William Weaver, Plaintiff-appellant, v. John W. Gardner, Secretary of Health, Education and Welfare, Defendant-appellee, 394 F.2d 110 (6th Cir. 1968)

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US Court of Appeals for the Sixth Circuit - 394 F.2d 110 (6th Cir. 1968) March 18, 1968

Daniel J. Tribell, Middlesboro, Ky., for appellant.

J. T. Frankenberger, Asst. U. S. Atty., Lexington, Ky., George I. Cline, U. S. Atty., Lexington, Ky., on the brief, for appellee.

Before PECK and McCREE, Circuit Judges, and CECIL, Senior Circuit Judge.

The issue confronting the Secretary in this case, which was similar to the one presented in the companion case involving appellant's deceased brother, Weaver, Admrx. v. Gardner, Sec., 6 Cir., 394 F.2d 111, was whether appellant had reached the age of 65 when he initially applied for Social Security benefits in 1957. The United States District Court for the Eastern District of Kentucky affirmed the Secretary's final decision against appellant, and this appeal followed.

As in his brother's case, appellant relied upon the testimony of numerous witnesses to support his claim that he was born in 1892. However, the Secretary's finding that appellant was born in 1910, or thereabouts, is supported by substantial evidence on the record as a whole, and is therefore conclusive. 42 U.S.C. § 405(g). The Secretary's further finding that appellant was not without fault in causing the overpayments is likewise supported by substantial evidence on the record as a whole, and is conclusive on review. Accordingly,

It is ordered that the judgment of the District Court be and hereby is affirmed.