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January 11, 1994

DONNA E. SHALALA, Secretary of Health and Human Services, Defendant.

The opinion of the court was delivered by: MILTON I. SHADUR


 Richard Kappler ("Kappler") appeals the final decision of Secretary of the Department of Health and Human Services ("HHS") Donna Shalala ("Secretary") denying his claim for retirement insurance benefits under the Social Security Act ("Act"), 42 U.S.C. § 402(a). *fn1" Kappler's sole contention is that Secretary wrongly concluded that his birth date was May 7, 1930 rather than May 7, 1929. As is usual in these cases, both Kappler and Secretary have moved for summary judgment under Rule 56. For the reasons stated in this memorandum opinion and order, Secretary's motion for summary judgment is granted and her decision is affirmed, while Kappler's motion is of course denied.

 Facts and Prior Proceedings Kappler filed for retirement benefits on April 29, 1991, asserting an entitlement to benefits based on a claimed birth date of May 7, 1929 (R. 22-24). Secretary denied his application both initially and then upon reconsideration (R. 27-31) on the ground that Kappler was born on May 7, 1930 and therefore had not yet attained the minimum retirement age of 62. n2 Kappler then requested (R. 32) a de novo hearing (the "Hearing"), which was held by Administrative Law Judge ("ALJ") John Mondi on March 5, 1992 (R. 76-88). Perhaps the most convenient way to summarize the documents and testimony submitted at the Hearing by Kappler and on his behalf is to set the material out in tabular form, reflecting the date on which each document was recorded or the testimony was given and the birth date that each indicates: Age or Date of Document or Testimony n3 Date Birth Recorded 1. Baptismal Record (R. May 28, 1933 May 7, 1930 42) 2. Delayed Birth Sept. 17, 1946 May 7, 1929 Certificate (R. 35) 3. Baptismal Certificate Mar. 24, 1949 May 7, 1930 (R. 47) 4. Discharge from Army April 1, 1953 May 7, 1929 (R. 34) 5. Certificate of Birth May 11, 1955 1929 (age 26) of daughter Maureen (R. 72) 6. Insurance Application July 22, 1957 May 7, 1929 (R. 54) 7. Certificate of Birth Jan. 10, 1958 1929 (age 28) of daughter Cynthia (R. 71) 8. Insurance Policy (R. Mar. 7, 1966 1929 (age 36) 51-52) 9. Hospital Record (R. 66) Apr. 30, 1979 1928 (age 50) 10. Hospital Record (R. Mar. 13 & 17, 1983 1929 (age 53) 67-68) 11. Application for June 26, 1989 May 7, 1929 Disability Benefits (R. 36-38) 12. Preinterview Date June 26, 1989 May 7, 1929 & 1930 Report (R. 39-40) 13. Application for April 29, 1991 May 7, 1929 Retirement Benefits (R. 22) 14. Corrected Baptismal Aug. 27, 1991 n4 May 7, 1929 Certificate (R. 46) 15. Testimony of Kappler Mar. 5, 1992 May 7, 1929 (R. 81) 16. Testimony of daughter Mar. 5, 1992 May 7, 1929 Maureen (R. 83) 17. Affidavit of wife Mar. 16, 1992 May 7, 1929 Eileen (R. 50)

 On June 19, 1992 ALJ Mondi denied Kappler's application, again determining that he was born on May 7, 1930 (R. 7-11). For that decision the ALJ found that the baptismal record (Doc. 1), which gives Kappler's birth date as May 7, 1930, was "preferred evidence" as defined under Reg. § 404.716(a)(R. 10). ALJ Mondi found Doc. 1 to be "controlling" because it was the earliest record and because there was "no convincing evidence" that the birth date it gave was erroneous (id.). After the ALJ's decision, Kappler's request for review by the Appeals Council was denied on May 10, 1993, at which point ALJ Mondi's decision became Secretary's final decision (R. 3-4).

 Kappler contends that ALJ Mondi's decision is not supported by substantial evidence because the ALJ improperly considered the baptismal record as "preferred evidence." According to Kappler, that resulted in the ALJ's ignoring the "overwhelming weight of the evidence" supporting a birth date of May 7, 1929.

  Standard of Review

 Section 405(g) empowers this Court to affirm, modify or reverse the Secretary's decision, with or without remand for rehearing. For that purpose Section 405(g) provides that "the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." As taught by many cases, including the recent reconfirmation in Cass v. Shalala, 8 F.3d 552, 555 (7th Cir. 1993):


Furthermore, this court has stated that in light of our limited jurisdiction we cannot substitute our own judgment for that of the HHS Secretary by reweighing the evidence. . . .

 "Substantial evidence" means ( Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)):


more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

 "Substantial evidence may be something less than the greater weight or preponderance of the evidence" ( Young v. Secretary of HHS, 957 F.2d 386, 389 (7th Cir. 1992)), and a finding may be supported by substantial evidence even if a reviewing court might have reached a different conclusion ( Delgado v. Bowen, 782 F.2d 79, 83 (7th Cir. 1986) (per curiam)).

 "Preferred Evidence" in This Case

 It is Kappler's responsibility, as the applicant for retirement benefits, to provide the evidence needed to prove his eligibility (Reg. §§ 404.704, 404.715). Where that evidence is "convincing," it will be accepted and "no other evidence is needed" (Reg. § 404.708). *fn5" "Preferred evidence" is effectively presumed to be "convincing" unless there is other "information in our records that raises a doubt about the evidence" (Reg. § 404.709). "Preferred evidence" is defined in this way (Reg. § 404.716(a)):


The best evidence of your age, if you can obtain it, is either: a birth certificate or hospital birth record recorded before age 5; or a religious record which shows your date of birth and was recorded before age 5.

 If no "preferred evidence" is available, Reg. § 404.716(b) calls for the submission of "other convincing evidence."

 Kappler R. Mem. 2-3 argues creatively--but entirely incorrectly--that Reg. § 404.716(a) specifies three types of preferred evidence: one, a birth certificate; two, a hospital record recorded before age 5; or three, a religious record that shows the date of birth and was recorded before age 5. On that theory his delayed birth certificate (Doc. 2) recorded on September 17, 1946 (when he was 16 or 17 years old!) should have been considered "preferred evidence," for his reading would eliminate any time requirement for the recording of a birth certificate to confer preferred status on that document. Kappler's argument literally urges that Reg. § 404.716(a) should be rewritten by replacing the word "or" after "birth certificate" with a semicolon followed by the word "a."

 But it is not for Kappler (or this Court) to read into existence punctuation that does not exist, to read words into and out of the unambiguous text that Secretary has promulgated, and thus to change the definition of regulations that govern the Act's application. Reg. § 404.716(a) has a plain meaning: Its phrase "recorded before age 5" of the applicant qualifies both "hospital birth record" and "birth certificate" (accord, Webb v. Bowen, 683 F. Supp. 1319, 1320 (D. Kan. 1988)). *fn6" Because the delayed birth certificate was recorded either 11 or 12 years (depending on what birth date is chosen) after that Regulation-specified watershed, it clearly cannot be accorded the status of "preferred evidence." *fn7"

 ALJ Mondi found that Doc. 1, the earliest baptismal record issued by Park View Lutheran Church (the "Church"), was the only piece of "preferred evidence" in the record before him (R. 10). It records that Kappler was born on May 7, 1930 and was baptized on May 28, 1933. In response to a questionnaire sent by HHS (R. 43-45), a Ms. Nettnin at the Church stated that baptisms are entered in Church records "as a person is baptized" (R. 43). That statement is independently (and conclusively) confirmed by the Church's baptismal record (R. 42) itself, which lists some 44 baptisms on the same page in chronological order (the one listed immediately after Kappler's being that of his younger sister on the same May 28, 1933 date). *fn8" Consequently Doc. 1, as a religious record recorded on a date well before Kappler's fifth birthday (whichever birth date is accurate), unquestionably meets the definition of "preferred evidence."

 Kappler Mem. 4-5 argues that there is no indication on the face of Doc. 1 as to when it was recorded. But nothing in Reg. § 404.716(a) specifies that the date of recording can be established only from the face of a document--hence extrinsic evidence may certainly be taken into account. Here Ms. Nettnin's statement about the Church's procedure for recording baptisms as they occur is uncontradicted and (perhaps more importantly) is wholly consistent with the baptismal record itself, and ALJ Mondi was certainly entitled to credit both the statement and the record.

 Kappler Mem. 7 questions the reliability of Doc. 1 because its original entry of the day (not the month or the year) was crossed out with a "7" entered next to it. But the ALJ was surely not required to consider that fact as creating enough doubt to dislodge Doc. 1 from its status as preferred evidence. Nothing in the minor initial mistake called into doubt either the baptism's date of recordation or (most importantly) the month or year of Kappler's birth (see Suarez v. Bowen, No. SA-88-CA-392, 1990 WL 265172, at *4-*5 (W.D. Tex. Nov. 16), requiring--and finding on the facts in that case, as is untrue here--numerous and significant inaccuracies for a baptismal certificate to lose its status of "preferred evidence").

 Effect of Other Evidence

 As already stated, Reg. § 404.709 says that "preferred evidence" will be considered "convincing" and "other evidence of the same fact will not be needed" unless there is "information in our records that raises a doubt about the [preferred] evidence." Was ALJ Mondi required to find that the rest of the record before him raises such a doubt? In terms of sheer numbers, the tabular presentation shows 14 documents or pieces of testimony that support a year of birth of 1929 against just three that indicate 1930, and one that suggests 1928. But every document (and all testimony) that supports a May 7, 1929 birth date (with the possible exception of the years-delayed Doc. 2) necessarily rests on Kappler himself as their source. ALJ Mondi found that Kappler believed that he was born on May 7, 1929, but that the belief was "in error" in light of Doc. 1 (R. 10). It follows that all of the support for a 1929 year of birth is just repetitive of Kappler's own mistaken belief, and so it cannot be said to "raise a doubt" as to the accuracy of Doc. 1.

 ALJ Mondi properly pointed to Doc. 1 because it was the oldest piece of evidence in the record (R. 10). All of the evidence supporting a 1929 year of birth is much more recent (the earliest is Doc. 2, issued over 13 years after Doc. 1). And Secretary's regulations expressly dictate that "preferred evidence" that is deemed reliable takes precedence over "other evidence" ( Ramirez v. Sullivan, 771 F. Supp. 169, 172 (E.D. Tex. 1991). *fn9" In light of such convincing evidence as Doc. 1, Secretary could properly reject the other evidence provided by Kappler "as not convincing" (id.).10

 In sum, Doc. 1 is not only the sole piece of "preferred evidence" but is also the earliest record of Kappler's birth date. It was plainly the ALJ's prerogative to accord Doc. 1 the status of "convincing evidence." All that being so, it cannot be disputed that Secretary's decision was supported by substantial evidence. *fn11"


 There is no genuine issue of material fact, and Secretary is entitled to a judgment as a matter of law. Because substantial evidence supports Secretary's decision that Kappler's birth date is May 7, 1930, her decision to that effect and her consequent denial of benefits to Kappler are affirmed. Kappler's motion for summary judgment is denied, and this action is dismissed with prejudice.

 Milton I. Shadur

 Senior United States District Judge

 Date: January 11, 1994

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