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Wu v. Berryhill

United States District Court, C.D. California

May 10, 2017

MATHIAS WU, Plaintiff,
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.




         Plaintiff, who is proceeding pro se, filed a Complaint on August 9, 2016, seeking review of the Commissioner's calculation and payment of his retirement insurance benefits. (Dkt. No. 1.) On February 3, 2017, Plaintiff filed a Motion for Summary Judgment (“Plaintiff's Motion”) (Dkt. No. 23), and on April 5, 2017, Defendant filed a Motion to Dismiss and Cross-Motion for Summary Judgment (“Defendant's Motion”) (Dkt. No. 32). On April 14, 2017, Plaintiff filed his response (“Plaintiff's Reply”) to Defendant's Motion (Dkt. No. 33), and the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. (Dkt. Nos. 12, 36.) Plaintiff seeks monetary relief, namely “$430.90 plus 6 years 3 months interest” and “a penalty of $430.90 x 75 (months) = $32317.50.” (Plaintiff's Reply at 5; see also Complaint at 3.) The Commissioner requests that the Court dismiss Plaintiff's action for lack of jurisdiction under the Federal Tort Claims Act (see Defendant's Motion at 7-8) or, in the alternative, affirm the decision of the Administrative Law Judge (id. at 9). The Court has taken the matter under submission without oral argument.


         “On or about” January 9, 2012, Plaintiff, who was born December 2, 1944, filed an application of retirement insurance benefits. (Administrative Record (“AR”) 10, 13.) On January 14, 2012, Plaintiff was advised about the payment of his retirement benefits: $6, 038.90 for July through December 2011 and $978.00 for each subsequent month. (AR 10, 22.) Plaintiff requested reconsideration of the award determination on the grounds that an agency representative had advised him that he would receive a larger award. (AR 10, 27.) On reconsideration, the initial determination was affirmed. (AR 10, 28.) Plaintiff filed a timely request for a hearing. (AR 10, 40.) On December 10, 2013, Administrative Law Judge (“ALJ”) Cynthia A. Minter held a hearing. (AR 164-205.) Plaintiff, who proceeded without counsel but with an interpreter, and Linda Dominguez, a technical expert, testified at the hearing. (Id.)

         On May 22, 2014, the ALJ held a continued hearing at which Plaintiff and Isela Navarro (Navarro), a claims representative with the Montebello regional office of the Social Security Administration, testified. (AR 117-163.) On September 12, 2014, the ALJ issued an unfavorable decision, denying Plaintiff's request for an adjustment to his retroactive retirement insurance benefits. (Id. 10-12.) On June 15, 2016, the Appeals Council denied Plaintiff's request for review. (Id. 3-6.)


         The ALJ made the following findings:

[A] representative of the Administration may have given [Plaintiff] inaccurate information about his potential retroactive benefits. Further, it is possible that [Plaintiff] was misled by information on a Benefit Information sheet, indicating that he is entitled to gross Social Security benefits of $1, 078.30 with an effective date of July 2011. Nevertheless, even if a representative of the Administrat[ion] gave [Plaintiff] inaccurate information, this information was only an estimate. Further, [Plaintiff] has not cited any statutory authority, regulatory authority, or case law, which binds the Administration to pay him a benefit based on misinformation . . . . Rather, the Administration is only required to pay [Plaintiff] retirement insurance benefits in an amount, which is consistent with the provisions of 20 C.F.R. § 404.310-313.
Accordingly, the undersigned concludes that [Plaintiff] was paid the correct amount of retroactive benefits by the Administration, totaling $6, 038.90. The gross benefit calculations were based on consideration of one delayed retirement credit. [Plaintiff] received a cost of living increase in December 2011, which increased his gross benefit amount. The appropriate rounding down reduction also was applied to his final payment calculation. Ultimately, [Plaintiff] was entitled to $1, 000 per month for the months of July 2011 through November 2011 and $1036.90 for December 2011 (i.e., $1, 000.40 x 5 $1, 036.90).

(AR 11-12.)


         Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal citations omitted). Generally, where, as here, the plaintiff is pro se, the Court must construe the pleadings liberally and afford [the Plaintiff] the benefit of any doubt.” Bretz v. Kellman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc) (internal citation omitted). But when a plaintiff challenges an administrative agency's application of its own regulations, “[t]he interpretation of statutes and regulations by an agency charged with their administration is entitled to due deference and should be accepted unless demonstrably irrational or clearly contrary to the plain meaning.” Adams v Bowen, 872 F.2d 926, 929 (9th Cir. 1989) (internal citations and quotations omitted).

         After careful review, the Court finds that Plaintiff's sole claim is that Navarro, a claims representative with the Montebello regional office of the Social Security Administration, provided Plaintiff with an incorrect estimate of the amount of his retroactive benefits, Plaintiff relied on that error, and the Commissioner may not now award him a lesser sum. The factual basis for this claim is that, on January 9, 2012, Navarro told Plaintiff that he has two choices for receiving his retirement insurance benefits: (1) “$1119.50/month;” or (2) “$1078.30/month, plus . . . $6469.80 is your 6 month retroactive benefits, but now I can pay you $6038.90 only, after 2 months I will pay you different $430.90.” (Complaint at 1 (errors in original); see also Plaintiff's Reply at 3.) A few days later, Plaintiff received a check for $6, 038.90 and a document from the Commissioner stating that his six month retroactive benefits were “$6238.70 only.” (Id.) Plaintiff states “SSA changed her promise, it is a designed fraud . . . . SSA officials still designed a fraud and cheat me.” (Complaint at 1-2.) Plaintiff's Reply reiterates these contentions without challenging the Commissioner's actual computation of his award. Specifically, Plaintiff states, “My case's main point is SSA officials cheating me, ” and “SSA design fraud cheat plain people is guilty.” (Plaintiff's Reply at 1, 4) (errors in original). Plaintiff also explains that he does not allege that the regulations actually entitle him to $6469.80 in retroactive benefits, but rather that Navarro told him he was entitled to that sum and the Commissioner should ...

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