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Perez v. Colvin

United States District Court, N.D. California

July 1, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.




         In this 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 is Granted.


         In 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).

         In 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).

         In July 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).

         In 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).

         The ALJ 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.


         1. Standard of Review.

         A 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.

         2. Windfall Elimination Provision.

         Perez's 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 ...

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