The opinion of the court was delivered by: FISHER
CLARKSON S. FISHER, District Judge.
Plaintiff seeks review pursuant to 42 U.S.C.A., Section 405(g) of a final decision made by the Secretary of Health, Education and Welfare. Upon receipt of the complaint, the cause was referred to the Honorable John W. Devine, United States Magistrate, pursuant to this District's General Rule 40E(1), for his report and recommendation to this Court as to final disposition.
This Court has conducted an independent review of the pleadings, briefs, administrative agency records and report and recommendation submitted by the Magistrate. This Court is in complete agreement with the Magistrate's report and accepts his recommendations.
It is on this 6th day of September, 1974 ordered that the report and recommendation of the United States Magistrate annexed hereto be and the same hereby is adopted as the Opinion of this Court, and it is further
REPORT AND RECOMMENDATION
By this action under 42 U.S.C.A. § 405(g), the plaintiff Leib Sprung, seeks relief from the defendant-Secretary's decision that he was born on May 15, 1910 rather than on May 15, 1906 as he claims. The Secretary's decision, which affects plaintiff's entitlement to old-age and to medicare benefits, proceeds from his adoption of the Appeals Council which in turn had reversed that of the Administrative Law Judge who had found in the unrepresented plaintiff's favor following an oral hearing at which he and his wife testified and after which some additional evidence was submitted.
According to the testimony before the Administrative Law Judge, the plaintiff was born on May 15, 1906 in Poland.
During World War II all of the official records in the town of his birth were destroyed by the Russians who captured and imprisoned him in Siberia for six years. When plaintiff was captured all of his personal papers were taken from him. When he was released, in 1946 or 1947, plaintiff went to Austria where, the better to obtain work, he made himself four years younger than he knew himself to be by giving his date of birth as 1910. Having once officially stated his date of birth as 1910, he thereafter did so on his marriage certificate in 1948, when he migrated to the United States in 1951, on his application for a Social Security number in 1951, on his certificate of naturalization in 1956, and on a census record made in 1960.
Opposing the aforesaid documentation, in addition to the testimony of the plaintiff and his wife, are statements from his four siblings, a brother and three sisters, and from friends. As noted in footnote 1, the siblings' statements were submitted before and after the oral hearing and might be subject, understandably, to a charge of partiality if not absolute falsehood. We note, however, that the Appeals Council itself speaks of the siblings' evidence as follows:
"Although the Appeals Council does not question the good faith of the individuals who made the statements, such statements were recently made, are based solely on memory, and refer to events which took place more than 50 years ago."
Having thus spoken, the Appeals Council ignored those statements. We however would be less than candid if we did not note here that the Appeals Council's findings that the statements were recently made does but state the obvious. But they had not previously been needed. And while it is true that those statements are based solely on memory that circumstance is hardly surprising, for if there had been documentation there would have been no need for recollection. Similarly if the events referred to had not "taken ...