20 CFR 404.703
CARALIS v. CELEBREZZE, CCH U.I.R. Fed. Para. 14,018 (U.S.D.C., N.D. Ind., 1/5/65)
BEAMER, District Judge:
This is an action, timely brought, to review the decision of the Secretary of Health, Education, and Welfare pursuant to the provisions of Title 42, Section 405(g) of the United States Code.
The sole question to be reviewed is whether there was substantial evidence supporting the Secretary's finding that the Plaintiff was born on February 10, 1901.
The plaintiff had lived and worked many years in Lake County, Indiana. On February 5, 1959 he filed his application for old age insurance benefits under the Social Security Act with the department. In support of his application he submitted a certificate issued on June 14, 1951 by the Major of Chios Greece, showing that according to the affidavit of witnesses made before the Justice of Peace of Chios, the Plaintiff was born in Krini, Asia Minor on February 10, 1893. On the basis of this showing benefits were awarded beginning as of February, 1958, and continued until October, 1962, when Plaintiff was notified that upon the basis of evidence obtained by the Department that he was actually born on February 10, 1901 and that he had been receiving benefits to which he was not entitled because he had not reached the age of 65. Further benefits were cut off by the Department and demand was made for the return of benefits previously paid.
On November 7, 1962, the Plaintiff filed a request for a reconsideration of his case on the basis that he was actually born on February 10, 1893. His request was granted and a hearing was subsequently held before an examiner for the purpose of reviewing and establishing, for the benefit of the social security act, the date of the plaintiff's birth.
Evidence before the examiner showed that between 1927 and 1929 inclusive, the Plaintiff had entered the United States as a seaman on nine different occasions and on each occasion he gave his date of birth as February 10, 1901. In 1943 he re-entered the United States at Detroit, Michigan and the immigration visa he submitted at that time showed his date of birth as February 10, 1901.
At the time of his naturalization, her certificate, recorded December 1, 1948, showed his date of birth as February 10, 1901. A passport issued May 19, 1959, showed his date of birth as February 10, 1901. When plaintiff filed for a social security number in 1936, he showed his date of birth as February 10, 1904. In correspondence with the Social Security Administration in 1952 he listed his date of birth as February 10, 1901. When he was married in 1955 he listed his age as 54. When his first daughter was born in December 1955 the age of her father was listed on her birth certificate as 51. When his second daughter was born in February of 1958 the age of her father as shown on her birth certificate was 55.
On the other hand, the records of St. Mary's Mercy Hospital, recording the birth of the plaintiff's daughter on December 22, 1955 lists the date of birth of the father as 2-10-93. In 1952 plaintiff requested the Social Security Administration to change his record showing his date of birth as February 10, 1893 instead of February 10, 1904. In support of this request he submitted a certified copy of a record of the Civil Court of Peace, Chios, Greece issued June 13, 1951 in which the Court determined on the basis of evidence furnished by two witnesses, Kyriakos P. Moutafis, age 65, and Kyriakos I. Sideridakis, age 68, that plaintiff was born in Krini (Tsesme), Asia Minor on February 10, 1893. At the hearing before the examiner plaintiff introduced another certified copy of an order or decree issued August 30, 1961 by the "magastrar of the Civil Court of the First Instance, Chios, Greece" determining that the plaintiff was born in Krini (Tsesme) Asia Minor on February 10, 1893. At the hearing, two old friends of the plaintiff, namely, George Suellis, who said he was born in May of 1880 in Asia Minor and Socrates Georgiades who testified that he was 68 years old at the time of the hearing, (August 13, 1963). Both testified that they were born in Asia Minor and knew plaintiff sa a boy or young man and gave evidence which, if believed, would have established plaintiff's date of birth as approximately 1893.
On the basis of this evidence the examiner found plaintiff's date of birth to be February 10, 1901. It is this finding that the court is asked to review. Plaintiff concedes that this Court has no authority to weigh the evidence but contends that in the light of the two decrees of the Greek Courts determining the date of plaintiff's birth and the testimony of the two childhood friends, there is no substantial evidence to sustain the findings of the examiner. It is first the plaintiff's position that the orders or decrees of the Greek Courts are entitled to full faith and credit or comity and were therefore binding on the examiner or if not binding entitled to great weight.
In support of his position, plaintiff cites Piersoll [Pearsall] v. Folsom, 138 F. Supp. 939. That was an action for review of the Social Security Administration's refusal to reinstate insurance benefits on the basis that the applicant had-remarried. The plaintiff there argued that a California decree of annulment of her marriage was conclusive as to her status for the purpose of social security even though the annulment statute stated that any judgment of annulment should not be conclusive as to third parties. The Court "looked behind" the annulment judgment and found that it was properly rendered. The court then stated that by "looking behind" the judgment it had complied with the statutory statement that any annulment should not be conclusive as to [a] third party and found in substance that since the annulment was properly rendered the plaintiff was not entitled to any support as a result of her re- marriage, and therefore was entitled to social security benefits.
The plaintiff also cites in support of his position Kouats v. Hobby, Secretary, 132 F. Supp. 771. This was also an action by the plaintiff to review the administrative determination denying the plaintiff insurance benefits under social security in which the court said that an Arkansas judgment of divorce was held to be entitled to full faith and credit on the issue of plaintiff's marital status where the evidence showed that the plaintiff had been served with process in the previous Arkansas divorce action brought against her by her ex-husband and therefore this was an adversary proceeding.
The defendant, on the other hand, cites Marek v. [Flemming], 192 F. Supp. 528 which was an appeal from an administrative decision by the Secretary that claimant was not the widow of a deceased wage earner and hence not entitled to social security survivor benefits. Claimant contended that a state probate court order was entitled to full faith and credit and that the probate court had found petitioner to be the widow of a deceased wage earner. The court, on review, held that the probate court order was not entitled to full faith and credit and in doing so used the following language:
Likewise, the Defendant cites Nigro v. Hobby, 120 F. Supp. 16 which was an appeal from the Secretary's decision in denying claimant's survivor's benefits. The issue there insofar as it has any application here was whether a finding by the probate court of the time of the death of the wage earner was binding upon the Secretary. The Court there said:
Many cases could be cited in other fields to the effect that decrees like the ones involved here are not entitled to full faith and credit or to comity in the strict sense of the word. True, they may be considered as some evidence of the matter determined thereby but this means that they must be weighed along with all the other evidence in reaching a final conclusion as to the proper date of the plaintiff's birth. The Greek decisions resulted from ex parte proceedings. These proceedings were no doubt instituted for the express purpose of attempting to establish a date to be used by the plaintiff in this case for applying for social security old age insurance benefits. The Secretary was not a party to these proceedings and had no opportunity to participate therein. The evidence presented to the Greek courts was not a part of the record before the Secretary, only the names of the two witnesses who testified in the first proceeding are given, but the nature of their testimony is in no way revealed. In the second proceeding there is no indication of what evidence formed the basis of the courts decree. Under these circumstances not only were the decisions of the Greek court not entitled to full faith and credit by the Secretary but should have been viewed by him with the closest scrutiny.
The testimony of the two old friends on the record seems quite convincing. One testified that he went to school with the claimant when he was a young boy and that the claimant was two or three years ahead of him in school. This witness testified that he was 68 years old in 1963 which would have placed his date of birth about 1895. The other witness testified that he had worked as a sailor with the claimant in 1911 and at that time the claimant was approximately 18 years of age. The examiner, and not the court, had an opportunity to see these witnesses and hear their testimony. Furthermore, the Court cannot pass upon the credibility of witnesses or of any other evidence in the record. This is the function of the Secretary or his duly authorized agents. The Court on review has no right to pass upon the credibility of witnesses or to determine whether or not there is substantial evidence to support the Secretary's findings.
Here we have a situation where the claimant gave his date of birth on many occasions over a period of thirty years as February 10, 1901. As far as the record shows only on two occasions during this thirty year period did the claimant maintain that he was born on February 10, 1893. One was when he applied for a judicial determination in 1951 and the other was when he attempted to correct his social security records in 1952. Even after these dates, he used the date of February 10, 1901 as the date of his birth. At the time of his marriage, at the time of the birth of at least one daughter and upon application for a passport as late as 1959 he used the date of February 10, 1901. This record was made by the plaintiff himself at a time when there would seem to be no reason for falsifying the date of his birth and at a time when he had nothing to gain by improperly stating his date of birth. Certainly it cannot be said, as a matter of law, that this record made by the claimant himself over a period of thirty years is unsubstantial.
For the reasons stated the findings and the conclusions of the Secretary must be sustained.
 Attainment of age 65 was required for entitlement to old-age insurance benefits, under section 202(a)(2) of the Act. The Social Security Amendments of 1961 (P.L. 87-64) changed this requirement to attainment of age 62, effective August 1961 for applications filed after February 1961. -- [Ed.]
 The initial determination was affirmed on reconsideration and a subsequent request for a hearing was granted. -- [Ed.]
 The Court of Appeals affirmed this decision in Folsom v. Pearsall, 245 F.2d 562 (9th Cir., 1957). -- [Ed.]
Back to Table of Contents