The opinion of the court was delivered by: ROSENBERG
This is an appeal from the final decision of the Secretary of Health, Education and Welfare disallowing plaintiff's claim for old-age insurance benefits under Section 202(a) of the Social Security Act, 42 U.S.C.A. § 402(a).
The United States Attorney now moves this court for judgment under Federal Rule of Civil Procedure No. 56 on the grounds that since there is no genuine issue as to any fact upon the record, the defendant is entitled to judgment as a matter of law.
On July 14, 1961, the plaintiff filed an application with the Social Security Administration of the Department of Health, Education and Welfare for old-age insurance benefits as an individual who was beyond the minimum retirement age of sixty-two, and alleged that he had attained age sixty-five. The application was disallowed on the ground that he did not meet the age requirements of the Act.
After request for a hearing, the plaintiff offered in evidence before the hearing examiner his own testimony, testimony of two other witnesses, the testimony and affidavit of a cousin and affidavits of two brothers. In summation the evidence is that the plaintiff was born in Lithuania in the year 1896 and lived there with his mother until the year 1923, when he obtained a passport and accompanied by the cousin emigrated to the United States; that the application for passport in Lithuania had been intentionally falsified as to the date of the applicant's birth for the purpose of avoiding military drafting by the Lithuanian government and for the purpose of facilitating plaintiff's emigration; that without the falsification of his age, the Lithuanian government would not have permitted such emigration of the applicant; that having intentionally falsified his age in the passport, he continued to use such falsified age for documentary purposes in order to maintain consistency after he arrived in the United States; and that the witnesses knew him to be older.
The documentary evidence or evidence based upon documents was offered for the most part by the Social Security Administration. These consisted of:
(2) Plaintiff's application for a Social Security Account number completed December 4, 1936, showing his date of birth as May 5, 1905;
(3) Form OOAN-7003 Request for Change in Your Social Security Records completed July 10, 1956, stating that the previously reported date of birth should be changed to May 5, 1898;
(4) Plaintiff's Selective Service registration in 1941 indicating that he was born in the year 1905;
(5) Plaintiff's application for Old-Age Insurance Benefits filed on July 14, 1961, showing his date of birth as May 5, 1896;
(6) The records of the Pennsylvania Motor Vehicle Bureau showing that the plaintiff made application in 1928 or 1929 for licensing and registration pursuant to the requirements for operating an automobile in the State of Pennsylvania, showing his date of birth to be May 5, 1903; and
(7) A Health and Accident insurance policy issued to the plaintiff about twenty years ago indicating his date of birth as May 5, 1905.
The evidence before the hearing examiner showed four different years of birth -- ...