United States District Court, Eastern District of New York
February 5, 1991
CHAN WAI KING, PLAINTIFF,
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
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
(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
(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
spine dated 4/19/88
2) sparse grey hair
3) senile arcus on both eyes
4) presbyopia which requires lens correction
5) wrinkles of her periorbital and perioral
6) absence of teeth
7) several seborrheic skin changes of scalp &
8) senile plague [sic] of skin
9) deformity of interphalangeal joints of both
10) chest x-ray dated 6/20/88 reveals
calcification of costosternal cartilage
Based upon the above clinical findings and
observations, I am almost certain that Ms. Chan
is more than 65 years in chronological age.
Tr. 169. Dr. Tsai also rejected the ALJ's speculation as to
alternate possible explanations of the symptoms, stating that
such speculations were "inconsistent with the clinical and
objective medical evidence of advanced age." Tr. 239. Dr. Tsai
went on to affirm that his "conclusion that Mrs. Chan is more
than 65 years old is based upon the totality of the clinical
and objective signs of advanced age." Id.
Ms. Chan has also been under treatment by a physician, Dr.
Lawrence Young, since 1976, and by her dentist, Dr. Albert
Lyons. Dr. Young's written statement indicates that he was
told by Ms. Chan upon commencement of treatment that she was
born in 1922.*fn1 Tr. at 148. Moreover, based on his long
term treatment of her, and his medical expertise in treating
many individuals of a similar ethnic and regional background,
Dr. Young concluded that she had physical characteristics
consistent with a 1922 birthdate. Like the gerontologists, he
based his opinion on skin degeneration, dental losses, spinal
changes, and skeletal changes consistent with an age of 65 and
inconsistent with an age of 53. Id.
Dr. Albert Lyons, the dentist who had treated her in the
past, likewise concluded that Ms. Chan must be in her sixties.
Tr. at 170. This opinion was based upon his current
examination of her and upon a panorex showing bone loss and
loss of all of her teeth. Id.
The ALJ did not ask that Ms. Chan be examined by other
doctors, nor was any evidence introduced to suggest that
competent gerontologists were not capable of rendering an
opinion as to whether an individual was more likely
approaching seventy years of age than sixty years of age. On
the contrary, all of the twelve clinical and objective signs
observed by Drs. Cherrick and Tsai are physical hallmarks of
advanced age and two of those are, in and of themselves,
highly reliable indicators of age. Specifically, as the
claimant has persuasively argued:
Arthritic changes in the spine occur in "an
irregular but predictable fashion" so that "[i]t
is possible to grade such changes and give
reasonable estimates of age of the person."
Clinical Geriatrics 7 (I. Rossman ed. 3d ed. 1986).
Similarly, the costal cartilages calcify at known
rates and in distinctive patterns, allowing for a
high degree of precision in estimating age from an
x-ray. J. Stewart and W. McCormick, A Sex and
Age-limited Ossification Pattern in Human
Cartilages, Am.J.Clin.Pathology, 1984; 81:765.
Memorandum of Law in Support of Plaintiff's Cross-motion for
Judgment on the Pleadings at 18 [hereinafter Plaintiff's
At a hearing on June 15, 1988, however, the ALJ expressed a
blatant disregard for the remand order:
I never understood what [Judge Korman] was
talking about when he said . . . "the case is
remanded to the Secretary for purpose of taken
such medical evidence as will assist in
determining the claimant's true age, and the
weight to be given the birth certificate issued
Republic of China," well apparently what this
case rests on at this point I don't know whether
it's valid. Is that a couple of doctors have
examined this women and they find her physical to
be 65. Which to me is nonsense, and if I were to
go along on the basis of it, I'd tell you that I
would regard it as nonsense.
If this is what Judge Corman [sic] expects from
me, he's not going to get it. This is why I'm
upset, this is the most fictional thing I've ever
seen. Now you suggest the procedure, I'm willing
to listen to reason but I'm not a complete fool?
Tr. at 103-04 [spelling and grammatical errors here and in
subsequent quotes are in the original transcript].
As the attorney for Ms. Chan sought to indicate the
qualifications of Dr. Cherrick, one of the gerontologists who
had submitted a report, the ALJ responded:
I couldn't care less. . . . No doctor is ever
going to tell me, let a doctor examine me and let
me tell me by examination how old I am. He
couldn't do it in a million years. Nor could he
do it to you, to her or to this women. And I find
that complete fictitious.
Tr. at 104-05.
When the attorney sought to indicate possible precedents
that would permit such evidence, the ALJ replied:
I will not, I tell you now say this women is 65
based on a physical examination, I won't do it.
And I'm stating for the record, and I'm making a
record that I'm doing it because of the reasons
about (INAUDIBLE) you can go back to Judge Corman
with the records and let him do, there's nothing
in the Regulations that prescribe it.
Tr. at 105-06.
After an off-the-record discussion, the ALJ seemed to modify
his stance somewhat, and indicated that, if Ms. Chan's
attorney would provide an additional legal basis for medical
evidence, he would arrange for a geriatric examination of Ms.
Chan. Tr. at 107-08. In response to this request, Ms. Chan's
attorney submitted a memorandum of law on June 29, 1988,
citing substantial authority favoring consideration of medical
evidence in this case. Memorandum of Law in Support of
Claimant found in Tr. at 189.
In a decision rendered on October 24, 1988, the ALJ neither
ruled against the appropriateness of such evidence nor
arranged for the additional examinations to which he had
committed himself. The ALJ proceeded to discuss the medical
evidence, apparently acknowledging its admissibility while
deciding to give little or no weight to the detailed medical
findings of the two independent expert gerontologists, the
treating physician, and the treating dentist. Tr. at 89-90.
The ALJ considered each of the medical observations of the
expert and treating physicians, and proceeded to offer
possible alternative explanations for the clinical conditions
and symptoms. The ALJ did not credit the treating physician's
statements that he had known Ms. Chan to be in her sixties,
and he explained away Dr. Lyons' and Dr. Cherrick's
observations that the claimant is edentulous by speculating
that Ms. Chan may have had gum disease or accidents. The ALJ
rejected the gerontologists' determination concerning her
osteoarthritis, concluding instead that this condition may
have been caused by trauma. He dismissed their findings
concerning skeletal changes, explaining instead that "the
osteoporesis [sic] the doctor found could represent extreme
nutritional deficiencies in early age and not be
characteristics of advanced current age." Tr. at 89. The ALJ
finally came to an overall conclusion that the range of
medical findings may be due to "premature aging due to a `hard
life' rather than actual advanced age . . . or [may be due to]
poor juvenile nutrition." Id.
In subsequent submissions to the Appeals Council, Dr.
Cherrick and Dr. Tsai ruled out the likelihood of alternative
explanations for the observed pattern of extensive symptoms of
aging. Dr. Tsai indicated that the ALJ's alternative
speculations are incorrect because extreme nutritional
deficiencies would reveal osteomalacia, which is not present,
and the trauma
suggested as the basis for the osteoarthritis would show some
external scarring or x-ray evidence, both of which are
lacking. Tr. at 239. Dr. Cherrick observed that:
The [administrative law] judge's reasoning runs
counter to the way a good diagnostician reasons.
The informed physician synthesized [sic] findings
into a clinical picture. The [ALJ], by dissecting
the facts of the case, in each instance finds a
plausible (if not a reasonable explanation) of
the facts. In so doing, he is able to justify his
position — but it is my firm belief that he does
so at the expense of doing violence to what might
be termed "good medical clinical judgement." In
summary, I find the judge's reasoning to be
Tr. at 238. Both gerontologists reasserted their findings that
Ms. Chan was at least 65 years old.
The Appeals Council adopted the recommended decision of the
ALJ without adding any significant findings or reasoning. Tr.
at 82-84. The Appeals Council concluded that it "does not
believe that it is possible, based on the medical evidence of
record, to reasonably determine a twelve-year disparity in
age." Tr. at 83.
When applying for Social Security benefits, an applicant is
required to submit evidence of her date of birth. 20 C.F.R.
§ 404.715. The evidence must be "convincing."*fn2 20 C.F.R. §
404.708. The Regulations of the Secretary provide that
"preferred" evidence, when it is available, is generally
accepted as convincing. Preferred evidence of age is a document
prepared before the age of five, in the form of a birth
certificate, hospital birth record, or religious record. 20
C.F.R. § 404.716(a). When "preferred evidence is not available,
[the Administration] will consider any other evidence [the
claimant provides to the Administration]. If this other
evidence is several different records or documents which all
show the same information, [the Administration] may decide it
is convincing evidence even though it is not `preferred'
evidence." 20 C.F.R. § 404.709. The regulations do not
establish a definitive list of the kind of evidence that is
acceptable, but rather give a nonexclusive set of examples of
evidence that could be considered convincing.*fn3 There is no
presumption that any one particular form of non-preferred
evidence is to be given greater weight than another. Blanks v.
Richardson, 439 F.2d 1158, 1161 (5th Cir. 1971). Because Ms.
Chan has not produced evidence that meets the standard for
"preferred" evidence, the issue presented is whether the
Secretary properly concluded on the evidence before him that
Ms. Chan was not eligible for benefits.
The principal evidence the ALJ had before him that
contradicted Ms. Chan's current claim of October 7, 1922 as
her date of birth consisted of the Hong Kong Identification
card and marriage certificate,
the INS papers and social security card application, and her
original union dues card. While such apparent admissions
against interest by the claimant which tended to show that she
is ineligible for benefits could, standing alone, constitute
substantial evidence upon which the Secretary could choose to
deny benefits, such admissions are not conclusive. A date of
birth cannot be altered by the existence of a statement or a
document indicating a different birthdate. Such statements or
documents are merely evidence that must be weighed in light of
all of the other evidence in an attempt to ascertain the
Accordingly, where a claimant has provided information and
later contends that this information is inaccurate, the
Secretary must consider whether there was a rational
explanation as to why the claimant would have given inaccurate
information in the first instance. Sprung v. Weinberger,
386 F. Supp. 74 (D.N.J. 1974); McCarty v. Sec. of H.H.S.,
Unemploy.Ins.Rep. (CCH) ¶ 16,707 (D.S.C. January 7, 1986). In
Sprung, Judge Fisher recognized that, in the turbulence in
Europe following World War II, an individual may have
misrepresented his age in order to obtain employment and
therefore sustenance. Judge Fisher went on to observe that
where credible witnesses provide a reasonable explanation of
the circumstances which led to the false statement, such an
explanation may be sufficient to determine that the current
assertion correcting the original false information is worthy
of belief. 386 F. Supp. at 76-78.
Similarly, Social Security Administration Ruling 81-16,
promulgated in 1981, recognizes that Holocaust survivors often
misrepresented their dates of birth to help them survive in
occupied Europe and in the death camps. Accordingly, age may
be determined without reliance on any documents containing
such false information. Social Security Ruling 81-16 in West's
Social Security Reporting Service (1975-82) [hereinafter "SSR
81-16"]. Because the ruling embodied in SSR 81-16 did not
establish new policy, but rather clarified an existing
regulation, 20 C.F.R. § 404.708(b),*fn5 Imber v. Schweiker,
Unemploy.Ins.Rep. (CCH) ¶ 15,612 (S.D.N.Y. January 4, 1984),
the Secretary must carry out the intent of the regulations by
looking to the circumstances of the original claimed
misstatement. Where those circumstances provide a reasonable
explanation, he must allow the claimant to correct the prior
statement of age and establish eligibility. Imber v. Schweiker,
Unemploy.Ins.Rep. (CCH) at ¶ 15,612. Moreover, the fact that a
claimant continued to use an erroneous date of birth long after
the necessity for its use passed is likewise not determinative.
As the Secretary aptly observed in SSR 81-16:
Most of those who survived continued to use the
incorrect DB [date of birth] and transferred it
to official documents, including Immigration and
Naturalization Service records of those
emigrating to the United States (U.S.). Most
believed that any change could result in being
refused entry into the U.S., or, if already here,
deportation. The ages shown in the documents
which form the U.S. domestic evidence were thus
the incorrect ages which these individuals
adopted in order to enhance their chances for
SSR 81-16; see also Goldstein v. Secretary of H.H.S., No.
CV-87-0961, Transcript of motion (E.D.N.Y. March 30, 1990)
(attached as Exhibit 2 to Memorandum of
Law in Support of Plaintiff's Cross-motion for Judgment on the
While Ms. Chan's reasons for falsifying her age may not have
been as compelling as those who lied to avoid the gas
chambers, her explanation for why she originally
misrepresented her age and why she continued to do so after
she arrived in the United States is certainly plausible. Ms.
Chan testified that she faced serious threats to her ability
to earn a living and even survive in post-war Hong Kong if her
true age were known.*fn6 Tr. at 22, 119. She testified that
she continued to misstate her age at time of immigration for
fear that any attempt to correct the erroneous date would
result in denial of immigration or subsequent deportation. Tr.
Whether the ALJ would have been free to reject Ms. Chan's
explanation if it had not been compellingly corroborated, is
a question that need not be reached here because Ms. Chan did
not ask him to take her word for it. She provided compelling
additional evidence that substantiated her claim. Indeed, her
explanation could be rejected only by failing to properly
evaluate or consider the corroborating evidence she produced.
This is precisely what the ALJ did here.
Ms. Chan has produced substantial and convincing medical
evidence that she was born in 1922 rather than 1934. The
extensive range of medical indications observed by two expert
gerontologists demonstrate that Ms. Chan has the somatic and
clinical characteristics of a person at least 65 years of age,
including temporal rescission and general thinning of the hair
of her head, seborrheic keratosis of the skin, hypertrophy of
the knee joints (hypertrophic osteoarthritis), osteoarthritic
changes and osteoporosis characteristic of advanced age, mild
kyphosis resulting from osteoporosis, longitudinal ridging of
the fingernails, senile arcus on both eyes, presbyopia which
requires lens correction, wrinkles of the periorbital and
perioral area, absence of teeth, senile plaque of skin,
deformity of interphalangeal joints of both hands, and
calcification of costosternal cartilage. Both expert
gerontologists concluded that this range of symptoms was
conclusive of an age of at least 65 and was inconsistent with
an age of 53, and ruled out alternative hypotheses as to
causes of the individual symptoms other than advanced age. The
testimony of her treating physician and dentist also support
a conclusion that she is over 65 years of age.
The Secretary has not produced medical evidence that
contradicts these conclusions. Similarly, he has not pointed
to any evidence to suggest that it is not possible for a
gerontologist to reach a conclusion as to approximate age of
an individual. In fact, the United States Attorney has
conceded that medical evidence is properly considered and
relevant in this case, Covo v. Gardner, 314 F. Supp. 894, 898
(S.D.N.Y. 1970), and he has not disputed Ms. Chan's assertion
— supported by extensive citation to medical literature —
that it is possible for experts on aging, such as Dr. Cherrick
and Dr. Tsai, to assess age with a reasonable degree of
certainly. Plaintiff's Memorandum at 16-23.
Under these circumstances, the ALJ violated the settled law
that precludes him from substituting his own judgment for that
of competent medical opinion. McBrayer v. Secretary of Health &
Human Servs., 712 F.2d 795, 799 (2d Cir. 1983). As the Court of
Appeals held in Gober v. Matthews, 574 F.2d 772 (3d Cir. 1978):
While an administrative law judge is free to
resolve issues of credibility as to lay testimony
or to choose between properly submitted medical
opinions, he is not free to set his own expertise
against that of a physician who testified before
Id. at 777. Other cases have likewise severely limited the
authority of an ALJ and the Appeals Council to draw medical
conclusions where medical evidence is lacking. Wagner v.
Secretary of Health & Human Servs., 906 F.2d 856
, 862 (2d Cir.
1990) ("[A] circumstantial critique by non-physicians,
however thorough or responsible, must be overwhelmingly
compelling in order to overcome a medical opinion," even a
retrospective one, where there was no medical evidence
contradicting the medical opinion); Rivera v. Sullivan,
923 F.2d 964
(2d Cir. 1991); Whitney v. Schweiker, 695 F.2d 784
788 (7th Cir. 1982) ("[B]ecause an Administrative Law Judge as
a rule is not a doctor, he should avoid commenting on the
meaning of a test or clinical x-ray when there has been no
supporting expert testimony."); Johnson v. Bowen, 687 F. Supp. 1284
1303 (W.D.Wis. 1988).*fn7
Moreover, the regulations promulgated by the Secretary
reflect the requirement that medical findings must be based
upon expert opinion and scientific methods. In evaluating a
claim of disability, "[a]ny medical findings in the evidence
must be supported by medically acceptable clinical and
laboratory diagnostic techniques." 20 C.F.R. § 404.1526(b). The
Secretary may also consider medical opinions provided by a
medical consultant, but the consultant "must be a
physician."*fn8 20 C.F.R. § 404.1526(c).
While this is not a case that involves a physician's
assessment of the ability of a claimant to perform work, it
does involve an assessment of the condition of the human body
by physicians who receive specialized training on the
physiological and biological aspects of aging. A critical part
of this training involves differentiating clinical and
objective signs associated with the normal aging process from
those associated with other causes, such as disease and
injury. The Practice of Geriatrics 11 (E. Calkins, P. Davis, A.
Ford, eds. 1986); Textbook of General Medicine 309 (M. Kochar
ed. 1983). Accordingly, it was error for the ALJ, who had not
sought the advice of physicians with comparable training to
that of the examining gerontologists here, to have rejected Ms.
Chan's claim based on his untrained evaluation of objective
signs normally associated with aging.
This is not the only error reflected in the record here. In
his decision, the ALJ dismissed the birth affidavit submitted
from the Peoples Republic of China, and Ms. Chan's brother's
deposition in support of that affidavit, as well as the
supplemental affidavits submitted by other members of Ms.
Chan's family. These included affidavits of her step-mother,
her step-sister, and her younger brother. The affidavit of Ms.
Chan's step-mother, Yuk Lan Leong, states that her step-mother
married her father when the step-mother was 19 years old, and
that Ms. Chan was only three years younger than her
step-mother. The step-mother also recounts how visitors often
mistook them for sisters. Tr. at 155-56. The affidavit of her
younger step-sister, Yee Yuk Chun, recounts the same family
history concerning the marriage of their father to Yuk Lan
Leong, and the repeated comments on the closeness in age
between Ms. Chan and her step-mother, Ms. Yuk. Ms. Yee gives
a thorough account of the schooling of Ms. Chan and herself,
and confirms with specific details, Ms. Chan's account of her
age at various stages of schooling. Ms. Yee also relates the
fact that Ms. Chan was considered an "old maid" because Ms.
Yee, her younger sister was married before her. Tr. at 150-52.
Similarly, the deposition of her younger brother, Zhang Chuan,
recounts that he was born in 1928, and that Ms. Chan is his
older sister. Mr. Zhang reports widespread recognition in his
family and village that Ms. Chan was born in the same year as
a cousin who was born in 1922. Mr. Zhang also affirms his
sister's age when she attended school, the closeness in age
between his sister and Ms. Yuk, her stepmother, and the
village characterization of Ms. Chan as an "old maid," all of
which support of Ms. Chan's claim of a 1922 birthdate. Tr. at
The information provided in these affidavits is of a kind
that would be known to her family members. Moreover, the
concurrence of all of their assertions, and the detail which
they provide, all strongly suggest that they are honest and
accurate. A highly elaborate fabrication involving identical
testimony of many individuals would be needed to create such
a family history if it were not based on truth. Indeed, the
ALJ did not reject this evidence on the ground that it was a
fabrication. Instead, he simply ignored the affidavits of the
members of Ms. Chan's family, and he rejected the Chinese
birth certificate because it represented recollections of
individuals whom he characterized as "people who most probably
were illiterate and therefore would have made no record other
than their own vague memories of the claimant's birth." Tr. at
90. This conclusion was simply wrong. As the Court of Appeals
held in Blanks v. Richardson:
It is unreasonable to ride roughshod over the
memories of the brothers and sisters as to age
hierarchy of the children in the family. Their
statements may not lead to exact ages, but they
certainly should be persuasive as to the order of
birth. The Secretary would rewrite the family
tree to makes [sic] James younger than his
brother Jodie, contrary to the recollection of
all family members.
439 F.2d 1158, 1161 (5th Cir. 1971).
While the forgoing would ordinarily require a remand so that
the ALJ could properly evaluate the evidence, Townley v.
Heckler, 748 F.2d 109, 112 (2d Cir. 1984), such a disposition
is not required on the record here. The case is seven years old
and has already been remanded once for this purpose. On remand,
the ALJ made it plain that he had no intention of making a good
faith effort to comply with the order. While his formal written
decision did not repeat the contempt he displayed in his
comments on the record, there was no excuse for his failure to
obtain expert medical advice relating to the issues of whether
it was possible for gerontologists to determine the age of a
claimant within a reasonable degree of certainty, and whether
the opinions offered by the claimant's experts were valid.
Because there is compelling, objective, uncontradicted
evidence supporting Ms. Chan's claim for benefits, and because
the ALJ did not act in good faith in evaluating the evidence
on the prior remand, no further remand for this purpose is
required. The decision of the Secretary is reversed and the
case is remanded for the calculation of benefits. Valente v.
Sullivan, 897 F.2d 54, 58 (2d Cir. 1990) ("ALJ's failure to
make findings in accordance with our mandate has already
contributed to an excessive expenditure of time and resources
by the parties and the courts."); Woody v. Secretary of Health
& Human Servs., 859 F.2d 1156, 1162-63 (3rd Cir. 1988)
(improper medical conclusions by ALJ and 8 years of
administrative delay warrant no further administrative
proceedings); De Leon v. Secretary of Health and Human Servs.,
734 F.2d 930, 938 (2d Cir. 1984); Smith v. Califano,
637 F.2d 968, 972 n. 1 (3rd Cir. 1981); Nasser v. Secretary of Health
Education & Welfare, 388 F. Supp. 58, 64 (E.D.N.Y. 1975);
Johnson v. Bowen, 687 F. Supp. 1284, 1303-04 (W.D.Wis. 1988).
I wish to express my appreciation to Nancy Chang and
Brooklyn Legal Services, Corporation B, for agreeing to
undertake the representation of Ms. Chan, and for providing
her with legal assistance of the highest caliber.