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CHAN WAI KING v. SULLIVAN

February 5, 1991

CHAN WAI KING, PLAINTIFF,
v.
LOUIS W. SULLIVAN, M.D., SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANT.



The opinion of the court was delivered by: Korman, District Judge.

MEMORANDUM AND ORDER

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 following:

    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
  are:
    (1) She has obvious temporal rescission of the
    hairline and general thinning of the hair of
    her head.

(2) Her hair is grey.

    (3) She has an occasional seborrheic keratosis
    of the skin of the upper portions of her body.

(4) She is edentulous.

    (5) She has obvious hypertrophy of the knee
    joints (hypertrophic osteoarthritis).
    (6) She has obvious longitudinal ridging of the
    fingernails.
    (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
  old.

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. Tr. 238.

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
 ...

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