Opinion
Civil Action No. 78-0024-W(H)
June 19, 1980
MEMORANDUM OPINION AND ORDER
Plaintiff in this action seeks review pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), of the final decision of the Secretary of Health and Human Services (formerly Secretary of Health, Education and Welfare; hereinafter Secretary) denying Plaintiff's application for Social Security retirement insurance benefits pursuant to Section 202(a) of the Social Security Act. The case is pending before the Court on the cross motions of the parties for summary judgment, and both parties have filed briefs.
After initial denials of his claim, Plaintiff was afforded a de novo hearing before an Administrative Law Judge (ALJ), before whom he appeared and was represented by his nephew, and who found that Plaintiff had failed to establish entitlement. Plaintiff's eligibility for benefits is dependent upon the establishment of his date of birth. The sole issue before this Court is whether the Secretary's finding that Plaintiff was born January 15, 1921, is supported by substantial evidence on the whole record. If the Secretary's findings are supported by substantial evidence, then this Court is bound to affirm that decision. Richardson v. Perales, 402 U.S. 389 (1971); Blalock v. Richardson, 483 F.2d 773 (4th Cir. 1972). In applying this standard on review it is the Court's duty to closely scrutinize the entire record to determine if substantial evidence for the Secretary's decision is present Flack v. Cohen, 413 F.2d 278 (4th Cir. 1969). Moreover, the Secretary must apply correct legal. standards in her fact finding, Knox v. Finch, 427 F.2d 919 (5th Cir. 1970) and must consider all relevant evidence and must indicate explicitly what weight has been given to each item of evidence. See generally, Arnold v. Secretary of HEW, 567 F.2d 258 (4th Cir. 1977).
Plaintiff contends that: he was born, in the later part of 1911 or the early part of 1912, as determined by the Islamic calendar. The Secretary, as noted above, found that Plaintiff was born in 1921. Plaintiff was born in Yemen and came to this country in 1952.
The following documentary evidence of record supports a finding that Plaintiff was born in 1921: (1) Admission Card to the United States dated July 1, 1952, notes Plaintiff's date of birth as 1921; (2) Plaintiff's application for a social security number, dated July 10, 1952, notes birth date as April. 3, 1922; (3) a Declaration of Intent to become a United States citizen, dated May 11, 1953, notes a date of birth of January 15, 1921; (4) a form authorizing deductions for life insurance, and dated October 16, 1962, lists date of birth as April 3, 1922.
Documentary evidence supporting a finding that Plaintiff was born in 1911 or 1912 is as follows: (1) a translation of a Yemen court record made in 1962, which appears to be an affidavit of two persons attesting, under oath, that Plaintiff was born in 1911 or 1912; (2) the translation of another Yemen court record, also dated in 1962, which appears to be a marriage certificate, or a sworn statement as to the Plaintiff's date of birth, establishing that date of birth as sometime in 1911 or 1912; (3) a letter from Weirton Steel, Plaintiff's employer, wherein it is stated that on Plaintiff's employment application dated July 10, 1952, he listed his date of birth as April 3, 1911; (4) a letter from Plaintiff's examining physician, who has treated the Plaintiff since 1958 stating that, in the physician's opinion, the claimant is his stated age of 66 years (as noted by the physician in October, 1977).
The transcript of the hearing before the ALJ reveals that Plaintiff actually did dot testify, but testified primarily through the means of his representative, his nephew. Plaintiff contends that the Admission Card notes a 1921 birth date because, when Plaintiff came to the United States in 1952, he spoke no English, was confused by the discrepancy between the Islamic and western calendars, and that the visa and. original immigration papers were completed by Plaintiff's brother who was mistaken as to his date of birth. Plaintiff further explained subsequent notations of 1921 or 1922 birth date as an attempt to avoid a discrepancy which he felt might lead to his deportation. It should be noted, that in 1963 Plaintiff submitted to the Social Security Administration an information change form wherein he attempted to have his date of birth changed with Social Security records.
The ALJ stated that the "evidence . . . is hopelessly conflicting and although there are records which support a birth date of April, 1911, there is equally strong evidence to support dates of birth of either January 15, 1921, or April, 1922." The ALJ concluded that the most probative evidence of record was the Declaration of Intention to become a United States Citizen because that document "was established under the most formality and seriousness. " The ALJ noted that the Yemen court records were of questionable probative value, and although he noted the presence of the physician's statement, be did not explicitly state what weight that evidence was given.
The Court finds that the Secretary's decision is not supported by substantial evidence because the Secretary failed to express explicitly what weight was given to the medical. statement in the record. See Covo v. Gardener, 314 F. Supp. 894, 898-899 (S.D. N.Y. 1970). Moreover, although the ALJ noted that the preponderance of the evidence supported the finding that be birth date was 1921 or 1922, the ALJ failed to explicitly state why he. implicitly found Plaintiff's explanation for the discrepancies not credible. The Court finds that Plaintiff s explanation. of the discrepancy in the immigration records and subsequent Social Security records is logically consistent. Moreover, unlike the ALL this Court finds the records from the court in Yemen are highly probative of Plaintiff's date of birth. It is apparent from the documents themselves and the translations thereof, that they are sworn under oath and "In the name of God" and thus rise to a level of solemnity equivalent to the Declaration of intention to become a United States citizen. Moreover, the contemporaneous discrepancy between Plaintiff's designation of 1911 birth date in his employment application with Weirton Steel, vis a vis the immigration papers, does not undermine Plaintiff's case because once Plaintiff established a certain date of birth on immigration and official government papers, he obviously felt bound to stick with his story. Additionally, although it was apparently of a conclusive nature, the Court finds persuasive the statement by Plaintiff's physician who had examined him since 1958, that his records indicated Plaintiff's date of birth was 1911 as well as the physician's medical conclusion that Plaintiff was his stated age. Had the Secretary desired to extensively examine this physician, he was free to do so.
The Court has examined the pertinent: regulations found at 20 C.F.R. ¶ 404.716 and 404.708 specifying the consideration to be given to various forms of evidence tending to establish age. Neither of these sections provides a clear disposition of this action.
In accordance with. the foregoing, the Court hereby finds that the Secretary's decision is not supported by substantial evidence and the Court further finds that Plaintiff has established that he is entitled to benefits because he was born in 1911. The Court hereby ORDERS that Plaintiff be awarded benefits pursuant to Section 202(a) of the Social Security Act; that the Plaintiff's motion for' summary judgment is granted, and that the Defendant's motion too summary judgment is denied. The Court further ORDERS that this action is dismissed from the Court's docket.
The Clerk is directed to send a certified copy of this Order to all counsel of record.
JUDGMENT ORDER
In accordance with the Court's Memorandum Opinion and Order entered this same date herein, the Court hereby ORDERS as follows:
1. Plaintiff's motion for summary judgment is granted;
2. Defendant's motion for summary judgment is denied;
3. The Secretary of Health and Human Services is directed to award Plaintiff retirement insurance benefits;
4. This action is dismissed from the Court's docket.
The Clerk is directed to send a certified copy of this Judgment Order to all counsel of record.