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Newton v. Commissioner of Social Security

United States District Court, D. New Jersey, Camden Vicinage

March 29, 2019


          POLONSKY & POLONSKY Alan Polonsky, Esq. Counsel for Plaintiff Floyd Douglas Newton

          REHM, BENNETT, MOORE, REHM & OCKANDER ATTORNEYS AT LAW P.C., L.L.O. Roger D. Moore, Esq. Counsel for Plaintiff Floyd Douglas Newton

          SOCIAL SECURITY ADMINISTRATION OFFICE OF THE GENERAL COUNSEL Eda Giusti, Special Assistant United States Attorney Counsel for Defendant Commissioner of Social Security



         This matter comes before the Court upon an appeal by Plaintiff Floyd Douglas Newton (“Plaintiff”) of the final determination of the Commissioner of Social Security (“Commissioner”), which found that Plaintiff's Retirement Insurance Benefits should be reduced in accordance with the Social Security Act's Windfall Elimination Provision (“WEP”), 42 U.S.C. § 415(a)(7). The Commissioner found that Plaintiff, a former Army National Guard “Dual-Status Technician, ” was simultaneously receiving pension benefits from non-covered employment and that he did not qualify for the WEP's “uniform services” exception. Plaintiff timely pursued and exhausted his administrative remedies available before the Commissioner and the case is ripe for review under 42 U.S.C. § 405(g). Because this Court finds that the Commissioner's interpretation of the statute and regulations is both correct and reasonable, the Commissioner's decision will be AFFIRMED.


         The material facts in this case are not in dispute. From 1972 to 2013, Plaintiff was a member of the United States Army Reserve. From 1980 to 2013, Plaintiff was employed as a “Dual-Status Technician” (“DST”) in the Army National Guard. As suggested by the “dual-status” designation, DSTs are considered both civilian federal employees and military members of the National Guard. As a condition of employment, Plaintiff was required to maintain his military grade and membership in the New Jersey Army National Guard, which meant that he was also required to participate in weekend training drills and wear his uniform while performing duties as a DST, including while performing work as a civilian technician. [See Record of Proceedings (“R.P”), at 17]. However, Plaintiff was paid as a federal civil service employee and qualified for a pension through the Civil Service Retirement System (“CSRS”). [Id.] As such, his position was considered “non-covered employment” and Social Security taxes were not withheld from his paycheck. [Id.]

         In July 2013, Plaintiff reached the mandatory retirement age (60 years old) for the New Jersey Army National Guard. Due to his “dual-status” designation, Plaintiff was no longer able to maintain his federal civil service position as result of his honorable discharge from the military. [R.P., at 17]. Plaintiff receives two forms of retirement pay based on his service as a DST with the National Guard: (1) a pension paid by the Defense Finance an Accounting Service; and (2) an annuity paid by the Office of Personnel Management under the CSRS. [See R.P., at 33-35].

         On June 2, 2015, Plaintiff submitted a Title II application for Social Security Retirement Insurance Benefits. [R.P., at 21- 27]. In a letter, dated June 12, 2015, the Social Security Administration (“SSA”) notified Plaintiff that he qualified for retirement benefits, but that his benefits were subject to a reduction under the WEP. [See R.P., at 28-30]. On June 19, 2015, Plaintiff requested a reconsideration of the SSA's initial determination. [R.P., at 46]. In a letter, dated November 12, 2015, the SSA affirmed its prior determination that Plaintiff's benefits were subject to a reduction under the WEP. [R.P., at 47-51]. On November 19, 2015 Plaintiff requested a hearing before an Administrative Law Judge (an “ALJ”) regarding the SSA determination. [R.P., at 62].

         On June 14, 2016, Plaintiff's hearing was held before Administrative Law Judge Kenneth Bossong. Although Plaintiff was informed of his right to representation, he appeared at the administrative hearing without counsel. At the hearing, Plaintiff argued that his benefits should not have been reduced under the WEP. In support of this argument, Plaintiff referenced the Eighth Circuit's decision in Petersen v. Astrue, 633 F.3d 633 (8th Cir. 2011), which held that National Guard DSTs qualify for the so-called “uniformed service” exception under the WEP. The ALJ explained to Plaintiff that he was bound to follow the guidance issued by the SSA, which advises that the Petersen holding should only to be applied to claimants residing in the Eighth Circuit. See Acquiescence Ruling 12-1(8), 77 Fed. Reg. 51842-01 (Aug. 27, 2012), correction published 77 Fed Reg. 54646-01 (September 5, 2012), effective August 27, 2012 (hereinafter “AR 12-1(8)”); SSA Program Operations Manual System (“POMS”) - RS 00605.380.

         Based upon the promulgated SSA interpretation and guidance, on August 17, 2017, the ALJ issued a decision affirming the prior SSA determinations; that is, that Plaintiff was entitled to retirement benefits, but they would be reduced under the WEP. On August 22, 2016, Plaintiff requested a review of the ALJ's decision by the Appeals Council. [R.P., at 200]. The Appeals Council denied Plaintiff's request for review on November 20, 2017, making the ALJ's decision as the Commissioner's final determination. [R.P., at 3]. Plaintiff now seeks this Court's review on appeal.


         When reviewing a final decision of an ALJ with regard to social security benefits, a court must uphold the ALJ's factual decisions if they are supported by “substantial evidence.” Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000); 42 U.S.C. §§ 405(g), 1383(c)(3). “Substantial evidence” means “‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Richardson v. Perales, 402 U.S. 389, 401 (1971)(quoting Cons. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999).

         In addition to the “substantial evidence” inquiry, the court must also determine whether the ALJ applied the correct legal standards. See Friedberg v. Schweiker, 721 F.2d 445, 447 (3d Cir. 1983); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000). Our review of legal issues is plenary. Schaudeck v. Commissioner of Social Security, 181 F.3d 429, 431 (3d Cir. 1999). “Our role is not to impose upon the SSA our own interpretation of the Social Security legislation. Rather, because Congress has delegated to the Commissioner the responsibility for administering the complex programs, we must defer to her construction as long as it ...

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