Before KNOCH, KILEY and SWYGERT, Circuit Judges.
Plaintiff, Isaac I. Bender, an attorney who appeared pro se, sought review in the United States District Court, pursuant to the provisions of 42 U.S.C. § 405(g), of the final decision rendered by the defendant, the Secretary of Health, Education and Welfare, that plaintiff was not entitled to the old age insurance benefits for which he applied in December, 1960.
Initially the Bureau of Old Age and Survivors Insurance issued an award dated February 8, 1961, authorizing a check in the amount of $231 to be issued to plaintiff, representing $33 per month beginning July, 1960. The certificate of award included the statement:
"Since you have not submitted the proof we requested of your self-employment income for 1957, we could not include it in figuring your benefit amount."
Plaintiff had filed his income tax return for 1957 showing self-employment income of $245.51, with which the Internal Revenue Department subsequently agreed, after audit. Early in January, 1961, after making application for benefits, but before he received the notification of February 8, 1961, and pursuant to his intention announced when making his application for benefits, plaintiff filed an amended income tax return for 1957 showing his self-employment income of $245.51, as previously reported, plus an additional sum of $235.60 to make a total sum of $481.11.
When plaintiff received the award notice described above, he asked for reconsideration. The Reconsideration Determination, dated May 4, 1961, stated in part:
"Subsequently, it was determined that since he did not acquire his 16th and qualifying quarter, necessary for insured status, until the last quarter of 1960, on the basis of his recorded creditable earnings, the first month of entitlement should have been October, 1960 and therefore his monthly benefit had been erroneously started as of July, 1960 instead of October, 1960. * * *
"The issue in this case is what is the first month of the claimant's entitlement to old age insurance benefits. Resolution of this issue depends upon the amount, if any of his self-employment income for 1957. * *
"On the basis of Mr. Bender's earnings record as established and maintained in the Bureau it is determined that he acquired his 16th and qualifying quarter required by law for a fully insured status in the last calendar quarter of the year 1960. Therefore, the first month of his entitlement to old age benefits is October, 1960, which is the earliest month in which he met all three of the requirements for entitlement under law, that is he had attained age 65, had acquired a fully insured status and had filed an effective application."
Notice of the amended 1957 return was not sent to defendant's office by the Internal Revenue Service until May 23, 1961. In his appeal to the hearing examiner on July 13, 1961, plaintiff sought consideration only of the matter of self-employment income for 1957. In filing the notice of hearing on August 4, 1961, the hearing examiner called for production of plaintiff's books and records for 1957, 1959 and 1960.
The hearing examiner determined that the effective date of the application was December 20, 1960; that plaintiff's net earnings from self-employment in 1957 were less than the required $400; and, when plaintiff refused to produce records for the 1959 and 1960, that there was no self-employment income in those years. Plaintiff concedes that there was none in 1958.
The District Court disposed of this case on defendant's motion for summary judgment, there being no genuine issue as to any material fact.
The District Court held that regardless of any assurances or statements to the contrary by employees of defendant, § 404.613 of Regulations No. 4 (20 C.F.R.) explicitly required a ...