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Bauer v. Commissioner of Social Security

United States District Court, M.D. Florida, Fort Myers Division

September 30, 2019

CHARLES W. BAUER, Plaintiff,

          Hon. Mac R. McCoy U.S. Magistrate Judge



         This matter is before the Court on consideration of Magistrate Judge Mac R. McCoy’s Report and Recommendation (Doc. #74), filed on June 28, 2019, recommending that the Decision of the Commissioner be affirmed. Plaintiff filed Objections (Doc. #80) on August 14, 2019, and the Commissioner filed a Reply to Plaintiff’s Objections (Doc. #85) on September 1, 2019. Plaintiff also filed two Unopposed Motions for Judicial Notice (Docs. #77, #78) on August 12, 2019.


         The Court reviews the Commissioner’s decision to determine if it is supported by substantial evidence and based upon proper legal standards. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)(citing Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)). Substantial evidence is more than a scintilla but less than a preponderance, and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005)(citing Crawford, 363 F.3d at 1158-59). Even if the evidence preponderates against the Commissioner’s findings, the Court must affirm if the decision reached is supported by substantial evidence. Crawford, 363 F.3d at 1158-59 (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)). The Court does not decide facts anew, make credibility judgments, reweigh the evidence, or substitute its judgment for that of the Commissioner. Moore, 405 F.3d at 1211 (citing Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)); Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)(citing Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004)). The Court reviews the Commissioner’s conclusions of law under a de novo standard of review. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007)(citing Martin, 894 F.2d at 1529).


         Plaintiff served 4 years with the United States Air Force, and 33 years as a reservist. Plaintiff served as a dual status air technician for the Air National Guard, which position required plaintiff to wear a military uniform and be deployment ready. Plaintiff applied for retirement benefits in 2001 at age 62. Plaintiff received his monthly retirement insurance benefits (RIB), but it was reduced by the windfall elimination provision (WEP). In 2012, plaintiff was informed that he was exempt from the WEP and sought reconsideration of his benefits calculation. Plaintiff received a hearing before an ALJ.

         On March 10, 2015, the Administrative Law Judge rendered a fully favorable decision finding that plaintiff’s social security benefits were incorrectly calculated and that the windfall elimination provision should not apply. (Doc. #19-1.)

         On March 30, 2015, the Southeastern Program Service Center Assistant Regional Commissioner issued a letter indicating that the ALJ’s decision would not be implemented pending further review since it was contrary to law and regulations. The Appeals Council found that the ALJ correctly found that Peterson v. Astrue[1] did not apply, and therefore the ALJ could not have reopened the case. Further, the Appeals Council found that the ALJ should have dismissed the case. As a result, the Appeals Council dismissed a request for hearing, and deemed that the Decision of the ALJ had no effect. (Id.) In dismissing the request for a hearing, the Appeals Council specifically found that the ALJ’s decision was not substantively correct because the WEP did apply to plaintiff.

         On April 20, 2018, the Court issued an Opinion and Order (Doc. #44) denying the Commissioner’s motion to dismiss for lack of subject matter jurisdiction, finding that subject matter jurisdiction did exist. The Court found that the Appeals Council had engaged in a de facto reopening of the case and reconsideration of the claims, which allowed for judicial review on the merits.


         As to the merits, the Magistrate Judge addressed whether the uniformed service exception to the WEP applied to plaintiff’s position as an Ohio Air National Guard military technician (dual status). Relying on Martin v. Soc. Sec. Admin., Comm’r, 903 F.3d 1154 (11th Cir. 2018), the Magistrate Judge recommends that the Social Security Administration’s interpretation be affirmed. In Martin, which found that work as a dual status technician was not “wholly” as a uniformed service member and therefore the military exception to WEP did not apply, the Eleventh Circuit gave deference to the agency interpretation under Skidmore v. Swift & Co., 323 U.S. 134 (1944), and did not use the framework under Chevron, U.S.A., Inc. v. Nat’l Resources Defense Council, Inc., 467 U.S. 837 (1984).

         The Magistrate Judge noted a dual status employee is a civilian position, that Congress refers to a dual status technician as a civilian position, and plaintiff even received separate pensions for the two positions. The Magistrate Judge found that the factual difference in duties for plaintiff compared to those of Martin, including being under military command, did not render a dual status technician position to be a “wholly” military position.

         The Magistrate Judge also addressed the issue of whether the Social Security Administration erred by not inputting plaintiff’s taxed earnings correctly. As a preliminary matter, the Magistrate Judge found that the issue is tied to the WEP and therefore plaintiff exhausted his administrative remedies. The Magistrate Judge concluded that remand was not required for recalculation because the Commissioner’s calculation of ...

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