Lindsey v. Berryhill

          MEMORANDUM DECISION AND ORDER

          HONORABLE RONALD E. BUSH, CHIEF U.S. MAGISTRATE JUDGE.

         Pending is Petitioner Ronald Lindsey's Petition for Review (Dkts. 1, 15), ^[1] appealing the Social Security Administration's final decision to deny various claims for awards of additional benefits.^[2] See generally Pet. for Review (Dkt. 15). Also pending are two motions filed by Petitioner to obtain records from the Office of Workers' Compensation Programs (“OWCP”) (Dkt. 30) and the Social Security Administration (“SSA”) (Dkt. 31). This action is brought pursuant to 42 U.S.C. §§ 405(g). Having carefully considered the record and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:

         I. FACTUAL BACKGROUND AND ADMINISTRATIVE PROCEEDINGS

         This is not a typical Social Security appeal. Rather than disputing a finding of no disability, Petitioner here has been found disabled and has been receiving Social Security Disability Insurance benefits. Most of his challenges relate to calculations of his benefit amounts.

         Petitioner was injured on the job in 1983 while working as a federal employee. (AR 67- 68, 1362.) He subsequently received periodic payments through OWCP from 1983 through 2013. (AR 1362, 1364, 1379-1380.) Petitioner claims he first filed for Social Security Disability Insurance benefits in 1986, but SSA records do not support this claim. Pet. for Review 9 (Dkt. 15); Addendum to Pet'r's Br. 7-8 (Dkt. 32-1); AR 64 (2005 ALJ Decision) and AR 1361 (2015 ALJ Decision).

         The record does show that Petitioner filed a claim for disability insurance benefits in 1990, which was denied initially and then on reconsideration. (AR 64.) There is no evidence Petitioner timely appealed this denial. (AR 64.)

         Petitioner next filed for disability insurance benefits in 2000. (AR 64.) That claim was denied on the basis of res judicata^[3] because it was based on the same facts and law as his 1990 claim. (AR 64.) Again, Petitioner did not appeal the denial.

         In 2002, Petitioner once more applied for disability insurance benefits. (AR 64.) When that application was denied initially and on reconsideration, also on the basis of res judicata, Petitioner requested a hearing. (AR 64.) In 2004, Administrative Law Judge (“ALJ”) Henry M. Tai vacated the denial of Petitioner's 2002 claim and remanded for further consideration because SSA could not locate the file from Petitioner's 1990 claim and therefore ALJ Tai could not conclude that res judicata precluded Petitioner's 2002 claim. (AR 1814-1816.) After the application was once more denied initially and on reconsideration, Petitioner again requested a hearing. (AR 32-34.) After the hearing, ALJ Tai issued a fully favorable decision finding Petitioner had been disabled since May 6, 1983. (AR 64-76.) ALJ Tai also found that Petitioner's 2000 claim could be reopened and revised, because Petitioner had filed his 2002 claim within the four-year period allowed for reopening claims. (AR 74.) However, ALJ Tai also found that Petitioner's 1990 claim, and any earlier claims, could not be reopened because more than four years had lapsed. (AR 74-75.) Ultimately, ALJ Tai found that “[b]ased on the Title II applications filed on October 16, 2002 and protectively filed on April 20, 2000, the claimant is entitled to a period of disability beginning May 6, 1983 and to disability insurance benefits under Sections 216(i) and 223, respectively, of the Social Security Act.” (AR 76.) Petitioner did not timely challenge ALJ Tai's 2005 fully favorable decision. (AR 1362.)

         Thereafter, Petitioner received a Notice of Award indicating that his disability insurance benefits were being reduced to take into account his Workers' Compensation payments. (AR 81- 83.) Petitioner appealed this and other aspects of the Notice of Award, which ultimately resulted in ALJ Tai issuing an unfavorable decision in 2007, finding that Petitioner's disability insurance benefits had been properly calculated and that there was no underpayment of benefits. (AR 1108-1115.) Petitioner appealed to the Appeals Council. (AR 1116-1118.) After a lengthy delay, in 2010 the Appeals Council granted Petitioner's request for review, vacated the 2007 ALJ decision, and remanded for a new hearing. (AR 1363.)

         After a hearing, ALJ Robert J. Labrum issued an unfavorable decision in 2011. (AR 18- 24.) The Appeals Council subsequently denied Petitioner's request for review of ALJ Labrum's decision. (AR 14, 10-12.) Thereafter, Petitioner petitioned for review in the United States District Court for the District of Idaho, United States Magistrate Judge Candy W. Dale presiding. (See AR 1397-1400; see also Case No. 4:13-cv-0439-CWD.) After noting that the Respondent agreed with Petitioner that ALJ Labrum failed to explain adequately the reasons for his decision, the district court granted the petition for review, vacating ALJ Labrum's decision and remanding to the ALJ to develop the factual record further and issue a new decision after analyzing four listed issues. (AR 1401-1408.) The district court also held that there was no legal basis for Petitioner to receive an award of punitive damages against the SSA. (AR 1405.)

         On remand, ALJ Michele M. Kelley held a hearing on April 9, 2015 and then issued an unfavorable decision on May 22, 2015. (AR 1361-1382.) Petitioner once again sought review by the Appeals Council, which was once again denied. Thereafter, Petitioner petitioned for review to this Court. (Dkts. 1, 16.)

         The Court has worked diligently to understand the particular claims Petitioner now brings. In his Petition for Review, Petitioner sets out five numbered claims. First, he appears to contest the starting date of his benefits, the application of an offset due to his workers' compensation payments, and the treatment of cost-of-living increases. Second, he contends that the calculation to determine his disability insurance award should be based on his 1983 earnings, which were less overall than the 1982 earnings on which SSA relied, but which were higher per month for the months in 1983 he worked before he became disabled. Third, he contends he has been improperly deprived of Medicare benefits to which he is entitled. Fourth, he contends he has been improperly deprived of family benefits related to his wife and child. Fifth, Petitioner seeks payment of benefits withheld.

         In addition to the five numbered issues identified in the Petition for Review, Petitioner elsewhere raises other claims. In particular, he seeks punitive damages against the SSA, Addendum to Pet'r's Br. 15 (Dkt. 32-1), and he claims he is owed $990, 000 in back pay from the SSA. Pet'r's Br. 8 (Dkt. 32). He also asserts that his original SSA claim was in 1986 and that ALJ Kelley's decision includes typos. Addendum to Pet'r's Br. 7-8, 1 (Dkt. 32-1). Each of these arguments will also be addressed.

         II. STANDARD OF REVIEW

         To be upheld, the Commissioner's decision must be supported by substantial evidence and based on proper legal standards. 42 U.S.C. § 405(g); Trevizo v. Berryhill, 817 F.3d 664, 674 (9th Cir. 2017). Findings as to any question of fact, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g). In other words, if there is substantial evidence to support the ALJ's factual decisions, they must be upheld, even when there is conflicting evidence. See Treichler v. Comm'r of Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).

         “Substantial evidence” is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). The standard requires more than a scintilla but less than a preponderance (Trevizo, 817 F.3d at 674), and “does not mean a large or considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552, 565 (1988).

         With respect to questions of fact, the role of the Court is to review the record as a whole to determine whether it contains evidence that would allow a reasonable mind to accept the conclusions of the ALJ. Richardson, 402 U.S. at 401; see also Ludwig, 681 F.3d at 1051. The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Treichler, 775 F.3d at 1098. Where the evidence is susceptible to more than one rational interpretation, the reviewing court must uphold the ALJ's findings if they are supported by inferences reasonably drawn from the record. Ludwig, 681 F.3d at 1051. In such cases, the reviewing court may not substitute its judgment or interpretation of the record for that of the ALJ. Batson v. Comm'r of Social Sec., 359 F.3d 1190, 1196 (9th Cir. 2004).

         With respect to questions of law, the ALJ's decision must be based on proper legal standards and will be reversed for legal error. Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015); Treichler, 775 F.3d at 1098. Considerable weight must be given to the ALJ's construction of the Social Security Act. See Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). However, reviewing federal courts “will not rubber-stamp an administrative decision that is inconsistent with the statutory mandate or that frustrates the congressional purpose underlying the statute.” Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).

         III. DISCUSSION

         A. Petitioner's Motions to Obtain Additional Records Are Denied.

         Petitioner filed two motions to obtain records he believes are relevant to his case. First, he filed a Motion for Workers Comp Records or an Index of Workers Comp Records (Dkt. 30), “to obtain Federal Workers' Compensation records pertaining to [his] work injury that occurred May 6, 1983 to the present day.” His stated purpose behind the motion is “to establish failure for due process and the Social Security negligence for not processing my claim and Social Security negligence for not assisting me with my claim.” Id.

         Separately, he also filed a Motion for Social Security Records and the Triennial Redetermination Ratio Considered Starting 1983 to Present (Dkt. 31). His stated purpose is “to obtain all of Social Security records, respectfully the dates from 1986 to 1992 and 2000 to the present to establish failure for due process and the Social Security negligence in processing my claim and not assisting me with my claim.” Id.

         Respondent opposes both motions (at Dkts. 34, 35), arguing that this Court, in its appellate role, “simply cannot look beyond the record.” Resp't's Resp. to Pet'r's Mot. for Workers' Compensation Records or an Index of Workers' Compensation Records 1-2 (Dkt. 34) (quoting Roberts v. Shalala, 66 F.3d 179, 183 n.3 (9th Cir. 1995)). Respondent also points out that the issue of agency negligence is not before the Court, quoting Judge Dale's citation to 42 U.S.C. § 405(g) in Petitioner's prior case. Id. at 2. Additionally, Respondent characterizes this as a “closed-record, administrative case” where “[t]he record is complete.” Id. Finally, Respondent observes that the certified administrative record already includes some 175 pages of records ALJ Kelley subpoenaed from OWCP. Id. at 3; see also AR 912-1087.

         Respondent offers parallel arguments in its opposition to Petitioner's other motion. See Resp't's Resp. to Pet'r's Mot. for Social Security Records and the Triennial Redetermination Ratio (Dkt. 35).

         The motions must be denied, both because this is a closed-record appeal and because the issues to which the motions relate are not properly before this Court. This reasoning is further explained in the next several paragraphs.

         Social Security appeals such as this one involve “a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based.” 42 U.S.C. § 405(g). The “decision” referred to is the ALJ decision. The “record” consists of all the evidence that was before the ALJ. Unlike most civil cases filed in United States District Court, Social Security appeals at the District Court do not give the parties an opportunity to subpoena records or present evidence. Nor is this Court authorized to consider new evidence on appeal. It is the obligation of a claimant such as the Petitioner to gather and introduce evidence while, or before, the claim is in front of an ALJ.

         The purpose of a Petition for Review is not for the District Court to judge a petitioner's claims as if they were newly brought. Rather, it is to review the ALJ's decision for correctness - which is why the filing initiating a case here is a Petition for Review. To prevail on appeal, a Petitioner must show that the ALJ erred in some legally significant way. Merely showing that the ALJ could have decided differently is not enough. Nor is it enough to show that Petitioner's claims have merit or that Petitioner is in some way “right.” Instead, it is the Petitioner's burden to show, on the same record the ALJ considered, that the ALJ's decision is materially wrong. In order to preserve the District Court's ability to undertake this analysis, it is essential that the Court consider precisely the same record the ALJ considered. For this reason, Petitioner's motions to obtain information to supplement the administrative record on appeal must be denied.

         Additionally, Petitioner's motions seek to acquire new information that Petitioner believes will support his claims that the SSA acted negligently or violated his due process rights. But Respondent is correct that those issues are not properly before the Court. This case arises under 42 U.S.C. § 405(g), which allows only for judicial review of final decisions of the SSA. The only matters to consider in this case are those matters that were before ALJ Kelley when she issued her decision. Those did not include whether the SSA was negligent or had violated Petitioner's constitutional rights, so those issues are not properly before this Court. Accordingly, Petitioner's motions to obtain information that could support such claims must be denied on this additional ground.

         Finally, ALJ Kelley considered and rejected Petitioner's request to subpoena records from OWCP, concluding that the “records are not relevant to any of the issues before her.” (AR 1381.) Petitioner's motion regarding OWCP records must be denied even if the Court assumes for the sake of argument that that motion could be regarded as challenging the ALJ's conclusion the records were irrelevant. The motion asks this Court for assistance getting the records, but does not mention ALJ Kelley's decision. Certainly, Petitioner's motion does not argue that ALJ Kelley somehow erred in rejecting Petitioner's request for the records. Accordingly, Petitioner has not shown error in that aspect of ALJ Kelley's decision.

         In deciding to deny Petitioner's motions, the Court has considered that it “may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g). This “new evidence” provision in the law does not allow a court to consider new evidence itself, but it does allow the case to be remanded for further consideration by the SSA in appropriate circumstances. But, by the plain terms of the law, this only applies when the new evidence is “material” and when Petitioner's failure to incorporate it into the record sooner is justified. Id.

         Here, neither requirement is met. The records Petitioner seeks are not material to any claims properly brought before the Court. Nor has good cause been shown as to why the evidence sought by Petitioner was not previously incorporated into the record. Thus, there is no basis for remanding so SSA can reconsider its decision based on new evidence. As discussed above, Petitioner's motions to obtain additional records are denied.

         B. Petitioner's Petition for Review Is Granted and the Case Is Remanded.

         Petitioner numbered five issues in his Petition for Review. Pet. for Review at 1, 1, 4, 5, 8 (Dkt. 15). He also raised additional issues in his Brief. Addendum to Pet'r's Br. 15 (Dkt. 32-1); Pet'r's Br. 8 (Dkt. 32). Although Respondent frames some of these issues differently, Resp't's Br. 2 (Dkt. 36), the Court will closely follow Petitioner's framing of the issues to give Petitioner the clearest possible understanding of its decision.

         1. Petitioner's Benefits Starting Date and Workers' Compensation Offset Are Correct.

         In its entirety, the first issue Petitioner raises states:

Social Security Administration (SSA) Attorney [sic] Law Judge (ALJ) Chief Judge Henry M. Tai

The Social Security starting date payout is April 20, 1999. My Social Security entitlement of benefits starts May 6, 1983. That means the tally of 1983- 1999 is unpayable but the tally 1999 stands and is to be paid out from 1999 with all the ongoing cost of living increases of my Social Security payout without the Workers Comp offset.

Pet. for Review 1 (Dkt. 15).

         In his 2005 decision, ALJ Tai found that Petitioner was disabled as of May 6, 1983. (AR 76.) He also found that Petitioner had protectively filed an application for disability insurance benefits on April 20, 2000. (AR 75.) An eligible person may receive disability insurance benefit payments for up to 12 months prior to the date they filed, so long as they would have been entitled to the benefit had they filed sooner. 42 U.S.C. § 423(b), (a)(1); 20 C.F.R. § 404.621(a)(1). Here, Petitioner was found entitled to benefits as of April 20, 1999 - one year before the date of his April 20, 2000 protective filing that established his disability based on ALJ Tai's 2005 decision. Id.; AR 75.

         By the same law, Petitioner was not entitled to benefits prior to April 20, 1999 because he did not prove he was disabled based on an earlier filing. Even though Petitioner may have filed in 1986, and did file in 1990, Petitioner did not adequately prove to the SSA that he was disabled until 2005. As ALJ Tai and ALJ Kelley both noted in their decisions, prior filings may only be opened for good cause for a period of four years from the SSA's initial determination. AR 74- 75; AR 1376; 20 CFR § 404.988(b). There is simply no way Petitioner could be entitled to benefits any earlier than April of 1999.^[4]

         Petitioner seems to acknowledge that he is not entitled to disability insurance benefits prior to April 20, 1999 by stating “the tally of 1983-1999 is unpayable.” Pet. for Review 1 (Dkt. 15). But if he is somehow claiming he is entitled to disability insurance benefits prior to April 20, 1999, his Petition for Review is denied to that extent. He has not shown that ALJ Kelley (whose decision it is that is before this Court for review) erred in finding that April 1999 was the first month he was entitled to disability insurance benefits. (AR 1376-1377.)

         It is not quite accurate for Petitioner to assert that his “Social Security entitlement of benefits starts May 6, 1983.” Pet. for Review 1 (Dkt. 15). He was disabled as of that date, but not yet entitled to disability insurance benefits. Under 42 U.S.C. § 423(a)(1), he was not entitled to benefits until he met all of the eligibility requirements - including filing an application establishing that he is under a disability. That did not happen until he applied for disability insurance benefits on April 20, 2000. This is consistent with ALJ Tai's 2005 decision, which stated that Petitioner “is entitled to a period of disability beginning May 6, 1983 and to disability insurance benefits under Sections 216(i) and 223.” (AR 76.) ALJ Tai noted that Petitioner's disability began in 1983 but that his entitlement to benefits would begin as provided by statute. ALJ Kelley affirmed, and this Court now affirms, that Petitioner's disability insurance benefits properly began in April 1999.

         The remaining portion of Petitioner's first issue states that he “is to be paid out from 1999 with all the ongoing cost of living increases of my Social Security payout without the workers comp offset.” Pet. for Review 1 (Dkt. 15). The record reflects that Petitioner's benefits calculations have included cost of living increases. (AR 125-126; see also AR 1453.) Petitioner's filings do not indicate why he believes he is not receiving cost of living adjustments to his disability insurance benefits to which he is entitled. In the absence of argument or explanation on the issue of cost of living adjustments, and in the presence of record evidence indicating they have been included, the Court finds no reason to overturn ALJ Kelley's decision on that basis.

         Nor does Petitioner offer argument or explanation why he thinks his disability insurance benefits should not have been reduced while he was receiving workers' compensation payments. ALJ Kelley quoted section 224(a) of the Social Security Act, 42 U.S.C. § 424a, which provides that disability insurance benefits awards must be reduced when the recipient also receives disability-related periodic benefits for workers' compensation. (AR 1378.) ALJ Kelley's decision is detailed and thorough, describing the history and purpose of this reduction as well as the mechanics of how it is applied in practice. (AR 1378-1379.) The decision then discusses how the law applies in Petitioner's case, giving dates and dollar amounts as appropriate. (AR 1379- 1380.) Except for Petitioner's claim that his benefits calculations should have been based in part on his 1983 earnings, an issue which is handled later in this Memorandum Decision and Order, Petitioner does not challenge any aspect of ALJ Kelley's findings regarding the application of the workers' compensation offset. Accordingly, the Court will not overturn ALJ Kelley's finding that the offset applies.

         2. Petitioner's Benefits Were Properly Calculated Excluding His 1983 Earnings.

         Petitioner's cornerstone contention is that his benefits calculations should have included his earnings from 1983. Pet. for Review 1-4 (Dkt. 15); Addendum to Pet'r's Br. 2-4 (Dkt. 32-1). More specifically, the issue is whether SSA properly calculated Petitioner's “average current earnings” for purposes of offsetting his workers' compensation payments. 42 U.S.C. § 424a(a)(5).

         As discussed above, section 224 of the Social Security Act, 42 U.S.C. § 424a, requires reduction of a person's disability insurance benefits when they also receive periodic workers' compensation payments. The statute provides the method for calculating the reduction. As applicable here, ^[5] Petitioner's disability insurance benefits are reduced (even, potentially, to zero) by the dollar amount calculated when subtracting 80% of Petitioner's “average current earnings” from the sum of his disability insurance benefit amount and his workers' compensation amount. 42 U.S.C. § 424a(a)(2)-(5). Seen another way, an individual's “average current earnings” establish a cap on the monthly benefits an individual can receive. The higher the “average current earnings, ” the higher the cap will be. Thus, the amount of the reduction turns on how Petitioner's “average current earnings” under § 424a(a)(5) are determined.

         The statute answers that question:

         For purposes of clause (5), an individual's average current ...