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Kephart v. Richardson

decided: November 19, 1974.

JAMES R. KEPHART, APPELLANT,
v.
ELLIOT L. RICHARDSON, SECRETARY, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, APPELLEE



Appeal from the United States District Court for the Western District of Pennsylvania. D.C. No. 73-71.

Van Dusen, Hunter and Weis, Circuit Judges.

Author: Weis

Opinion OF THE COURT

WEIS, Circuit Judge.

While silence may be golden in the adage, silence in the Social Security records of employment may have quite a contrary effect on a claimant for disability benefits who must establish a wage earning history. In this appeal from a denial of benefits, we conclude that, while the absence of earnings entries is statutorily denominated evidence of nonemployment, it may be outweighed by credible testimony of the claimant which fills the void. Because the administrative process failed to properly consider the positive evidence which might have eliminated the negative, we remand for further proceedings.

Claimant James R. Kephart began to work in the coal mines of Pennsylvania at the age of 14 and continued there for more than thirty years. After the mines near his home closed in 1959, he embarked upon a series of light laboring jobs with various concerns in the construction field and in agriculture. In 1969, he was unable to continue employment because his physical condition had deteriorated. He applied for disability benefits at that time pursuant to the provisions of the Social Security Act.*fn1

After a hearing before an administrative law judge, the Secretary denied benefits because he found that Kephart had not worked the requisite number of quarters to have been covered under the Act when he became disabled.*fn2 This determination was made primarily because the Secretary's records did not show any payments of wages during the years 1960, 1961,*fn3 1962, 1963 and 1965, although the claimant produced evidence that he had been employed during this period. On appeal, the district court granted summary judgment for the Secretary.

In 1964 and from 1966 to 1969, Kephart worked at various times for a number of construction companies which duly filed returns of his earnings. From 1960-1963 and in 1965, however, he worked on a piecework basis as a crop picker for a number of farmers near his home. He filed an affidavit, joined in by his wife and three other persons, in 1972 asserting that he worked for Hoover Brothers of New Paris, Pennsylvania in the months of July, August, September and November of 1960, 1961, 1962, 1963 and 1965, and for a Ray Glessner in October of each of those years. At the hearing, Kephart testified that he worked as a farmhand during the years 1961, 1962, 1963, and 1965, adding that on a "couple" of occasions his wife worked with him.*fn3a

A response to a questionnaire from the Social Security Administration by Glessner Farms and a report of an interview with the employer were introduced into evidence at the hearing. These exhibits established that the claimant and his wife had indeed harvested potatoes but stated that only one check had been issued to the husband for the labors of both. The Hoover Brothers partnership had been dissolved before the questionnaire had been sent, and the response to it was not to the point.*fn4

On the basis of the testimony and affidavits, the hearing officer found that the government's records, which showed no agricultural earnings in the years in question, demonstrated that the claimant had insufficient quarters of coverage. The hearing officer held that the Glessner evidence ". . . cannot be viewed as substantial evidence . . . sufficient to rebut the presumption of validity accorded by law to the Secretary's wage records . . . I view the mere naked assertion by the claimant in his affidavit and in his testimony at the hearing with respect to earnings from Hoover Bros. to be insufficient evidence to rebut the presumption of validity with which the Act cloaks the Secretary's records."*fn5

The issue in this case is a very narrow one and is focused on the determinations to be made when a claimant alleges that he did in fact work during a given period of time for which the government's records are silent. We conclude that a claimant is entitled to substantiate his position and that this evidence must be given consideration by the Social Security Administration.

42 U.S.C. § 405(c) (2) provides that on the basis of information submitted to the Secretary and after such verification as deemed necessary, he shall maintain records of wages paid to an individual. The next subsection, (3), provides that such records may be evidence in proceedings before the Secretary and that "the absence of an entry in such records as to wages alleged to have been paid to . . . an individual in any period shall be evidence that no such wages were paid . . . during such period." Subsection (4) discusses the Secretary's authorization to correct the records, providing in subpart (A) that the records as to wages paid "shall be conclusive." Subpart (B) recites that "the absence of an entry . . . as to wages alleged to have been paid . . . during any period . . . shall be presumptive evidence . . . that no such alleged wages were paid . . ."

While there may be some question as to whether subsection (3) or (4) sets the evidentiary standard to be used for hearings before an administrative law judge, we do not find any material inconsistency. Read together, they clarify what Congress intended to be the scope of the presumption as to wage records.

Presumptions in the law serve a useful purpose and have caused more than their share of judicial and scholastic commentary. We need not go much further here than to refer briefly to Wigmore on Evidence §§ 2490 and 2491 and to the frequently quoted statement, "Presumptions . . . may be looked on as the bats of the law, ...


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