20 CFR 404.703
This case is before the Appeals Council, upon its own motion, to review the decision of the hearing examiner issued on January 13, 1967. The claimant was advised of this action on February 15, 1967.
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The general issue before the Appeals Council is whether the claimant is entitled to old-age insurance benefits. The specific issue is the claimant's correct date of birth. * * *
Section 202(a) of the Social Security Act provides for the payment of old-age insurance benefits to every fully insured individual who has filed application therefor, if such individual has attained age 62.
Section 404.703 of Social Security Administration Regulations No. 4 provides:
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The Payment Center determination made in 1962 that the claimant's date of birth was March 19, 1900, was based on the claimant's application for a social security account number filed on February 9, 1937, and a statement by the claimant's mother dated May 22, 1962.
The record now contains the following documentary evidence concerning the claimant's age:
|DOCUMENT||DATE RECORDED||AGE OR DATE OF BIRTH SHOWN|
|Census Record||June 1, 1900||November 1899|
|Census Record||January 1, 1920||Age 17|
|Census Record||April 1, 1930||Age 25|
|Application for social security account number||February 9, 1937||March 19, 1900|
|Selective Service Registration||February 16, 1942||March 19, 1900|
|Texas driver's license||July 22, 1942||March 19, 1900|
|Statement of Mother||May 22, 1962||March 15, 1900|
|Application for old-age insurance benefits||March 22, 1962||March 19, 1900|
|Application for old-age insurance benefits||January 25, 1966||March 19, 1902|
According to information furnished by the Bureau of the Census, at the claimant's request, the census record as of June 1, 1900, lists the names of [C] and [M], with three sons, [H], [E]. and "Baby." The last-named, "Baby," was shown to have been seven months of age and to have been born in November 1899. The census record as of January 1, 1920, lists [C] and [M], with four sons, [H], [E], [J], and [R, the claimant]. [R's] age is shown as 17, which would indicated that he was born in 1902. In the census record as of April 1, 1930, for [C] and [M], [R's] age is shown as 25, indicating he was born in 1905. * * *
In his decision, the hearing examiner indicated the view that Title 13, United States Code, section 8(c), which prohibits the use of census information to the detriment of the individual to whom the information relates, is applicable to prohibit use of census records by the Social Security Administration unless such use does not result in detriment to the individual.
Section 8 of Title 13 of the United States Code provides, in pertinent part:
It has been held that an individual is not subject to a "detriment" if he is denied something to which he is not entitled. This is the view of at least two courts that have interpreted the above-quoted provisions of the census statute. In Edwards v. Edwards, 121 S.E. 2d 432, 435 (S.C., 1961) the plaintiff sued to have himself declared a natural child of the deceased so that he might share in the deceased's estate along with the defendants who were children of the deceased. To prove he had the requisite relationship to the deceased and to the defendants, the plaintiff introduced Federal census records showing his relationship to the deceased and the defendants. The defendants objected to this evidence on the ground that it was information relating to them which was being used to their "detriment" and that this was prohibited by 13 U.S.C. section 8(c), supra. The court held:
So, too, in State ex rel James Lytell v. Louisiana State Board of Health, 153 So.2d 498, 500 (La. App. 1963) cert. denied 156 So.2d 55 (La., 1963), the plaintiff sued to have the Board of Health issue delayed birth certificates showing that he and his children were Caucasians. The Board declined to do so arguing that its records were correct and were corroborated by the Federal census records the Board had acquired from the public library which, in turn, had obtained under 13 U.S.C. section 8(b), supra. The plaintiff objected to their use on the ground that their use would be to his "detriment." The court held that the census records were admissible into evidence, citing with approval the construction of the word "detriment" in the Edwards case. The rationale expressed by these courts applies with even more persuasiveness when a person to whom the information relates authorized its use by an agency before which he is seeking to prove a claim.
In addition to the foregoing authority, there is other authority permitting the use of census records by the Social Security Administration. We take official notice that before any census record is considered by the Social Security Administration as evidence of a claimant's age the claimant must have authorized its use for that purpose. A claimant may either obtain a census record himself and in turn submit it to the Administration, or he may authorize the Bureau of the Census to send the record directly to the Administration. Both procedures were utilized in this case. Under either circumstance, the claimant knows that the Administration will consider the census record in adjudicating his claim, and his consent to that utilization is evidenced by his submission of the record or by his authorization to the Bureau of the Census to release the information to the Administration.
There is nothing in the census statute or in its legislative history to indicate that the individual is precluded from "waiving" the personal protection of the statute. Indeed, the history of the statute reveals that the provision was intended to protect the individual only where he did not consent to the use of the census information. This appears clear from the colloquy in the House of Representatives explaining the purpose of the provision. Congressman Helm, its principal advocate, quoted with approval the Director of the Census that:
It is well established that statutory rights may be waived. Adams v. United States, 317 U.S. 269, 275 (1942); Johnson v. Zerbst, 304 U.S. 458 (1938); Bruce v. United States, 351 F.2d 318, 320 (5 Cir., 1965), cert. denied 384 U.S. 921 (1966), rehearing denied 384 U.S. 958 (1966); Watkins v. Fly, 136 F.2d 578, 580 (5 Cir. 1943), cert. denied 320 U.S. 769 (1943); Grimm v. Burtzloff, 22 So.2d 263, 265 (Fla., 1945); Benane v. International Harvester Company, 299 P.2d 750, 752, 753 (Cal. App. 1965); Sartin v. Hudson, 143 S.W.2d 817, 823 (Tex. App. 1940). The limitations on waiver with respect to a statutory right are (1) that the right must be intended for the sole benefit of the individual and (2) its waiver must not infringe on the rights of others or otherwise be in derogation of public policy. Watkins v. Fly, supra; Benane v. International Harvester Company, supra; Hittson v. Chicago, R.I. & P. Ry. Co., 86 P.2d 1037, 1039 (New Mex., 1939); City of Glendale v. Coquat, 52 P.2d 1178, 1180 (Ariz., 1935); Smith v. Bell, 41 S.E.2d 695, 700, 701 (W. Va., 1947). Those conditions are satisfied in this case. The Appeals Council accordingly finds that the census information which has been received into the record in this case is to be considered and evaluated, together with all other evidence, in reaching a decision as to the claimant's correct date of birth, and that use of this information is not precluded by section 8 of Title 13 of the United States Code.
The Appeals Council has carefully considered all of the evidence relating to the claimant's age or date of birth and is of the opinion and finds that he was born March 19, 1902. It is evident from the record that the claimant sincerely believes that he was born in 1900, and much of the documentary evidence (particularly that executed by the claimant himself) tends to support that date of birth. However, the question in this case is not what the claimant believes to be his date of birth, but what is established by the evidence of the highest probative value to be his correct date of birth.
The testimony of the witnesses of the hearing, including, of course, the claimant and his mother, was consistent with his prior statements, and this decision should not be understood as any reflection on the candor with which that testimony was offered. However, it is obvious that the age of the witness and the remoteness of the event concerning which they testified, particularly with respect to the claimant's mother, and the inconsistencies in the testimony with respect to the precise date of birth, detract from the weight which the testimony may be accorded. It appears obvious to us that some years ago the need for preciseness in the claimant's date of birth was for the first time required of him, that the year 1900 was chosen, but that this was at best a speculative decision on his part not now supported by documents and circumstances to greater reliability.
Section 404.703(c) of Social Security Administration Regulations NO. 4, quoted supra, provides that in evaluating evidence of age, the highest probative value will be accorded to a public record of birth or a church record of birth or baptism recorded before age 5. When such evidence is not available, and other documents are submitted, in determining their probative value, consideration will be given to the age of such other documents and the circumstances attending their establishment or recordation.
The oldest documentary record in this case is the census record of June 1, 1900, reciting that "Baby" was then seven months of age and was born in November 1899. The claimant has stated, however, that this record does not refer to him, although it is undisputed that the family shown on that record is the claimant's family. Since the record in this case clearly establishes that the claimant's parents had four sons, and the census of June 1, 1900, lists only three sons, the youngest of whom was named as "Baby," this child was the claimant's next older brother. Thus, while this census record ins not affirmative evidence of the claimant's date of birth, it is satisfactory proof that the claimant was born in March 1900.
In the opinion of the Appeals Council, the best and most probative evidence of the claimant's date of birth is the census record of January 1, 1920. This is the oldest documentary evidence available and was established at a point in time much closer to the event than any other record. This record which establishes the claimant's year of birth as 1902, finds some support in the census record of 1900 which, as discussed above, establishes that the claimant was not born prior to June 1900. The Appeals Council notes further that the claimant testified, and other evidence in the record shows, that he did not register for the draft during World War I. This is consistent with a year of birth of 1902, since he would then have been only 16 years old when the war ended in 1918. Had he been born on or before September 13, 1900, he would have been required by law to register for the draft during World War I. 50 U.S.C. App. 205 [Selective Draft Act of 1917, Act May 18, 1917, Ch. 15, sec. 5, 50 Stat. 80; as amended by Act August 31, 1918, Ch. 166, sec. 3, 40 Stat. 955]; Proclamations of the President, August 31, 1918,. 40 Stat. 1840.
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It is the decision of the Appeals Council that the claimant's correct date of birth is March 19, 1902; that he is entitled to old-age insurance benefits * * *.
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