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Matusiak v. Finch

October 13, 1971

ARON MATUSIAK, PLAINTIFF-APPELLANT,
v.
ROBERT FINCH, SECRETARY OF HEALTH, EDUCATION AND WELFARE OF THE UNITED STATES, DEFENDANT-APPELLEE



Fairchild, Stevens and Sprecher, Circuit Judges.

Author: Sprecher

SPRECHER, Circuit Judge.

This is an appeal from the district court's affirmance of a decision of the Appeals Council of the Department of Health, Education and Welfare that the claimant was not entitled to old-age insurance or other benefits when he applied in 1968. The Council found that claimant was born in 1910 rather than in 1903 as he claimed.

The claimant's position is supported by a strong emotional appeal and was accepted by the hearing examiner. These factors require that we give closer attention to the details of the basis for the Appeals Council's decision than would be required to support a decision concurred in by both the examiner and the Council. Tucker v. Celebrezze, 220 F. Supp. 209, 211 (N.D.Iowa 1963).

Aron Matusiak (claimant) applied for Medicare and retirement insurance benefits on October 1, 1968, alleging that he was born on December 21, 1903, in Poland. He lived in the Polish town of his birth until he was taken to a Nazi concentration camp in 1939. At Auschwitz he was lined up on his way to the gas chamber when he was told by a young man that he could avoid death by transferring into another line with younger prisoners who were kept alive for labor details. The claimant contends that, since the dividing line between life and death at Auschwitz was the age of about 30 years, in order to survive he had to pretend that he was 29 years old in 1939 and hence born in 1910.

The claimant also produced witnesses who testified that they knew the claimant when he was in the Polish army, that one was required to be 21 years or older to be in the army and, relating their own ages to claimant at the assumed age of 21, they concluded that the claimant was born about 1903.

The claimant was liberated in 1945 and came to the United States in 1949. His advisers upon his arrival in Milwaukee counseled him to continue to use the birth date of 1910 rather than 1903 in order to obtain employment more readily.

The documentary proof consists of the following in chronological order:

(1) Record of United States Immigration and Naturalization Service shows that at the time of claimant's admission into the United States on September 13, 1949, he stated that he was born on December 21, 1910.

(2) Application for Social Security Account Number, dated October 4, 1949, shows claimant's birth as September 21, 1910.

(3) Certificate of Naturalization, dated May 5, 1955, shows date of birth as December 21, 1910.

(4) 1960 Census Record shows that claimant reported his birth as in the fourth quarter of 1910.

(5) Individual income tax return for the year 1968, undated but due for filing between January 1 and April 15, 1969, shows that the claimant failed to state that he was "65 or over" or to claim the double exemption.

Documentary items (2) and (3) were considered by the hearing examiner, whereas items (1), (4) and (5) were first ...


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