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COVO v. GARDNER

June 24, 1970

Regina COVO, Plaintiff,
v.
John W. GARDNER, Secretary, Dept. of Health, Education & Welfare, Defendant


Edelstein, District Judge.


The opinion of the court was delivered by: EDELSTEIN

EDELSTEIN, District Judge.

This action against the Secretary of Health, Education and Welfare was brought under section 205(g) of the Social Security Act, 42 U.S.C. § 405(g) (1964), to review the defendant's denial of plaintiff's application pursuant to section 202(a) of the Social Security Act, 42 U.S.C. § 402(a) (1964), for old-age insurance benefits. In compliance with the requirements of section 205(g) *fn1" the defendant has filed with the court a certified copy of the entire administrative record of the proceedings concerning plaintiff's claim. A motion for summary judgment has been made by the defendant and that motion now is before the court. *fn2"

 Section 202(a) of the Social Security Act, 42 U.S.C. § 402(a) (1964) provides that

 
Every individual who --
 
(1) is a fully insured individual * * *,
 
(2) has attained age 62, and
 
(3) has filed application for old-age insurance benefits * * *,
 
shall be entitled to an old-age insurance benefit for each month, beginning with the first month after August 1950 in which such individual becomes so entitled to such insurance benefits and ending with the month preceding the month in which he dies. * * *

 Alleging that she was born in Greece on July 31, 1899, plaintiff first applied for old-age insurance benefits on August 30, 1965. This application was denied by the Social Security Administration on October 13, 1965, on the basis of information contained in the Administration's records to the effect that plaintiff's birth date is July 31, 1912, and that therefore she was not sixty-two years old. Plaintiff took no further action on this application, but on April 25, 1966, she filed a second application in which again she alleged that she was born on July 31, 1899. This application similarly was denied by the Social Security Administration on the same ground that plaintiff was not sixty-two years old. Dissatisfied, plaintiff requested reconsideration of this determination. This request was granted but the Administration adhered to its initial determination. Plaintiff thereupon requested a hearing on her application before a hearing examiner of the Bureau of Hearings and Appeals. This request, too, was granted, and a hearing was held on December 15, 1966, at which time plaintiff, represented by counsel, appeared and testified. *fn3" Subsequently, on April 17, 1967, the hearing examiner, finding that the evidence established that plaintiff's birth date was July 31, 1912, also denied plaintiff's application. Pursuing her administrative remedy further, plaintiff next petitioned the Appeals Council of the Bureau of Hearings and Appeals for review of the hearing examiner's decision. After considering this request, the Appeals Council decided that the decision of the hearing examiner was correct and that no further action by the Council would benefit plaintiff. The decision of the hearing examiner thus was allowed to stand as the final decision of the defendant in regard to plaintiff's application. This action seeking review of that decision followed.

 The official documents in the record before the hearing examiner are consistent with a finding that plaintiff's birth date is July 31, 1912. Plaintiff was born in Salonika, Greece, and emigrated to this country in 1933. Her Greek passport, issued in that year, lists her birth date as being July 31, 1912. On December 9, 1936, plaintiff applied for a Social Security account number and on her application stated that she was born on July 31, 1912. Likewise, plaintiff's marriage certificate, dated March 26, 1944, her request for a change in the records of the Social Security Administration to indicate her married name, dated October 12, 1944, and plaintiff's certificate of naturalization, dated January 29, 1945, all alleged July 31, 1912, as being plaintiff's date of birth. Indeed, plaintiff admits that from her entry into this country until she first applied for oldage insurance benefits she consistently asserted on official documents that she was born on July 31, 1912.

 Plaintiff maintains, nevertheless, that her date of birth is July 31, 1899. The date in 1912, she explains, merely was adopted by her to avoid difficulties in emigrating to this country and thereafter was retained for the sake of consistency and out of fear of deportation. To substantiate this claim that in fact she was born in 1899, plaintiff testified at her hearing about various historical events which occurred in the years between 1912 and 1917. She also testified about various events in her family life which occurred before and during this same period, including the death of her father and the departure of her brother for Israel. It is argued that if plaintiff were born in 1912, as the hearing examiner found, she would be unable to remember and testify about these events.

 There was other testimony in the record before the hearing examiner. Three persons who knew plaintiff as a girl in Greece and who are older than she is together with plaintiff's older brother and sister submitted affidavits on plaintiff's behalf. All of these individuals, based on their personal recollections, attest to their beliefs that plaintiff was born at approximately the time claimed by her.

 Plaintiff, in addition, offered one document in support of her application, namely a certification of birth. It appears that plaintiff's birth certificate was taken from her in 1933. *fn4" After applying for old-age insurance benefits she attempted to obtain a record of her birth from Greece, but such a record was unavailable. Salonika, plaintiff's birthplace, was a part of the Turkish Empire until the second decade of this century. Since birth certificates were neither provided nor required by Turkish law, the only record of plaintiff's birth was maintained by the Jewish community in Salonika. That community, however, was destroyed by the Germans during the Second World War. Accordingly, to obtain some documentation in her favor, plaintiff, pursuant to Greek law, petitioned the First Instance Court of Thessaloniki (the present name for Salonika) for certification that she was born in that city in July of 1899. Her petition was supported by the testimony of a local resident who testified that he knew plaintiff and knew her to have been born in 1899 when he was fourteen years old. Plaintiff's petition was granted by the Court and its certification that plaintiff was born in Thessaloniki in July 1899, was made a part of the record before the hearing examiner in the instant proceeding.

 The evidence before the hearing examiner, then, on the one hand, consisted of various governmental documents in which plaintiff averred that she was born in 1912, and, on the other hand, consisted of the testimony of plaintiff herself, and of affidavits of five others, as well as a certification of plaintiff's birth recently obtained by her from a court in Greece. The hearing examiner considered all of this evidence in his opinion. *fn5" While he did not doubt the "honesty" or "veracity" of plaintiff and her witnesses, he concluded that their testimony, due to the frailties of human recollection, was not persuasive in the face of the opposing documentary evidence in the record. The certification of plaintiff's birth was also found unpersuasive inasmuch as it was obtained in an ex parte proceeding recently undertaken solely for the purpose of supporting ...


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