Unpublished Disposition, 893 F.2d 1339 (9th Cir. 1988)

MEMORANDUM^** 

Carmel J. Vitale appeals, pro se, the district court's judgment granting the motion of the Secretary of Health and Human Services ("Secretary") for summary judgment and denying Vitale's motion for summary judgment. We affirm.

BACKGROUND

On June 4, 1985, Carmel J. Vitale applied for retirement insurance benefits under the Social Security Act. 42 U.S.C. § 402(a). On her application Vitale claimed her date of birth as August 22, 1923. She stated she had used August 22, 1924 as her date of birth at various times because she did not want to "fight the system." On July 8, 1985, the Social Security Administration notified Vitale that it was denying her application for benefits because she had not attained the age of 62 based on a birth date of August 22, 1924. Upon reconsideration the Social Security Administration upheld the denial of benefits.

On July 22, 1986, at Vitale's request, an administrative law judge (ALJ) conducted a hearing. The hearing record contains a Cleveland, Ohio birth certificate, filed on August 28, 1924, with a birth date for Carmella Vitale of August 22, 1924. Vitale's first name is misspelled on the certificate but there is no dispute as to its authenticity. The record also contains an affidavit dated November 18, 1941, from Vitale's mother, Louise Laurie Vitale. In the affidavit Vitale's mother asserted that her daughter was born August 22, 1923. This affidavit was prepared near the time that Carmen Vitlale was attempting to get a job with Neece-Leville which had an age requirement of 18 years old. Also in the record are September 1985 affidavits of Vitale's sisters, Josephine Vitale and Mary Vitale Malone, in which they claimed that Carmen Vitale's birth date is August 22, 1923.

At the hearing, Vitale testified that the birth certificate was inaccurate as to her age, the spelling of her first name and the age of her mother. Vitale testified that she attended St. Agnes School and John Hay High School in Cleveland. She further testified that she worked for Leece-Neville during World War II and had to verify her age to work there.

The ALJ subsequently obtained records from John Hay High School which showed Vitale's birth date to be August 22, 1924. The ALJ received a letter from Leece-Neville informing him that Leece-Neville had destroyed its pre-1953 inactive personnel records.

Based upon the entire record, the ALJ found that Vitale's date of birth was August 22, 1924 and thus Vitale was not entitled to retirement insurance benefits until August 22, 1986. This became the final decision of the Secretary when the Appeals Council denied Vitale's request for review on March 17, 1986.

Vitale brought this action in the United States District Court for the Northern District of California demanding reversal of the Secretary's decision, pursuant to section 405(g) of the Social Security Act. 42 U.S.C. § 405(g). The parties filed cross motions for summary judgment. On January 6, 1988 the District Court entered judgment granting the Secretary's motion for summary judgment and denying Vitale's motion.

DISCUSSION

We review de novo the district court's grant of summary judgment. Davis v. Heckler, 868 F.2d 323, 325 (9th Cir. 1989), and will uphold the Secretary's denial of benefits if his findings are supported by substantial evidence and the proper legal standards were applied. Sanchez v. Sec. of Health and Human Services, 812 F.2d 509, 510 (9th Cir. 1987).

Substantial evidence supports the denial of benefits. An individual must have attained age 62 to be entitled to old-age insurance benefits. 42 U.S.C. § 402(a) (2). An applicant for such benefits must submit evidence of his date of birth. 20 C.F.R. Secs. 404.703, 404.705. The preferred, or best, evidence of an individual's age includes a birth certificate or hospital birth record if recorded before age five. 20 C.F.R. Sec. 404.716. If the preferred evidence of age is unavailable the applicant may submit "other convincing evidence," such as school records, census records, or an employment record. Id.

The only preferred evidence here is Vitale's birth certificate recorded before the age of five. The certificate shows Vitale's date of birth to be August 24, 1924. This date of birth is corroborated by Vitale's high school records which constitute "other convincing evidence" under Social Security regulations.

The evidence supporting the earlier August 22, 1923 birth date consists of Vitale's testimony, the affidavits of her mother and sisters, her social security earnings record and her application for benefits. None of this evidence falls under either the preferred or "other convincing evidence" category. 20 C.F.R. Sec. 404.716. In addition the credibility of Vitale's testimony and her family's affidavits is to be determined by the Secretary. Sample, 694 F.2d at 642.

The Secretary resolved the conflict of evidence against Vitale by relying on the preferred evidence, Vitale's birth certificate, and other convincing evidence, Vitale's high school records. This evidence supports a birth date of August 22, 1924. The substantial evidence in the record supports the denial of benefits.

AFFIRMED.