                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          DEC 24 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    GENIA M. BROUGHAM, for
    herself and as next friend of Cacey R.
    Brougham and Adam S. Brougham,

                Plaintiff-Appellant,

    v.                                                   No. 98-6034
                                                    (D.C. No. 96-CV-1345)
    KENNETH S. APFEL, Commissioner,                      (W.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.




                             ORDER AND JUDGMENT           *




Before ANDERSON , KELLY , and LUCERO , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

       Plaintiff-appellant Genia M. Brougham appeals the district court’s

judgment upholding the denial of social security survivors’ benefits to her and her

children, based on the earnings of the deceased wage earner, Ronald J. McGuffin,

Jr. We affirm.

       The administrative law judge (ALJ) found that Ms. Brougham had not

established the existence of a common-law marriage and, therefore, she was not

entitled to benefits as Mr. McGuffin’s widow and her children were not entitled

to benefits as his stepchildren. The Appeals Council denied the request for

review, and the ALJ’s decision became the final decision of the Commissioner.

The district court affirmed the Commissioner’s decision on November 18, 1997.

       For entitlement to social security benefits, a claimant who relies on the

validity of a common-law marriage must show that the insured worker’s state of

legal domicile would recognize the marriage.      See 20 C.F.R. §§ 404.344, 404.345,

404.726. Preferred evidence of a common-law marriage with a deceased consists

of signed statements from the applicant and two of the deceased’s blood relatives.

Alternative evidence, including statements from other individuals, may be offered

if preferred proof is not available.   See 20 C.F.R. § 404.726(b)(2).




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      Common-law marriages are recognized by Oklahoma, Mr. McGuffin’s state

of domicile. Such a marriage “requires competent parties, who enter the

relationship by mutual agreement, exclusive of all others, consummating

arrangement [sic] by cohabitation and open assumption of marital duties, and such

relationship must be established by evidence that is clear and convincing.”

Mueggenborg v. Walling , 836 P.2d 112, 113 (Okla. 1992) (quotation omitted).

      On appeal, Ms. Brougham contends there is a lack of substantial evidence

to support the ALJ’s determination that no common-law marriage existed between

her and Mr. McGuffin. She points to evidence in the record which could support

a conclusion that the parties had agreed to be married, had generally lived

together in Oklahoma from September 1987 until his death in February 1993, and

had represented to others that a marriage existed.

      There is, however, also evidence to the contrary. Mr. McGuffin’s mother

could have provided preferred evidence of a common-law marriage between

Ms. Brougham and her son. Instead, she denied the existence of such a

relationship in a signed statement asserting that Mr. McGuffin had maintained

his permanent residence with her and his father and also that Ms. Brougham’s

“welfare records” would show Ms. Brougham’s claim that she “lived alone

as head of house and no one contributed to her or her children’s support.”

Appellant’s App. at 98. Although Ms. Brougham attacks these statements as


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biased, they are consistent with the listing of his parents’ mailing address on

Mr. McGuffin’s 1993 Wage and Tax Statement,          see id. at 95, and the description

of Ms. Brougham as “other,” rather than spouse, on an income tax return

prepared for 1990, see id. at 71.

      Additionally, the mother’s disclosure concerning Ms. Brougham’s welfare

records is corroborated by a statement of a caseworker from the department of

human services relating that, during a home visit, Ms. Brougham had introduced

Mr. McGuffin as “just a friend,” and Ms. Brougham never admitted to the

caseworker that Mr. McGuffin was living in her home. Because Ms. Brougham

“never came forth about [the] relationship, the [department of human services]

never considered him as part of the family.”     Id. at 53. 1

      “We review the [Commissioner’s] decision to determine whether [his]

factual findings are supported by substantial evidence in the record viewed as a

whole and whether [he] applied the correct legal standards. Substantial evidence


1
       Although Ms. Brougham does not deny the truth of these hearsay
statements, she attempts to minimize their impact.    See Descheenie ex rel.
Descheenie v. Bowen , 850 F.2d 624, 628 (10th Cir. 1988) (“Hearsay evidence is
presumptively unreliable and forms a particularly faulty basis for the fact finder
to establish trustworthiness.”) (quotations omitted). We note, however, that
“hearsay evidence is not per se inadmissible” in social security proceedings,
Trujillo v. Richardson , 429 F.2d 1149, 1152 (10th Cir. 1970);  see also 42 U.S.C.
§ 405(b)(1) (“Evidence may be received at any hearing before the Commissioner
of Social Security even though inadmissible under rules of evidence applicable to
court procedure.”). Moreover, as we have explained, the statements are not the
sole evidence supporting the ALJ’s determination.

                                           -4-
is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion. We do not reweigh the evidence.”    Castellano v. Secretary

of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994) (quotations and

citations omitted).

      There is substantial evidence to support the ALJ’s conclusion that

Ms. Brougham failed to establish a common-law marriage, and, accordingly,

we will not disturb it. Specifically, we note that Ms. Brougham has adopted

inconsistent positions on her marital state, depending on whether she is seeking

welfare benefits during Mr. McGuffin’s lifetime, or survivors’ benefits after his

death. The ALJ was entitled to take this inconsistency into account in weighing

the evidence. See Warren v. Secretary of Health & Human Servs.     , 868 F.2d 1444,

1446 (5th Cir. 1989) (stating that plaintiff’s “own testimony in support of her

contention that a common law marriage existed” was, “at a minimum, undermined

by her [welfare] application,” which maintained that she did not live with the

deceased and he did not support her);   cf. Rascon v. US West Communications,

Inc. , 143 F.3d 1324, 1332 (10th Cir. 1998) (statements made in a social security

disability application do not constitute an automatic bar to an ADA disability

discrimination claim, but they may constitute evidence relevant to a determination

of whether the employee is able to perform the essential functions of the job, with

or without reasonable accommodation).


                                          -5-
       Ms. Brougham also asserts that the ALJ misconstrued Oklahoma law and

added to her burden of proof by requiring a showing that the parties lived together

as husband and wife “over an extended, uninterrupted period of time.”

Appellant’s App. at 13. Although the requirement of “extended, uninterrupted”

cohabitation is not found in Oklahoma state law, the additional language is

incidental to the resolution of this case.   The ALJ’s determination did not hinge

on the length of uninterrupted time Ms. Brougham and Mr. McGuffin lived

together. Accordingly, the contention that the ALJ improperly construed

Oklahoma law does not change our analysis.         See Descheenie ex rel. Descheenie

v. Bowen , 850 F.2d 624, 628 (10th Cir. 1988) (holding that error that had “shaped

the outcome” of the agency’s decision cannot be characterized as harmless);

cf. Diaz v. Secretary of Health & Human Servs.      , 898 F.2d 774, 777 (10th Cir.

1990) (stating effect of error in hypothetical posed to vocational expert was

minimal and not grounds for reversal).




                                             -6-
         After a review of the entire record, we AFFIRM the judgment of the district

court.



                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




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