An applicant for an original SSN may submit a court-ordered delayed birth certificate (DBC) as evidence of age; however, the court-ordered DBC is not binding on SSA in determining the applicant's date of birth. A court-ordered DBC is evidence whose reliability and probative value are determined by analyzing the following factors:

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  The date of the DBC's registration;

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  The purpose for which it was established;

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  The evidence on which it was based; and

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  The criteria for establishing DBCs, which vary from state to state.

A DBC established many years ago and based on documents considered to be reliable and of high probative value has higher probative value than a DBC without these qualities.

This memorandum provides legal guidance on the specific issue of how the Agency should evaluate court-ordered delayed birth certificates (DBCs) ordered by the California state courts when such court-ordered DBCs are submitted to the Agency in connection with applications for new social security numbers (SSNs).

BACKGROUND

The DBC in question was ordered by the California state court. The court order decreed that SSN applicant Michael J. B. L~ was born on June 6, 1986. Michael presented the order and a statement from his father that he was born at home and was home schooled. He presented no other supporting documents. The field office asked Michael to have his parents come to the office and verify the statements, but he refused to give phone numbers or to bring his parents to the office. The Agency has no earnings records for Michael's birth parents.

The field office checked the Fresno County court docket. Michael's father, Gene B~, had previously filed petitions for DBCs for two other individuals: Laura D. B. L~ and Heather E. B. L~. These individuals were supposedly home schooled (no records) and have no previous SSNs or records. According to the state office responsible for registering birth-dates of birth, Mr. L~'s court-ordered DBC has not been registered. In fact, he never requested registration of the court-ordered DBC.

SSA's Office of the Inspector General (OIG) suspects fraud. The question presented is, given this factual background and suspected fraud, whether the Agency is bound by the state court-ordered DBCs as evidence of the SSN applicants' date of birth.

ANALYSIS

An applicant for an original SSN is required to submit “convincing evidence” of his or her age.

20 C.F.R. § 422.107(b) (2005), citing 20 C.F.R. § 404.716. The following factors are considered in determining if evidence is “convincing”:

1. (a) 

   Information contained in the evidence was given by a person in a position to know the facts;

2. (b) 

   There was any reason to give false information when the evidence was created;

3. (c) 

   Information contained in the evidence was given under oath, or with witnesses present, or with knowledge there was a penalty for giving false information;

4. (d) 

   The evidence was created at the time the event took place or shortly thereafter;

5. (e) 

   The evidence has been altered or has any erasures on it; and

6. (f) 

   Information contained in the evidence agrees with other available evidence, including Agency records.

20 C.F.R. § 404.708. A DBC is one of numerous documents that may be considered “other evidence of age” that may be deemed convincing under the above standards. 20 C.F.R. § 404.716(b).

The Program Operations Manual System (POMS) provides that DBCs issued by court order or decree are evaluated the same as any other DBC:

In certain States (e.g., Indiana and Michigan), State or county courts have sometimes issued DBC's in the form of court decrees or orders. These vary greatly in format (some show supporting evidence and some do not). Treat these records as DBC's and evaluate them accordingly.

POMS GN 00302.540C.

The probative value of a DBC, whose reliability is at issue, will be based on an analysis of factors such as: (a) the date of registration; (b) the purpose for which the DBC was established; (c) the evidence upon which the DBC was based; and (d) the criteria for establishing DBCs, which vary from state to state. For example, a DBC would have higher probative value if it were established many years ago based on documents which are considered to be reliable and of high probative value. POMS GN 00302.540D, E, F.

The Commissioner's regulations were recently analyzed in the context of a state court-ordered DBC in Collier v. Apfel, 91 F.Supp.2d 904 (W.D.Va 2000). In Collier, the plaintiff filed for retirement benefits and stated on his application that he was born on February 20, 1927. Id. at 905. The plaintiff made this assertion based, in part, on a Virginia state court order showing that the court considered evidence and decreed that the plaintiff was born on February 20, 1927. Id. The Commissioner of Social Security contested the plaintiff's purported date of birth based on a 1940 federal census which indicated that the plaintiff's birth year was 1932 or 1933. Id. After a hearing, the Commissioner issued a final decision, finding that the plaintiff was not entitled to retirement benefits. Id. The Commissioner relied on the 1940 federal census over the state-court ordered DBC. Id.

The district court in Collier affirmed the Commissioner's final decision. Id. at 906. The district court cited 20 C.F.R. § 404.716(a) for the rule that evidence of age is “preferred evidence” only if it is recorded before the age of 5. Id. It then held that a state court-ordered DBC “is only preferred if the judicially ordered date is recorded within the five year limit set forth in the regulations.” Id. With respect to the state court-ordered DBC at issue, the district court held:

In the present case, the court-ordered date was not determined until 1980, undisputably several decades after the plaintiff's date of birth. As such, the plaintiff's delayed birth certificate does not qualify as preferred evidence.

Id. In contrast to the state-court ordered DBC, the 1940 census information was the oldest document recorded closest to the plaintiff's birth, and further, the information on the document was provided by the plaintiff's mother. Id. Accordingly, the district court found that the Commissioner's final decision properly gave controlling import to the 1940 census information rather than the state court-ordered DBC. Id.

In sum, the court-ordered DBC is not binding in determining the date of birth of an applicant. Rather, the court-ordered DBC constitutes “other evidence” whose probative value is determined based on an analysis of factors enumerated above.

California Law on Court-Ordered Delayed Birth Certificates

As set forth above, a state's criteria for establishing DBC are relevant to the probative value of a DBC. See POMS GN 00302.540F. The DBC in the instant matter was issued by the California court. Thus, California standards may be considered when evaluating the DBC.

California specifically authorizes court proceedings to establish birth, death or marriage. See Cal. Hlth & S Code §§ 103450, et seq. A proceeding is commenced upon the filing of a petition which “shall be verified and shall contain all the facts necessary to enable the court to determine the fact of and the time and place of the birth … upon the proofs adduced in behalf of the petitioner at the hearing.” Id. at § 103455. “If the time and place of birth are not known, the petition shall contain all of the facts known to the petitioner or otherwise available and a statement of the probable time and place of birth as accurately as the circumstances permit.” Id. The petition must “be verified as to the known facts only.” Id. at § 103460. The court may consider “evidence and testimony as may be available,” id. at § 103480, and issue a determination that “the birth … did in fact occur at the time and place shown by the proofs adduced at the hearing.” Id. at § 103475. The court order “establishes a presumption” and becomes “effective upon the filing of a certified copy with the State Registrar.” Id. at § 103485. In this case, the state court issued an order establishing Michael's date of birth as June 6, 1986. However, Michael has not filed the court order with the State Registrar, as he is required to do.

California Law on Home Schooling

You mentioned that Michael and two other family members were home schooled. Home schooling is legal in California where the child is taught by a credentialed teacher (private tutor), or is enrolled in a state approved charter school offering a home study program, or is enrolled in an independent study program supervised by a public school district. Cal. Educ. Code § 47602 (charter school education), § 48200 (compulsory education law), § 48222 (attendance in private school), § 48224 (instruction by private tutor), §§ 51745-51749.3 (independent study). The legal requirements of these options, as well as the enrollment documentation requirements, are discussed at http://www.cde.ca.gov., the California Department of Education's website. For instance, a child's enrollment in an independent study program should be evidenced in written records maintained by the district or county school board. Cal. Educ. Code § 51748.