SSR 72-19c: SECTIONS 202(a) and 205(g) (42 U.S.C. 402(a) and 405(g)). PROOF OF AGE -- EVALUATION OF EVIDENCE -- SUBSTANTIAL EVIDENCE

20 C.F.R 404.703

SSR 72-19c

Blangy v. Richardson, U.S.D.C., S.D. Ohio, W.Div. No. 7134 (6/7/71) (CCH U.I.R. Fed. Par. 16,301)

Where claimant sought to prove he had attained age 62, a requirement for entitlement to retirement insurance benefits, and as proof that he was born in 1902, he submitted a mass of conflicting documentary evidence recorded after age 5, including 1915 school records, earliest records of his birth, all but one of which indicated he was born in 1907, and where he made contradictory oral statements based on his own recollection, which indicated he was born between 1900 and 1905, held, since Social Security Regulations No. 4 § 404.703 (20 CFR 404.703) allows trier of fact to resolve conflicts in, as well as to draw reasonable inferences and conclusions from, evidence presented, final administrative decision that plaintiff was not age 62, i.e., was not born in 1902, is based on substantial evidence.

Porter, District Judge: This case involves an application for retirement insurance benefits under § 202(a) of the Social Security Act (42 U.S.C. § 402(a)) (hereinafter "Act") and is before the Court after having previously been remanded to the Secretary for further administrative proceedings. It is now submitted on the defendant Secretary's motion for summary judgment and the memoranda of the respective parties in response to that motion. Because we find the Secretary's decision to be supported by substantial evidence we grant his motion for summary judgment and thus affirm his decision.

On September 24, 1967, the plaintiff filed an application for the above-named benefits alleging his date of birth to be September 28, 1903. That application was denied initially and on reconsideration because the Administration found Mr. Blangy not to be sixty-two years of age at the time he filed his application, as required by the Act. 42 U.S.C. § 402(a). The plaintiff subsequently requested and received an administrative hearing. The only issue presented at that hearing was plaintiff's date of birth, and it was the hearing examiner's decision that Mr. Blangy was born on September 28, 1907, and, therefore, was not sixty-two on the date of filing his application. The hearing examiner's decision was later adopted as the Secretary's.

Plaintiff's contention during the administrative proceedings was that he was born on September 28, 1902 and, being dissatisfied with the Secretary's decision, he appealed to this Court. Without addressing the substantive issue of Mr. Blangy's age, we remanded the action to the Secretary for certification of certain documentary evidence to which the plaintiff had objected on that basis. After obtaining the proper certification, the Secretary once more adopted the hearing examiner's decision and thereby held Mr. Blangy's date of birth to be September 28, 1907. Mr. Blangy again appealed.

On this second appeal the parties do not challenge the certification, or lack thereof, of any exhibit contained in the administrative record. Instead, the only question relates to the plaintiff's age and, thus, it is not our sole and limited function to determine whether the Secretary's finding as to Mr. Blangy's date of birth is supported by substantial evidence.[1] 42 U.S.C. § 405(g); Weaver v. Gardner, 394 F.2d 111 (6 Cir., 1968). As stated above, we find it is.

After examining the administrative transcript, it is apparent that it was a difficult, complicated matter for the Secretary to determine plaintiff's age because Mr. Blangy, throughout his lifetime, has given different years as the date of his birth. Although there is somewhat of a consistent pattern indicating September 28th as the month and day of birth, the record reveals any one of the years 1902, 1905 -- 1909 could have been the plaintiff's year of birth. In short, the Secretary was presented with a mass of conflicting oral and documentary evidence pertaining to Mr. Blangy's date of birth.

For the purposes of this decision and for the sake of brevity, it would not serve a useful purpose to list, comment upon, and resolve all the conflicts in the evidence which was before the Secretary. Indeed, the latter task would be impossible. It is sufficient, we feel, to merely set forth what we believe to be substantial evidence to support the Secretary's decision and state why se believe it was within the Secretary's prerogative to ascribe little or no weight to other evidence.

In reaching his decision, the Secretary relied heavily upon 1915 school records of the Xenia, Ohio, City School. These were the earliest records of plaintiff's birth and all except one of these records indicate Mr. Blangy's date of birth to be September 28, 1907, as found by the Secretary. The exception was that the record for January, 1915, without giving a month or day of birth, stated plaintiff was born in 1908. An explanation for the discrepancy was proffered by a member of the Xenia, Ohio, Board of Education and was accepted by the Secretary. It was explained that when the plaintiff enrolled in school in January of 1915 he possibly told his teacher he was seven years old, which he was at the time, and when the teacher subtracted the seven from 1915 she received 1908 as the year of birth. This, it was thought, was done without the teacher's inquiring into the month and day of plaintiff's birth for, if she had done so, it might have been obvious to her that the plaintiff was born in 1907.

We think it was within the Secretary's discretion, as the trier of fact, to accept and credit the above explanation, for it is clearly established that his functions include resolving conflicts in, as well as drawing reasonable inferences and conclusions from, the evidence present. Lane v. Gardner, 374 F.2d 612 (6 Cir., 1967); May v. Gardner, 362 F.2d 616 (6 Cir., 1966); Ferenz v. Folsom, 237 F.2d 46 (3 Cir., 1956). Having resolved the inconsistency, the Secretary was acting in accordance with the law in granting the greatest weight to the 1915 Xenia school records because 20 C.F.F. § 404.703, which is entitled "Evidence as to Age," in pertinent part provides:

(c) Evaluation of evidence. Generally, the highest probative value will be accorded to a public record of birth or a church record of birth or baptism established or recorded before age 5. Where such record is not available, and other documents are submitted as evidence of age, in determining their probative value, consideration will be given to when such other documents are established or recorded, and the circumstances attending their establishment or recordation. Among the documents which may be submitted for such purpose are: school record, census record. . . . (Emphasis added.)

See, Rodgers v. Cohen, 304 F.Supp. 91 (E.D. Va., 1968), citing Tindle v. Celebrezze, 210 F.Supp. 912 (s.D. Cal., 1962).

The administrative transcript does not contain a public, church or a baptismal record of plaintiff's birth established or recorded prior to Mr. Blangy's attaining the age of five. If such evidence had been presented to the Secretary,it would, pursuant to Regulation 404.703 above, have been accorded the highest probative value. Instead, as mentioned, the Xenia school reports are the earliest records, and they apparently were not established for any self-serving purpose on the part of the plaintiff. Hence, in accordance with Regulation 404.703, the Secretary was correct in assigning considerable weight to these records. In this regard, we cannot help but note that if Mr. Blangy was born in 1902, as claimed he would have been twelve or thirteen years of age when he entered the first grade of school at Xenia, Ohio, and, to say the least that seems quite unlikely.

The administrative transcript also discloses that Mr. Blangy was employed by the Armco Steel Corporation on May 11, 1929 and their files reflect his date of birth as September 28, 1907. This constitutes further substantial evidence to support the Secretary's decision.

The first time it is clearly shown that plaintiff used 1902 as his year of birth was in the early 1940s when he registered for the draft. Thereafter, along with other years, 1902 was, on various occasions, again employed by Mr. Blangy. Subsequent to 1940 other witnesses on Mr. Blangy's behalf also testified or signed documents asserting plaintiff's date of birth to be September 28, 1902. It has not been shown that any of these assertions were based on records which were transcribed during plaintiff's early years. To the contrary, they simply appear to be statements premised upon the particular individual's recollection. In such a context we deem it within the Secretary's discretion to attach little or no significance to such statements. See, Tootalian v. Cohen, 296 F.Supp. 1253 (N.D. Ohio, 1968) wherein the Court stated:

The secretary could have found that these document were not reliable on grounds other than the integrity of the witnesses who signed them because of the long time that passed from the birth of the plaintiff before they actually made the statements certified by the church. This is equally true of the certificate issued on the statement of the plaintiff's mother since there is no indication that her statement is based on ancient records in her possession.

This holds true for the plaintiff because he candidly admitted at the administrative hearing that he did not have a very good memory for dates and that he did not know why he had given so many different dates of birth throughout his lifetime.

We have not overlooked the fact that plaintiff has presented a number of arguments supporting his contention that 1902 was the year of his birth. Most of the arguments are directed to the weight that the Secretary should have given certain documents and statements. As indicated above, we find it was within the Secretary's discretion to ascribe different probative value to the various exhibits and oral testimony and he did not abuse his discretion. There have been other arguments raised as, for example, that it is documented that plaintiff's sister, Mary Blangy, was born in 1900, while his brother, Charles Blangy, was born in 1905, and that personal statements as well as the 1920 census report establish that plaintiff was younger than Mary, but older than Charles, and, therefore, his year of birth was between 1900 and 1905. We noted that the personal statements were made on the basis of recollection which spanned, at least, a period of thirty years and thus it was within the Secretary's discretion to assign little or no weight thereto. The plaintiff's reliance upon the 1920 census report is misplaced for that report only indicates plaintiff's age and does not show his date or year of birth. In addition, it does not reveal Mary's or Charles' age, date, or year of birth. If plaintiff's argument is that the listing on the census report implies the order of birth of the Blangy children, it is inconsistent with Mr. Blangy's testimony at the administrative hearing. There he stated the order of birth was: (1) Mary; (2) himself, (3) Charles, (4) James, and (5) Virgil. The Blangy children are listed on the census report as (1) Mary, (2) Harry, (3) James, (4) Virgle (sic), (5) Charles, and (6) Robert. Such inconsistences were for the Secretary, and not this Court, to resolve.

The best that can be said of this case is that an irreconcilable conflict exists as to plaintiff's date of birth and thus it certainly cannot be said that his birthday is free from doubt. This Court is, however, bound to apply the substantial evidence rule and must affirm the judgment of the Secretary, even if we would have reached a different decision had we heard the case de novo. Walters v. Gardner, 397 F.2d 89 (6 Cir., 1968); Lane v. Gardner, supra. As set forth above, we feel there is substantial evidence to support the Secretary's finding.

[1] On October 30, 1969, Mr. Blangy filed another application for retirement benefits. On the basis of that application and pending outcome of this litigation the Social Security Administration awarded the plaintiff interim retirement benefits based on September 28, 1907 as his date of birth.

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