Lindsey v. Commissioner of Social Security

Filing 40

MEMORANDUM DECISION AND ORDER - NOW THEREFORE IT IS HEREBY ORDERED:1. Petitioners Motion for Workers Comp Records or an Index of Workers CompRecords (Dkt. 30 ) and Motion for Social Security Records and the TriennialRedetermination Ratio Considered Starting 1983 to Present (Dkt. 31 ) are DENIED. 2. Petitioners Petition for Review (Dkt. 1 , 15 ) is GRANTED.3. This action is REMANDED for further proceedings under sentence four of 42 U.S.C. § 405(g) with instructions to the ALJ to issue a new decision after analyzing whether Petitioners October 2005 letter established a protective filing date for his wifes insurance benefits application. 4. Respondent shall expedite and complete the above review, and issue a writtendetermination, with in 6 months of this Memorandum Decision and Order.5. Respondent shall file a status report with the Court indicating compliance with the Courts order on or before 5/31/2018 (Status Report due by 5/31/2018). Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

RONALD LINDSEY,

Case No.: 4:15-cv-00502-REB

Petitioner,
vs.

MEMORANDUM DECISION AND
ORDER

NANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Respondent.
Pending is Petitioner Ronald Lindsey’s Petition for Review (Dkts. 1, 15),1 appealing the
Social Security Administration’s final decision to deny various claims for awards of additional
benefits.2 See generally Pet. for Review (Dkt. 15). Also pending are two motions filed by

1

Petitioner is proceeding here pro se, as he has apparently done at nearly every stage of
seeking Social Security benefits for at least the last 25 years. His initial filing in the abovecaptioned case was comprised only of a completed Civil Cover Sheet form and a single handwritten page stating, “This form is pertaining to NOTICE OF APPEALS COUNCIL ACTION
letter dated 7/29/2015, with no response to my letter 8/26/2015. This is following their procedure
of getting a civil action to them before 60 days, as their letter claims to do registered or certified
in the mail which is today 10/27/2015. Yours truly, [signature].” (Dkt. 1.)
The Respondent moved to dismiss for lack of service, Docket No. 13, later arguing for
dismissal because Petitioner’s initial filing fails to state a claim entitling Petitioner to relief, in
violation of Federal Rule of Civil Procedure 8. Reply in Supp. of Mot. to Dismiss Pet. for Rev.
(Dkt. 18). However, the Respondent acknowledged that Petitioner’s filing at Docket No. 15,
captioned “Statement,” outlines his issues with the SSA decision and could be treated as a
Petition for Review. Id. The Court agrees, and will treat Docket No. 15 as a Petition for Review
for all purposes. See FED. R. CIV. P. 8(e) (requiring pleadings to be construed so as to do justice);
see also FED. R. CIV. P. 1 (stating the Federal Rules of Civil Procedure “should be construed,
administered, and employed . . . to secure the just, speedy, and inexpensive determination of
every action and proceeding.”). Document titles notwithstanding, further references in this
decision to a “Petition for Review” refer to Docket No. 15 and not to Docket No. 1.
2
Nancy A. Berryhill became the acting Commissioner of the Social Security
Administration on January 23, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, Nancy A. Berryhill is substituted in for Carolyn W. Colvin as the Defendant in this

MEMORANDUM DECISION AND ORDER – 1

Petitioner to obtain records from the Office of Workers’ Compensation Programs (“OWCP”)
(Dkt. 30) and the Social Security Administration (“SSA”) (Dkt. 31). This action is brought
pursuant to 42 U.S.C. §§ 405(g). Having carefully considered the record and otherwise being
fully advised, the Court enters the following Memorandum Decision and Order:
I. FACTUAL BACKGROUND AND ADMINISTRATIVE PROCEEDINGS
This is not a typical Social Security appeal. Rather than disputing a finding of no
disability, Petitioner here has been found disabled and has been receiving Social Security
Disability Insurance benefits. Most of his challenges relate to calculations of his benefit amounts.
Petitioner was injured on the job in 1983 while working as a federal employee. (AR 67–
68, 1362.) He subsequently received periodic payments through OWCP from 1983 through
2013. (AR 1362, 1364, 1379–1380.) Petitioner claims he first filed for Social Security Disability
Insurance benefits in 1986, but SSA records do not support this claim. Pet. for Review 9 (Dkt.
15); Addendum to Pet’r’s Br. 7–8 (Dkt. 32-1); AR 64 (2005 ALJ Decision) and AR 1361 (2015
ALJ Decision).
The record does show that Petitioner filed a claim for disability insurance benefits in
1990, which was denied initially and then on reconsideration. (AR 64.) There is no evidence
Petitioner timely appealed this denial. (AR 64.)
Petitioner next filed for disability insurance benefits in 2000. (AR 64.) That claim was
denied on the basis of res judicata3 because it was based on the same facts and law as his 1990
claim. (AR 64.) Again, Petitioner did not appeal the denial.

suit. No further action need be taken to continue this suit per the last sentence of 42 U.S.C.
§ 405(g).
3
“Res judicata” is a legal principle that “bars litigation in a subsequent action of any
claims that were raised or could have been raised in [a] prior action.” Owens v. Kaiser Found.
Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001).
MEMORANDUM DECISION AND ORDER – 2

In 2002, Petitioner once more applied for disability insurance benefits. (AR 64.) When
that application was denied initially and on reconsideration, also on the basis of res judicata,
Petitioner requested a hearing. (AR 64.) In 2004, Administrative Law Judge (“ALJ”) Henry M.
Tai vacated the denial of Petitioner’s 2002 claim and remanded for further consideration because
SSA could not locate the file from Petitioner’s 1990 claim and therefore ALJ Tai could not
conclude that res judicata precluded Petitioner’s 2002 claim. (AR 1814–1816.) After the
application was once more denied initially and on reconsideration, Petitioner again requested a
hearing. (AR 32–34.) After the hearing, ALJ Tai issued a fully favorable decision finding
Petitioner had been disabled since May 6, 1983. (AR 64–76.) ALJ Tai also found that
Petitioner’s 2000 claim could be reopened and revised, because Petitioner had filed his 2002
claim within the four-year period allowed for reopening claims. (AR 74.) However, ALJ Tai also
found that Petitioner’s 1990 claim, and any earlier claims, could not be reopened because more
than four years had lapsed. (AR 74–75.) Ultimately, ALJ Tai found that “[b]ased on the Title II
applications filed on October 16, 2002 and protectively filed on April 20, 2000, the claimant is
entitled to a period of disability beginning May 6, 1983 and to disability insurance benefits under
Sections 216(i) and 223, respectively, of the Social Security Act.” (AR 76.) Petitioner did not
timely challenge ALJ Tai’s 2005 fully favorable decision. (AR 1362.)
Thereafter, Petitioner received a Notice of Award indicating that his disability insurance
benefits were being reduced to take into account his Workers’ Compensation payments. (AR 81–
83.) Petitioner appealed this and other aspects of the Notice of Award, which ultimately resulted
in ALJ Tai issuing an unfavorable decision in 2007, finding that Petitioner’s disability insurance
benefits had been properly calculated and that there was no underpayment of benefits. (AR
1108–1115.) Petitioner appealed to the Appeals Council. (AR 1116–1118.) After a lengthy delay,

MEMORANDUM DECISION AND ORDER – 3

in 2010 the Appeals Council granted Petitioner’s request for review, vacated the 2007 ALJ
decision, and remanded for a new hearing. (AR 1363.)
After a hearing, ALJ Robert J. Labrum issued an unfavorable decision in 2011. (AR 18–
24.) The Appeals Council subsequently denied Petitioner’s request for review of ALJ Labrum’s
decision. (AR 14, 10–12.) Thereafter, Petitioner petitioned for review in the United States
District Court for the District of Idaho, United States Magistrate Judge Candy W. Dale presiding.
(See AR 1397–1400; see also Case No. 4:13-cv-0439-CWD.) After noting that the Respondent
agreed with Petitioner that ALJ Labrum failed to explain adequately the reasons for his decision,
the district court granted the petition for review, vacating ALJ Labrum’s decision and remanding
to the ALJ to develop the factual record further and issue a new decision after analyzing four
listed issues. (AR 1401–1408.) The district court also held that there was no legal basis for
Petitioner to receive an award of punitive damages against the SSA. (AR 1405.)
On remand, ALJ Michele M. Kelley held a hearing on April 9, 2015 and then issued an
unfavorable decision on May 22, 2015. (AR 1361–1382.) Petitioner once again sought review by
the Appeals Council, which was once again denied. Thereafter, Petitioner petitioned for review
to this Court. (Dkts. 1, 16.)
The Court has worked diligently to understand the particular claims Petitioner now
brings. In his Petition for Review, Petitioner sets out five numbered claims. First, he appears to
contest the starting date of his benefits, the application of an offset due to his workers’
compensation payments, and the treatment of cost-of-living increases. Second, he contends that
the calculation to determine his disability insurance award should be based on his 1983 earnings,
which were less overall than the 1982 earnings on which SSA relied, but which were higher per
month for the months in 1983 he worked before he became disabled. Third, he contends he has

MEMORANDUM DECISION AND ORDER – 4

been improperly deprived of Medicare benefits to which he is entitled. Fourth, he contends he
has been improperly deprived of family benefits related to his wife and child. Fifth, Petitioner
seeks payment of benefits withheld.
In addition to the five numbered issues identified in the Petition for Review, Petitioner
elsewhere raises other claims. In particular, he seeks punitive damages against the SSA,
Addendum to Pet’r’s Br. 15 (Dkt. 32-1), and he claims he is owed $990,000 in back pay from the
SSA. Pet’r’s Br. 8 (Dkt. 32). He also asserts that his original SSA claim was in 1986 and that
ALJ Kelley’s decision includes typos. Addendum to Pet’r’s Br. 7–8, 1 (Dkt. 32-1). Each of these
arguments will also be addressed.
II. STANDARD OF REVIEW
To be upheld, the Commissioner’s decision must be supported by substantial evidence
and based on proper legal standards. 42 U.S.C. § 405(g); Trevizo v. Berryhill, 817 F.3d 664, 674
(9th Cir. 2017). Findings as to any question of fact, if supported by substantial evidence, are
conclusive. 42 U.S.C. § 405(g). In other words, if there is substantial evidence to support the
ALJ’s factual decisions, they must be upheld, even when there is conflicting evidence. See
Treichler v. Comm’r of Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).
“Substantial evidence” is defined as “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971);
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). The standard requires more than a
scintilla but less than a preponderance (Trevizo, 817 F.3d at 674), and “does not mean a large or
considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552, 565 (1988).
With respect to questions of fact, the role of the Court is to review the record as a whole
to determine whether it contains evidence that would allow a reasonable mind to accept the

MEMORANDUM DECISION AND ORDER – 5

conclusions of the ALJ. Richardson, 402 U.S. at 401; see also Ludwig, 681 F.3d at 1051. The
ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and
resolving ambiguities. Treichler, 775 F.3d at 1098. Where the evidence is susceptible to more
than one rational interpretation, the reviewing court must uphold the ALJ’s findings if they are
supported by inferences reasonably drawn from the record. Ludwig, 681 F.3d at 1051. In such
cases, the reviewing court may not substitute its judgment or interpretation of the record for that
of the ALJ. Batson v. Comm’r of Social Sec., 359 F.3d 1190, 1196 (9th Cir. 2004).
With respect to questions of law, the ALJ’s decision must be based on proper legal
standards and will be reversed for legal error. Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir.
2015); Treichler, 775 F.3d at 1098. Considerable weight must be given to the ALJ’s construction
of the Social Security Act. See Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). However,
reviewing federal courts “will not rubber-stamp an administrative decision that is inconsistent
with the statutory mandate or that frustrates the congressional purpose underlying the statute.”
Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).
III. DISCUSSION
A. Petitioner’s Motions to Obtain Additional Records Are Denied.
Petitioner filed two motions to obtain records he believes are relevant to his case. First,
he filed a Motion for Workers Comp Records or an Index of Workers Comp Records (Dkt. 30),
“to obtain Federal Workers’ Compensation records pertaining to [his] work injury that occurred
May 6, 1983 to the present day.” His stated purpose behind the motion is “to establish failure for
due process and the Social Security negligence for not processing my claim and Social Security
negligence for not assisting me with my claim.” Id.

MEMORANDUM DECISION AND ORDER – 6

Separately, he also filed a Motion for Social Security Records and the Triennial
Redetermination Ratio Considered Starting 1983 to Present (Dkt. 31). His stated purpose is “to
obtain all of Social Security records, respectfully the dates from 1986 to 1992 and 2000 to the
present to establish failure for due process and the Social Security negligence in processing my
claim and not assisting me with my claim.” Id.
Respondent opposes both motions (at Dkts. 34, 35), arguing that this Court, in its
appellate role, “simply cannot look beyond the record.” Resp’t’s Resp. to Pet’r’s Mot. for
Workers’ Compensation Records or an Index of Workers’ Compensation Records 1–2 (Dkt. 34)
(quoting Roberts v. Shalala, 66 F.3d 179, 183 n.3 (9th Cir. 1995)). Respondent also points out
that the issue of agency negligence is not before the Court, quoting Judge Dale’s citation to 42
U.S.C. § 405(g) in Petitioner’s prior case. Id. at 2. Additionally, Respondent characterizes this as
a “closed-record, administrative case” where “[t]he record is complete.” Id. Finally, Respondent
observes that the certified administrative record already includes some 175 pages of records ALJ
Kelley subpoenaed from OWCP. Id. at 3; see also AR 912–1087.
Respondent offers parallel arguments in its opposition to Petitioner’s other motion. See
Resp’t’s Resp. to Pet’r’s Mot. for Social Security Records and the Triennial Redetermination
Ratio (Dkt. 35).
The motions must be denied, both because this is a closed-record appeal and because the
issues to which the motions relate are not properly before this Court. This reasoning is further
explained in the next several paragraphs.
Social Security appeals such as this one involve “a certified copy of the transcript of the
record including the evidence upon which the findings and decision complained of are based.”
42 U.S.C. § 405(g). The “decision” referred to is the ALJ decision. The “record” consists of all

MEMORANDUM DECISION AND ORDER – 7

the evidence that was before the ALJ. Unlike most civil cases filed in United States District
Court, Social Security appeals at the District Court do not give the parties an opportunity to
subpoena records or present evidence. Nor is this Court authorized to consider new evidence on
appeal. It is the obligation of a claimant such as the Petitioner to gather and introduce evidence
while, or before, the claim is in front of an ALJ.
The purpose of a Petition for Review is not for the District Court to judge a petitioner’s
claims as if they were newly brought. Rather, it is to review the ALJ’s decision for correctness –
which is why the filing initiating a case here is a Petition for Review. To prevail on appeal, a
Petitioner must show that the ALJ erred in some legally significant way. Merely showing that the
ALJ could have decided differently is not enough. Nor is it enough to show that Petitioner’s
claims have merit or that Petitioner is in some way “right.” Instead, it is the Petitioner’s burden
to show, on the same record the ALJ considered, that the ALJ’s decision is materially wrong. In
order to preserve the District Court’s ability to undertake this analysis, it is essential that the
Court consider precisely the same record the ALJ considered. For this reason, Petitioner’s
motions to obtain information to supplement the administrative record on appeal must be denied.
Additionally, Petitioner’s motions seek to acquire new information that Petitioner
believes will support his claims that the SSA acted negligently or violated his due process rights.
But Respondent is correct that those issues are not properly before the Court. This case arises
under 42 U.S.C. § 405(g), which allows only for judicial review of final decisions of the SSA.
The only matters to consider in this case are those matters that were before ALJ Kelley when she
issued her decision. Those did not include whether the SSA was negligent or had violated
Petitioner’s constitutional rights, so those issues are not properly before this Court. Accordingly,

MEMORANDUM DECISION AND ORDER – 8

Petitioner’s motions to obtain information that could support such claims must be denied on this
additional ground.
Finally, ALJ Kelley considered and rejected Petitioner’s request to subpoena records
from OWCP, concluding that the “records are not relevant to any of the issues before her.” (AR
1381.) Petitioner’s motion regarding OWCP records must be denied even if the Court assumes
for the sake of argument that that motion could be regarded as challenging the ALJ’s conclusion
the records were irrelevant. The motion asks this Court for assistance getting the records, but
does not mention ALJ Kelley’s decision. Certainly, Petitioner’s motion does not argue that ALJ
Kelley somehow erred in rejecting Petitioner’s request for the records. Accordingly, Petitioner
has not shown error in that aspect of ALJ Kelley’s decision.
In deciding to deny Petitioner’s motions, the Court has considered that it “may at any
time order additional evidence to be taken before the Commissioner of Social Security, but only
upon a showing that there is new evidence which is material and that there is good cause for the
failure to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g).
This “new evidence” provision in the law does not allow a court to consider new evidence itself,
but it does allow the case to be remanded for further consideration by the SSA in appropriate
circumstances. But, by the plain terms of the law, this only applies when the new evidence is
“material” and when Petitioner’s failure to incorporate it into the record sooner is justified. Id.
Here, neither requirement is met. The records Petitioner seeks are not material to any
claims properly brought before the Court. Nor has good cause been shown as to why the
evidence sought by Petitioner was not previously incorporated into the record. Thus, there is no
basis for remanding so SSA can reconsider its decision based on new evidence. As discussed
above, Petitioner’s motions to obtain additional records are denied.

MEMORANDUM DECISION AND ORDER – 9

B. Petitioner’s Petition for Review Is Granted and the Case Is Remanded.
Petitioner numbered five issues in his Petition for Review. Pet. for Review at 1, 1, 4, 5, 8
(Dkt. 15). He also raised additional issues in his Brief. Addendum to Pet’r’s Br. 15 (Dkt. 32-1);
Pet’r’s Br. 8 (Dkt. 32). Although Respondent frames some of these issues differently, Resp’t’s
Br. 2 (Dkt. 36), the Court will closely follow Petitioner’s framing of the issues to give Petitioner
the clearest possible understanding of its decision.
1. Petitioner’s Benefits Starting Date and Workers’ Compensation Offset Are Correct.
In its entirety, the first issue Petitioner raises states:
Social Security Administration (SSA) Attorney [sic] Law Judge (ALJ)
Chief Judge Henry M. Tai
The Social Security starting date payout is April 20, 1999. My Social
Security entitlement of benefits starts May 6, 1983. That means the tally of 1983–
1999 is unpayable but the tally 1999 stands and is to be paid out from 1999 with
all the ongoing cost of living increases of my Social Security payout without the
Workers Comp offset.
Pet. for Review 1 (Dkt. 15).
In his 2005 decision, ALJ Tai found that Petitioner was disabled as of May 6, 1983. (AR
76.) He also found that Petitioner had protectively filed an application for disability insurance
benefits on April 20, 2000. (AR 75.) An eligible person may receive disability insurance benefit
payments for up to 12 months prior to the date they filed, so long as they would have been
entitled to the benefit had they filed sooner. 42 U.S.C. § 423(b), (a)(1); 20 C.F.R. §
404.621(a)(1). Here, Petitioner was found entitled to benefits as of April 20, 1999 – one year
before the date of his April 20, 2000 protective filing that established his disability based on ALJ
Tai’s 2005 decision. Id.; AR 75.
By the same law, Petitioner was not entitled to benefits prior to April 20, 1999 because he
did not prove he was disabled based on an earlier filing. Even though Petitioner may have filed

MEMORANDUM DECISION AND ORDER – 10

in 1986, and did file in 1990, Petitioner did not adequately prove to the SSA that he was disabled
until 2005. As ALJ Tai and ALJ Kelley both noted in their decisions, prior filings may only be
opened for good cause for a period of four years from the SSA’s initial determination. AR 74–
75; AR 1376; 20 CFR § 404.988(b). There is simply no way Petitioner could be entitled to
benefits any earlier than April of 1999.4
Petitioner seems to acknowledge that he is not entitled to disability insurance benefits
prior to April 20, 1999 by stating “the tally of 1983–1999 is unpayable.” Pet. for Review 1 (Dkt.
15). But if he is somehow claiming he is entitled to disability insurance benefits prior to April
20, 1999, his Petition for Review is denied to that extent. He has not shown that ALJ Kelley
(whose decision it is that is before this Court for review) erred in finding that April 1999 was the
first month he was entitled to disability insurance benefits. (AR 1376–1377.)
It is not quite accurate for Petitioner to assert that his “Social Security entitlement of
benefits starts May 6, 1983.” Pet. for Review 1 (Dkt. 15). He was disabled as of that date, but not
yet entitled to disability insurance benefits. Under 42 U.S.C. § 423(a)(1), he was not entitled to
benefits until he met all of the eligibility requirements – including filing an application
establishing that he is under a disability. That did not happen until he applied for disability
insurance benefits on April 20, 2000. This is consistent with ALJ Tai’s 2005 decision, which
stated that Petitioner “is entitled to a period of disability beginning May 6, 1983 and to disability
insurance benefits under Sections 216(i) and 223.” (AR 76.) ALJ Tai noted that Petitioner’s
disability began in 1983 but that his entitlement to benefits would begin as provided by statute.

4

There are circumstances where an application can be reopened beyond the four-year
limitation, but none of those circumstances is present here. See 20 C.F.R. § 404.988(c).
MEMORANDUM DECISION AND ORDER – 11

ALJ Kelley affirmed, and this Court now affirms, that Petitioner’s disability insurance benefits
properly began in April 1999.
The remaining portion of Petitioner’s first issue states that he “is to be paid out from 1999
with all the ongoing cost of living increases of my Social Security payout without the workers
comp offset.” Pet. for Review 1 (Dkt. 15). The record reflects that Petitioner’s benefits
calculations have included cost of living increases. (AR 125–126; see also AR 1453.)
Petitioner’s filings do not indicate why he believes he is not receiving cost of living adjustments
to his disability insurance benefits to which he is entitled. In the absence of argument or
explanation on the issue of cost of living adjustments, and in the presence of record evidence
indicating they have been included, the Court finds no reason to overturn ALJ Kelley’s decision
on that basis.
Nor does Petitioner offer argument or explanation why he thinks his disability insurance
benefits should not have been reduced while he was receiving workers’ compensation payments.
ALJ Kelley quoted section 224(a) of the Social Security Act, 42 U.S.C. § 424a, which provides
that disability insurance benefits awards must be reduced when the recipient also receives
disability-related periodic benefits for workers’ compensation. (AR 1378.) ALJ Kelley’s decision
is detailed and thorough, describing the history and purpose of this reduction as well as the
mechanics of how it is applied in practice. (AR 1378–1379.) The decision then discusses how the
law applies in Petitioner’s case, giving dates and dollar amounts as appropriate. (AR 1379–
1380.) Except for Petitioner’s claim that his benefits calculations should have been based in part
on his 1983 earnings, an issue which is handled later in this Memorandum Decision and Order,
Petitioner does not challenge any aspect of ALJ Kelley’s findings regarding the application of

MEMORANDUM DECISION AND ORDER – 12

the workers’ compensation offset. Accordingly, the Court will not overturn ALJ Kelley’s finding
that the offset applies.
2. Petitioner’s Benefits Were Properly Calculated Excluding His 1983 Earnings.
Petitioner’s cornerstone contention is that his benefits calculations should have included
his earnings from 1983. Pet. for Review 1–4 (Dkt. 15); Addendum to Pet’r’s Br. 2–4 (Dkt. 32-1).
More specifically, the issue is whether SSA properly calculated Petitioner’s “average current
earnings” for purposes of offsetting his workers’ compensation payments. 42 U.S.C. §
424a(a)(5).
As discussed above, section 224 of the Social Security Act, 42 U.S.C. § 424a, requires
reduction of a person’s disability insurance benefits when they also receive periodic workers’
compensation payments. The statute provides the method for calculating the reduction. As
applicable here,5 Petitioner’s disability insurance benefits are reduced (even, potentially, to zero)
by the dollar amount calculated when subtracting 80% of Petitioner’s “average current earnings”
from the sum of his disability insurance benefit amount and his workers’ compensation amount.
42 U.S.C. § 424a(a)(2)–(5). Seen another way, an individual’s “average current earnings”
establish a cap on the monthly benefits an individual can receive. The higher the “average
current earnings,” the higher the cap will be. Thus, the amount of the reduction turns on how
Petitioner’s “average current earnings” under § 424a(a)(5) are determined.
The statute answers that question:
For purposes of clause (5), an individual’s average current earnings means the
largest of

5

To simplify this description, supplemental security income benefits to which an
individual is entitled under section 202 of the Social Security Act, 42 U.S.C. § 402, are excluded
here because Petitioner is not entitled to such benefits. Omitting reference to such benefits does
not change the analysis or application in Petitioner’s case.
MEMORANDUM DECISION AND ORDER – 13

(A) the average monthly wage (determined under section 415(b) of this
title as in effect prior to January 1979) used for purposes of computing his
benefits under section 423 of this title,
(B) one-sixtieth of the total of his wages and self-employment income
(computed without regard to the limitations specified in sections 409(a)(1)
and 411(b)(1) of this title) for the five consecutive calendar years after
1950 for which such wages and self-employment income were highest, or
(C) one-twelfth of the total of his wages and self-employment income
(computed without regard to the limitations specified in sections 409(a)(1)
and 411(b)(1) of this title) for the calendar year in which he had the
highest such wages and income during the period consisting of the
calendar year in which he became disabled (as defined in section 423(d) of
this title) and the five years preceding that year.
42 U.S.C. § 424a(a) (spacing added for clarity); see also 20 C.F.R. § 404.408.
The SSA ruled that option (C) yielded the largest number, using his wages from 1982 to
establish average current earnings of $1,957 per month. (AR 143–146.) ALJ Kelley affirmed this
finding. (AR 1380.)
Petitioner takes issue both with the selection of option (C) and with the reliance on 1982
as the calendar year in which he had the highest wages. Pet. for Review 1–4 (Dkt. 15);
Addendum to Pet’r’s Br. 2–4 (Dkt. 32-1). He argues that in selecting option (C), ALJ Kelley
failed to discuss the values calculated under options (A) and (B). Id. He also asserts that even if
option (C) is applied, the calculation should be based on his 1983 earnings, not 1982, because his
per-month earnings in 1983 were higher than his per-month earnings in 1982 – even though his
total earnings in 1983 were lower than his total earnings in 1982. Id.
The second of these arguments will be addressed first. Option (C) under § 424a(a) plainly
requires considering “the calendar year in which he had the highest . . . wages and income.”
(emphasis added.) The record reflects, and Petitioner does not dispute, that his earnings in
calendar year 1982 were $23,485.84. (AR 104; Pet. for Review 3 (Dkt. 15).) His earnings in
calendar year 1983 were $10,021.01. (AR 104; Pet. for Review 3 (Dkt. 15).) Petitioner contends

MEMORANDUM DECISION AND ORDER – 14

that his 1982 earnings spanned all 12 months of the year, while his 1983 earnings spanned only
January through April (because he was injured in early May, 1983). Pet. for Review 4 (Dkt. 15).
Thus, he argues, his per-month earnings in 1983 were substantially greater than his per-month
earnings in 1982. Id. Indeed, Petitioner’s math is correct: in 1982 his earnings were less than
$2,000 per month, while in the four months he worked in 1983 they were approximately $2,500
per month.
But Petitioner overlooks that option (C) under § 424a(a) does not allow for calculating
earnings on a per-month basis. Instead, as described above, it requires consideration of “the
calendar year in which he had the highest . . . wages.” Petitioner’s actual earnings in calendar
year 1983 were less than his earnings in calendar year 1982. It is irrelevant that his rate of
earnings was higher during the months he worked in 1983. There is no basis to consider his
monthly earnings rate when evaluating option (C) – indeed, had ALJ Kelley done so, she would
have erred. ALJ Kelley correctly ruled that “[i]n sum, the ACE calculation must use the ‘single
highest calendar year’ – in this case 1982. Contrary to the claimant’s argument, the calculation
cannot use a partial calendar year with the highest average monthly earnings. Thus, his argument
is without merit.” (AR 1380.)
Petitioner also takes issue with ALJ Kelley’s not having discussed options (A) or (B)
under § 424a(a). Pet. for Review 2–3 (Dkt. 15); Addendum to Pet’r’s Br. 2–3 (Dkt. 32-1). It is
not clear that Petitioner properly raised this precise issue before ALJ Kelley. If he did not
properly raise the issue, he may be barred from raising it now on appeal. Meanel v. Apfel, 172
F.3d 1111, 1115 (9th Cir. 1999). Nonetheless, the Court will regard Petitioner’s challenge at the
hearing level as regarding the SSA determination of his average current earnings rather than the
more narrow issue of whether SSA used the correct year when applying option (C) of § 424a(a).

MEMORANDUM DECISION AND ORDER – 15

Even so, the result is the same – Petitioner cannot prevail on this issue. First, he fails to
show how he was harmed by ALJ Kelley’s failure to devote more attention to options (A) or (B).
He argues that “I have an option A, B that I can use or an option C that I can use.” Addendum to
Pet’r’s Br. 3 (Dkt. 32-1). But he offers no calculations of his own, nor any evidence that the
result would be different if either option (A) or option (B) was relied on instead of option (C). It
is the Petitioner’s burden to show how he was harmed by an error of the ALJ, and he cannot
prevail because he did not do that.
Second, on these facts he could not show harm. ALJ Kelley properly relied on option (C)
because the calculations under option (C) yielded the largest number. Option (A) considers the
“average monthly wage” used for purposes of computing disability insurance benefits. This
value is determined by performing the calculation specified in 42 U.S.C. § 415(b) as it was in
effect prior to January 1979. See also 20 C.F.R. § 404.221. Respondent argues that ALJ Kelley
provided these calculations to Petitioner in her decision, arriving at an average monthly wage of
$1,304.00. Resp’t’s Br. 9 (Dkt. 36) (citing AR 1375).
ALJ Kelley described in painstaking detail how Petitioner’s disability insurance benefits
were calculated, first explaining the applicable law and regulations and then applying them in
Petitioner’s circumstances. (AR 1371–1376.) The specific computation undertaken by ALJ
Kelley is referred to, correctly, as the “Adjusted Indexed Monthly Earnings” (“AIME”). (AR
1372.) But the clause at issue in § 424a(a) option (A) refers to “average monthly wage” and not
“average indexed monthly earnings.” More completely, option (A) is “the average monthly wage
(determined under section 415(b) of this title as in effect prior to January 1979) used for
purposes of computing his benefits under section 423 of this title.” It appears from the record
that the lengthy explanation and calculation ALJ Kelley provided was the computation of

MEMORANDUM DECISION AND ORDER – 16

benefits under § 423. It is not clear from the record whether this calculation is identical to the
“average monthly wage (determined under section 415(b) of this title as in effect prior to January
1979)” required by § 424a(a). Regardless, it was Petitioner’s burden to show that the calculation
under option (A) would be higher than the calculation under option (C), on which ALJ Kelley
relied. Petitioner has not done this.
Option (B) considers one-sixtieth of the individual’s total earnings for the five
consecutive calendar years when his earnings were highest.6 Here, the record shows, and
Petitioner does not dispute, that Petitioner’s earnings history is as follows:
1975
1976
1977
1978
1979
1980
1981
1982
1983

$956.88
$7,816.47
$7,588.68
$9,095.05
$8,287.24
$7,151.39
$15,575.04
$23,485.84
$10,021.01

(AR 1256; see also Addendum to Pet’r’s Br. 34 (Dkt. 32-1).) It is readily apparent that the
consecutive five-year period with the highest earnings was 1979–1983. All told, Petitioner’s
earnings during that period were $64,520.52. One-sixtieth of that number is $1,075.34. Thus,
Petitioner’s average current earnings calculated under option (B) of § 424a(a) were $1,075.34.
Putting these analyses together, Petitioner’s average current earnings calculated under
option (A) were $1,304.00,7 calculated under option (B) were $1,075.34, and calculated under

6

Respondent contends that this option considers only “wages from self-employment.”
Resp’t’s Br. 9 (Dkt. 36). This is incorrect. As in option (C), option (B) considers “the total of his
wages and self-employment income.” 42 U.S.C. § 424a(a) (emphasis added).
7
Again, even if the precise computation undertaken by ALJ Kelley was not the proper
one for purposes of § 424a(a), Petitioner has failed to argue what the correct computation would
be.

MEMORANDUM DECISION AND ORDER – 17

option (C) were $1,957.00. Because option (C) presents the highest number, it was not error for
ALJ Kelley to rely on that option. Nor was it reversible error for ALJ Kelley to omit a reference
to option (A) or an analysis of option (B). Because her decision correctly relied on option (C),
Petitioner was not harmed even if there arguably could have been a more extensive analysis of
the alternative options. ALJ Kelley’s decision is not subject to reversal on the basis that
Petitioner’s workers’ compensation offset was miscalculated.
3. This Is Not a Proper Forum to Consider Petitioner’s Medicare-Related Claims.
In his Petition for Review, Petitioner asserts that “Judge Tai’s written decision states my
Social Security entitlement benefits starts [sic] in 1983. That means the Medicare starts at that
date and his decision has been finalized.” Pet. for Review 4 (Dkt. 15). Petitioner also brings up
Medicare in the addendum to his brief, but it is not clear what his precise grievance is.
Addendum to Pet’r’s Br. 9 (Dkt. 32-1). He asserts that the dates on his Medicare card are
incorrect and inconsistent with ALJ Tai’s 2005 decision. Id. But in the briefing on the present
appeal, he does not articulate how the dates are wrong or, more importantly, how he is harmed
by the allegedly-incorrect dates. In the past, he has challenged the propriety of being charged for
Medicare Part B coverage in September 2005 when he did not receive his Medicare card until
October 2005. (See AR 1367.) As ALJ Kelley explained, Petitioner “likely was required to pay
the premium for September 2005, because that was when his Medicare coverage began. Even if
he did not have a Medicare card in hand, any eligible medical treatment (doctor visits) the
claimant incurred in September 2005 would have been covered by Medicare Part B.” Id. This is
consistent with the 2007 decision by ALJ Tai that explained why Medicare premiums were
withheld for September 2005. (AR 1114.) Regardless, it is not clear what Medicare-related claim

MEMORANDUM DECISION AND ORDER – 18

Petitioner is asserting here. For that reason on its own, his petition must be denied as to this
issue.
ALJ Kelley’s decision indicates that on remand from Petitioner’s prior appeal to the U.S.
District Court, she was obligated to consider both “whether Petitioner was erroneously charged
for Part B Medicare premiums for September 2005” and “whether petitioner’s spouse and child
are entitled to Social Security benefits or Medicare coverage.” (AR 1365.) In both cases, she was
also obligated to “include[e] consideration of Social Security’s jurisdiction over Medicare
issues.” Id. ALJ Kelley concluded that a Social Security Administration ALJ does not have
jurisdiction over Medicare issues. Id. Nonetheless, ALJ Kelley discussed some history and
background of Medicare appeals. (AR 1365–1367.)
The Court will not review those aspects of ALJ Kelley’s decision regarding Medicare
beyond her conclusion that she lacked jurisdiction to consider Medicare issues. This is because
those aspects of the decision touching on Medicare are unofficial advisory statements, offered
presumably in an attempt to be helpful to Petitioner. Indeed, she stated that “after some research,
the undersigned will try to explain some of the law affecting the claimant’s Medicare coverage,
but will make no findings regarding such.” (AR 1366 (emphasis added).)
Petitioner does not challenge ALJ Kelley’s finding that she lacked jurisdiction to consider
issues related to Medicare. Respondent, on the other hand, offers several citations to legal
authority supporting ALJ Kelley’s conclusion that Medicare issues are not handled by the Social
Security Administration:
[S]ee Medicare Prescription Drug, Improvement, and Modernization Act of 2003,
P.L. 108-17[3] § 931 [117 Stat 2066]; see also 42 U.S.C. § 1395ff; Moller v.
CMS-Centers for Medicare & Medicaid Servs., 959 F. Supp. 2d 1031, 1034 (E.D.
Mich. 2013) (“the exclusive method for obtaining judicial review of Medicare
Part B benefits claims . . . is by following the administrative procedures detailed
in the Medicare Act”).

MEMORANDUM DECISION AND ORDER – 19

Resp’t’s Br. 3–4 (Dkt. 36). Petitioner does not dispute Respondent’s argument in this regard. See
Pet’r’s Resp. to Resp’t’s Br. (Dkt. 37).
The Court concurs with ALJ Kelley’s assessment of the jurisdictional lines. The Social
Security Administration lacks jurisdiction to hear Medicare issues. See 42 U.S.C. § 1395ff.
Further, Medicare issues cannot be raised in a judicial proceeding like this one until the
Department of Health and Human Services – not the Social Security Administration – has first
had an opportunity to resolve them. 42 U.S.C. § 1395ff(b)(2)(C)(i). Because the record does not
show that Petitioner has ever raised his Medicare issues with the Department of Health and
Human Services, judicial review of any such issues is unavailable. Petitioner’s Petition for
Review is denied to the extent it seeks review of any Medicare-related issues. If Petitioner
believes he has a legitimate grievance with respect to Medicare, he should contact the
Department of Health and Human Services – not the Social Security Administration or this
Court.
4. Remand Is Necessary to Evaluate the Entitlement Date of Petitioner’s Wife.
Next, Petitioner challenges the SSA’s determination that his wife and child were entitled
to benefits based on their own filing dates rather than on Petitioner’s filing date or the date
Petitioner first informally sought benefits for them. Pet. for Review 5–8 (Dkt. 15); Addendum to
Pet’r’s Br. 4–7 (Dkt. 32-1). Petitioner acknowledges that “ALJ Kelley is dismissing my family
benefits appeal basically on not filing a timely application.” Pet. for Review 5 (Dkt. 15). ALJ
Kelley devoted several pages of her decision to address the facts and law relevant to Petitioner’s
family benefits. (AR 1367–1371.)
The wife and children of a recipient of disability insurance benefits are themselves
entitled to benefits by virtue of the recipient’s entitlement to benefits, so long as they meet

MEMORANDUM DECISION AND ORDER – 20

certain requirements. 42 U.S.C. § 402(b)(1), (d)(1). One requirement is that each beneficiary
must file an application for the insurance benefits. 42 U.S.C. § 402(b)(1)(A), (d)(1)(A).
There is no dispute that Petitioner’s wife and child were entitled to and did receive
insurance benefits under § 402. (AR 1368.) The only dispute is as to the date each person should
have begun to receive benefits (and, therefore, as to the amount the SSA has paid to each). Id.;
Pet. for Review 5–8 (Dkt. 15).
Petitioner argues that ALJ Tai’s 2005 decision acknowledges the existence of his wife
and child, so their entitlement date should be the same as his own. Addendum to Pet’r’s Br. 6
(Dkt. 32-1). He also argues that his appeal letter to the SSA, dated October 20, 2005 (AR 89–96),
in which he specifically asked how to get benefits for his wife and child, should establish their
entitlement to benefits. Pet. for Review 8 (Dkt. 15). The entitlement dates for each person will be
considered separately.
a. The Entitlement Date for Petitioner’s Child is Correct.
Petitioner applied for child insurance benefits on his child’s behalf on May 7, 2007 (AR
1473–1478), but the SSA found the child to be entitled to benefits beginning May 2000 (AR
1460; AR 1483–1486). Petitioner argued before ALJ Kelley that insurance benefits for both his
wife and his child should have begun in April 1999, the same month his own entitlements began.
(AR 1370.) Nonetheless, ALJ Kelley found that the child’s entitlement to child insurance
benefits did not begin on Petitioner’s entitlement date because on that date Petitioner was not
married to the child’s mother and had not acknowledged in writing that the child was his. (AR
1370–1371.) She rejected Petitioner’s contention that Petitioner entered a common law marriage
prior to his official marriage in March 2003. In part, ALJ Kelley relied upon applications

MEMORANDUM DECISION AND ORDER – 21

prepared by the Petitioner in 2000 and 2002 in which he said he had never been married. (AR
1369, citing AR 1641 and AR 1651.)
Instead, ALJ Kelley found that Petitioner’s child properly began receiving benefits in
May 2000, based on Petitioner’s written acknowledgment that he had a child, made in his own
SSA application dated that month. (AR 1369, citing AR 1641.)
Petitioner wants his family benefits to begin on his own entitlement date of April 1999:
I believe my family payout should start that date. If not it should be shortly after
that date because I presented myself and my family several times on getting
answers and I got stonewalled by these very Social Security people and now have
ALJ Kelley saying I and my family failed to file an application earlier. If ALJ
Kelley is correct in her findings then Social Security kept me in limbo on cheating
me and my family out of benefits once again as the records will prove.
Addendum to Pet’r’s Br. 6 (Dkt. 32-1).
A person must file an application to become entitled to receive family benefits. 42 U.S.C.
§ 402(b)(1)(A), (d)(1)(A). An application is not valid unless it is on a prescribed application
form and signed by a proper applicant. 20 C.F.R. § 416.310. Neither the SSA nor this Court can
ignore these mandatory requirements. Among other reasons, filing an application enables the
SSA to make a formal determination of eligibility and gives the applicant the right to appeal
unfavorable determinations. See 20 C.F.R. § 404.603(a).
Petitioner’s May 2000 application names his child and asserts that the child may be
eligible for benefits. (AR 1641.) This established a protective filing for the child. POMS GN
00204.010(C)(3). Child’s insurance benefits, like disability insurance benefits, may be received
for up to 12 months immediately before the filing date, so long as the applicant meets all
requirements for entitlement except for filing. 20 C.F.R. § 404.621(a)(1). Per 20 C.F.R. §
404.352(a)(2), Petitioner’s child’s entitlement begins “the first month covered by your
application throughout which you meet all other requirements for entitlement.” Here, ALJ Kelley

MEMORANDUM DECISION AND ORDER – 22

found, as had the SSA previously, that because Petitioner was not married when he applied in
2000, his child was not entitled to benefits until Petitioner acknowledged his paternity in writing.
(AR 1370 (quoting 20 C.F.R. § 404.355(a)(3)).) In short, Petitioner’s child was not entitled to
benefits before May 2000 because Petitioner was not married to the child’s mother at that time
and Petitioner did not acknowledge his paternity of the child in writing until that month.
Petitioner’s child is not entitled to retroactive benefits because Petitioner’s application serves as
the writing establishing paternity.
Petitioner’s only argument on any of these points relates to the date of his marriage to his
child’s mother. Petitioner states that in 2000 he was the “head of household and financially
providing for my son and his mom, which we had been living together as a couple.” Pet. for
Review 5–6 (Dkt. 15). He later quotes part of the SSA definition of “wife” as “the wife of an
individual but only if she (1) is the mother of his son or daughter.” Id. at 7 (quoting 42 U.S.C. §
416(b)). Then he notes that ALJ Tai’s 2005 decision mentioned Petitioner’s “wife.” Id. (quoting
AR 65, 72, 76). Petitioner concludes that these facts together show “my wife and son’s benefits
are established by Judge Tai’s decision and Social Security Act Title II 216(b) the term ‘wife’ as
under Section (1) is the mother of his son or daughter and we as us 3 have always lived together
since the birth of my son.” Id.
Petitioner later renews the arguments he presented to ALJ Kelley regarding his assertion
he was in a common law marriage. Addendum to Pet’r’s Br. 6–7 (Dkt. 32-1). He offers to
acquire “an affidavit of my mother-in-law acknowledging the first mentioning of me and my
wife’s union together of living together prior to my marriage license.” Id. at 7.
None of this argument or evidence calls into question ALJ Kelley’s finding that
Petitioner was not married until he obtained a marriage license in 2003. Filing taxes as head of

MEMORANDUM DECISION AND ORDER – 23

household does not prove a marriage. Nor does financially providing for another person, even the
parent of one’s child. Similarly, it does not suffice under the SSA definition of “wife” to show
merely that a person is the mother of one’s son or daughter. Petitioner quotes, but gives no
significance to, a key part of the definition: “the wife of an individual, but only if she (1) is the
mother of his son or daughter.” 42 U.S.C. § 416(b) (emphasis added). A child’s mother is not a
wife, under the SSA definition, unless she is married to the individual. Further, it is irrelevant
that in 2005 ALJ Tai referred to Petitioner’s child’s mother as his wife because that decision was
issued after Petitioner and his wife formally married and received a marriage license. By that
time, she was indeed his wife in the eyes of the law. ALJ Tai’s decision did not address when the
Petitioner was married, and his decision made no findings on the critical issues described here.
(See AR 64–76.) Finally, living together as a family does not prove that Petitioner was married.
Petitioner suggests he could introduce an affidavit documenting when he first began
living with his wife. Addendum to Pet’r’s Br. 7 (Dkt. 32-1). Because no such affidavit is
presently before the Court, it will not be considered. Further, an affidavit in the form described
does not change this Court’s assessment of the reasons for ALJ Kelley’s decision and the
soundness of her ruling on this question. Among other things, Petitioner’s own representations in
2000 and 2002 that he was not married provide substantial evidence upon which ALJ Kelley was
entitled to rely.
ALJ Kelley’s decision that Petitioner was not married in May 2000 when he applied for
disability insurance benefits is not subject to being overturned on this record. Accordingly, any
entitlement on the part of Petitioner’s child to child insurance benefits could not begin until he
acknowledged paternity in his May 2000 application. The entitlement, therefore, properly began
at that time.

MEMORANDUM DECISION AND ORDER – 24

b. The Entitlement Date for Petitioner’s Wife May Be Incorrect.
Petitioner’s wife applied for wife insurance benefits on May 7, 2007 and she was found
entitled to monthly wife benefits beginning one year earlier, in May 2006. (AR 1368–1370,
1467–1472.) Petitioner argues that his wife applied for wife insurance benefits prior to May 7,
2007, and he contends that he properly raised the issue in a letter he wrote to the SSA dated
October 20, 2005. Pet. for Review 8 (Dkt. 15). In the letter, he stated:
If, my wife and son are not included then I need to know why not, in laymans
terms, in writing. If they are, then why are they not mentioned. I also need to
know if they will receive a medicare plan and benefits of family coverage as
stated in the Social Security brochures.
I received a letter . . . date[d] 9-25 [that] is . . . [a] Notice of Award. This
letter . . . does not address my family, nor their medicare. We have the Social
Security brochures that state that they are to be included with my benefits. . . .
That should include my family as well.
....
. . . I need to know if you are suppose to help me access my benefits.
(AR 178–182.) Petitioner signed the letter. (AR 182.) The letter is stamped as received by the
SSA on October 21, 2005. (AR 175.) Included with the letter is a “List for Appeal Requested
Explanations to Award Letter” that purports to highlight the specific issues regarding which
Petitioner sought more information. (AR 183.) Item number two on the list is “Family and family
benefits.” Id.
Petitioner contends that in the subsequent Notice of Reconsideration letters he received
on October 28, 2006 and November 5, 2006, there was no mention of family benefits despite his
having raised the issue in his prior letter. Pet. for Review 8 (Dkt. 15).
The record includes Notices of Reconsideration the SSA sent Petitioner on October 28,
2006 (AR 136–138), November 1, 2006 (AR 139–142), and November 5, 2006 (AR 143–146).
However, all three letters refer to a request Petitioner sent the SSA on September 22, 2006,
which is apparently not in the record. None of the letters from the SSA reference family benefits.

MEMORANDUM DECISION AND ORDER – 25

(See AR 136–146.) The SSA sent Petitioner various other correspondence in 2005 and 2006 (AR
119, 120, 125–126, 127), but none of this correspondence refers to family benefits. Nor does any
of the correspondence the SSA sent Petitioner in 2005 or 2006 that is in the record reference
Petitioner’s letter of October 21, 2005. For his part, Petitioner states that
ALJ Kelley is not acknowledging in her findings my first appeal to Commissioner
of Social Security 10/20/2005 on my Award Letter of 9/25/2005 pertaining to my
family benefits. This appeal had 5 issues . . . and on the ninth page under List of
Appeals 2. Family and family benefits. This Appeal letter to the Commissioner
was never answered.
....
. . . . Social Security kept my appeal in limbo for 10 years on the 5 issues that
were presented to them.
Addendum to Pet’r’s Br. 4, 14 (Dkt. 32-1).
The Court has considered carefully whether Petitioner’s October 20, 2005 letter (AR
175–183) might have established a protective filing date for his wife’s application.8 While the
Court cannot conclude on this record that the letter did in fact establish a protective filing date,
the case is remanded for the SSA to consider this issue, after further developing the record if
necessary. The record reflects that Petitioner did brief this issue to ALJ Kelley. (AR 1559.) The
issue was also discussed at an evidentiary hearing ALJ Kelley held prior to issuing her decision.
(AR 1856–1862.) Perhaps understandably, given the panoply of issues raised by Petitioner, this
particular issue was not addressed in her decision. (See AR 1361–1382.)
SSA regulations allow the use of the date of a written statement that is not an application
as the filing date for a subsequent application in certain circumstances:
If a written statement, such as a letter, indicating your intent to claim benefits
either for yourself or for another person is filed with us under the rules stated in
8

The Court has not considered the related issue of whether the letter established a
protective filing date for his child’s application, because his child’s application has already been
deemed to have been filed in 2000, several years earlier. Petitioner would not benefit from
having the letter construed to establish a protective filing date for his child’s application.
MEMORANDUM DECISION AND ORDER – 26

§ 404.614, we will use the filing date of the written statement as the filing date of
the application, if all of the following requirements are met:
(a) The statement indicates an intent to claim benefits.
(b) The statement is signed by the claimant [or] the claimant’s spouse . . .
(c) The claimant files an application with us on an application form as
described in § 404.611, or one is filed for the claimant by a person
described in § 404.612, within 6 months after the date of a notice we will
send advising of the need to file an application. We will send the notice to
the claimant. . .
(d) The claimant is alive when the application is filed . . .
20 C.F.R. § 404.630. The “rules stated in § 404.614” referenced in this regulation do not
prescribe any particular requirements for a written statement or letter; they merely require the
SSA to treat the filing date as “the day it is received by an SSA employee at one of our offices.”
20 C.F.R. § 404.614. Petitioner’s letter was stamped “HONOLULU HAWAII 96850 October 21
2005 SSA District Office 91990.” (AR 175.) Thus, it appears the letter was received by the SSA
– which may be self-evident because the letter is in the record.
Two of the § 404.630 requirements are easily shown. The last page of Petitioner’s 2005
letter carries Petitioner’s signature. Petitioner was alive in 2007 when his wife ultimately filed a
proper application. Thus, Petitioner has strong arguments that the requirements in § 404.630(b)
and (d) are satisfied.
The next issue is whether the “statement indicates an intent to claim benefits,” as required
under § 404.630(a). SSA guidance in the form of Program Operations Manual System (POMS)
documents is helpful in this regard. So long as the other requirements are met, “[a] letter asking
about benefit rights” suffices as a document to serve as a protective writing. POMS GN
00204.010F.1. One such requirement is that the written statement must establish an intent to file.
POMS GN 00204.010B.1. “The expression of intent need not be on a specific form, or in a
particular format. . . . If intent to file is not clearly expressed, evaluate the facts in the writing to
determine if intent can be reasonably inferred. When in doubt and intent can be reasonably

MEMORANDUM DECISION AND ORDER – 27

inferred, assume intent to file.” Id. The Court concludes that, had ALJ Kelley considered
Petitioner’s 2005 letter, she may have found that it established an intent to file.
The harder question is whether 20 C.F.R. § 404.630(c) is satisfied. In relevant part, that
subsection requires that “[t]he claimant files an application . . . within 6 months after the date of
a notice we will send advising of the need to file an application.” It also states that “[w]e will
send the notice to the claimant.” Id.
Petitioner’s letter was written and received by the SSA in October 2005. Petitioner’s
wife’s application was not filed until May 2007 – far longer than 6 months later. However, the 6month period begins to run not from the date of the letter, but rather from the date the SSA sent
Petitioner’s wife a notice advising her of the need to file an application. The record is silent on
whether, or when, the SSA ever sent such a notice. The regulations are silent on the impact of the
SSA’s failure, if indeed there was a failure, to send such a notice. Accordingly, remanding so the
SSA can evaluate whether Petitioner’s October 2005 letter established a protective filing date for
his wife’s claim is necessary.
To be clear, the Court has not concluded that Petitioner’s wife’s filing date must be
regarded as October 2005. Rather, the SSA is ordered to evaluate the precise question of whether
that letter established a protective filing date that remained effective when Petitioner’s wife filed
her application in May 2007. The SSA might find that October 2005 is the proper filing date for
Petitioner’s wife’s application, it might find that for one or more reasons that is not the proper
filing date, or it might find some impediment to considering the issue.9

9

Petitioner testified during the evidentiary hearing that his wife had her own appeal
pending with the SSA. (AR 1859–1860.) He also noted the same in his briefing. Addendum to
Pet’r’s Br. 7 (Dkt. 32-1). The record does not disclose the status or outcome of that appeal. This
Court expresses no opinion on whether the SSA on remand has jurisdiction to consider whether

MEMORANDUM DECISION AND ORDER – 28

5. Petitioner Has Not Shown that Any Benefits Were Improperly Withheld.
On another front, Petitioner appears to argue that inflation adjustments to his disability
insurance benefits should be calculated as of 1983, when he became disabled, and not as of 1999,
when he became entitled to disability insurance. He asserts:
Social Security is able to award payment of benefits witheld [sic] to effectuate
ALJ Tai’s fully favorable decision of June 31, 2005, for entitlement to a period of
disability and disability benefits. This could be housed with the required Triennial
Redetermination to protect the Workers Comp offset from the inflation, that I was
receiving in 1983. This is found in Social Security POMS DI 521[]50.080 and
Social Security POMS DI 52150.020.
Pet. for Review 8 (Dkt. 15). Further, he states “the calculation for Social Security benefits and
Workers Comp benefits must be considered at the 1983 onset for period of disability and to
protect those Workers Compensation payments from inflation over the lengthy period of
disability from 1983 ongoing to this present day.” Id. at 9. He offers no reasoning or explanation
to support this assertion.
Whether Petitioner raised the issue of triennial redetermination of his average current
earnings before ALJ Kelley is unclear. To the extent this is a new issue raised for the first time
on appeal before this Court, it is denied. To the extent this issue is merely a reiteration of his
broader contention that his benefits have been miscalculated or that he was entitled to benefits as
of 1983 instead of 1999, it is denied on the basis that he has not offered enough evidence or
argument to show that ALJ Kelley erred in her decision.
Nonetheless, the Court will evaluate Petitioner’s precise assertions to the extent it can. As
an initial matter, it bears repeating that ALJ Tai’s 2005 decision did not say that Petitioner was

Petitioner’s wife’s entitlement date is correct. Nor does the Court consider any issues related to
the merits or timing of that appeal, except as discussed in this section regarding the filing date of
Petitioner’s wife’s application.
MEMORANDUM DECISION AND ORDER – 29

entitled to disability insurance benefits starting in 1983. The 2005 decision found Petitioner
disabled in 1983, but it did not find him entitled to benefits as of 1983. Because Petitioner did
not adequately prove his disability to the SSA until 2005, his benefits did not begin until 1999 –
one year prior to his reopened 2000 application. Under federal law and SSA regulations, ALJ Tai
could not have authorized disability insurance benefits to Petitioner any earlier than 1999.
Petitioner is correct that the triennial redetermination of average current earnings is
“protection against inflation.” POMS DI 52150.080. But he is mistaken that the redeterminations
in his case should have started in 1983. “Redet[ermination] years are determined by the first year
that benefits are actually reduced due to [workers’ compensation] offset.” POMS DI
52150.080B.1. Petitioner was not entitled to benefits until 1999. His benefits were first reduced
in 1999. Thus, 1999 was the earliest year that a triennial redetermination could properly be
applied.
Although Petitioner also cites DI 52150.020, related to “Workers’ Compensation/Public
Disability Benefit (WC/PDB) Offset First-Considered (OFC) Date and Offset Effective Date
(OED),” he does not explain how he thinks it is relevant. The Court notes that, in context,
“offset” refers to the reduction in his disability insurance benefits due to his receipt of workers’
compensation benefits, while “onset” refers to the date of his disability in May of 1983. Beyond
this, the Court will not speculate why Petitioner thinks this policy document is relevant.
As noted above, Petitioner has offered no basis for reversing ALJ Kelley’s decision with
respect to the calculation of his disability insurance benefits.
6. Petitioner Is Not Entitled to Punitive Damages against the SSA.
Petitioner seeks punitive damages against the SSA. Addendum to Pet’r’s Br. 15 (Dkt. 321). Petitioner has sought punitive damages repeatedly since at least 2005. (AR 86–87 (Pet’r’s

MEMORANDUM DECISION AND ORDER – 30

letter to ALJ Tai dated October 28, 2005), 318 (Pet’r’s letter to Office of Disability Adjudication
and Review (ODAR) dated July 30, 2007), 1167 (Pet’r’s letter to ODAR dated January 21,
2011).) Each time, he has been told that punitive damages are not available under the law. (AR
1114 (Decision by ALJ Tai dated December 27, 2007), 21 (Decision by ALJ Labrum dated May
20, 2011).) ALJ Labrum’s decision even explained how Petitioner could pursue a negligence
claim if he so desired, which Petitioner apparently ignored. (AR 21.) Most recently, Judge Dale’s
Order dated November 24, 2014 stated as follows:
The Court will, however, determine the issue of punitive damages. On appeal,
Petitioner challenges the SSA’s negligence in handling his claim as a collateral
issue. Petitioner cannot seek damages pursuant to 42 U.S.C. § 405(g). This
section authorizes suits challenging final decisions by the Commissioner of Social
Security. 42 U.S.C. § 405(g); see Califano v. Sanders, 430 U.S. 99, 108 (1977).
But, a request for damages, including punitive damages, is not a request for
review of an agency decision; therefore, this Court does not have jurisdiction to
determine the issue in this context. Ostroff v. State of Fla., Dept. of Health &
Rehabilitative Servs., 554 F.Supp.347, 352 (D.Ct. Fla. 1983) (explaining that,
under Section 405(g), petitioner is entitled only to back payment of benefits
wrongfully withheld, not general or punitive damages). The Court, and by
extension the SSA, lacks jurisdiction over Petitioner’s claim for negligence and an
award of punitive damages brought as part of this appeal under Section 405(g).
(AR 1405.) Judgment was entered in that case. (AR 1408.) Petitioner did not timely appeal Judge
Dale’s Order. Therefore, issues resolved in that Order are fully and finally resolved and
Petitioner cannot now challenge them. For this reason, his request for punitive damages must be
denied.10

10

Even if Judge Dale’s Order did not bar Petitioner’s claim for punitive damages, it
would nonetheless be denied both because Judge Dale’s analysis was correct and because the
issue is not properly before this Court given the fact that ALJ Kelley’s decision did not address
it.
MEMORANDUM DECISION AND ORDER – 31

7. Petitioner Is Not Entitled to Back Pay from the SSA.
Petitioner’s brief includes a “Demand for Relief Sought” showing a calculation of
$990,000.00, based on $2,500.00 per month for 33 years. Pet’r’s Br. 8 (Dkt. 32). Petitioner seeks
this sum in addition to the other amounts he seeks. Id. He also regards this as an entitlement
independent of any amounts he has already been paid, and he wants continuing monthly
payments of the amounts to which he is otherwise entitled. Id. He states:
I have submitted evidence of merit. My writing might not be at a high level but
the substance that has been shared, has been the truth, and the sum I am asking for
is a low ball figure. If you were to lessen this Award, I strongly believe that you
are promoting this Administration to keep on taking advantage of disabled people.
I have equated $2500.00 a month of 30 years. That is the least amount of today’s
value of my worth. That is not measuring the grief, abuse, or neglect, as that
amount is unmeasurable.
Id. at 9. Petitioner offers no other justification for his request of nearly one million dollars.
The Court is sensitive to Petitioner’s circumstances. The Court sympathizes with the fact
that Petitioner is disabled, that he had a difficult time proving his disability to the SSA, and that
he has struggled for over a decade to get answers about the scope of his benefits. Nonetheless,
the Court cannot arbitrarily order the SSA to pay the sum Petitioner requests, without some legal
justification to do so. Any such order must be anchored to a specific law or regulation to be
valid, and the Court knows of no law or regulation permitting the award Petitioner requests.
Even if there were, the Court’s role is not to make its own decision on the merits of Petitioner’s
claims but to review the decisions of the ALJ. Additionally, Petitioner appears to conflate merit
with entitlement to benefits. Even if he believes strongly, as seems clearly to be the case, that he
and his wife and child deserve more benefits than they have been paid, the right to receive such
benefits is entirely a matter of Congressional and agency delineation. If, under the statutes and
the rules, benefits should be paid, he is entitled to receive such payments. If, under the statutes

MEMORANDUM DECISION AND ORDER – 32

and the rules, benefits are not to be paid, then he is not entitled to receive such payments, even if
he believes that under his circumstances he deserves to receive such benefits. And, here, as with
other claims Petitioner brings, this request was not addressed in ALJ Kelley’s decision and so the
Court cannot consider it.
8. Any Evidence of an Application Prior to 1990 Is Irrelevant.
Petitioner also challenges ALJ Kelley’s dismissal of new evidence he presented that he
contends shows that he first filed for disability insurance benefits in 1986. Addendum to Pet’r’s
Br. 7–8 (Dkt. 32-1). Petitioner alleges that “Social Security has lost all of the records prior to
2000 application.” Addendum to Pet’r’s Br. 7 (Dkt. 32-1). He believes that this demonstrates at
least negligence and perhaps intentional misconduct on the part of the SSA. Id. at 7–8. He asserts
that “ALJ Kelley . . . failed to address this argument.” Id. at 8.
ALJ Kelley did not fail to address this argument. After once again noting that an
application filed in 1986 could not be reopened under the law, ALJ Kelley analyzed the evidence
Petitioner proffered and found it insufficient to prove he had filed an application in 1986. (AR
1376–1378.)
To prevail in his Petition for Review, Petitioner must show that ALJ Kelley’s decision in
this regard was not based on substantial evidence. He has not done that. He merely recites dates
of certain correspondence from 1990 to 1992, arguing that the timing somehow supports his
claim that he filed an application in 1986. Addendum to Pet’r’s Br. 8 (Dkt. 32-1).
Petitioner offers no argument or explanation on the bigger issue, which is that the law
does not allow either the SSA or this Court to reopen an application from 1986 except in narrow
circumstances that do not apply here. See 20 C.F.R. § 404.988(c). Stated differently, even if
Petitioner could prove with absolute certainty that he filed an application in 1986, the result

MEMORANDUM DECISION AND ORDER – 33

would be the same: the application could not be reopened because the time period to do so lapsed
more than two decades ago. Any evidence that might show Petitioner applied in 1986 is simply
irrelevant because of this fact. Accordingly, Petitioner’s Petition for Review is denied to the
extent it challenges ALJ Kelley’s finding he did not file an application in 1986.
9. Alleged Typos in ALJ Kelley’s Decision Do Not Undermine Its Validity.
Finally, Petitioner also alleges that ALJ Kelley’s 22-page decision “has typos of dates
and facts,” which he later catalogs. Addendum to Pet’r’s Br. 1, 10–11 (Dkt. 32-1). The Court
need not, and does not, consider these typos because Petitioner has not shown, nor even alleged,
that any of them materially affected ALJ Kelley’s decision or in any way undermined the
accuracy or correctness of the ultimate findings contained therein. No doubt there will be some
typographical or scrivener’s error in this decision. Despite our best efforts, such things creep into
what we otherwise seek to have letter perfect. Such is the nature of human endeavor.
IV. CONCLUSION
Petitioner’s motions seeking additional evidence are denied because this is a closedrecord proceeding and because the records would not be relevant to any issue before the Court.
Petitioner has shown that ALJ Kelley’s decision is not based on substantial evidence to
the extent that it fails to consider whether Petitioner’s letter of October 2005 established a
protective filing for the subsequent application filed by Petitioner’s wife for wife’s insurance
benefits. Therefore, the Petition for Review is granted on that basis alone. Petitioner has not
otherwise shown that ALJ Kelley’s decision was in error.
Because the Petition for Review is granted, this matter will be remanded for further
administrative proceedings. The Court directs Respondent to expedite the remaining proceedings
on this limited issue because of the lengthy period of time that has been consumed as this case

MEMORANDUM DECISION AND ORDER – 34

wound its way through the adjudication process below, followed by the much too long a period it
has taken for this Court to decide the appeal.

V. ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1. Petitioner’s Motion for Workers Comp Records or an Index of Workers Comp
Records (Dkt. 30) and Motion for Social Security Records and the Triennial
Redetermination Ratio Considered Starting 1983 to Present (Dkt. 31) are DENIED.
2. Petitioner’s Petition for Review (Dkt. 15) is GRANTED.
3. This action is REMANDED for further proceedings under sentence four of 42 U.S.C.
§ 405(g) with instructions to the ALJ to issue a new decision after analyzing whether
Petitioner’s October 2005 letter established a protective filing date for his wife’s
insurance benefits application.
4. Respondent shall expedite and complete the above review, and issue a written
determination, within 6 months of this Memorandum Decision and Order.
5. Respondent shall file a status report with the Court indicating compliance with the
Court’s order on or before May 31, 2018.
DATED: November 20, 2017

________________________
Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

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