192 F.3d 150 (D.C. Cir. 1999)
New Valley Corporation, Petitionerv.Doretha Gilliam, Widow of Leonard Gilliam, RespondentandDirector, Office of Workers' Compensation Programs, U.S. Department of Labor
No. 98-1369
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 7, 1999Decided October 12, 1999

[Copyrighted Material Omitted]
On Petition for Review of an Order of the Benefits Review Board, U.S. Department of Labor
Michael D. Dobbs argued the cause and was on the brief  for petitioner New Valley Corporation.
Judy L. Woodall argued the cause and was on the brief for  respondent Doretha Gilliam.  Janet R. Dunlop, Counsel, U.S.  Department of Labor, entered an appearance.
Before:  Wald, Silberman and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Tatel.
Tatel, Circuit Judge:


1
In 1970, Leonard Gilliam injured his  back when he slipped and fell while delivering a candy gram  for his employer, Western Union Telegraph Company, now  known as Petitioner New Valley Corporation.  As a result, he  suffered a permanent and total disability, for which he received workers' compensation until his death in 1995.  New  Valley challenges the award of death benefits to his surviving  wife, arguing that she does not meet the statutory definition  of "widow" because, following his desertion of her and their  ten children, she rebuffed his attempts to return to the  marital home.  Finding this argument meritless, we deny the  petition for review.

I.

2
This case turns on the definition of "widow" in the federal  Longshore and Harbor Workers' Compensation Act  ("LHWCA"), 33 U.S.C. §§ 901 et seq. (1982).  Section 902(16)  of the LHWCA defines "widow or widower" as "only the  decedent's wife or husband living with or dependent for  support upon him or her at the time of his or her death;  or  living apart for justifiable cause or by reason of his or her  desertion at such time."  33 U.S.C. § 902(16).  The LHWCA  was made applicable to the District of Columbia by the 1928  District of Columbia Workers' Compensation Act, former  D.C. Code §§ 36-501 et seq. (repealed 1979).  Though now  repealed, the 1928 D.C. Act and the federal LHWCA still  govern claims arising from injuries that occurred before July  26, 1982.  See Evans Financial Corp. v. Director, Office of  Workers' Compensation Programs, 161 F.3d 30, 32 n.1 (D.C.  Cir. 1998).


3
The Supreme Court first addressed the LHWCA's definition of widow in Thompson v. Lawson, 347 U.S. 334 (1954), holding that legal marriage alone is insufficient to confer  eligibility for survivor benefits.  Instead of "assessing the  marital conduct of the parties" under state domestic relations  law, courts must examine the facts of the relationship to  determine if there "is a conjugal nexus between the claimant  and the decedent subsisting at the time of the latter's death."Id. at 336.  Thompson affirmed the denial of benefits to the  claimant because, although legally married to the decedent at  the time of his death, she had made a "conscious choice to  terminate her prior conjugal relationship by embarking on  another permanent relationship."  Id. at 337.  The claimant's  conduct, the Court said, "severed the bond which was the  basis of her right to claim a death benefit as [decedent's]  statutory dependent."  Id.  Reasoning that "[t]he very practical considerations of this Compensation Act should not be  subordinated to the empty abstraction that once a wife has  been deserted, she always remains a deserted wife, no matter  what," the Court concluded that a conjugal nexus between the  decedent and his surviving spouse is a necessary prerequisite  to an award of death benefits under the Act.


4
Shortly after Thompson, this court, in Liberty Mutual  Insurance Co. v. Donovan, 218 F.2d 860 (D.C. Cir. 1955),  explained the conjugal nexus test as follows:


5
[T]he rule is now settled that to be entitled to an award as a widow a woman must have continued to live as the deserted wife of an employee who has deserted her; there must be a bond in reality between husband and wife in their relation to one another.  The essential ingredient in her claim is her real status, speaking factually, in respect to the deceased, not the existing legal formalities of the relationship.


6
Id. at 862.


7
With this legal framework in mind, we turn to the marriage  between Leonard and Doretha Gilliam.  The parties do not  dispute that at the time of her husband's death, Mrs. Gilliam  was legally married to him but neither living with him nor  financially dependent upon him.  Under the Act's definition of  widow, her eligibility for benefits therefore turns on whether their estrangement at the time of her husband's death was  "for justifiable cause" or "by reason of his ... desertion."  33  U.S.C. § 902(16).


8
Following an evidentiary hearing, the Administrative Law  Judge made the following findings of fact, which the parties  do not dispute.  Wed on October 31, 1949, the Gilliams  remained legally married until the husband's death some 46  years later.  The couple had ten children.  They lived in  Washington, D.C.


9
The ALJ found that shortly after Mr. Gilliam became  permanently disabled as a result of his 1970 work-related  injury, he chose to leave the marital home.  Mrs. Gilliam  remained in the marital home, where she has resided ever  since.  Mr. Gilliam provided no support for his wife and their  ten children despite her attempts to collect child support  through court proceedings.  In 1977, Mr. Gilliam was awarded permanent total disability compensation plus moving expenses.  He moved to California but returned to Washington  some four years later.


10
Attempting to return to the marital home, Mr. Gilliam  contacted his wife for the first time in nearly a decade,  repeatedly saying "he wanted his home back."  Never indicating that he wanted to continue the marriage, Mr. Gilliam  intended to reclaim property, not to reconcile the relationship. Because she considered him a controlling husband and feared  him "to some extent," Mrs. Gilliam refused to allow him to  return.  She twice tried to divorce him.  She discontinued the  first divorce proceeding at his request and lacked the financial resources to complete the second.  In the years leading  up to her husband's death, Mrs. Gilliam sometimes cooked  meals for him, and the couple continued to see each other  socially on family occasions.  She never entered into another  relationship.


11
Finding that at the time her husband died Mrs. Gilliam was  living apart from him "for justifiable cause" (the statute's  requirement) and that she had not severed the "conjugal  nexus" (Thomspon's requirement), the ALJ awarded her  death benefits of roughly $300 a month.  New Valley appealed to the Department of Labor's Benefits Review Board,  which affirmed the ALJ's decision.  In this petition for review, the company challenges the ALJ's findings of a conjugal  nexus and justifiable cause for separation as contrary to law.

II.

12
We "may reverse a [Benefits Review] Board ruling only for  errors of law or when the Board has exceeded the scope of its  authority in its review of the ALJ."  Brown v. I.T.T. Baking  Co., 921 F.2d 289, 292 (D.C. Cir. 1990).  The ALJ's findings of  fact "shall be conclusive if supported by substantial evidence  in the record considered as a whole."  33 U.S.C. § 921(b)(3).Highly deferential to the fact finder, this substantial evidence  test requires only that the ALJ's findings be supported by  "more than a 'scintilla,' but less than a preponderance of the  evidence."  Evans Financial, 161 F.3d at 34.  In conducting  our review, we must take account of the statute's presumption  in favor of claimants:  "In any proceeding for the enforcement  of a claim for compensation under this chapter it shall be  presumed, in the absence of substantial evidence to the  contrary, that the claim comes within the provisions of this  chapter...."  33 U.S.C. § 920(a).  Demonstrating the Act's  "beneficent purposes and humanitarian nature," this presumption requires that we "resolve doubtful questions ... in  favor of the claimants," Burns v. Director, Office of Workers'  Compensation Programs, 41 F.3d 1555, 1562 (D.C. Cir. 1994)  (internal quotation marks omitted), and "construe the Act  liberally" to "avoid[ ] harsh and incongruous results."  Stevenson v. Linens of the Week, 688 F.2d 93, 98 (D.C. Cir.  1982).


13
New Valley, seeking to avoid this "limited and highly  deferential" substantial evidence standard, Cadbury Beverages Inc. v. NLRB, 160 F.3d 24, 29 (D.C. Cir. 1998) (internal  quotation marks omitted), and conceding that it has no quarrel with the ALJ's fact-finding, attempts to frame its petition  in terms of legal issues.  It begins by challenging the ALJ's  conjugal nexus finding, claiming that as in Thompson the  conjugal nexus between the Gilliams had been severed.  The company points out that Mrs. Gilliam repeatedly rebuffed her  husband's attempts to return to the marital home, twice  began divorce proceedings, "had no further conjugal relations  with her husband" despite his return to the Washington area,  and "did not intend to resume the marital relationship."  All  of this, according to New Valley, leads to the inescapable  conclusion that Mrs. Gilliam, like the claimant in Thompson,  "made a conscious decision to sever the conjugal nexus with  her husband and she persisted in her intentions up to the  time of Mr. Gilliam's death."


14
The ALJ reached a different conclusion, finding that under  all of the circumstances of this case the couple's conjugal  nexus had not been terminated:  "The Act does not require  Mrs. Gilliam to condone or forgive the years of desertion and  non-support she endured.  Nor must she cohabit with her  husband when he decides to return years later."  Not only  does nothing in Thompson require a different result--unlike  the claimant there, Mrs. Gilliam never entered into another  relationship--but the ALJ's conclusion is perfectly consistent  with Matthews v. Walter, 512 F.2d 941 (D.C. Cir. 1975), which  upheld a benefits award to a surviving widow despite her  failure to resume living with the decedent once the cause of  their initial separation ceased.  As we explained, "[t]his comports with human realities and avoids working undue hardships upon individuals by forcing either the forfeiture of  benefits or the abandonment of a life style to which they had  become accustomed following the justified separation."  Id. at  944.


15
New Valley urges us to adopt a new legal standard for  conjugal nexus.  It argues that a deserted wife can preserve  her right to benefits only by taking her husband back whenever he decides to return.  According to the company, Mrs.  Gilliam terminated their conjugal nexus by refusing to allow  her husband to return home even though he had left her with  ten children, had given them no support, wished to return  only to reclaim his property, and was "a controlling husband"  feared by his wife.  We find nothing in the statute or cases to  require such a Dickensian result.  Indeed, the company's position conflicts with the Act's "beneficent" and "humane"  purposes.


16
Despite New Valley's repeated attempts in its brief and at  oral argument to frame its argument as a legal issue, it  cannot escape the basic proposition that conjugal nexus is a  question of fact and that in this case the ALJ's decision finds  ample support in the record.  The ALJ found that Mrs.  Gilliam remained in the marital home for more than 35 years; that she neither entered into another relationship nor  changed her married name;  and that she maintained a relationship with her husband through their children, spent holidays with him, and occasionally even cooked meals for him. The ALJ also found Mrs. Gilliam's initiation of divorce proceedings insufficient to break the conjugal nexus because she  abandoned the first attempt at her husband's behest and  never completed the second due to a lack of financial resources.  We find nothing in either fact or law to question the  ALJ's ultimate conclusion that the conjugal nexus between  the couple still existed at the time of Mr. Gilliam's death.


17
New Valley next alleges that the ALJ ignored the relevant  time period fixed by the Act for ascertaining the existence of  "justifiable cause."  According to the company, the husband's  desertion of his family in the early seventies cannot possibly  constitute justifiable cause for Mrs. Gilliam to be living apart  from him at the time of his death almost twenty-five years  later.  If desertion by itself automatically constitutes justifiable cause, the company argues, the statute would not treat  desertion and justifiable cause separately, nor would courts  bother to consider the conduct of the parties following the  desertion to determine if a conjugal nexus remained at the  time of death.


18
No one disagrees with the proposition that the statute fixes  the decedent's death as the proper time for inquiring into the  reasons for a couple's separation.  See Matthews, 512 F.2d at  944.  Nor does anyone disagree that desertion does not  always amount to justifiable cause for a couple to be living  apart, perhaps years later, at the time of the decedent's  death.  See Thompson, 347 U.S. at 337.  It does not follow, however, that desertion alone could never constitute justifiable cause.  We know this because the Supreme Court has  described the LHWCA's definition of "widow" as including a  claimant living apart from her spouse "because of desertion  or other justifiable cause."  Ingalls Shipbuilding, Inc. v.  Director, Office of Workers' Compensation Programs, 519  U.S. 248, 257 (1997) (emphasis added).


19
In this case, however, the ALJ did not rely solely on the  husband's desertion.  Instead he found that the desertion,  "coupled with Decedent's non-support for the ten children  and his controlling behavior, constitutes justifiable cause for  living apart."  (Emphasis added.)  In other words, the husband's post-desertion behavior contributed to the ALJ's conclusion that there was justifiable cause for the couple's continued separation.  Moreover, nothing in the ALJ's decision  suggests that his justifiable cause conclusion rested on circumstances other than those existing at the time of the  husband's death.


20
New Valley challenges the ALJ's justifiable cause finding  on a second ground.  "Controlling behavior," New Valley  claims, cannot be equated with alcoholism, adultery, severe  mental problems, or physical abuse--the conditions supporting justifiable cause findings in several cases cited by the  company.  Courts of Appeals and the Benefits Review Board,  however, have affirmed findings of justifiable cause on less  serious grounds, including grounds less severe than the husband's behavior here.  See, e.g., Henderson v. Avon dale Marine Ways, Inc., 204 F.2d 178 (5th Cir. 1953) (finding justifiable cause where mother-in-law objected to claimant and cut  up her clothes);  Kennedy v. Container Stevedoring Co., 23  BRBS 33 (1989) (rejecting the notion that justifiable cause is  limited to temporary separations or situations in which a  spouse is fearful of an infectious disease or bodily injury, and  finding justifiable cause where claimant and decedent agreed  to separate because they could not live together amicably);Denton v. Northrop Corp., 21 BRBS 37 (1988) (finding justifiable cause where couple lived apart because of job requirements).


21
Notwithstanding these decisions, New Valley insists that in  this circuit serious misconduct rising to the level of a "matrimonial offense" is needed to sustain a finding of justifiable  cause.  In support, New Valley cites Matthews for the proposition that Congress fashioned the justifiable cause provision  based on the law of divorce and separation and that the  phrase is therefore "substantially equivalent to a 'matrimonial  offense.' "  New Valley seriously misreads Matthews.  The  "matrimonial offense" language in Matthews came from an  earlier case, Weeks v. Behrend, 135 F.2d 258 (D.C. Cir. 1943).Explicitly rejecting Weeks' "narrow construction of 'justifiable  cause,' " Matthews instead looked to "a broader and more  straightforward interpretation" found in other cases.  Matthews, 512 F.2d at 944.  Matthews explained:


22
We read Thompson as undermining the narrow construction of "justifiable cause" offered in Weeks.  The Court stated in Thompson that it would not assess "the marital conduct of the parties.  That is an inquiry which may berelevant to legal issues arising under State domesticrelations law.  Our concern is with the proper interpreta-tion of the Federal Longshoremen's Act."


23
Id. (citation omitted).


24
In a last-ditch effort to unearth a legal issue in this case,  New Valley urged for the first time at oral argument that in  addition to "conjugal nexus" and "justifiable cause," LHWCA  death benefits turn on whether the surviving spouse had a  reasonable expectation of support from the decedent.  Even  were we to consider arguments not raised in the briefs, we  would reject this one.  Nothing in either the statute or case  law supports a "reasonable expectation" test.  Indeed, under  questioning at oral argument, counsel conceded that there  could be situations in which a widow, although lacking any  expectation of support, might nonetheless be entitled to death  benefits.

III.

25
In the end, the ALJ's justifiable cause and conjugal nexus  findings are factual determinations reviewable only pursuant to the highly deferential substantial evidence standard.  Even  where "the facts permit the drawing of diverse inferences,"  the finder of fact "alone is charged with the duty of initially  selecting the inference which seems most reasonable and his  choice, if otherwise sustainable, may not be disturbed by a  reviewing court."  O'Keeffe v. Smith, Hinchman & Grylls  Associates, Inc., 380 U.S. 359, 361-62 (1965) (quoting Cardillo  v. Liberty Mutual Ins. Co., 330 U.S. 469, 478 (1947)).  New  Valley does not argue that the ALJ's findings were unsupported by the record, only that we should reinterpret the  evidence to support the opposite conclusion.  But as we have  said many times, "[a]n agency's conclusion may be supported  by substantial evidence even though a plausible alternative  interpretation of the evidence would support a contrary view."Secretary of Labor, Mine Safety and Health Admin. v.  Federal Mine Safety and Health Review Comm'n, 111 F.3d  913, 918 (D.C. Cir. 1997) (internal quotation marks omitted).Finding ample support for the ALJ's determination that Mrs.  Gilliam qualifies as a widow under the LHWCA, we deny the  petition.


26
So ordered.

