Parker v. Astrue

Filing 36

ORDER re: 2 Complaint. The Commissioner's final decision is AFFIRMED. By Judge Raymond P. Moore on 06/17/2015. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 12-cv-01889-RM
Janet L. Parker
Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner,
Social Security Administration,
Defendant.

ORDER

I.

INTRODUCTION

Plaintiff Janet L. Parker (plaintiff), appearing pro se, seeks review of the Commissioner
of Social Security’s (Commissioner), decision that her Social Security retirement and survivor
benefits be reduced as provided by the Windfall Elimination Provision (WEP), and the
Government Pension Offset (GPO), provisions of the Social Security Act (SSA). (ECF No.2).
Finding that the Commissioner applied the appropriate legal standards, this court affirms the
Commissioner’s decision.
Plaintiff also seeks the court’s review of the constitutionality of these provisions and
seeks clarification of whether her filings are sufficient for a ruling. (ECF Nos.27, 35). This
court has jurisdiction pursuant to 42 U.S.C. §405(g); see also Califano v. Sanders, 430 U.S. 99,

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109 (1977)(Constitutional questions’ resolution unsuited to administrative hearings and, thus,
access to the courts is essential to answering such questions). For reasons fully stated below, the
court notes that plaintiff’s filings are sufficient to permit this court’s ruling and finds that
plaintiff’s arguments regarding the constitutionality of these provisions are unavailing.
II.

FACTUAL AND PROCEDURAL BACKGROUND

It is undisputed that plaintiff’s employment history includes both exempt and non-exempt
work. While employed as a part-time teacher for schools covered by the Colorado Public
Employees Retirement Association (PERA), her employers did not withhold Social Security (SS)
taxes from plaintiff’s earnings. (ECF No. 11, pp.16, 20, 37, 48). Based on these earnings,
plaintiff now receives a monthly PERA pension of just over $1000. (ECF No. 11, p.108).
Plaintiff’s work history also includes work for nonexempt employers or as a self-employed
worker. (ECF No. 11, pp.15-18, 23-27). During these times plaintiff’s earnings were subject to
SS taxes, thereby entitling her to receive various SS benefits. Id.
Plaintiff applied for retirement and spousal benefits in December, 2008. Id. In her
application plaintiff reported receiving a pension from her exempt work. Id. The next month
(January 2009), the agency informed plaintiff that her SS benefits were reduced as a result of the
WEP. Id. In February, 2009, the agency informed plaintiff that her spousal benefits had been
nullified by its GPO calculation. (ECF NO. 11- pp.28-30). Plaintiff sought review of the agency
decisions and requested a hearing before an Administrative Law Judge (ALJ). (ECF No. 11, pp.
31-36, 45-54, 209-36).
Plaintiff appeared, represented herself and testified at the September 17, 2010, hearing
before the ALJ. (ECF No.11, pp. 211-36). The ALJ issued his opinion on September 28, 2010,
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finding that: (1) the agency correctly applied WEP and GPO in determining the amount of
plaintiff’s SS retirement and Spousal benefits and (2) that he lacked authority to rule on whether
the SS statutes and regulations were constitutional. (ECF No. 11, pp.11-14). This became the
Commissioner’s final decision on May 23, 2012 when the Appeals Council denied plaintiff’s
request for review. (ECF No. 11, pp. 4-7).
III.

STANDARD OF REVIEW

This court’s review of the Commissioner's decision is limited to determining whether the
ALJ applied the correct legal standard and the ALJ’s decision is supported by substantial
evidence. Hamilton v. Sec. of Health and Human Serv., 961 F.2d 1495, 1497-98 (10th Cir.1992).
Substantial evidence is evidence a reasonable mind would accept as adequate to support a
conclusion. Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990)(citing Richardson v.
Perales, 402 U.S. 389, 401 (1971)); see also Lax v. Astrue, 489 F.3d 1080, 1084 (10th
Cir.2007)(Substantial evidence is adequate to support a conclusion and requires more than a
scintilla, but less than a preponderance.”).
Under this standard, the court will consider whether the Commissioner followed the
specific rules of law but, will not re-weigh the evidence or substitute the court’s judgment for
that of the Commissioner. Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). The
possibility of drawing a different conclusion based on the evidence does not prevent the agency
decision from being one that is based on substantial evidence. Id. In a case such as this where
there is no dispute of fact and where the issue is whether the Commissioner correctly applied the
applicable legal standard, the court will determine whether the Commissioner was clearly
erroneous in applying the law. Burks v. Apfel, 67 F.Supp.2d 1203, 1204 (D.Colo 1999).

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Plaintiff proceeding pro se, will have her filings liberally construed although, that does
not mean the court will act as her advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir.1991).
1V.
A.

DISCUSSION

Challenged Benefit Calculations
Under the Social Security Act (SSA), an individual who is at least 62 years old and

otherwise “fully insured” as defined by the SSA is entitled to receive monthly retirement
insurance benefits. 42 U.S.C. §§ 402 and 414(a). The payment amount is the primary insurance
amount (PIA). Id. and 42 U.S.C. § 415(a)(1). The PIA is calculated and possibly adjusted
through a number of different considerations, one of which is whether the claimant receives
other monthly periodic payments from wages exempt from Social Security taxes. See e.g.,
Stroup v. Barnhart, 327 F.3d 1258, 1259-60 (11th Cir. 2003)(cert denied 540 U.S. 1074 (2003).
If the claimant does receive other periodic payments, the PIA is recalculated using the WEP
provisions. 42 U.S.C. §415(a)(7)(A) and (B).
The WEP was enacted in 1983 to prevent individuals who earned wages from both
covered and non-covered employment from receiving an unwarranted windfall. 42 U.S.C. §
415(a)(7)(A)(PIA recalculated when “a monthly periodic payment ... which is based in whole or
in part upon his or her earnings for service which did not constitute ‘employment’ as defined in
section 410 of this title for purposes of this subchapter.”); Stroup, 327 F.3d at 1259-60. The
WEP significantly modifies the PIA formula – from 90% to as low as 40% on the first $791
monthly earnings - however the reduction cannot exceed half of the individual’s pension amount
based on exempt work. 42 U.S.C. §§ 415(a)(1)(A), 415(a)(7)(B)(ii)(V) and 415(a)(&)(B)(I).
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The WEP applies to individuals (such as plaintiff), eligible for pension after 1985, even
in cases such as plaintiff’s where the benefits and pension together would hardly qualify as a
windfall under common usage of the word. (ECF No. 11, p.420, (plaintiff eligible for PERA
pension in November 1994)). Unfortunately although the WEP contains both a lengthy list of
exceptions and a method to assure that those with relatively low pensions benefits are not
reduced by more than half of their pension, there is nothing that exempts a long time but low
wage earner such as plaintiff.
Similarly under the dual entitlement offset provision, the GPO reduces an individual’s
monthly benefits, including their survivor benefit, if the individual is also entitled to a pension
based on exempt employment, i.e., employment during which the worker's wages are exempt
from SS taxes. 42 U.S.C. § 402(k)(5)(A); 20 C.F.R. § 404.408a(a). There is no dispute that
because plaintiff did not pay SS taxes on the wages received from her Colorado state school
employers, her PERA pension payments are based on non-covered/exempt employment.
However plaintiff does dispute the order in which the Commissioner calculated the offset
arguing it was contrary to law, should have been calculated in a different order and would then
have yielded a different result. (ECF No.27 –pp.16-17). The GPO requires the SSA to apply the
dual entitlement offset to individuals who are entitled to both a retirement benefit and a survivor
benefit and directs the amount that and order in which, the survivor benefit must be reduced – in
this instance by two-thirds of plaintiff’s PERA pension amount or $671.20. 42 U.S.C. §
402(k)(3)(A). I find no error of law or fact in the Commissioner’s resulting calculation which
unfortunately in this particular instance, completely eliminated plaintiff's monthly survivor's
benefit. (ECF No.11, pp.13, 140, 162)

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B.

Constitutional and Statutory Claims
Plaintiff alleges that as a government worker, her constitutional rights under the Equal

Protection Clause of the Fourteenth Amendment have been violated. (ECF Nos. 18; 27).
Plaintiff’s allegations broadly construed, assert that the WEP and GPO have no rational basis and
are not related to any legitimate government interest because they apply only to government
workers and favor those whose high covered earnings satisfy the substantial earnings exception.
See e.g., (ECF NO. 27, p.26). Plaintiff also includes a due process claim alleging that defendant
“attempted to slip the Constitutional issues out of the Case Management Plan . . . .” (ECF No.
18, p.1). Finally plaintiff argues that the various SSA publications she has accessed from the
internet demonstrate that the SSA violates the False Statements Act, 18 U.S.C. § 1001. (ECF
No. 18, pp.24-25).
In determining whether withholding a noncontractual benefit under a social welfare
program violates the constitutional rights of a beneficiary, the court is limited to a rational basis
test. Flemming v. Nestor, 363 U.S. 603, 611 (1960). In applying this standard, courts are
mindful of the special deference given to the states and Congress when the law concerns social
welfare programs. U.S. Railroad Retirem’t Bd v. Fritz, 449 U.S. 166, 174-77 (1980). This
standard of deference means that the court must consider whether the statute manifests a patently
arbitrary classification, utterly lacking in rational justification. Id. A statute survives this test “if
there is any reasonably conceivable state of facts that could provide a rational basis for the
classification. . . . .” FCC v. Beach Communicat’n Inc, 508 U.S. 313, 315 (1993). The statute is
“not subject to courtroom fact-finding” and may be based on unsupported rational speculation.
Id.

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Under this highly deferential standard, courts in this Circuit and others, have found that
the WEP and GPO provisions do not violate the Equal Protection Clause. I concur.
Government retirees have not contributed to the social security fund and are therefore not
similarly situated to retirees who have paid SS taxes. Non-exempt employees whose wages were
subject to SS taxes, did not have the benefit of the present value of the money withheld from
their wages. Similarly pension offsets to SS spousal benefits were enacted to protect the fiscal
integrity of the SS fund to which government pensioners have neither contributed nor will be left
destitute if not afforded spousal benefits. Edwards v. Valdez, 789 F.2d 1477, 1482 (10th Cir.
1986). Because there are plausible reasons for offsetting government worker’s benefits, I find
the legislative decision to treat retirees from exempt government employment differently than
non-exempt retirees does not violate the constitutional rights of government retirees.
Plaintiff’s due process claim hinges on her vague allegations that the agency tried to
exclude her constitutional claims from the case at hand. It is well established that due process
requires notice and a meaningful opportunity to be heard. Mathews v. Eldridge, 424 U.S. 319,
333 (1976). Plaintiff has been notified of and has participated in all hearings relevant to her
case. Further, the record evinces substantial and substantive correspondence between the SSA
and plaintiff. (ECF No.11). Plaintiff appeared and had an opportunity to be heard before the
ALJ. (ECF No.11, pp.210-236). When the Appeals Council notified plaintiff that it would not
review the ALJ's decision, it advised her that she could ask for court review by filing a federal
court complaint. (ECF No. 11, p.4-6). Thus considering the record as a whole, I find no basis
for plaintiff’s due process claim.

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Finally, plaintiff’s claim that the SSA violates the False Statements Act (FSA) by
publishing allegedly misleading and false information on the internet ignores that the FSA
provides consequences for those making false claims to rather than by the government and its
agencies. The FSA does not apply to publications written by agency employees which confuse
rather than inform the general public.
I therefore find that based on the record and oral argument held on September 5, 2013,
the WEP and GPO are constitutional, that plaintiff has not suffered a due process violation, that
the agency’s publications do not violate the FSA and that the Commissioner’s final decision
regarding plaintiff’s benefits is supported by substantial evidence and free of legal error.
V.

CONCLUSION

Based on the foregoing, the Commissioner’s final decision is AFFIRMED.
IT IS SO ORDERED
DATED this 17th day of June, 2015.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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