20 CFR 404.502, 404.507, 404.606, and 494.957

SSR 64-2

Where claimant submitted a recently established birth certificate in support of an alleged date of birth which he knew was incorrect and was found entitled to old-age insurance benefits on the basis of this erroneous birthdate, held (1) a determination of entitlement based thereon may be reopened and revised at any time, and (2) recovery or adjustment of erroneous payments made pursuant to such determination must be made under the provisions of section 204(a), since the claimant was not "without fault" within the meaning of section 204(b).

On December 2, 1953, R filed application for old-age insurance benefits under the provisions of section 202(a) of the Social Security Act. Under the requirements of that section, as in effect with regard to benefits for any month before August 1961, a man must have attained age 65 to become entitled to such benefits. R alleged on his application that he was born August 6, 1888, and submitted as proof thereof a dimotologion, a Greek birth certificate, which was allegedly recorded at or near the time of his birth. This birth certificate indicated that according to the register of citizens born in the Community of Tholopotamos, Greece, R had been born on August 6, 1888. On January 6, 1954, it was determined that R was entitled to old-age insurance benefits, and such benefits were paid to him for August 1953 through November 1960.

In 1960 evidence was received tending to show that R was born in 1893 instead of 1888, thus indicating that R had not met one of the requirements for being entitled to benefits, attainment of age 65, until August 1958 and that he had been paid benefits in error. Accordingly, additional evidence regarding R's date of birth was obtained from him and from other sources, the most significant of which consisted of:

(1) A mitroon arrenon maintained in the Ministry of Interior, Athens, Greece, a registry of male births for military purposes. Entries on this record were recorded shortly after R's birth and indicated that R was born in 1893.

(2) The dimotologion, the Greek birth certificate which R had submitted in support of his claim. This was shown to have been established on December 9, 1953, as the result of a decree of a Greek court issued on September 24, 1953.

(3) Records of the United States Immigration and Naturalization Service which indicated (a) that manifest of the ship on which R had entered the United States on May 13, 1912, showed that he was then 20 years of age; (b) that on June 5, 1926, and March 8, 1934, upon applying for re-entry permits R had stated that he was born on August 6, 1893; and (c) that when R petitioned for naturalization on August 20, 1945, he had stated that he was born on August 2, 1893.

(4) R's application for social security account number dated October 1, 1936, which showed his date of birth as August 6, 1983.

R alleged that the date of birth shown on the mitroon arrenon was established for him based upon information given by his father, and that the mitroon arrenon was not established until about 1914, at which time he was working in the United States. He also stated that the information he gave when he applied for a social security account number was based upon the year of birth which had been advised was established by the mitroon arrenon; that he had not realized the consequences of declaring 1893 as his date of birth; and that he firmly believed that he was born August 6, 1888.

The record as finally constituted in this case reveals that the dimotologion, the birth certificate initially presented by R showing his year of birth as 1888, was not established until December 1953, the month in which he filed his application for benefits. The evidence indicates also that R had always been aware that he was not born in the year 1888 but had always known that he was born in 1893. Although R had stated in 1912 that he was then 20 years of age (which would tend to establish that he was born in 1891 or 1892) this allegations to his age does not, of itself, establish that he was uncertain at any time as to his correct year of birth, especially since the age given was an even "age 20" and R had on all occasions on which he was asked to state his year of birth unfailingly stated that he was born in 1893.

The weight of the evidence shows that R was born on August 6, 1893. This establishes that he failed to meet the then age 65 requirement for entitlement to benefits when he filed his application on December 2, 1953. However, in view of the length of time that has elapsed since the initial determination on his claim was made on January 6, 1954, a question arises whether such determination may be reopened and revised. In this regard, Regulations No. 4, § 404.957(c)(1) [20 CFR 404.957(c)(1)] provides, as pertinent hereto, that a determination with respect to an individual's entitlement to benefits may be reopened and revised at any time if such determination was "procured by fraud or similar fault of the claimant or some other person."

When R filed his application for benefits he deliberately furnished only a recently recorded birth certificate to establish a year of birth that would entitle him to benefit payments, but he had full knowledge that such date of birth was incorrect and failed to submit available evidence showing his correct date of birth. Therefore, R's entitlement to benefits was procured through his fraud or fault. Consequently, it is held that the determination of award dated January 6, 1954, may, under the regulations, be reopened and revised.

Under section 202(j)(2) of the Act and Regulations No. 4, § 404.606 [20 CFR 404.606], an application for monthly benefits will be accepted as an application for such benefits if it is filed not more than 3 months prior to the first month for which the claimant could become entitled to such benefits. Since R had not attained age 65 at the time he filed his application for old-age insurance benefits on December 2, 1953, and since he did not attain age 65 within 3 months subsequent to the month in which such application was filed, he was not entitled to benefits based upon such application. Accordingly, it is found that the benefits paid to him for the months August 1953 through November 1960 were incorrect.

Section 204(a) of the Act requires that incorrect payments be recovered unless, as provided in section 204(b), such incorrect payment has been made to an individual who is without fault and adjustment or recovery would defeat the purpose of title II of the Social Security Act or be against equity and good conscience. Under Regulations No. 4, §404.507 [20 CFR 404.507], to be "without fault" an individual has to furnish full and accurate information to the best of his ability. An individual cannot be considered without fault in accepting payments made by reason of a statement which he knew or should have known was incorrect or which resulted from his failure to furnish information which he knew or should have know was material to his claim.

In this case, R knew, when he filed his application for old-age insurance benefits, that he would not attain age 65 until August 1958. Yet he alleged a date of birth that indicated he had attained age 65 in August 1953; he submitted a recently established birth certificate which he knew was incorrect; and he failed to submit evidence which he knew was readily available, which showed his correct date of birth, and which he knew or should have known would have a material effect on the determination of his entitlement to benefits. Accordingly, it is found that R was not without fault in accepting the overpayments made to him for the months of August 1953 through November 1960, and it is held that adjustment or recovery of the incorrect payments must be made pursuant to section 204(a) of the Act.

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