Unpublished Disposition, 865 F.2d 1271 (9th Cir. 1982)

MEMORANDUM^* 

Minh V. Quach (Quach) appeals an order of the district court granting summary judgment in favor of the Secretary of Health and Human Services (the Secretary) and denying Quach's motion for summary judgment. The district court's order upheld the Secretary's finding that Quach had not reached age 65 and the subsequent denial of Quach's application for Supplemental Security Income (SSI) benefits under Title VII of the Social Security Act (the Act), 42 U.S.C.A. Secs. 1381-1394 (1983 & Supp.1987). On appeal, Quach contends that the Secretary applied improper legal standards in failing to give full weight to a Chinese Notarial Certificate as evidence of Quach's age. Quach further contends that the Secretary's decision was not supported by substantial evidence. We affirm, primarily for the reasons fully and carefully set forth in Judge Aguilar's order granting summary judgment.

BACKGROUND

According to Quach, he was born in Mainland China on October 23, 1916. In 1926, he left China for Vietnam, traveling by boat with a sister. Upon entering Vietnam, Quach was instructed to give his age as six, rather than ten, to avoid higher transportation costs. The Vietnamese government therefore issued Quach an identification document stating his birthdate as October 23, 1920, four years later than his actual year of birth. Quach made no effort to correct the 1920 birthdate for more than 50 years. During this time, Quach made a brief return to Mainland China, reentered Vietnam at the time of the 1937 Japanese invasion of China, fled the Diem government in Vietnam and relocated in a refugee camp on an island off of Saigon, and entered the United States in 1979.

Only in 1981 did Quach establish contact with relatives in the People's Republic of China (PRC) and write to a niece or nephew requesting proof of his October 1916 birthdate. Through these efforts, Quach obtained a Notarial Certificate (the Certificate) dated May 13, 1982, stating (in Chinese):

This is to certify that Quach Van Minh (male) was born on October 23, 1916 at Choyang County, Guangdong Province. His father's name is Quach Van Nhu and his mother's name is Duong Thi Hia.

A statement of the American Vice Consul with the United States Embassy in Beijing was attached, certifying that the signature on the Certificate belonged to "an officer of the Ministry of Foreign Affairs of the [PRC] duly commissioned and qualified, to whose acts faith and credit are due." On the basis of this Certificate, Quach obtained a corrected Alien Registration Card from the U.S. Immigration and Naturalization Service (INS) which lists 1916 as his birthdate. He also was able to get the State of California to reinstate his Medi-Cal benefits, previously denied because he was unable to show that he was 65 years old.

Quach filed an application for SSI disability benefits on July 19, 1982, listing 1920 as his date of birth, but noting that he was in the process of changing his INS records to reflect the 1916 date. The disability application was denied. On his second SSI application, Quach claimed he qualified for SSI benefits solely on the basis of age and gave his birthdate as October 23, 1916. Quach has maintained throughout the proceedings before the Social Security Administration (SSA) that he continued to use the 1920 date until 1982 because he feared that inconsistency with prior documents would jeopardize his entry, reentry or continued residence in the various countries where he has resided since childhood. In addition, Quach claims that he could not communicate with relatives in Communist China for many years and did not otherwise know how to obtain proof of age. The Secretary nonetheless denied SSI benefits to Quach a second time, finding that he was born in 1920 and was therefore not 65 at the time of his application. This ruling was affirmed by an Administrative Law Judge (ALJ) after a hearing at which Quach testified. Review of the ALJ's decision was denied by the Appeals Council. The district court granted summary judgment in favor of the Secretary and this appeal followed.

DISCUSSION

Although we review the district court's grant of summary judgment de novo, Miller v. Heckler, 770 F.2d at 847, we must adhere to the standard of review of the Secretary's decision applied by the district court. "We will uphold the Secretary's finding unless it is not supported by substantial evidence in the record as a whole or the Secretary applied an improper legal standard." Gordon v. Secretary of Health and Human Services, 803 F.2d 1071, 1072 (9th Cir. 1986), cert. denied, 108 S. Ct. 110 (1987); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986). Contrary to Quach's assertions, the district court correctly held that the Secretary's denial of benefits, as articulated in the written decision of the ALJ, was based on substantial evidence. Regulations of the SSA state that when no public or religious record of birth or baptism recorded or established before the claimant reaches the age of five is available,

the individual shall submit as evidence of age another document or documents which may serve as the basis for a determination of the individual's date of birth provided such evidence is corroborated by other evidence or by information in the records of the [SSA].

20 C.F.R. Sec. 416.802 (1988). In determining the probative value of documents submitted as proof of age "consideration will be given to when such other documents were established or recorded, and the circumstances attending their establishment or recordation." 20 C.F.R. Sec. 416.803 (1988).¹ 

The ALJ based his decision on Quach's 1979 Alien Registration Card (obtained upon first entering the United States), his application for a Social Security number and his 1982 application for SSI disability benefits. These documents lend some support to a conclusion that 1920 is the year of Quach's birth. Therefore, despite the fact that there were additional pieces of evidence²  and live testimony supporting 1916 as the correct date of birth, the ALJ's finding that the evidence was not sufficient to award benefits was based on substantial evidence.

The ALJ also made credibility findings in support of his decision. Both Quach and his uncle were testifying to events that occurred in the distant past, when they were children. The ALJ found: "The claimant's own testimony did not appear to the undersigned to be quite credible and conflicted with the earlier statements made by him to the [SSA]." In addition, the ALJ noted that " [t]he testimony of [Quach's uncle] at the hearing cannot be accepted as reliable." An ALJ's assessment of credibility should be given great weight. Nyman, 779 F.2d at 531; Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978).

The ALJ also acted in accordance with proper legal standards in not according full weight to the May 13, 1982 Chinese Notarial Certificate. The ALJ ruled that the Certificate did not constitute adequate proof of birthdate because there was no showing of what record or other evidence the Certificate was based on.³  There was no way of knowing whether Quach's birth had ever been registered in China. The ALJ was accordingly entitled to consider the certificate to be of doubtful reliability.⁴ 

The only remaining items of evidence relied on by Quach are the revised Alien Registration Card and the 1983 California State Department of Health Services' determination of Quach's continued eligibility for Medi-Cal benefits. Both age determinations were made in reliance on the Certificate. Having stated reasons for rejecting that Certificate, the ALJ was free to disregard the rulings of the INS and the State that were based upon it. Little v. Richardson, 471 F.2d 715, 716 (9th Cir. 1972).

By holding that the Secretary's decision was based on substantial evidence, we do not wish to express a lack of respect for the difficulties Mr. Quach has experienced. Situations, sometimes life-threatening, in which citizens from other countries alter their birthdates and later find themselves effectively foreclosed from correcting the inaccuracy arise not infrequently in the Secretary's determinations of eligibility for age-related benefits. See, e.g., Matusiak v. Finch, 452 F.2d 223 (7th Cir. 1971) (Polish claimant allegedly changed age to avoid gas chamber at Auschwitz); Sprung v. Weinberger, 386 F. Supp. 74 (D.N.J. 1974) (Polish claimant's birth records destroyed during Russian invasion; after six years in Siberia, falsified age to obtain work in Austria); Finklestein v. Secretary of Health, Educ. and Welfare, 221 F. Supp. 361 (W.D. Pa. 1963) (Lithuanian claimant falsified passport to avoid the Lithuanian military draft and emigrate to the United States). Twenty years ago, in a similar situation, the district court for the Northern District of Ohio upheld the Secretary's denial of old age insurance benefits to a Turkish claimant, based largely on the unreliability of foreign documents. That court stated:

By finding for the Secretary in this case, the Court should not be understood as believing that the plaintiff and his witnesses lack integrity but only that the Secretary could, and did, reasonably find what he did find based on substantial evidence.

Tootalain v. Cohen, 296 F. Supp. 1253, 1256 (N.D. Ohio 1968). We agree and we affirm.

AFFIRMED.