Martin v. Berryhill

• Decision Date: 02 March 2017
• Docket Number: Case No.: 5:15-CV-01677-VEH
• Parties: DONALD LARRY MARTIN, Plaintiff, v. NANCY A. BERRYHILL, ACTING COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
• Court: U.S. District Court — Northern District of Alabama

DONALD LARRY MARTIN, Plaintiff, v. NANCY A. BERRYHILL, ACTING COMMISSIONER,SOCIAL SECURITY ADMINISTRATION, Defendant.

Case No.: 5:15-CV-01677-VEH

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION

March 2, 2017

MEMORANDUM OPINION

Plaintiff Donald Larry Martin ("Mr. Martin") brings this action under 42 U.S.C. § 405(g), Section 205(g) of the Social Security Act. He seeks review of a final adverse decision of the Commissioner of the Social Security Administration ("Commissioner"),¹ who determined that Mr. Martin's Retirement Insurance Benefits were subject to the windfall elimination provision of the Social Security Act, 42 U.S.C. § 415(a)(7). That section provides for a reduction in SocialSecurity retirement benefits when a claimant simultaneously receives a pension based on employment not covered by Social Security. Mr. Martin timely pursued and exhausted his administrative remedies available before the Commissioner. The case is thus ripe for review under 42 U.S.C. § 405(g). Because this Court finds that the Commissioner's interpretation of the statute and regulations is reasonable, the Commissioner's decision is due to be AFFIRMED.

STATEMENT OF THE CASE

The material facts in this case are not in dispute. Mr. Martin was in the military service from February 5, 1970 to September 9, 1971. Tr. 14. On September 12, 1982, Mr. Martin began employment as a National Guard Dual Status Technician ("DSTech") in the Excepted Civil Service. Tr. 19. This position also required that Mr. Martin be assigned to a compatible military position as a member of the Alabama National Guard. Id.

Mr. Martin's work as a DSTech military personnel clerk was similar to a unit clerk in the active Army. Tr. 161. He received federal Civil Service pay for his work as a dual status technician. Tr. 163. As a member of the Alabama National Guard, he also attended scheduled weekend drills, for which he received military pay. Id. During the work week, he was in military uniform. Tr. 168.

Mr. Martin's unit received military orders to report for a one-year tour in2001. Tr. 163. During his physical examination prior to the start of his tour, he was diagnosed with asthma and was found to be non-deployable. Tr. 163-64. Mr. Martin was medically discharged by the National Guard on December 4, 2004. Tr. 165. As membership in the National Guard was a requirement for his Civil Service position as a DSTech, he was no longer eligible for the DSTech position and was granted federal Civil Service disability pay beginning on April 9, 2005. Tr. 166.

Mr. Martin filed for Retirement Insurance Benefits ("RIB") on October 30, 2012. Tr. 14. He was awarded RIB and began receiving RIB monthly benefits in December 2012. Tr. 16-18. This pension, which is based on his service as a National Guard dual status technician, is paid by the Office of Personnel Management under the Civil Service Retirement System ("CSRS") (his "Civil Service pension"). Tr. 140. He also receives a pension based on his service in the Alabama Army National Guard, which is paid by the Defense Finance and Accounting Service, an agency of the United States Department of Defense (his "military retired pay"). Id.

Mr. Martin's RIB was reduced from $647.90 per month to $439.20 based on the Social Security Administration ("SSA")'s application of the Windfall Elimination Provision ("WEP"). Tr. 16. On December 23, 2012, Mr. Martin requested that the SSA reconsider the application of the WEP modified formula tohis Civil Service benefits calculation. Tr. 20. On January 15, 2013, the SSA upheld its application of the WEP to his RIB benefits. On March 11, 2013, Mr. Martin filed a request for a hearing with an Administrative Law Judge ("ALJ"). Tr. 29.

The ALJ conducted a hearing on the matter on September 17, 2013. Tr. 38. Mr. Martin was 62 years old at the time of the hearing. Compare Tr. 38 with Tr. 14. On December 5, 2013, the ALJ issued an opinion concluding that Mr. Martin's RIB were correctly calculated pursuant to the WEP. Tr. 10-13. After consideration of the entire record, the ALJ made the following findings:

1. The claimant's work as a military technician/clerk for the Alabama National Guard was properly classified as work not covered by Social Security.

2. The WEP was properly applied to reduce the amount of the claimant's Social Security Retirement benefits.

3. Whether or not a reduction in benefits is applicable due to the continued receipt of civil service disability benefits is not before the undersigned.

Tr. 12.

Mr. Martin timely petitioned the Appeals Council to review the decision on January 20, 2014. Tr. 6A. On July 28, 2015, the Appeals Council issued a denial of review of his claim. Tr. 3-5. Mr. Martin filed a Complaint with this Court onSeptember 24, 2015, seeking review of the Commissioner's determination. (Doc. 1). The Commissioner answered on February 12, 2016. (Doc. 6). Mr. Martin filed a supporting brief (doc. 8) on March 28, 2016, and the Commissioner responded with her own (doc. 9) on April 27, 2016. Mr. Martin filed a reply brief on May 11, 2016 (doc. 11).

STANDARD OF REVIEW

The Court's review of the Commissioner's decision is narrowly circumscribed. The function of this Court is to determine whether the decision of the Commissioner is supported by substantial evidence and whether proper legal standards were applied. Richardson v. Perales, 402 U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). This Court must "scrutinize the record as a whole to determine if the decision reached is reasonable and supported by substantial evidence." Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Substantial evidence is "such relevant evidence as a reasonable person would accept as adequate to support a conclusion." Id. It is "more than a scintilla, but less than a preponderance." Id.

This Court must uphold factual findings that are supported by substantial evidence. However, it reviews the ALJ's legal conclusions de novo because no presumption of validity attaches to the ALJ's determination of the proper legal standards to be applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If theCourt finds an error in the ALJ's application of the law, or if the ALJ fails to provide the Court with sufficient reasoning for determining that the proper legal analysis has been conducted, it must reverse the ALJ's decision. Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).

APPLICABLE STATUTES, REGULATIONS, AND ADMINISTRATIVE RULINGS

1. The National Guard Technician Act of 1968

In 1968, Congress passed the National Guard Technician Act, which created the National Guard position of "military technician (dual status)." Pub. L. No. 90-486, §2(1), 82 Stat. 755, 755-56, codified as 32 U.S.C. §709. A DSTech is a "Federal civilian employee" who is "assigned to a civilian position as a technician in the organizing, administering, instructing, or training of the Selected Reserve or in the maintenance and repair of supplies or equipment issues to the Selected Reserve or the armed forces." 10 U.S.C. § 10216(a)(1).

A DSTech "shall be authorized and accounted for as a separate category of civilian employees," 10 U.S.C. § 10216(a)(2), and is both "an employee of the Department of the Army . . . and an employee of the United States." 32 U.S.C. § 709(e); see also 5 U.S.C. § 5534 ("A Reserve of the armed forces or member of the National Guard may accept a civilian office or position under the Government of the United States . . . and he is entitled to receive the pay of that office or position inaddition to pay and allowances as a Reserve or member of the National Guard.").

As a condition of employment, a National Guard DSTech must maintain membership in the National Guard, hold the military grade specified for the position, and wear the uniform "appropriate for the member's grade and component of the armed forces" while "performing duties as a military technician (dual status)." 10 U.S.C. § 10216(a)(1)(B); 32 U.S.C. §709(b)(2-4).

2. The Windfall Elimination Provision

The present dispute concerns the Commissioner's application of the Windfall Elimination Provision to Mr. Martin's retirement insurance benefits. As the Eleventh Circuit has explained, Congress enacted the WEP

to eliminate the unintended "double dipping" that accrued to workers who split their careers between employment taxed for Social Security benefits ("covered") and employment exempt from Social Security taxes ("noncovered"). The SSA determines a beneficiary's primary insurance amount (the figure on which the amount of actual benefits is partially based) from his average monthly earnings. 42 U.S.C. § 415. Prior to the enactment of the WEP, this calculation was completed without regard to whether the individual's wages were covered or noncovered. As a result, an individual who had worked for both covered and noncovered wages in the course of his employment history would receive both full Social Security benefits and whatever pension benefits were provided by his noncovered employment. The WEP, as codified at 42 U.S.C. § 415(a)(7), provides that the primary insurance amount for such individuals be computed using a modified formula.

Stroup v. Barnhart, 327 F.3d 1258, 1259-60 (11th Cir. 2003). The WEP "seeks to

preserve the progressive nature of the Social Security system by ensuring that the formula the agency uses to calculate benefits does not advantage high income workers who split their careers between covered and non-covered employment over those who paid Social Security taxes for their entire careers." Hawrelak v. Colvin, - Fed Appx. -, 2016 WL 3471742, at *1 (7th Cir. 2016) (unpublished).

In 1994, Congress amended the WEP to add an exception for certain classes of individuals:

(7)(A) In the case of an individual whose primary insurance amount would be computed under paragraph (1) of this subsection, who -

(i) attains age 62 after 1985 . . or

(ii) would attain age 62 after 19

...