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KAPPLER v. SHALALA

January 11, 1994

RICHARD E. KAPPLER, Plaintiff,
v.
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.

 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 ...

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