The opinion of the court was delivered by: WILLIAM A. INGRAM
The plaintiff seeks judicial review pursuant to § 205(g) of the Social Security Act ("Act"), 42 U.S.C. § 405(g), of a final decision of the Secretary of Health and Human Services ("Secretary") finding that plaintiff's social security retirement insurance benefits were properly reduced pursuant to § 215(a)(7) of the Act, 42 U.S.C. § 415(a)(7), due to his receipt of a civil service pension on wages not covered by Social Security.
Upon consideration of all the papers submitted, the defendant's motion for summary judgment is GRANTED and the plaintiff's motion for summary judgment is DENIED.
Plaintiff was born in India on February 1, 1926 (Tr. 107), and was employed by the Federal Communications Commission as an electronics engineer for a period of eight years and nine months from 1975 through 1983 (Tr. 270). As a result of this employment, plaintiff became eligible to receive a monthly civil service retirement pension, effective February 1, 1988 (See Tr. 53-54). The plaintiff also had earnings covered by the social security system from 1962 through 1975 and from 1980 through 1989 (Tr. 276).
Plaintiff filed his original application for social security retirement insurance benefits on January 11, 1988 (Tr. 35-38), and supplemental the application on February 16, 1988 (Tr. 65-68). On July 7, 1988 the Social Security Administration ("SSA") notified plaintiff that he was entitled to social security benefits but that the benefit amount was subject to reduction because he also was entitled to receive an annuity based on employment not covered by social security (Tr. 153-54). An administrative law judge ("ALJ") conducted a de novo review, and reached the same conclusion in a decision dated April 18, 1989 (Tr. 197-98; see Tr. 20). Specifically, the ALJ determined that plaintiff was "not eligible to receive payment on his social security income because he is eligible for a federal civil service pension and he is currently receiving the federal civil service pension and is presently engaged in full-time employment" (Tr. 198). On July 14, 1989, the Appeals Council considered plaintiff's request for review and found no basis for granting review of the ALJ's decision (Tr. 227-228).
On August 31, 1990 and November 5, 1990, the SSA provided plaintiff with detailed information explaining the calculation of his monthly social security benefit amounts under the "windfall elimination provision" of the Social Security Act, codified at 42 U.S.C. § 415(a)(7) (Tr. 271-277). By letter dated November 10, 1990, plaintiff requested a de novo review of the SSA's benefit calculation by an ALJ and waived his right to appear at an administrative hearing (Tr. 278). The plaintiff objected to the SSA's calculations, contending that the windfall elimination provision had been improperly applied to him and that it was unconstitutional (Tr. 23-24). In a decision dated January 25, 1991, the ALJ concluded that the SSA had properly applied the windfall elimination provided of the Act in calculating plaintiff's benefits (Tr. 18-22). The Appeals Council rejected plaintiff's request for review on July 22, 1991 (Tr. 3-5), and the ALJ's decision became the final decision of the Secretary.
Review under section 205(g) of the Act, 42 U.S.C. § 405(g), requires the court to examine the whole record to see whether the Secretary's decision is supported by "substantial evidence" or whether there was any legal error by the Secretary in rendering the decision. Gamer v. Secretary of Health and Human Services, 815 F.2d 1275, 1278 (9th Cir. 1987); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ." 42 U.S.C. § 405(g); see Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). A court cannot set aside the Secretary's determination unless "the Secretary's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985); Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984).
A. Applicability of the Windfall Elimination Provision to Plaintiff