United States District Court, M.D. Florida, Fort Myers Division
CHARLES W. BAUER, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
Mac R. McCoy U.S. Magistrate Judge
OPINION AND ORDER
E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on consideration of Magistrate
Judge Mac R. McCoyâs 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 Plaintiffâs Objections (Doc. #85) on September 1, 2019.
Plaintiff also filed two Unopposed Motions for Judicial
Notice (Docs. #77, #78) on August 12, 2019.
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).
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
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.
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 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.
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.
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).
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.
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 ...