Fred J. HERMES, Plaintiff-Appellant, v. SECRETARY OF HEALTH & HUMAN SERVICES; Social Security Administration, Defendants-Appellees

ORDER

The memorandum disposition filed January 7, 1991, is redesignated as an authored opinion by Judge Sneed.

OPINION

Plaintiff seeks an order reversing the final decision of the Secretary of Health and Human Services (Secretary) denying his claim for social security retirement insurance benefits under Title II of the Social Security Act. Appellant’s sole contention is that the administrative law judge (AU) wrongly concluded that his date of birth was November 21, 1928 rather than May 25, 1925. The district court upheld the Secretary’s finding. We affirm.

The decision of a district judge granting summary judgment is reviewed de novo. See Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416 , 1421 (9th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 3217 , 110 L.Ed.2d 664 (1990). The panel’s review is governed by the same standard used by the trial court. See Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). The Secretary’s decision should only be disturbed “if it is not supported by substantial evidence or it is based on legal error.” Green v. Heckler, 803 F.2d 528, 529 (9th Cir.1986). When the evidence as a whole can support either outcome, the court may not substitute…