SSR 75-15c: SECTION 202(a) and 205(a) (42 U.S.C. 402(a) and 405(a)) -- PROOF OF AGE -- EVALUATION OF CONFLICTING EVIDENCE

20 CFR 404.703

SSR 75-15c

Griffin v. Richardson, U.S.D.C., M. Dist. of Ala., N. Div. Civil No. 3293-N, 7/25/73 (CCH UIR FED ΒΆ 17,357)

Where plaintiff presented oral testimony, two unsworn written statements (made in 1969 by his mother and a friend of the family) and numerous affidavits (executed primarily in 1972 by his mother, friends, and acquaintances), to establish his date of birth in July 1900, but, with one exception, all available public records (not of recent origin and established by persons with no interest in the outcome of plaintiff's application) consisting of two school census records (dated 1926 and 1928, respectively), a U.S. Decennial Census of 1930, Selective Service System draft registration in 1940, and plaintiff's application in 1955 for a social security number, consistently indicated that he was born in 1917, a difference of approximately 17 years from the date alleged. Held, under the regulations of the Social Security Administration (20 C.F.R. 404.703), the Secretary's decision that the plaintiff had not attained age 62 so as to be eligible for old-age insurance benefits is supported by substantial evidence. Further held, where the difference in ages contended to be correct is approximately 17 years, the fact that the Administrative Law Judge had an opportunity to observe the plaintiff is not controlling but cannot be ignored on review.

VARNER, District Judge:

J. C. Griffin claims to be seventy-three years of age having been born in July, 1900. Following extended administrative proceedings, the defendant Secretary of Health, Education and Welfare has found as a fact that the plaintiff is presently fifty-six years of age having been born on February 10, 1917. Pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. 405(g), the plaintiff seeks review of the Secretary's final decision denying his application for retirement insurance benefits under the Social Security Act. The defendant admits that the plaintiff is a fully insured individual and is entitled to benefits if he had attained age sixty-two at the time of filing his application. 42 U.S.C. 402.

The standard of review and legal issues are not in dispute. The statute under which review is sought provides that "[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." Substantial evidence means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Company v. NLRB, 305 U.S. 197, 225 (1938). Stated another way, substantial evidence is "evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions . . ." Boeing Company v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (on banc).

The Secretary's finding as to date of birth is based upon various public records discussed below. The plaintiff's contention that his true date of birth is in July, 1900, is based upon his oral testimony, upon two unsworn written statements dated in August, 1969, made by his mother and a friend of the family, and upon numerous affidavits executed primarily in 1972. All of the affidavits appeared to be from persons in excess of sixty-five years of age who state that they know the plaintiff to be older than they, or from persons approximately seventy-five years of age who state that they know the plaintiff to be only slightly younger than they. Undoubtedly, the various affidavits from friends and acquaintances, together with the plaintiff's oral testimony and the affidavit of his mother (Exhibit 47, Tr. 179-80), if believed, would support a finding of a date of birth in July, 1900. After making various credibility choices, the final decision of the Secretary accepted findings based upon various public records.

This much is settled. The plaintiff is the son of W. Mathew Griffin, a/k/a Math Griffin, and Ida Duncan Griffin of Crenshaw County, Alabama. Five children were born of the marriage. Those children, in the order in which they were born, were the plaintiff, John Frank Griffin, Clarence Griffin, Lillie Mae Griffin, and Lucille Griffin.

The Secretary is authorized to "adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits" under the Act. 42 U.S.C. 405(a). The pertinent regulations in this case are found in 20 CFR 404.703. Those regulations are as follows:

"Evidence as to Age. -- (a) When Required. -- An applicant for benefits under title II of the Act 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.

"(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 and by other 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. Among the documents which may be submitted for such purposes 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."

It is clear from the regulations that a preference is made for documentary evidence. If such evidence is available, a claimant must "submit a public record of birth or a church record of birth or baptism established or recorded before his fifth birthday." If no such record is available, other documents may be offered but they must be "corroborated." Where other documents are used, "consideration will be given to when such other documents were established or recorded, and the circumstances attending their establishment or recordation." (Emphasis added). See, Merrell v. Gardner, 397 F.2d 65 (5th Cir. 1968); Blanks v. Richardson, 439 F.2d 1158 (5th Cir. 1971). Pursuant to these regulations, the Appeals Council adhered to "the general principle that the oldest evidence, as found in documents and public records prepared closest in time to the event, constitutes the most probative evidence as to the correct date of the claimant's birth." (Tr. 7).

In Merrell v. Gardner, supra, the plaintiff contended that he was born on December 30, 1900. Some documentary evidence supported that date and other documentary evidence indicated the date of birth of December 30, 1901. Based solely upon census records from the Decennial Census of 1910, and in the face of consistently contrary documentary evidence and oral testimony, the Secretary established the plaintiff's date of birth as December 30, 1904. This decision was found to be unsupported by substantial evidence. It is noted that the difference between the claimant and the Secretary was either of three or four years difference in age. In Blank v. Richardson, supra, the difference in age between that claimed by the claimant and found by the Secretary was two years to the date. In both cases, the dispute was considered administratively and by the appellate courts as being in the nature of "good faith" dispute. The court emphasized that "the Secretary does not argue that [the claimant] lied about his age. . . ." Merrell v. Gardner, supra, 397 F.2d at 66. By contrast, in the pending case the hearing examiner, whose findings and conclusions were adopted by the Appeals Council, found that:

"Clearly, perjury was committed by the claimant in testifying that:
"1. He was born July 8, 1900.
"2. He did not attend Campbell's Chapel School in 1926 and 1928.
"3. His mother is 86 years old." (Tr. 18-19).

The nearly seventeen years difference between the dates of birth contended to be correct by the plaintiff and defendant shows such a wide disparity as to hardly admit of "good faith" error of recollection.

The oldest documentary evidence of record concerning the plaintiff's age is a record of a census of Campbell's Chapel School dated August 4, 1926. (Tr. 161, Exhibit 30). That record shows that three children of W. M. Griffin were in attendance at the school. Those children were John F. Griffin, J. C. Griffin, and Clarence Griffin. Their respective dates of birth were recorded by numeral as to month and year as follows: 12/19/13; 2/19/17; and 6/19/20. The plaintiff categorically denied attending Campbell's chapel School. Both the plaintiff and his mother testified that plaintiff was the oldest child of W. M. Griffin and Ida Duncan Griffin. Thus, to accept the single school census as to absolute verity as to every matter might require rewriting "the family tree." Blanks v. Richardson, supra, 439 F.2d at 1161. However, unlike the situation in Blanks v. Richardson, the plaintiff's testimony concerning "age hierarchy of the children" is not supported by "the recollection of all family members." The plaintiff's testimony that he is the oldest child is supported only by the affidavit of his mother who, if other parts of his testimony are believed in the face of census records to the contrary, would be eighty-six years old. Due to the identity of the names of the children reflected in said census report as those of W. M. Griffin with the names of the plaintiff and his brothers, it would be difficult to conclude that the "J. C. Griffin" shown in said census as having date of birth of February, 1917, is other than the plaintiff himself. No evidence was offered by either side concerning circumstances under which the school census was made, how the information was obtained, or what degree of accuracy was attempted in taking the census. See, Blanks v. Richardson, supra, 439 F.2d at 1161. In spite of the plaintiff's denial that he was a student at Campbell's Chapel School in 1926, because of the identity of the names of the parents and siblings it is concluded that said school's census record is material and does have some weight to the Secretary's findings.

The next oldest document in the record concerning the plaintiff's date of birth is another school census of Campbell's Chapel School taken in 1928. (Exhibit 35, Tr. 160). The document again shows the same named children of W. M. Griffin with the identical dates of birth attending school. The identical observations made concerning the school census record of 1926 apply to the school census of 1928. If an error was made in the first census, it was repeated in the second. Consistency between records is argued strongly in connection with other records.

It is undisputed that the plaintiff's father, W. M. Griffin, and the plaintiff's brother, John F. Griffin, died sometime during the year 1928.

The next oldest documents of record are taken from the Decennial Census of 1930, as of April 1, 1930. The Department of Commerce reported (Exhibit 42, Tr. 169) that the census of 1930 showed that Ida Griffin was the head of a family enumerated in Crenshaw County, Alabama. The age of Ida Griffin shown in census records as of April 1, 1930, was thirty-five. Thus, Ida Griffin would have been born in 1895. An additional census record from the 1930 census (Exhibit 12, Tr. 131) reflects that Ida Griffin was head of a family then consisting of four children whose names were "J.C., Clide, Lillimay (and) Lucile." The age of the son of J.C. as of April 1, 1930, was shown as age twelve. The identity of the name of the siblings in the family amounts to virtually positive identification of the J. C. Griffin, son of Ida Griffin, reflected in said exhibit as the plaintiff. Had the plaintiff been born in July, 1900, as he claims, his then age would have been twenty-nine. Had he been born in February, 1917, as the Secretary found, his then age would have been twelve which is the same age reflected in census records.

The next oldest document of record is the marriage license reflecting the plaintiff's marriage to Myrtice Jackson.

A certified photo copy of the marriage license itself appears in the records as Exhibit 32 at Tr. 155. It is virtually illegible as to the date of birth of J. C. Griffin. It is undisputed that said marriage license shows his date of birth as being either June 12, 1900, or July 12, 1900. Information concerning the plaintiff's marriage license appears in the record in two places. Exhibit 7 is a certificate of the Judge of Probate of Covington County, Alabama, certifying that the plaintiff's date of birth as shown on the marriage license is June 12, 1900. Exhibit 8 is a "Marriage Certificate" issued by the Judge of Probate of Covington County, Alabama, in 1966, reflecting the plaintiff's date of birth as "7-12-1900." One of the two dates is obviously wrong. Similarly, a certificate accompanying the photo copy of the marriage license on a Social Security Form signed by the Probate Judge of Covington County, Alabama, shows the plaintiff's date of birth as reflected on his marriage license to be June 12, 1900. (Exhibit 33, Tr. 156). The marriage license is the only public record tending to establish the plaintiff's date of birth as being in the year 1900.

The next oldest public records located concerning the plaintiff's date of birth are three certificates from the Selective Service System reflecting that J. C. Griffin registered under the Selective Training and Service Act of 1940 on October 16, 1940, at Local Board No. 2, Covington County, Alabama. The certificates, Exhibits 9, 10, and 11, are dated May 5, 1966, May 19, 1969, and September 9, 1969. Exhibits 9 and 11 certify that the plaintiff's date of birth as reflected on Selective Service records is February 10, 1917. Exhibit 10, reflects a date of February 10, 1911. Considering the inconsistency, the Appeals Council found it "obvious that Exhibit 10 contains a clerical error which was subsequently rectified by Exhibit 11." (Tr. 8). This is not an unreasonable reading of the series of certificates. In the case of the plaintiff's marriage license discussed above, it appears reasonably clear that at some time an error was made in recording either a figure "6" or "7" as the month of the plaintiff's birth. Similarly, with respect to the Selective Service documents, it appears clear that in showing a date of birth of 1911 a typographical error was made in showing as a "1" what should have been "7". The plaintiff admitted having registered under the Selected Service Act in Covington County, Alabama, in 1940. He categorically denied having given anyone his age at the time he registered and testified that he did not know how the Selective Service had obtained the information reflected in its records concerning his date of birth.

The final and last material public record concerning the plaintiff's date of birth is the application for a Social Security Account Number. The plaintiff was assigned an account number on the basis of an application dated July 22, 1955 (Exhibit 6, Tr. 125), bearing the signature "J. C. Griffin." The application shows the date of birth of J. C. Griffin to be February 10, 1917. The plaintiff categorically denies signing the application or providing anyone with information regarding his date of birth reflected thereon. He testified that the application was filed while he was employed by a fruit company in Pasco County, Florida, and that he did not participate in its filing, did not sign the application, and did not authorize anyone specifically to sign it for him.

With the exception of his marriage license, all public records relating to the date of plaintiff's birth reflect that he was born in February, 1917. Every public record which specifies a day of birth within the month of February, 1917, reflects that he was born on February 10, 1917. The question is whether the public record relied upon constitutes substantial evidence to support the Secretary's decision that the plaintiff was born February 10, 1917, has not attained the age of sixty-two years, and is thus not entitled to old-age benefits.

In cases where administrative expertise is required in applying a complicated congressional policy, reviewing courts must give special deference to administrative findings. Ordinarily, however, cases involving whether a claimant has attained the required age for entitlement to old-age benefits do not require administrative expertise and reviewing courts "are called upon to examine the record closely." Blanks v. Richardson, supra, 439 F.2d at 1159. This case bears one notable distinction from Blanks v. Richardson, supra, and Merrell v. Gardner, supra. The differences in age contended to be correct by the plaintiffs and the Secretary in those cases were relatively small. In arriving at decisions it was necessary for a hearing examiner, now known as administrative law judge, to rely almost totally on documentary evidence and oral testimony. It is doubted that an opportunity to observe demeanor or physical appearance of a witness would be a great assistance in perceiving the difference of age of two years. In the pending case, however, the difference between the ages contended to be correct are great. While controlling weight is not and should not be given to the fact that the hearing examiner had an opportunity to personally observe the plaintiff, review in this case when the claimed difference in age is seventeen years cannot ignore the fact that the finder had an opportunity to observe the claimant.

A paragraph from Merrell v. Gardner, supra, illustrates the type analysis appropriate in this case:

"We are mindful that appellate review in this case is limited so that our only function is to inquire whether substantial evidence supports the administrative decision. Nevertheless, we are persuaded that the evidence to support December 30, 1904 as the correct date of birth is not such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Braaksma v. Celebrezze, S. D. Calif. 1965, 246 F.Supp. 767. The only evidence to support this conclusion is a 1910 United States Census Report indicating that a family named 'Morel" in Wilkinson County had a five-year-old child named Dock. On the other hand, insurance policies, an application for a Social Security number, a request for a change in Social Security records, oral testimony given by appellant and Mr. L. C. Curtis, a pastor's certification of appellant's baptism, the birth certificate of one of his children, a delayed birth certificate issued by the State of Georgia, and a 1940 Census Report indicate that Dock Merrell was born in 1900 or 1901. Also, Mr. T. Y. McBride signed an affidavit certifying that the Merrells were living on the McBride farm at the time of appellant's birth and that he was born on December 30, 1900. Considering all the evidence, we think it was simply not reasonable for the Secretary to accept the 1910 Census as true and reject everything else." 397 F.2d at 65-66.

By contrast, in the pending case, the Secretary did not accept one ambiguous record as conclusive and reject all other evidence. It is true that the Secretary rejected statements made by various persons in 1969, 1971, and 1972, and rejected the plaintiff's marriage license. What the Secretary accepted, however, was a consistent group of public records consisting of two school census reports, a report of the United States Census, a report of the record of the plaintiff's draft registration, and the plaintiff's own application for a Social Security Account Number. Those public records were consistent, were recorded closer in point of time to the facts which they purported to record, and were established by persons with no interest in the subsequent outcome of an application for Social Security Old Age Benefits. When with but one exception, all available public records, consistently indicate a particular date of birth for an individual, it is concluded that "a reasonable mind might accept [such records] as adequate to support a conclusion" that the records are accurate as to the date of birth reflected thereon. Even though "reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions," the weight of the consistent public records regarding the plaintiff's date of birth constitutes substantial evidence. Boeing Company v. Shipman, supra. Accordingly, it is RECOMMENDED that the final decision of the Secretary of Health, Education and Welfare denying the plaintiff's application for old-age insurance benefits be affirmed.

This cause is now submitted upon the complaint, the defendant's answer, including a certified copy of the transcript of the administrative record, and upon the recommendation of the magistrate thereon. For the reasons stated in the recommendation of the magistrate herein, the Court is of the opinion that the final decision of the Secretary of Health, Education and Welfare made by the Appeals Council thereof on October 16, 1972 denying the plaintiff's application for old-age insurance benefits under Section 202 of the Social Security Act, 42 USC 402, is supported by substantial evidence and is due to be affirmed. Accordingly, it is the

ORDER, JUDGMENT and DECREE of the Court that said decision be and the same is hereby affirmed. It is further

ORDERED that the costs incurred in this proceeding be and they are hereby taxed against the plaintiff for which let execution issue.


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