decided as amended february 19 1971.: January 20, 1971.
Biggs, Seitz and Gibbons, Circuit Judges.
This case arises on appeal from three district court orders: (1) granting the motion for summary judgment made by appellee, the Secretary of the Department of Health, Education and Welfare; (2) quashing the appellant's subpoena duces tecum which had demanded "all records and reports and other documents in possession, custody and control of [the] Department of Health, Education and Welfare, dealing with and concerning the full investigation conducted by said Department of HEW into the hearing in Newark, N.J., on September 15 and October 13, 1967, by hearing examiner Joseph J. Goldsmith on [the] claim of Pauline Ginsburg for Social Security benefits * * *"; and (3) granting the appellee's motion to strike appellant's request for certain admissions by the appellee that the administrative hearing was unfair. This court has jurisdiction of the appeal from a final decision as conferred upon it by 28 U.S.C. § 1291. The District Court had jurisdiction of the petition for review pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g).
Appellant, Pauline Ginsburg, filed an application on December 3, 1965 for oldage insurance benefits in which she claimed her date of birth was March 16, 1892. A determination was made by the Social Security Administration that her date of birth was March 16, 1895 and that she was entitled to monthly benefits beginning December 1964, but that based on her expected self-employment earnings for the year 1965, payment of benefits could not be made while she continued to earn substantial income. On June 17, 1966, appellant filed a request for reconsideration in which she again alleged that she was born on March 16, 1892 and that in order to appear younger she had altered her records to show that she was born in 1895. On reconsideration, it was again found that she was born in 1895.
After a hearing was held on September 15, 1967 and October 13, 1967 to determine whether appellant was born on March 16, 1892 as alleged by her, the hearing examiner found "that the authentic, convincing evidence as required by the Social Security Act, as amended, shows and it is determined that the [appellant's] date of birth is March 16, 1895." On August 15, 1968, the Appeals Council denied the appellant's request for review.
On August 27, 1968, appellant filed a complaint in the United States District Court for the District of New Jersey demanding that the decision of the Secretary be reversed. On December 22, 1968, appellant filed certain requests for admissions. A hearing was held on February 24, 1969 on appellee's motion to strike requests for admissions. On March 13, 1969, the district court granted this motion. Appellant then served a subpoena duces tecum on the Department of Health, Education and Welfare seeking an internal investigative report of the Social Security Administration. Finally, on July 1, 1969, the District Court quashed the subpoena and granted appellee's motion for summary judgment.
I. Substantial Evidence Test
The first question faced by this court is whether the District Court erred in granting the appellee's motion for summary judgment. This, in turn, depends upon whether the District Court correctly applied the standard for judicial review of the Secretary's decision. The standard appears as part of Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g): "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * * *." (Emphasis added.)*fn1 "Substantial evidence" means evidence which a reasoning mind would accept as sufficient to support a conclusion. "It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance" of the evidence. Laws v. Celebrezze, 368 F.2d 640, 642 (4 Cir. 1966). Applying this definition, we have carefully examined the administrative record and, like the District Court, find substantial evidence to support the finding by the hearing examiner that the appellant was born March 16, 1895.
The documentary evidence presented at the hearing can be summarized as follows:
(1) A school record from Oregeev Women's High School, Oregeev, Russia, dated June 14, 1911, indicating a date of birth of March 16, 189- (last digit undecipherable);
(2) A Russian passport, dated January 23, 1923, indicating that appellant was then 28 years old which would establish her birth date as 1894;
(3) A visa to leave Constantinople, Turkey for the United States, dated July 30, 1923, indicating that appellant was then 28 years old which would ...