Unpublished Disposition, 874 F.2d 816 (9th Cir. 1987)

MEMORANDUM^** 

Nazih Hagali appeals the district court's order granting summary judgment in favor of the Secretary of Health and Human Services (the Secretary) and denying Hagali's motion for summary judgment. The district court's order upheld the Secretary's finding that Hagali had not reached age 62 and the subsequent denial of Hagali's application for retirement insurance benefits under the Social Security Act, 42 U.S.C. § 402(a) (2). On appeal, Hagali contends that the Secretary's decision was not supported by substantial evidence and that he is entitled to remand his case back to the Secretary because he submitted additional evidence after the Appeals Council denied his request to review the decision of the Administrative Law Judge. We affirm.

BACKGROUND

On September 16, 1985, Hagali filed an application for retirement insurance benefits pursuant to the Social Security Act. On the application, Hagali reported his date and place of birth as June 18, 1923, in the country of Lebanon. Hagali further stated that the official record of his birth had been destroyed and there was no religious record of his birth before age 5. Hagali's application was denied initially and upon reconsideration, because of evidence that for twenty-five years he had consistently used another date, June 8, 1929, as his date of birth on all official documents in the United States. Hagali requested a hearing before an Administrative Law Judge (hereinafter referred to as ALJ). A hearing was held on June 26, 1986.

Evidence in the administrative record indicates that Hagali came to the United States in late 1955, and when he applied for a Social Security number in June 1956 he stated his date of birth was June 8, 1929. On November 9, 1963, Hagali filed an affidavit for application for a marriage license in Clark County, Nevada, and stated under oath that his date of birth was June 8, 1929. In December 1965, Hagali requested a change of name on his Social Security records and at that time made no change of his June 8, 1929 birth date as originally provided to the Social Security Administration. At the time of his second marriage, he obtained a marriage certificate in Los Angeles County, California, on October 5, 1968, stating his date of birth was June 8, 1929. On May 28, 1971, a Certificate of Naturalization was issued showing that he was born on June 8, 1929. Passports issued by the United States on June 24, 1971 and April 14, 1982, show Hagali's date of birth as June 8, 1929.

Only in 1981 did Hagali begin to actually obtain documents which showed that he was born in 1923. In 1981 Hagali was able to obtain a document from the Lebanon Ministry of Economics and Trade indicating that Hagali was a former employee who was born in 1923. On December 15, 1981, Hagali made an application for a change in the Social Security records to show 1923 as his birthdate. This request was denied. On August 3, 1983, Hagali obtained affidavits from his older sister and brothers which stated that Hagali was born between June 15-20, 1923, in Lebanon. After furnishing these affidavits to the Superior Court of California, Hagali petitioned and was granted an Order Establishing Fact of Birth issued July 19, 1984, showing that he was born in Lebanon on June 18, 1923. Thereafter, Hagali took the court order to the Immigration and Naturalization Service which took no action, therefore, his citizenship certificate still showed a birth date of June 8, 1929. In May of 1986, Hagali obtained three other Lebanese documents which also indicated that he was born in 1923.¹ 

On July 24, 1986, the ALJ filed a decision denying benefits, and finding that for Social Security purposes, Hagali's correct date of birth was June 8, 1929 and that Hagali will not become eligible for retirement insurance benefits until June of 1991. Hagali submitted a request for review by the Appeals Council on August 11, 1986. Review was denied on October 3, 1986.

In December 1986, after the Appeals Council had denied his request for review of the ALJ's decision, Hagali submitted affidavits in which he offered an account of why he began using 1929 as his birthdate. He stated that in 1948, he wanted to join his brother in a textile business in Senegal and changed his age because the government of Senegal would only permit a Lebanese to emigrate only if the Lebanese was an orphan and under 20 years old. Hagali filed a petition with the Appeals Council to reopen the case. The request to reopen was denied on February 24, 1987 by the Appeals Counsel which held that the new affidavits were not of such probative value to overcome the evidence cited by the ALJ.

Hagali then brought this action in the district court pursuant to 42 U.S.C. § 405(g). 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 845, 847 (9th Cir. 1985), 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 at 1423, 1425 (9th Cir. 1986). "Substantial evidence" is evidence that a reasonable mind might accept as adequate to support conclusion." Richardson v. Perales, 402 U.S. 389 (1971); Gordon v. Secretary, 803 F.2d at 1072.

Where evidence is susceptible to more than one rational interpretation, the conclusions reached by the ALJ must be upheld. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). Where, after viewing the record as a whole, there is substantial evidence to support the determination actually made by the ALJ, as well as a contrary determination, the court will not substitute its judgment for that of the ALJ. Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985). The resolution of questions of credibility, and of conflicts in testimony, are functions of the ALJ, not the reviewing court. Sample v. Schweiker, 694 F.2d at 642.

Contrary to Hagali's assertions, the district court correctly held that the Secretary's denial of benefits was based on substantial evidence. Regulations of the Social Security Act 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).² 

The ALJ based its decision on Hagali's social security records which reflect a birth date of June 8, 1929, dating from June 1956 when Hagali first applied for a social security card, and 1965 when Hagali asked the Social Security Administration to change the spelling of his name. Moreover, a birth date of June 8, 1929 is also recorded on the following official documents: an affidavit of application for a marriage license filed in Nevada on November 9, 1963, a California marriage certificate issued in 1968, a certificate of naturalization issued on May 28, 1971, and United States passports issued on June 24, 1971 and April 14, 1982. Therefore, despite the fact that there were additional pieces of evidence³  the ALJ's finding that the evidence was not sufficient to award benefits was based on substantial evidence.⁴ 

The ALJ also made credibility findings in order to support its decision:

... The claimant has not furnished a satisfactory explanation as to why, after entering the United States in 1955, for more than 25 years he consistently used the date of birth of June 8, 1929, even though he knew it was not correct and that he waited until 1981 when his retirement date was not too far distant before seeking to change his stated date of birth. Even after receiving initial documentation from his employer, allegedly showing a birth year of 1923, he thereafter applied for another United States passport again showing his date of birth as June 8, 1929.

In addition, the ALJ noted that "the statements of family members who obviously would be supportive of their brother's desire to establish an earlier birth date ... cannot be assigned neater credibility than the preponderance of records in this case." An ALJ's assessment of credibility should be given great weight. See Nyman, 779 F.2d 528, 531 (9th Cir. 1985); Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978).

In addition, Hagali is not entitled to remand his case back to the Secretary due to the additional evidence he submitted after the Appeals Council denied his request to review the ALJ's decision. Remand to the Secretary for the purpose of considering additional evidence not contained in the administrative record is appropriate only upon a showing that the evidence is "material" and that there is good cause for the failure to incorporate the evidence at the appropriate point in the administrative review process. 42 U.S.C. § 405(g); Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985). To meet the materiality requirement there must be a reasonable possibility that the new evidence would have changed the outcome of the Secretary's determination had it been before him." Booz v. Secretary of HHS, 734 F.2d 1378, 1380-81 (9th Cir. 1984). The affidavits are not material because they only enlarge upon information previously of record and would not effect the outcome here. Moreover, Hagali has failed to demonstrate "good cause" for failing to submit this evidence in the course of the administrative proceedings because it appears that Hagali was in a position to bring out the information in the affidavits at any point during the administrative proceedings. See Sanchez v. Secretary of HHS, 812 F.2d 509, 512 (9th Cir. 1987).

AFFIRMED.