicated on or after 2/4/83, a putative marriage can be established only on the basis of an invalid ceremonial marriage with one very limited exception.” POMS GN 00305.085(C)(1). This should be read as there are two ways a putative marriage can be established: by an invalid ceremonial marriage or by the very limited exception. Plaintiffs case falls within the “invalid ceremonial marriage” portion — • her ceremonial marriage to Langston Knott was invalid because Mr. Knott had not dissolved his prior marriage to Jacquelyn L. Allen.

Defendant contends that her position is consistent with circuit authority. *Folsom v. Pearsall,*245 F.2d 562 (9th Cir. 1957) (Reinstatement of widow’s benefits ordered for widow whose benefits were terminated upon her remarriage because subsequent marriage was annulled, meaning no valid marriage ever existed.) However, in that opinion, the court stated: “This doctrine of ‘relation back’ to declare the marriage void from the beginning is not applied by the California courts in every instance.” *Folsom,*245 F.2d at 565. “The test for determining the applicability of the doctrine as applied to voidable marriages is whether it effects a result which conforms to the sanctions of sound policy and justice as between the immediate parties thereto, their property rights acquired during that marriage and the rights of their offspring.” *Sefton v. Sefton,*45 Cal.2d 872, 875, 291 P.2d 439 (1955)(“[I]m-proper to reinstate alimony obligation of a divorced husband following annulment of a marriage by the divorced wife made subse*1235quent to the divorce, on the theory that after the celebration of marriage the divorced husband ... was then entitled to recommit his assets previously chargeable to alimony.” *Folsom,*245 F.2d at 565, quoting Sefton, 45 Cal.2d at 876-77, 291 P.2d 439.) It is unlikely that California courts would choose to declare this marriage void from the beginning for purposes of depriving plaintiff her rights to social security insurance benefits as a deemed or putative spouse.

The conclusion that an annulment is equivalent to a divorce for purposes of the Social Security Act is supported by 20 C.F.R. § 404.728, which describes how an applicant must prove that her marriage has ended. *Id.*The Code of Federal Regulations considers “a copy of the decree of ... annulment” evidence that a marriage has ended for the purposes of determining whether an applicant is entitled to divorced spouse’s benefits. *Id.*

Finally, the legislative history of the Social Security Act supports this court’s conclusion that a deemed wife can be entitled to wife’s benefits as a divorced spouse. For 22 years, plaintiff believed herself to be married to Langston Knott. During that time she gave birth to four of his children. (Tr. 12.) The 1965 amendments to the Social Security Act, Pub.L. 89-97, 79 Stat. 375-79, first permitted divorced women to receive wife’s and widow’s benefits out of concern for women in plaintiffs position:

> It is not uncommon for a marriage to end in divorce after many years, when the wife is too old to build up a substantial social security earnings record even if she can find a job.... These changes would provide protection mainly for women who have spent their lives in marriages that are dissolved when they are far along in years — especially housewives who have not been able to work and earn social security benefit protection of their own — from loss of benefit rights.

1965 U.S.C.C.A.N. 1943, 2047-48. In 1990 Congress amended 42 U.S.C. •§ 416 to permit a narrow category of “deemed” spouses — those who went through a marriage ceremony in good faith which, but for a legal impediment not known to the applicant, would have been valid — to collect benefits as if they were- legal spouses. Pub.L. 101-508, § 5119, 104 Stat. 1388, 1388-280. House Conference Report No. 101-964 explained that the law extends to a deemed divorced spouse: “A deemed spouse who divorced the worker would be eligible for benefits on the same basis as if he or she were a divorced legal- spouse.” 1990 U.S.C.C.A.N. 2374, 2650. Plaintiff is just such a spouse.

Remand

The decision whether to remand a case for additional evidence or simply to award benefits is within the discretion of the court. *Pitzer v. Sullivan,*908 F.2d 502, 506 (9th Cir.1990). In general, the court will consider factors such as the completeness of the record, the weight of evidence in plaintiffs favor, and the potential harm to plaintiff due to further delay. Social Security Law and Practice, § 55.60 (1987). In the instant case, all three factors weigh in favor of an award of benefits. First, the record is complete. Plaintiff has achieved retirement age. Second, plaintiff has submitted substantial evidence that demonstrates she was a good faith, putative spouse, who took the appropriate legal steps once her ex-husband’s bigamy came to light. Third, plaintiff has already waited over six years, is now 68 years old, and there is no significant reason to further extend this case. Plaintiff is entitled to finality. Where, as here, the court determines that substantial evidence in the record as a whole supports a finding that plaintiff is entitled to divorced spouse’s benefits within the meaning of the *1236Act, the court need not remand the case to the ALJ for further proceedings. *See Gallant v. Heckler,*753 F.2d 1450, 1457 (9th Cir.1984). Accordingly, the court finds, based on the testimony of the plaintiff and the documentary evidence contained in the administrative transcript, plaintiff is entitled to divorced spouse benefits because during her 22 year marriage she had a good faith belief that her marriage was valid, and there is no need to remand the case for additional substantive findings.

The ALJ’s decision is based on legal error. Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiffs motion for summary judgment is granted,

2. The Commissioner’s cross motion for summary judgment is denied; and

3. This action is remanded to the Commissioner with directions to award plaintiff divorced spouse benefits.

1

. This order is issued to correct a typographical error contained in the order clause of this court’s April 15, 2003 order, changing "surviving spouse benefits” in paragraph # 3 to read "divorced spouse benefits.”