SSR 72-2c: SECTIONS 202(a) and 205(g) (42 U.S.C. 402(a) and 405(g)). -- PROOF OF AGE -- SUBSTANTIAL EVIDENCE TEST -- RIGHT TO FAIR HEARING

20 CFR 404.703

SSR 72-2c

Ginsburg v. Richardson , 436 F.2d 1146 (3rd Cir. 1971) (Cert.

den. 5/18/71; 402 U.S. 976 Rehearing den. 6/7/71) 91 Sup. Ct. 213

This case arises on appeal from three district court orders: (1) granting

the motion for summary judgment made by appellee, the Secretary of the

Department of Health, Education and Welfare; (2) quashing the appellant's

subpoena duces tecum which had demanded "all records and reports and other

documents in possession, custody and control of [the] Department of

Health, Education and Welfare, dealing with and concerning the full

investigation conducted by said Department of HEW into the hearing in

Newark, N.J., on September 15 and October 13, 1967, by hearing examiner

Joseph J. Goldsmith on [the] claim of Pauline Ginsburg for Social Security

benefits . . ."; and (3) denying the appellant's motion for requests for

certain admissions by the appellee that the administrative hearing was

unfair. This court has jurisdiction of the appeal from a final decision as

conferred upon it by 28 U.S.C. § 1291. The District Court had jurisdiction

of the petition for review pursuant to Section 205(g) of the Social

Security Act, as amended, 42 U.S.C. § 405(g).

Appellant, Pauline Ginsburg, filed an application on December 3, 1965 for

old-age insurance benefits in which she claimed her date of birth was

March 16, 1892. A determination was made by the Social Security

Administration that her date of birth was March 16, 1895, and that she was

entitled to monthly benefits beginning December 1964, but that based on

her expected self-employment earnings for the year 1965, payment of

benefits could not be made while she continued to earn substantial income.

On June 17, 1966, appellant filed a request for reconsideration in which

she again alleged that she was born on March 16, 1892 and that in order to

appear younger she had altered her records to show that she was born in

1895

4, but that based on

her expected self-employment earnings for the year 1965, payment of

benefits could not be made while she continued to earn substantial income.

On June 17, 1966, appellant filed a request for reconsideration in which

she again alleged that she was born on March 16, 1892 and that in order to

appear younger she had altered her records to show that she was born in

1895. On reconsideration, it was again found that she was born in 1895.

After a hearing was held on September 15, 1967 and October 13, 1967 to

determine whether appellant was born on March 16, 1892 as alleged by her,

the hearing examiner found "that the authentic, convincing evidence as

required by the Social Security Act, as amended, shows and it is

determined that the [appellant's] date of birth is March 16, 1895." On

August 15, 1968, the Appeals Council denied the appellant's request for

review.

On August 27, 1968, appellant filed a complaint in the United States

District Court for the District of New Jersey demanding that the decision

of the Secretary be reversed. On December 22, 1968, appellant filed

certain requests for admissions. A hearing was held on February 24, 1969

on appellee's motion to strike requests for admissions. On March 13, 1969,

the district court granted this motion. Appellant then served a subpoena

duces tecum on the Department of Health, Education and Welfare seeking an

internal investigative report of the Social Security Administration.

Finally, on July 1, 1969, the District Court quashed the subpoena and

granted appellee's motion for summary judgment.

I. SUBSTANTIAL EVIDENCE TEST

ssions. On March 13, 1969,

the district court granted this motion. Appellant then served a subpoena

duces tecum on the Department of Health, Education and Welfare seeking an

internal investigative report of the Social Security Administration.

Finally, on July 1, 1969, the District Court quashed the subpoena and

granted appellee's motion for summary judgment.

I. SUBSTANTIAL EVIDENCE TEST

The first question faced by this court is whether the District Court

erred in granting the appellee's motion for summary judgment. This, in

turn, depends upon whether the District Court correctly applied the

standard for judicial review of the Secretary's decision. The standard

appears as part of Section 205(g) of the Social Security Act, 42 U.S.C. §

405(g): "The findings of the Secretary as to any fact, if supported by

substantial evidence , shall be conclusive . . ." (Emphasis

added). [1] "Substantial

evidence" means evidence which a reasoning mind would accept as sufficient

to support a conclusion. "It consists of more than a mere scintilla of

evidence but may be somewhat less than a preponderance" of evidence. Laws v. Celebrezze , 368 F.2d 640, 642 (4 Cir. 1966).

Applying this definition, we have carefully examined the administrative

record and, like the District Court, find substantial evidence to support

the finding by the hearing examiner that the appellant was born March 16,

1895.

The documentary evidence presented at the hearing can be summarized as

follows:

(1) A school record from Oregeev Women's High School, Oregeev, Russia,

dated June 14, 1911, indicating a date of birth of March 16, 189- (last

digit undecipherable);

(2) A Russian passport, dated January 23, 1923, indicating that appellant

was 28 years old which would establish her birth date as 1894;

(3) A visa to leave Constantinople, Turkey for the United States, dated

July 30, 1923, indicating that appellant was then 28 years old which would

establish her year of birth as

1895; [2]

a date of birth of March 16, 189- (last

digit undecipherable);

(2) A Russian passport, dated January 23, 1923, indicating that appellant

was 28 years old which would establish her birth date as 1894;

(3) A visa to leave Constantinople, Turkey for the United States, dated

July 30, 1923, indicating that appellant was then 28 years old which would

establish her year of birth as

1895; [2]

(4) A naturalization certificate, dated July 31, 1927, indicating that

appellant was born in 1895;

(5) An application for a Social Security Account Number, dated April 11,

1958, indicating that appellant was born on March 29, 1895;

(6) An application for retirement benefits, dated December 3, 1965,

indicating a date of birth of March 16, 1892;

(7) An affidavit by Luba Sheinson, a friend of appellant, dated December

22, 1965, indicating that appellant was born on March 16, 1892;

(8) The records at the Hospital Service Plan of New Jersey, dated

November 28, 1966, indicating that appellant was born on March 16,

1892.

In evaluating this documentary evidence as well as the oral testimony of

the appellant and appellant's expert witness, the hearing examiner was

guided by Social Security Regulation 20 C.F.R. § 404.703:

"Evidence as to age

( a ) When required. An applicant for benefits under title II of the

Act [42 U.S.C.A. § 401 et seq.] shall file supporting evidence showing the

date of his birth if his age is a condition of entitlement or is otherwise

relevant to the payment of benefits pursuant to such title II [42 U.S.C.A.

§ 401 et seq.] Such evidence may also be required by the Administration as

to the age of any other individual when such other individual's age is

relevant to the determination of the applicant's entitlement.

supporting evidence showing the

date of his birth if his age is a condition of entitlement or is otherwise

relevant to the payment of benefits pursuant to such title II [42 U.S.C.A.

§ 401 et seq.] Such evidence may also be required by the Administration as

to the age of any other individual when such other individual's age is

relevant to the determination of the applicant's entitlement.

( b ) Type of evidence to be submitted. Where an individual is

required to submit evidence of date of birth as indicated in paragraph

( a ) of this section, he shall submit a public record of birth or a

church record of birth or baptism established or recorded before his fifth

birthday, if available. Where no such document recorded or established

before age 5 is available, the individual shall submit as evidence of age

another document or documents which may serve as the basis for a

determination of the individual's date of birth provided such evidence is

corroborated by other evidence or by information in the records of the

Administration.

( 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 were established or recorded, and the circumstances

attending their establishment or recordation

ded 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 were 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, bible

or other family record, church record of baptism or confirmation in youth

or early adult life, insurance policy, marriage record, employment record,

labor union record, fraternal organization record, military record, voting

record, vaccination record, delayed birth certificate, birth certificate

of child of applicant, physician's or midwife's record of birth,

immigration record, naturalization record, or passport.

( d ) Certified copy in lieu of original. In lieu of the original

record, except a bible or other family record, there may be submitted as

evidence of age a copy of such record or a statement as to the date of

birth shown by such record, which has been duly certified (see §

404.701(g)).

( e ) When additional evidence may be required. If the evidence

submitted is not convincing, additional evidence may be required."

Since appellant failed to produce any public or church record of birth

recorded before age 5, the examiner had to base his decision primarily

upon an evaluation of the school record, the Russian passport, the visa,

and the naturalization certificate.

701(g)).

( e ) When additional evidence may be required. If the evidence

submitted is not convincing, additional evidence may be required."

Since appellant failed to produce any public or church record of birth

recorded before age 5, the examiner had to base his decision primarily

upon an evaluation of the school record, the Russian passport, the visa,

and the naturalization certificate.

Although the school record was the oldest document in the record, the

hearing examiner did not err in stating that it was "of no value in

ascertaining her year of birth." The appellant testified that she changed

the date of birth appearing on the school record from 1892 to 1894 so that

her mother-in-law would not realize that she was two years older. The last

number of the date of birth is smudged and undecipherable; appellant's

expert witnesds could not render an opinion as to the number. The only

value which this document had was that it tended to establish that

appellant was born during the 1890's. The Social Security Administration

concedes this point and the only issue before the examiner was the

appellant's exact year of birth in that decade.

The second oldest document offered into evidence was a Russian passport,

dated January 23, 1923, which indicates that appellant was then 28 years

old. The original age appearing on the passport was also altered although

it was not clear what the original age was or by whom it was altered.

Appellant's testimony with respect to the passport was often confusing and

contradictory. [3] Although she

was hesitant at first to state that she made the change, she finally

admitted that she had changed the original age from 30 to 28 in

Constantinople so that she would appear younger to her prospective

mother-in-law. Appellant's expert witness could not state exactly when the

alteration was made and whether the alteration was made by appellant

onfusing and

contradictory. [3] Although she

was hesitant at first to state that she made the change, she finally

admitted that she had changed the original age from 30 to 28 in

Constantinople so that she would appear younger to her prospective

mother-in-law. Appellant's expert witness could not state exactly when the

alteration was made and whether the alteration was made by appellant. He

did state, however, that the original age appeared to be "30." He further

stated that the ink used in writing the original age was oxidized before

the alteration took place. He estimated that the time between the two

writings was possibly a year.

The opinion of the examiner dealing with the passport appear as

follows:

While this court might disagree with the finding by the examiner that the

passport had no probative value, we cannot state that this finding was

clearly erroneous and not supported by the record. Regulation 20 C.F.R. §

404.703, supra , allows an examiner in determining the probative

value to be given to a document, to consider all the circumstances

attending its recordation. Since the probative value of the passport

depends to a great extent upon the truthfulness of appellant's testimony,

this court cannot reverse a finding by the examiner that he did not

believe appellant's testimony. Foss v. Gardner , 363 F.2d 25,

26 (8 Cir. 1966); Crooks v. Ribicoff , 202 F.Supp. 566, 568

(W.D. Pa. 1961). It was permissible for the examiner to conclude that the

alleged alteration was made, not by appellant in Constantinople, but by a

Russian immigration employee who asked appellant for her correct age. Maloney v. Celebrezze , 337 F.2d 231, 233 (3 Cir. 1964).

eve appellant's testimony. Foss v. Gardner , 363 F.2d 25,

26 (8 Cir. 1966); Crooks v. Ribicoff , 202 F.Supp. 566, 568

(W.D. Pa. 1961). It was permissible for the examiner to conclude that the

alleged alteration was made, not by appellant in Constantinople, but by a

Russian immigration employee who asked appellant for her correct age. Maloney v. Celebrezze , 337 F.2d 231, 233 (3 Cir. 1964).

The next oldest document, and the oldest document without any

alterations, was the visa received by appellant in Constantinople. This

document clearly shows that appellant was born in 1895. Appellant

maintains that the examiner erred in attributing "the highest probative

value" to the visa. She argues that the date appearing on the visa was

transcribed directly from the Russian passport and that the visa has no

independent significance in determining appellant's age. There is,

however, no evidence in the record showing that the birth date on the visa

was taken from the passport. Also, appellant failed to introduce any

evidence that it was the practice in Constantinople in 1923 when issuing a

vias to take the age from the passport. Since the visa was the oldest

document offered into evidence without any signs of alterations, we cannot

state, as a matter of law, that the examiner erred in attributing to the

visa "the highest probative value."

The next oldest document considered by the examiner was a naturalization

certificate dated July 31, 1927 also indicating that appellant was born in

1895. Finally, appellant's application for a Social Security Account

Number dated April 11, 1958 indicates that appellant was born in 1895.

, as a matter of law, that the examiner erred in attributing to the

visa "the highest probative value."

The next oldest document considered by the examiner was a naturalization

certificate dated July 31, 1927 also indicating that appellant was born in

1895. Finally, appellant's application for a Social Security Account

Number dated April 11, 1958 indicates that appellant was born in 1895.

The only documents clearly showing that appellant was born in 1892 were

the application for retirement benefits dated December , 1965, the

affidavit of appellant's friend dated December 23, 1965, and the statement

of the Hospital Service Plan dated November 29, 1966. Since these

documents were of relatively recent date and since they were either

produced contemporaneously or after her application for old-age retirement

benefits, the examiner did not err in concluding that these documents did

not meet the standard of proof required by the regulations. We adopt the

reasoning of Judge Rosenberg in a case remarkably similar to the instant

case: "If, in fact, the plaintiff's birth was of a time as to entitle him

to the benefits of the Act, by his own conduct he has so befuddled the

circumstances as to virtually conceal the facts. The hearing examiner was

required, and did, apply the rules of law to the evidence, and by his own

judgment fairly concluded what was the plaintiff's birth date." Finkelstein v. Secretary of Health, Education and Welfare ,

221 F.Supp. 361, 363 (W.D. Pa 1963).

ntitle him

to the benefits of the Act, by his own conduct he has so befuddled the

circumstances as to virtually conceal the facts. The hearing examiner was

required, and did, apply the rules of law to the evidence, and by his own

judgment fairly concluded what was the plaintiff's birth date." Finkelstein v. Secretary of Health, Education and Welfare ,

221 F.Supp. 361, 363 (W.D. Pa 1963).

Appellant further argues that even if there is substantial evidence to

support the ultimate conclusion of the examiner, there is not substantial

evidence to support each finding of fact upon which the conclusion is

based. While we note a few findings of the examiner which are not

supported in the record, it is unnecessary for this court to be in accord

with all of the examiner's findings and reasoning as long as his ultimate

conclusion is based upon substantial evidence. Lester v. Celebrezze , 221 F.Supp. 607, 611 (E.D. Ark. 1963).

II. FAIRNESS OF THE HEARING

Appellant also asserts that she was denied the right to a fair hearing by

the conduct of the hearing examiner. We have reviewed the entire record in

this case, and while the conduct of the hearing examiner is subject to

some criticism, we cannot say that it was so unfair as to constitute a

denial of due process. Cupples Co. Mfrs . v. NLRB , 106 F.2d

100, 113 (8 Cir. 1939). See also NLRB v. Stackpole Carbon

Co ., 105 F.2d 167, 177 (3 Cir. 1939), cert. denied, 308 U.S. 605

f the hearing examiner. We have reviewed the entire record in

this case, and while the conduct of the hearing examiner is subject to

some criticism, we cannot say that it was so unfair as to constitute a

denial of due process. Cupples Co. Mfrs . v. NLRB , 106 F.2d

100, 113 (8 Cir. 1939). See also NLRB v. Stackpole Carbon

Co ., 105 F.2d 167, 177 (3 Cir. 1939), cert. denied, 308 U.S. 605

(1939). Furthermore, the transcript of the hearing does not support the

contention of the appellant that the examiner displayed prejudice toward

her. If the appellant felt that she was being deprived of a fair hearing,

the proper procedure would have ben for her to request the examiner to

withdraw from the case. Social Security Regulation 20 C.F.R §

404.925. [4] Thus, appellant's

failure to request withdrawal of the examiner during the hearing or in her

request for review before the Appeals Council constitutes a waiver of her

right to object to the conduct of the examiner. See the concurring opinion

of Judge Clark in NLRB v. Baldwin Locomotive Works , 128 F.2d

39, 55-56 (3 Cir. 1952).

Appellant also maintains that she was deprived of a fair hearing because

the assistant to the hearing examiner failed to record portions of the

testimony of appellant's expert witness. This objection was also waived by

the appellant at the administrative level. The alleged failure of the

assistant to transcribe all of the testimony of appellant's expert witness

was noted at the hearing and at that time the examiner gave appellant's

attorney the opportunity to ask further questions in order to remedy any

omissions that may have occurred. Furthermore, the Appeals Council advised

the appellant's attorney that they would receive and consider any

additional evidence bearing on the issues in this case. Cf. Paul v. Celebrezze , 337 F.2d 352, 353-54 (9 Cir. 1964), cert. denied, 381

U.S. 906 (1965).

III. QUASHING OF THE SUBPOENA DUCES TECUM AND DENYING

THE REQUEST FOR ADMISSIONS

r to remedy any

omissions that may have occurred. Furthermore, the Appeals Council advised

the appellant's attorney that they would receive and consider any

additional evidence bearing on the issues in this case. Cf. Paul v. Celebrezze , 337 F.2d 352, 353-54 (9 Cir. 1964), cert. denied, 381

U.S. 906 (1965).

III. QUASHING OF THE SUBPOENA DUCES TECUM AND DENYING

THE REQUEST FOR ADMISSIONS

Appellant also argues that the District Court erred in quashing her

subpoena [5] requiring the

production of an internal investigative report of the Social Security

Administration directed to the conduct of the hearing examiner and in

denying her request for admissions. The subpoena and the request

admissions were intended to support two claims of procedural error: (1) a

claim that the hearing examiner was unfair because he was, allegedly,

incompetent, abusive and failed to properly consider the evidence and (2)

a claim that the transcript of the hearing was incomplete. We have

carefully examined the transcript of the hearing before the examiner and

we cannot find substantial support for the claim made by the appellant

that the hearing examiner was incompetent, unfair or failed to properly

consider the evidence. As to the allegation that he was abusive in his

treatment of the appellant, a careful examination of the whole record

fails to convince us that he treated the appellant so hardily as to show

bias or prejudice. The hearing was an abrasive one. The appellant did in

fact prevaricate and admitted it. She was a difficult witness and the

hearing examiner labored, over frequent objections from her counsel, to

elicit facts from her.

in his

treatment of the appellant, a careful examination of the whole record

fails to convince us that he treated the appellant so hardily as to show

bias or prejudice. The hearing was an abrasive one. The appellant did in

fact prevaricate and admitted it. She was a difficult witness and the

hearing examiner labored, over frequent objections from her counsel, to

elicit facts from her.

Ordinarily intra-agency proceedings are not available to the court. In

this connection the appellant depends on the Public Information Act, but

omits reference to 5 U.S.C. § 552(b)(5) which exempts "inter-agency or

intra-agency memorandums" from inspection. We need not and do not pass on

the issue of whether the record of departmental proceedings looking to the

conduct of a hearing examiner might be available under certain

circumstances, for example, fraud in the agency tribunal itself, for the

appellant does not suggest such a situation. We therefore in this case do

not and need not go beyond the record of the proceedings before the

hearing examiner and, as we have already said, we do not find that the

hearing examiner was guilty of the conduct ascribed to him by the

appellant. Cf. 5 U.S.C. § 706(2)(E). See Couch v. Udall , 265

F.Supp. 848, 849-50 (W.D. Okla. 1967). We find the court did not err in

quashing the subpoena and in denying the request for admissions.

With respect to the contention that the subpoena and the request for

admissions would have supported the appellant's claim that the transcript

was incomplete, the appellant clearly waived this contention at the

administrative level for reasons already stated in this opinion.

W.D. Okla. 1967). We find the court did not err in

quashing the subpoena and in denying the request for admissions.

With respect to the contention that the subpoena and the request for

admissions would have supported the appellant's claim that the transcript

was incomplete, the appellant clearly waived this contention at the

administrative level for reasons already stated in this opinion.

Judge Seitz agrees with the results reached by the majority but, as to

the issues raised in the third section of the majority opinion, he

believes that the applicability of the Freedom of Information Act is not

properly before this court since it was not raised below. In addition, if

there was any error in the district court's ruling on the subpoena and

request for admissions, it was harmless error.

The judgment will be affirmed.

[1] Appellant urges that the

correct standard for judicial review of Social Security Administration

decisions appears in the Administrative Procedure Act, 5 U.S.C. § 551 et seq . Section 10(c) of the Act, 5 U.S.C. § 706 (Supp. IV.),

states, in relevant part, that the reviewing court shall "hold unlawful

and set aside agency action, findings, and conclusions found to be . . .

unsupported by substantial evidence. . . ." There are no reported cases

holding that the Administrative Procedure Act supersedes the Social

Security Act with respect to judicial review of agency actions but there

are several District Court cases in other jurisdictions holding that the

Administrative Procedure Act must be read in pari materia with the

appropriate section of the Social Security Act on the subject of judicial

review. Couch v. Udal , 265 F.Supp. 848 (W.D. Okla. 1967); Miller v. Ribcoff , 195 F.Supp. 534 (W.D.S.C. 1961); Rafal v. Flemming , 171 F.Supp. 490 (E.D. Va. 1959); Julian v. Folsom , 160 F.Supp. 747 (S.D.N.Y 1958)

n other jurisdictions holding that the

Administrative Procedure Act must be read in pari materia with the

appropriate section of the Social Security Act on the subject of judicial

review. Couch v. Udal , 265 F.Supp. 848 (W.D. Okla. 1967); Miller v. Ribcoff , 195 F.Supp. 534 (W.D.S.C. 1961); Rafal v. Flemming , 171 F.Supp. 490 (E.D. Va. 1959); Julian v. Folsom , 160 F.Supp. 747 (S.D.N.Y 1958). We need

not decide whether the Administrative Procedure Act supersedes the Social

Security Act with respect to judicial review of final decisions of the

Secretary for the standard of review in the Administrative Procedure Act

is precisely the same standard of judicial review appearing at Section

205(g) of the Social Security Act.

[2] Although the appellant's

arrival record in the United States was not introduced into evidence,

appellant conceded at the hearing that her arrival record indicated a date

of birth of 1895.

[3] Appellant's confusing

testimony evoked sharp questioning from the examiner. Under the

circumstances, we believe the examiner's pointed questioning was in

order.

[4] The text of this regulation

reads as follows:

[5] The subpoena directed he

defendant-appellees to bring to the hearing in the District Court: "All

records and reports and other documents in possession, custody and control

of Department of Health, Education and Welfare, dealing with and

concerning the full investigation conducted by said Department of HEW into

the hearing in Newark, N.J., on September 15 and October 13, 1967, by

hearing examiner Joseph J. Goldsmith on claim of Pauline Ginsburg for

Social Security benefits, Account No. 146-32-4519."