The Appeals Council of the Bureau of Hearings and Appeals, after reviewing the decision of the hearing examiner, supported his decision, and the decision of the hearing examiner then became the final decision of the Secretary of Health, Education and Welfare pursuant to Section 205(g) of the Act.
It is the plaintiff's contention that the hearing examiner by accepting the documentary evidence offered against him and by rejecting the oral evidence, did not consider the probative value of the evidence offered and, accordingly, there was no substantial evidence to support the decision.
In order for the hearing examiner to make a determination as to the plaintiff's age at the time of his presentation of an application for old-age insurance benefits, it was incumbent upon the hearing examiner to test the credibility of witnesses and to make an evaluation of the evidence.
After reviewing the record, it is clear that the plaintiff has failed to establish that the finding of the hearing examiner was not supported by substantial evidence. Conflicting evidence was offered as to the date of birth of the plaintiff. The regulations indicate the weight to be given the evidence which is offered to prove age. The hearing examiner, after hearing the witnesses and all of the evidence involved, concluded that the best evidence as to the plaintiff's age was based upon the documents involved. There was no indication that the hearing examiner failed to consider the probative value of the evidence as presented.
If, in fact, the plaintiff's birth was of a time as to entitle him to the benefits of the Act, by his own conduct he has so befuddled the circumstances as to virtually conceal the facts. The hearing examiner was required, and did, apply the rules of law to the evidence, and by his own judgment fairly concluded what was the plaintiff's birth date.
It is difficult to see how the plaintiff can complain here or now. His willful action in the year 1923 was for his own self-serving purpose. If he was in fact 27 years old in 1923, he was old enough to know what he was doing, and in the years following his establishment in the United States, he had a long time in which to realize and correct any vital mistake. That he did not do so could properly raise the inference that his true age was as indicated by documentary evidence. Not until 1956 did he make any effort to correct his mistake -- and then only to serve what may fairly have been his anticipation of advancing his monetary gain. It was for the hearing examiner to consider this evidence in connection with all the other evidence as a whole and to give it such weight as he believed proper, as well as the oral evidence of the plaintiff in connection with all the evidence as a whole and to give the plaintiff's evidence such credibility as he believed it entitled to.
The hearing examiner may be in factual error, but if he is, it does not appear on the record. This Court is bound by that determination as long as the findings are supported by substantial evidence.
Rosewall v. Folsom, 239 F.2d 724 (C.A.7, 1957) Since there is a substantial basis for the Secretary's findings, the motion of the United States Attorney for summary judgment will be granted.