Breeden v. Weinberger, 73-1899.

Citation493 F.2d 1002
Decision Date19 March 1974
Docket NumberNo. 73-1899.,73-1899.
PartiesMinnie Florence BREEDEN, Appellant, v. Caspar W. WEINBERGER, Secretary Health, Education, and Welfare, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

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C. Waverly Parker, for appellant.

Raymond A. Carpenter, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on brief), for appellee.

Before WINTER, CRAVEN and BUTZNER, Circuit Judges.

CRAVEN, Circuit Judge:

Appellant Minnie Breeden was declared ineligible for Social Security disability benefits because the Social Security Administration credited her for 18 quarters of covered employment in the ten years preceding her disability, instead of the 20 quarters required for coverage under 42 U.S.C. § 423(c)(1)(B) (1970). Mrs. Breeden attempted to prove that she had actually earned wages during quarters for which the Secretary's records showed none, but she encountered an administrative requirement that she prove her case "clearly and convincingly." The district court affirmed the denial of coverage. The issues on Mrs. Breeden's appeal are: (1) whether the Social Security Act requires the claimant to prove her case by more than a normal preponderance of the evidence; (2) whether the administrative decision is supported by substantial evidence.

Mrs. Breeden filed an application for disability benefits in 1969. Upon discovering that her Social Security wage records showed a deficit in covered quarters, she began trying to prove that she had earned wages between 1957 and 1963 in addition to those that appeared on her record. Several of the employers had since gone out of business;1 others had discarded records that would prove or disprove Mrs. Breeden's claims. Consequently, her supporting evidence was limited to affidavits and testimony of people who had known her during the periods in question. Most of her witnesses were relatives, some were friends, others were coworkers and acquaintances, and one was the wife of a former employer. If any substantial part of their testimony were accepted, it would establish coverage for more than the two quarters that Mrs. Breeden lacked. But the administrative law judge rejected all the testimony, including Mrs. Breeden's own account of her work history. He indicated distrust for the testimony of "friends and kinfolk." He complained repeatedly that none of the witnesses produced written records and that much of their testimony was inexact. And he insisted that Mrs. Breeden prove her case "clearly and convincingly." On these grounds he concluded that she had not carried her burden of proof. The appeals counsel adopted his findings and conclusions, and Mrs. Breeden petitioned the district court for review. The district judge remanded the case for more evidence, indicating that the denial of benefits was not supported by substantial evidence. On remand, the appeals council accepted several pieces of documentary evidence that Mrs. Breeden's attorney offered, but reaffirmed the original decision without convening another hearing. Taking the case a second time on substantially the same record as before, the district judge held that Mrs. Breeden had the burden of proving coverage by "clear and convincing evidence." On a survey of the record he concluded that her evidence did not meet that standard and that the administrative decision was therefore based on substantial evidence. We reverse.

The Social Security Act creates a scale of evidentiary weight for the Secretary's wage records. It provides that entries in the records shall serve as evidence of the amounts of wages paid and that the absence of entries shall constitute evidence that no wages were paid. 42 U.S.C. § 405(c)(3) (1970). The records are open to revision for a period of three years, three months, and 15 days. Id. § 405(c)(1)(B), (c)(4).2 After that period expires, an entry acquires conclusive weight, but the absence of an entry merely stands as "presumptive evidence" that no wages were paid. Id. § 405(c)(4)(A), (B). Records of self-employment income are also given conclusive effect at the end of the time period. Id. § 405(c)(4)(C). Consequently, a claimant cannot dispute the accuracy of a wage entry or a self-employment income record after the time limit expires, but is allowed to prove that a blank wage record is incorrect.

The meaning of "presumptive evidence" in section 405(c)(4)(B) is unclear. The agency's regulations simply repeat the words of the statute without explaining them. 20 C.F.R. § 404.804 (1973). Judicial attempts to outline the effect of the statute have gone no further than declarations to the effect that the presumption can be rebutted by "positive" or "substantial" evidence. E. g., Thacker v. Gardner, 268 F.Supp. 663, 665 (W.D.Va.), aff'd, 387 F.2d 387 (4th Cir. 1967), cert. denied, 390 U.S. 1017, 88 S.Ct. 1272, 20 L.Ed.2d 168 (1968);3 Williams v. Celebrezze, 243 F.Supp. 103, 107 (E.D.Ark.1965). In this case the district court reasoned that because the claimant initially bears the burden of proving coverage, the presumption must enhance the burden of persuasion:

The Court concludes that it requires the plaintiff to prove that she was covered by the Act during the quarters in question by clear and convincing evidence, by stronger evidence than would be needed had the absence of official records been simply not relevant.

We disagree with the district court's characterization of the claimant's burden of proof. It is true that the claimant has the burden of producing evidence in support of his claim and that his claim for benefits may properly be denied if his evidence is insufficient to persuade the Secretary. See 20 C.F.R. § 404.701(b) (1973). In another context we have implied that a Social Security claimant need not prove his administrative case beyond a preponderance of the evidence, Cyrus v. Celebrezze, 341 F.2d 192 (4th Cir. 1965); Thomas v. Celebrezze, 331 F.2d 541, 545 (4th Cir. 1964),4 and we think the statutory presumption involved here does not alter that rule. As a general rule, presumptions do not operate to raise the standard of proof. Their common effect is to shift the burden of producing evidence and, some say, the burden of persuasion. Compare McCormick, Evidence § 345 (Cleary ed. 1972), with 9 Wigmore, Evidence §§ 2490-93 (3d ed. 1940). See Garland v. Cox, 472 F.2d 875, 877-878 (4th Cir. 1973), cert. denied, Slayton v. Garland, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973). If the presumption operates against a party who already has the burden of proof, it does not necessarily convert a preponderance standard into something stiffer. See McCormick, supra, § 345, at 829.5 Instead, the policies underlying a particular presumption govern the measure of persuasion required to escape its effect. Id. at 822-23.

The progression of evidentiary value embodied in the Social Security Act — evidence, presumptive evidence, and conclusive effect — suggests that the provision concerning blank wage records reflects congressional sensitivity to the need to balance two somewhat conflicting purposes. One purpose, akin to the supposed rationale for statutes of limitation, is to guard against false claims after contradictory evidence is unavailable. But Congress did not write a statute of limitations for contradicting blank wage records, as it did for self-employment income reports. The different treatment afforded to blank wage records suggests a second purpose — that Congress intended not to penalize wage earners for the carelessness or dishonesty of their employers. A requirement of proof by clear and convincing evidence would all but destroy this secondary congressional intent. Applying a preponderance standard to the claimant's evidence affords the government reasonable protection against spurious claims and also makes it possible to establish valid ones. We hold that the claimant need not persuade the administrative law judge by any standard of "high probability"; she need only persuade him that it is more probable than not that she received the wages she claims. This is the meaning of the rubric common in jury trials: "satisfied by the greater weight of the evidence." See McCormick, supra, § 339, at 794-95.

On review of the administrative law judge's decision, we do not assess the record to decide whether Mrs. Breeden proved her claim by a preponderance of the evidence. Our function is limited to deciding whether the administrative decision is supported by substantial evidence.6 We must decide, therefore, what weight to accord the statutory presumption on substantial evidence review when the record contains contradictory evidence.7

Under the Thayer "bursting bubble" theory of presumptions, the presumption is a procedural rule that governs the outcome only when the record contains no contradictory evidence. McCormick, supra, § 345; 9 Wigmore, Evidence, § 2491 (3d ed. 1940). The Supreme Court once applied this theory to an administrative presumption in the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 920 (1970), holding that the presumption had no evidentiary force on review of the administrative decision. Del Vecchio v. Bowers, 296 U.S. 280, 56 S.Ct. 190, 80 L.Ed. 229 (1935).8 This court chose the same approach in Garland v. Cox, 472 F.2d 875, 879 (4th Cir. 1973), giving purely procedural effect to a presumption that late appointment of counsel was prejudicial to the defendant in a criminal case. The structure of the Social Security Act, however, precludes similar treatment of the presumption involved here. Unlike the statute in Del Vecchio, which creates certain presumptions "in the absence of substantial evidence to the contrary," 33 U.S.C. § 920 (1970), the Social Security Act provides that the absence of a record entry shall be "presumptive evidence" that no wages were paid — whether or not there is other evidence. We think the Congress did not intend the presumption to evaporate when contrary...

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