The opinion of the court was delivered by: Korman, District Judge.
Chan Wai King was born in a rural section of the Canton
Province of China. The date of her birth is the source of the
dispute in this action to review a final determination of the
Secretary denying her application for retirement benefits. Ms.
Chan asserts that she was born on October 7, 1922. She
completed elementary school in 1941, at the age of 18, her
studies having been interrupted by the Sino-Japanese War. Tr.
at 132-33. After the war, Ms. Chan lived in Hong Kong, where
she was able to find work as a teacher of dance and music.
When the authorities in Hong Kong initiated an identification
card requirement, Ms. Chan gave her age as 22 rather than 34.
She misstated her age on the advice of her school supervisor
who told her that, because of the depressed economic
conditions, the influx of refugees from the mainland, and the
availability of younger applicants for a physically demanding
job, she would not be able to obtain employment if she stated
her true age. Tr. at 135.
Ms. Chan married her husband in Hong Kong in 1963. She then
emigrated with him to the United States in that same year.
According to Ms. Chan, her husband told her to give the same
1934 date of birth to Immigration and Naturalization Service
because it appeared on her Hong Kong identification papers and
marriage certificate. Her husband believed that, if they
attempted to correct her age at that time, it might impede her
entry into the United States. Tr. at 20-22.
After Ms. Chan arrived in the United States, she continued
to use the 1934 date of birth because of her fear of
difficulties with immigration if she were to attempt to
correct it. Her naturalization papers, her application for a
social security number, and original union card all repeat the
date derived from the Hong Kong I.D. card. In 1979, however,
Ms. Chan's youngest brother returned to China. While there, he
obtained an official birth certificate for Ms. Chan that
stated her year of birth to be 1922. The certificate was based
upon evidence provided by people residing in her native
village. This document was reviewed by the United States
Consul in Beijing, China, who certified that "faith and credit
are due" to the acts of the Chinese ministry issuing the
document. Tr. at 60.
Ms. Chan filed an application for retirement benefits on
July 19, 1984. The application was denied on the ground that
Ms. Chan was born in 1934 and was not old enough to be
eligible. Tr. at 30. In 1986, she sought a reconsideration of
this decision. A hearing was held on August 27, 1986, and Ms.
Chan submitted documentary evidence in support of her claim
that she was born in 1922.
On October 20, 1986, the ALJ issued a decision denying
benefits to Ms. Chan because she had not provided sufficient
evidence to establish the earlier birthdate. The ALJ rejected
the birth certificate issued by the Peoples Republic of China
and he also rejected Ms. Chan's explanation of her reasons for
using a later birthdate. He concluded that Ms. Chan's
naturalization papers must control the determination of her
age. Tr. at 8. The ALJ's decision was upheld by the Appeals
Council on January 21, 1987.
At the time of the initial hearing before the ALJ, where she
was not represented by counsel, Ms. Chan did not submit
medical evidence relating to her age. In an order dated March
15, 1988, the decision of the Secretary denying benefits was
vacated, and the case remanded for the specific "purpose of
taking such medical evidence as will assist in determining the
plaintiff's true age and the weight to be given the birth
certificate issued by the Republic of China." Tr. at 161.
While such medical evidence would be of little assistance in
resolving a discrepancy of only a few years, it was my feeling
that it could be extremely useful where, as here, there was a
twelve year difference. If the medical evidence indicated,
with a reasonable degree of certainty, that Ms. Chan was a
woman in her middle sixties rather than her early fifties, it
could provide compelling evidence corroborating her testimony.
On remand, extensive medical evidence supporting Ms. Chan's
claim was obtained for the first time and entered into the
record. Ms. Chan provided substantial documentation from two
prominent gerontologists, as well as from her treating
physician and dentist.
Gilbert R. Cherrick, M.D., F.A.C.P., the Associate Director
of Medicine at the Hebrew Home for the Aged, who has extensive
experience in geriatric medicine, conducted a personal
examination of Ms. Chan on April 18, 1988, and observed the
She appears, physically, to be a woman of at
least 65 years of age. This judgment is based, to
some extent, on her gross somatic appearance.
Objective findings which validate this assumption
(1) She has obvious temporal rescission of the
hairline and general thinning of the hair of
(3) She has an occasional seborrheic keratosis
of the skin of the upper portions of her body.
(5) She has obvious hypertrophy of the knee
joints (hypertrophic osteoarthritis).
(6) She has obvious longitudinal ridging of the
(7) X-rays of her thoracolumbar spine reveal
osteoarthritic changes and osteoporosis
characteristic of advanced age.
. . . On the basis of the above-enumerated
considerations, I feel, quite definitely, that .
. . Mrs. Chan Wai King[ ] is more than 65 years
Tr. 167-68. Dr. Cherrick also considered and rejected the
possibility that these symptoms could be attributed to causes
other than an age of at least 65. He concluded that such
alternate explanations of each of the symptoms, an approach
suggested by the ALJ, would do "violence to what might be
termed `good medical clinical judgement,'" and that reasoning
based on explanations other than age was medically unsound.
Ms. Chan also was examined by Jir S. Tsai, M.D., who is the
head of the geriatric program at the Hospital for Joint
Diseases, an Associate Professor of Medicine at NYU Medical
Center, and a practicing gerontologist. Dr. Tsai has had
extensive experience in treating geriatric patients of Chinese
background, including five years of service as the head of
medicine at Gouverneur Hospital, which provides services to
the Chinatown community. Tr. 169. Dr. Tsai also personally
examined Ms. Chan on July 7, 1988, and reported as follows:
I observed the following clinical signs of
aging on Ms. Chan:
1) mild kyphosis-resulting [sic] from
osteoporosis shown on x-ray of the lumbosacral