The opinion
HASTIE, Circuit Judge
(dissenting).
I dissent because I think there was substantial and adequate evidentiary basis for the administrative finding that the social security claimant, Mrs. Goldman, was not employed at the times relevant to this controversy. It was, therefore, the duty of the district- court to find, as it did, for the defendant below, and it is our duty to affirm the judgment of the district court.
The majority opinion seems to recognize that the oral statement and subsequent formal and witnessed certification by Mrs. Goldman, that she had been physically incapacitated in 1951, ■ 1952 and 1953 and had never worked for the employers named in her social security claim, are explicit admissions against interest on the critical issue of the case and, therefore, a very substantial kind of evidence.
To escape from the necessity of recognizing these admissions as an adequate basis for the administrative finding, the court reasons that it was arbitrary for the referee who conducted the administrative hearing to reject “the testimony of the claimant’s physician that she was mentally incompetent at the time she gave Brobyn the June 25, 1954 statement [the above mentioned admission] and * * * instead to accept the ‘opinion’ of mental competency of a layman, Brobyn who had spent only 45 minutes with the claimant on that date and who had only observed her for an hour or so four months earlier.”
But there was more to the administrator’s position than this conflict between the opinion of a doctor and the opinion of a layman. The referee points out that Mrs. Goldman herself was the moving party in the proceeding before him less than a year after the admission in question. She had signed an affidavit dated December 27, 1954, stating that she had been employed during periods in question. She took the same position in the formal request for a hearing before a referee which she executed March 29, 1955. In substance, she was asking the referee to believe that in February and June of 1954 senility resulting from cerebral arteriosclerosis had already made her so incompetent that no credence could be given to her oral and written statements, yet, a few months later, in December of 1954 and thereafter, she was competent to make an affidavit of evidentiary v'alue, and to assert her administrative claim as a mentally competent person. In these circumstances, the referee quite reasonably *781 had this to say: “If Mrs. Goldman is not now mentally competent to press her claim herein, it ought to be pressed by a person on behalf of an incompetent. But if she is now mentally competent, the burden is certainly on her to explain these statements. As the matter stands, Mrs. Goldman pursues an equivocal course; her statements are not denied or explained by her, but her own attorney seeks to impeach them, by attacking her competency, motive, truthfulness, and by the presentation of contradicting witnesses.”
This inconsistent position continued after the referee’s decision. Mrs. Goldman herself signed a petition for administrative review of the referee’s decision on October 21, 1955. She supported that by a signed statement, asserting in so many words “that she worked for the period aforementioned and the statement in 1954 obtained by Brobyn was obtained at a time, as the evidence so indicated, she was senile and unable to comprehend any conversation.” The administrative officers who decided this case were not willing to accept the picture Mrs. Goldman thus gave of herself as competent for gainful employment in 1953, too senile to know what she said and signed in 1954, and again competent to execute credible affidavits and operative legal papers in 1955. I think this court is mistaken in now requiring them to accomplish this feat of reconciling the apparently unreconcilable.
Of course, Mrs. Goldman may have been incompetent in 1954. If so, it is hardly less likely that she was too senile to work in 1953, and that a pro forma employment status was maintained in an effort to give her eligibility for social security benefits. These uncertainties merely serve to emphasize that the referee and the Secretary on administrative appeal had ample basis for deciding this case either way. Therefore, a court shoud not interfere.
I am not concerned that the estate of Mrs. Goldman will get a modest sum in a doubtful case. I am concerned, however, that with so many controversies like this continually requiring administrative decision, this court' embarks upon a course of substituting judicial fo? administrative judgment in doubtful situations.