IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BARBARA K. CHANEY, *

*

 Plaintiff, * CIVIL ACTION NO. 14-00523-WS-B

 *

vs. *

*

CAROLYN W. COLVIN, *

 *

Commissioner of Social *

Security, *

 *

Defendant. *

REPORT AND RECOMMENDATION

Plaintiff Barbara K. Chaney (hereinafter “Plaintiff”), 

seeks judicial review of a final decision of the Commissioner of 

Social Security denying her claim for widow’s insurance benefits 

under sections 202(e) and 223 of the Act, 42 U.S.C. §§ 402(e) 

and 423. This action was referred to the undersigned for a 

report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). 

Upon consideration of the administrative record and memoranda of 

the parties, it is RECOMMENDED that the decision of the 

Commissioner be AFFIRMED.

I. Procedural History

Plaintiff filed an application for widow’s insurance 

benefits on June 7, 2011, as a surviving divorced spouse of the 

decedent-wage earner, George Chaney. (Tr. 24-27). The 

application was denied initially on June 14, 2011. (Id. at 35). 

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Plaintiff’s claim was again denied on reconsideration on October 

18, 2011, for failure to meet the ten-year duration of marriage 

requirement for widow’s benefits as a surviving divorced spouse. 

(Id. at 39, 41-42). Plaintiff requested and was granted a 

hearing before Administrative Law Judge, Linda Helm, on May 1, 

2012. (Id. at 132). 

On May 24, 2012, the ALJ denied Plaintiff’s claim for 

benefits finding that Plaintiff failed to meet the ten-year 

duration of marriage requirement for widow’s benefits as a 

surviving divorced spouse, as no common-law marriage existed 

between Plaintiff and the wage earner, Mr. Chaney, prior to 

their seven-year ceremonial marriage. (Id. at 22-23). 

Plaintiff requested review of the ALJ’s decision by the Appeals 

Council, and on September 10, 2014, the Appeals Council issued a 

written decision denying Plaintiff’s claim for benefits because 

she did not meet the ten-year duration of marriage requirement. 

(Id. at 5-11). The Appeals Council’s decision became the final 

decision of the Commissioner. Having exhausted her

administrative remedies, Plaintiff timely filed the present 

civil action. (Doc. 1). The parties agree that this case is 

now ripe for judicial review and is properly before this Court 

pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). 

II. Issue on Appeal

A. Whether the Appeals Council erred in 

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finding that Plaintiff was not the 

common law wife of the wage earner under 

Alabama law prior to their seven-year 

ceremonial marriage in 1975?

III. Factual Background

Plaintiff filed for divorced widow’s benefits on the record 

of wage earner, George Chaney, on June 7, 2011. (Tr. 24). 

Plaintiff stated in the application that she and Mr. Chaney were 

married on February 1, 1975, and divorced on December 31, 1982. 

(Id. at 25). The record verifies that Plaintiff and Mr. Chaney 

were legally married on February 1, 1975 (id. at 47); however, 

the actual date of the divorce was February 12, 1982. (Id. at 

50). Thus, the ceremonial marriage lasted seven years. 

In addition to her seven-year ceremonial marriage to Mr. 

Chaney, Plaintiff claims that she and Mr. Chaney lived together 

as common law husband and wife for approximately seven years 

before her ceremonial marriage. Also, in her application for 

benefits, Plaintiff stated that she and Mr. Chaney “stayed 

together for a few years before [they] legally got married in 

1975.” (Id. at 25). In addition, in an undated “Statement of 

Marital Relationship” form submitted to the Agency, Plaintiff 

stated that she and Mr. Chaney lived together as husband and 

wife from 1968 to 1975 (id. at 58) with an understanding that 

they “were going to get married soon at some point.” (Id.). 

Plaintiff also stated on the Statement of Marital Relationship 

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form that she did not believe that living together with Mr. 

Chaney made her legally married. (Id. at 59). Moreover, prior 

to his death, Mr. Chaney applied for retirement insurance 

benefits in November 2009 and reported that he had no previous 

marriages that lasted ten years or more. (Id. at 118). 

IV. Analysis

A. Standard of Review 

In reviewing claims brought under the Act, this Court’s 

role is a limited one. The Court’s review is limited to 

determining 1) whether the decision of the Secretary is 

supported by substantial evidence and 2) whether the correct 

legal standards were applied. 1 Martin v. Sullivan, 894 F.2d 

1520, 1529 (11th Cir. 1990). A court may not decide the facts 

anew, reweigh the evidence, or substitute its judgment for that 

of the Commissioner. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th 

Cir. 1986). The Commissioner’s findings of fact must be 

affirmed if they are based upon substantial evidence. Brown v. 

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v. 

Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (holding 

substantial evidence is defined as “more than a scintilla, but 

less than a preponderance” and consists of “such relevant 

 1 This Court’s review of the Commissioner’s application of legal 

principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th 

Cir. 1987).

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evidence as a reasonable person would accept as adequate to 

support a conclusion.”). In determining whether substantial 

evidence exists, a court must view the record as a whole, taking 

into account evidence favorable, as well as unfavorable, to the 

Commissioner’s decision. Chester v. Bowen, 792 F. 2d 129, 131 

(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4

(S.D. Ala. June 14, 1999).

B. Discussion

“An individual may qualify for survivor’s insurance benefit 

payments if she is either a widow (as defined in 42 U.S.C. § 

416(c)) or a surviving divorced wife (as defined in 42 U.S.C. § 

416(d)) to an insured decedent.” Torres v. Colvin, 2014 U.S. 

Dist. LEXIS 25076, *5, 2014 WL 795961, *2 (N.D. Ala. Feb. 27, 

2014). 42 U.S.C. § 416(d) provides:

(2) The term “surviving divorced wife” means 

a woman divorced from an individual who has 

died, but only if she had been married to 

the individual for a period of 10 years 

immediately before the date the divorce 

became effective.

Thus, “[t]o qualify for widow’s insurance benefits as a 

surviving divorced spouse, an individual must have been validly 

married to the wage-earner/insured for at least ten years before 

the divorce became final.” Torres, 2014 U.S. Dist. LEXIS 25076

at *6, 2014 WL 795961 at *2 (citing 20 C.F.R. § 404.336). 

In the present case, the parties dispute whether Plaintiff 

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met the ten-year durational requirement for entitlement to 

benefits as a surviving divorced wife, given her ceremonial 

marriage for seven years and her claim of a common-law marriage 

for more than three additional years preceding the ceremonial 

marriage.2 In cases such as the present one, “[t]he validity of 

the putative spouse’s marriage is governed by the laws of the 

state where the insured was domiciled at time of death.” 

Torres, 2014 U.S. Dist. LEXIS 25076 at *6, 2014 WL 795961 at *2 

(citing 42 U.S.C. § 416(h)(1)(A)(I); 20 C.F.R. § 404.345); see

also Smith v. Heckler, 707 F.2d 1284, 1285 (11th Cir. 1983)

(“The appropriate criterion for evaluating a claimant’s 

eligibility for widow’s insurance benefits is determined 

according to the law of the insured’s domicile at the time of 

his death.”). Because the parties agree that George Chaney was 

a resident of the State of Alabama at the time of his death, the 

 2 There are other eligibility requirements for widow’s insurance 

benefits that are not at issue in this case, including that the 

claimant: (1) is not married, 42 U.S.C. § 402(e)(1)(A); (2) “has 

attained age 60, or [ ] has attained age 50 but has not attained 

age 60 and is under a disability (as defined in section 423(d) 

of this title) which began before the end of the period 

specified in paragraph (4),” 42 U.S.C. § 402(e)(1)(B); (3) has 

filed an application for widow’s insurance benefits, was 

entitled to wife’s insurance benefits during the month preceding 

the month in which the insured died, or was entitled to mother’s 

insurance benefits during the month preceding the month in which 

she attained retirement age, 42 U.S.C. § 402(e)(1)(C); and (4) 

is not entitled to old-age insurance benefits in an amount more 

than the primary insurance amount of the deceased spouse. 42 

U.S.C. § 402(e)(1)(D).

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law of Alabama governs with respect to the duration of 

Plaintiff’s marriage to the insured. (Doc. 17; Doc. 21).

In Alabama, common law marriage is recognized “if the 

parties mutually consent to enter into a husband and wife 

relationship that will be ‘permanent and exclusive of all 

others.’” Smith, 707 F.2d at 1286. “Their agreement must be 

followed by public recognition of the existence of the marriage 

and cohabitation or mutual assumption openly of marital duties 

and obligations.” Id. (quoting Skipworth v. Skipworth, 360 So.

2d 975, 976–77 (Ala. 1978)); White v. Hill, 176 Ala. 480, 58 So. 

444 (1912); Tartt et al. v. Negus, 127 Ala. 301, 28 So. 713 

(1900) (internal quotation marks omitted)). In sum, the 

recognition of a common-law marriage in Alabama requires proof 

of the following elements: “(1) capacity; (2) present, mutual 

agreement to permanently enter the marriage relationship to the 

exclusion of all other relationships; and (3) public recognition 

of the relationship as a marriage and public assumption of 

marital duties and cohabitation.” Gray v. Bush, 835 So. 2d 192, 

194 (Ala. Civ. App. 2001).

In this case, the Appeals Council found that Plaintiff and 

Mr. Chaney were married on February 1, 1975; they divorced seven 

years later on February 12, 1982; they did not have a present, 

mutual agreement to permanently enter the marriage relationship 

prior to their ceremonial marriage on February 1, 1975; they did 

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not enter into a common-law marriage prior to their ceremonial 

marriage on February 1, 1975; the marriage did not meet the tenyear durational requirement for entitlement to benefits as a 

surviving divorced spouse; and, therefore, Plaintiff was not 

entitled to widow’s benefits.3 (Tr. 10-11).

Having reviewed the record at length, the Court finds that 

the substantial evidence in the record supports the Appeals 

Council’s decision that the element of a present, mutual 

agreement to permanently enter the marriage relationship was not 

established prior to the marriage ceremony in February 1975. 

Specifically, as discussed, in Plaintiff’s initial application 

for benefits, she stated that she married George Chaney on 

February 1, 1975, and that they “stayed together” for a few 

years “before [they] legally got married in 1975.” (Id. at 25). 

In addition, Plaintiff stated in the “Statement of Marital 

Relationship” form submitted to the Agency that she did not 

believe that living together with Mr. Chaney made her legally 

 3 The Appeals Council also found little evidence of cohabitation 

prior to the marriage ceremony in 1975. (Tr. 10). This finding 

is contradicted by evidence from the Plaintiff that she and Mr. 

Chaney began living together in 1968 and by evidence from 

Plaintiff’s friend, Ms. Pettway, that the couple was living 

together in 1971 when she visited them. (Id. at 58, 176). 

Assuming that the Appeals Council erred in failing to find the 

element of cohabitation prior to 1975, that error is harmless 

given the lack of evidence of a present agreement and mutual 

understanding to enter into a marriage relationship prior to 

Plaintiff’s and Mr. Chaney’s ceremonial marriage in February 

1975. 

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married and that she and Mr. Chaney lived together with an 

understanding that they “were going to get married soon at some 

point.” (Id. at 58-59). Plaintiff stated that the decision “to 

live together in a relationship as husband and wife . . . later 

changed after [they] lived together as common law. [They]

decided to get married legally.” (Id.). Plaintiff further 

stated that she did not use Mr. Chaney’s name while they were 

living together because she was young and did not know that she 

could use his last name. (Id. at 59). According to Plaintiff, 

they filed tax returns but did not show each other as husband 

and wife. (Id.). Also, their mail came separately; his came in 

his name, and her mail came her name. (Id.). Plaintiff stated 

that she did not remember how she and Mr. Chaney introduced 

themselves to others. (Id.). 

At the administrative hearing on May 1, 2012, Plaintiff 

further testified that in 1972, she bought a house in her name 

only, and the couple lived in the house. (Id. at 142-44). At 

that time, Plaintiff was using the name, Barbara Kennedy, which 

is her maiden name. (Id. at 144). Plaintiff testified that her 

understanding about living together changed when she got 

pregnant with her daughter, and she wanted to get married “on 

legal papers” and for her daughter to have the Chaney name. 

(Id. at 145-47). Plaintiff also testified that she was waiting 

until after Mr. Chaney got a job to marry him. (Id. at 155). 

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She stated that if he had not gotten a job and had walked away 

during that time, she would not have felt that she needed to get 

a divorce. (Id.). Mr. Chaney got a job in 1975, and they got 

married. (Id. at 162). 

Plaintiff also confirmed that prior to getting married, the 

couple had a joint banking account, but they used their own 

names. (Id. at 152). She began using Mr. Chaney’s name after 

the marriage ceremony. (Id. at 154). A life insurance policy 

acquired in August 1975 (after the wedding ceremony) showed 

Plaintiff using the name Barbara Chaney, as beneficiary on Mr. 

Chaney’s policy. (Id. at 62). Also, Mr. Chaney declared in an

application for retirement insurance benefits submitted in 

November 2009, that, “I had no previous marriages that lasted 10 

years or more.” (Id. at 118). Although there are statements in 

the record from friends and relatives that Plaintiff and Mr. 

Chaney lived together before their wedding and appeared to be 

husband and wife (id. at 53-57, 176), these statements do not 

establish that Plaintiff and Mr. Chaney had a present, mutual 

agreement to permanently enter the marriage relationship prior 

to their marriage ceremony in February 1975. 

The law is clear that this Court may not re-weigh the 

evidence, try the case de novo, or substitute its own judgment 

for that of the Commissioner. See Martin v. Sullivan, 894 F.2d 

1520, 1529 (11th Cir. 1990). The Commissioner’s factual 

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findings are conclusive if supported by substantial evidence. 

Id.

The substantial evidence in this case supports the Appeals 

Council’s finding that Plaintiff failed to establish the tenyear duration requirement for surviving divorced widow’s 

benefits. Indeed, both parties expressed the belief that they 

were not married during the time that they were living together. 

Having failed to establish a common-law marriage prior to her 

ceremonial marriage, Plaintiff failed to establish the ten-year 

duration requirement for surviving divorced widow’s benefits. 

V. Conclusion

For the reasons set forth herein, and upon careful 

consideration of the administrative record and memoranda of the 

parties, it is hereby RECOMMENDED that the decision of the 

Commissioner of Social Security denying Plaintiff’s claim for 

widow’s insurance benefits be AFFIRMED.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. Any party who objects 

to this recommendation or anything in it must, within fourteen 

(14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. § 

636(b)(1); Fed.R.Civ.P. 72(b); S.D. ALA. GenLR 72(c). The 

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parties should note that under Eleventh Circuit Rule 3-1, “[a] 

party failing to object to a magistrate judge's findings or 

recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives 

the right to challenge on appeal the district court's order 

based on unobjected-to factual and legal conclusions if the 

party was informed of the time period for objecting and the 

consequences on appeal for failing to object. In the absence of 

a proper objection, however, the court may review on appeal for 

plain error if necessary in the interests of justice.” 11th 

Cir. R. 3-1. In order to be specific, an objection must 

identify the specific finding or recommendation to which 

objection is made, state the basis for the objection, and 

specify the place in the Magistrate Judge’s report and 

recommendation where the disputed determination is found. An 

objection that merely incorporates by reference or refers to the 

briefing before the Magistrate Judge is not specific. 

DONE this 1st day of February, 2016.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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