United States District Court, N.D. California
SILVERIO G. PEREZ, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND GRANTING DEFENDANT'S CROSS-MOTION FOR
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE
social security appeal, pro se plaintiff appeals the amount
of his monthly retirement insurance benefits. For the reasons
stated below, plaintiff's motion for summary judgment is
Denied and defendant's cross-motion for summary judgment
October 2004, plaintiff Silverio G. Perez applied for
Retirement Insurance Benefits under Title II of the Social
Security Act (AR 18). The SSA approved his application in
January 2005, placing Perez in a benefit payment status to
receive $133.00 per month (AR 22). Perez also received (and
continues to receive) a foreign pension based on thirty-two
years of government service from the Philippines at $271.00
per month, which he has received since 1986 (AR 56).
February 2011, Perez requested reconsideration of his monthly
benefits. The SSA subsequently increased his monthly benefits
to $297.00 because it had not previously considered
Perez's earnings in 2010 (AR 28-31). Perez again appealed
this decision to the SSA stating that the monthly amount was
still not enough to cover his medical expenses (AR 35). The
SSA denied this request for reconsideration affirming that
its calculation of his monthly benefits was the correct and
highest possible benefit amount based on Perez's earnings
(AR 37-38). Pursuant to Section 215(a)(7) of the Social
Security Act, the SSA computed Perez's benefits using a
modified formula that took into consideration his earnings
from the Philippines (AR 94).
2011, Perez again requested a recalculation maintaining that,
according to his own calculations, the correct amount of his
benefits should be $448.00 per month. Perez also stated that
it was very difficult for him to pay his medical expenses,
inasmuch as he was permanently disabled and on hemodialysis
(AR 39). The SSA issued a notice of reconsideration stating
that it had re-examined his benefits and that the original
calculations were correct (AR 44). In September 2011, Perez
sent two separate letters that stated he wanted to appeal the
reconsideration (AR 46-56). In response to these letters, the
SSA simultaneously issued another notice of reconsideration
with an explanation of how they calculated Perez's
benefits and processed his correspondence as a timely request
for hearing (AR 76, 102).
September 2013, ALJ John Flanagan held a hearing over the
phone per Perez's request for accommodation. Before the
ALJ administered the oath, Perez informed him that he had
been denied Supplemental Security Income because he received
other income in addition to his retirement benefits. Perez
then testified under oath that he believed the SSA had
incorrectly calculated his retirement benefits but he did not
provide an explanation as to how the SSA had erred in its
calculations. Furthermore, Perez testified under oath that he
felt that he was being treated differently because he was
sick. The ALJ confirmed with Perez that he was on dialysis
and had kidney failure (AR 131-43).
rendered a decision two days after the hearing, finding that
Perez's retirement benefits had been properly calculated
to date in accordance with the Social Security Act (AR 17).
Perez requested administrative review (AR 97). The Appeals
Council denied the request (AR 4). Perez filed a pro se
action here in the district court on November 20, 2015. Both
sides now move for summary judgment.
Standard of Review.
review of the ALJ's decision requires an examination of
the whole record to see whether the ALJ decision is supported
by substantial evidence and free of legal error. Andrews
v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
Substantial evidence is "more than a scintilla, "
but "less than a preponderance." Smolen v.
Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). It means
"such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."
Ibid. The district court must "review the
administrative record as a whole, weighing both the evidence
that supports and that which detracts from the ALJ's
conclusion." Andrews, 53 F.3d at 1039.
"The ALJ is responsible for determining credibility,
resolving conflicts in medical testimony, and for resolving
ambiguities;" thus, where the evidence is susceptible to
more than one rational interpretation, the decision of the
ALJ must be upheld. Ibid.
Windfall Elimination Provision.
retirement benefits were calculated in accordance with the
Windfall Elimination Provision (WEP) of the Social Security
Act. The WEP computes or recomputes coverage of retirees in
order to prevent individuals who earned wages from both
covered and noncovered employment from receiving an
unwarranted windfall. Noncovered employment is ...