United States District Court, D. Maryland
CARL E. ANDERSEN, JR., Plaintiff,
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
REPORT AND RECOMMENDATIONS
Stephanie A. Gallagher, United States Magistrate Judge
to Standing Order 2014-01, the above-captioned case has been
referred to me to review the parties' dispositive motions
and to make recommendations pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 301.5(b)(ix). [ECF No. 7]. I have
considered the parties' cross-motions for summary
judgment, and Mr. Andersen's Reply. [ECF Nos. 12, 18,
19]. I find that no hearing is necessary. See Loc.
R. 105.6 (D. Md. 2016). This Court must uphold the decision
of the Agency if it is supported by substantial evidence and
if the Agency employed proper legal standards. See
42 U.S.C. § 405(g); Craig v. Chater, 76 F.3d
585, 589 (4th Cir. 1996). Under that standard, I recommend
that Plaintiff's motion be denied, the Social Security
Administration's (“SSA”) motion be denied,
and the case be remanded pursuant to sentence four of 42
U.S.C. § 405(g).
January 31, 2013, Mr. Andersen applied for widower's
insurance benefits. (Tr. 19-21). On March 9, 2013, the SSA
notified Mr. Andersen that, although he was entitled to
monthly widower's benefits, he would not be paid because
the amount of his benefit was less than two-thirds of the
amount of his government pension. (Tr. 25-27). Upon Mr.
Andersen's request for reconsideration, the SSA affirmed
its initial determination on March 25, 2014. (Tr. 28-38). On
June 17, 2016, a hearing was held before an Administrative
Law Judge (“ALJ”). (Tr. 94-111). Following the
hearing, the ALJ issued an unfavorable decision on September
12, 2016. (Tr. 9-14). The Appeals Council denied Mr.
Andersen's request for further review, (Tr. 4-8), so the
ALJ's 2016 decision constitutes the final, reviewable
decision of the Agency.
background, Mr. Andersen worked for the Department of the
Navy and retired on May 3, 2001. (Tr. 110). Based on that
employment, he receives a gross monthly annuity of $4, 595.00
from a government pension. (Tr. 82). Pursuant to a qualified
domestic relations order (“QDRO”) issued on
December 5, 1989, Mr. Andersen assigned 50 percent of the
marital portion of his pension to his ex-wife, Carol
Andersen. (Tr. 51-77). The portion of Mr. Andersen's
pension assigned to Carol Andersen, and paid directly to her
by the government each month, is $1, 428.12. (Tr. 82). Mr.
Andersen married Ms. Patricia Richards on August 23, 2003.
(Tr. 15). Ms. Richards died in 2010. (Tr. 20). Subsequently,
Mr. Andersen applied for, and became entitled to, monthly
widower's insurance benefits. (Tr. 19-27). The Government
Pension Offset (“GPO”) provision of the Social
Security Act provides that the amount of an individual's
monthly Social Security benefit “shall be reduced (but
not below zero) by an amount equal to two-thirds of the
amount of any monthly periodic benefit payable to such
individual for such month which is based upon such
individual's earnings while in the service of the Federal
Government or any State (or political subdivision
thereof… .)” 42 U.S.C. § 402(k)(5)(A).
found that Mr. Andersen became entitled to receive
widower's benefits in July 2012. (Tr. 13). Despite this
entitlement, the ALJ determined that Mr. Andersen's
receipt of a government pension subject to the GPO provision
required reduction of his Social Security widower's
benefits as of July 2012. Id. To calculate the GPO
amount of Mr. Andersen's benefits, the ALJ included the
portion of his pension, $1, 428.12, that went to his ex-wife
pursuant to the QDRO, deeming that portion a
“court-ordered allotment.” (Tr. 14). The ALJ
confirmed the SSA's calculation that two-thirds of Mr.
Andersen's full pension amount including the
court-ordered allotment, or $3, 063.33, exceeded the amount
of his widower's benefit, $2, 084.30. (Tr. 13-14).
Consequently, the ALJ found that no widower's benefits
were payable to Mr. Andersen. (Tr. 13-14). Mr. Andersen's
sole argument on appeal is that the ALJ erred by wrongfully
including in the GPO amount the portion paid to Mr.
Andersen's ex-wife pursuant to the QDRO, thus rendering
him unable to receive the widower's benefit.
my review of the ALJ's decision is confined to whether
substantial evidence, in the record as it was reviewed by the
ALJ, supports the decision and whether correct legal
standards were applied. Richardson v. Perales, 402
U.S. 389, 390, 404 (1971). The deferential standard of review
applied to the agency's findings of fact does not apply
to conclusions of law or the application of legal standards
or procedural rules by the agency. Wiggins v.
Schweiker, 679 F.2d 1387 (11th Cir. 1982).
Andersen's case turns solely on the question of whether
the ALJ applied the correct legal standards in determining
the amount of his GPO offset. The GPO provision requires
reduction of a Social Security benefit by two-thirds of the
amount of any monthly periodic benefit “payable
to” an individual based upon “such
individual's earnings while in the service of the Federal
Government… .” 42 U.S.C. § 402(k)(5)(A); 20
C.F.R § 404.408a. A government pension is defined as
“any monthly periodic benefit (or equivalent) you
receive that is based on your Federal, State, or local
government employment.” 20 C.F.R §
determined that Mr. Andersen's full pension amount
included the “portion of his pension that goes to his
ex-wife under a court-ordered allotment, ” or $4,
595.00. Id. Mr. Andersen argues that the portion of
his pension that goes to his ex-wife is not “payable
to” him because it is paid directly to his ex-wife and,
therefore, he does not “receive” it. (Tr. 104).
The ALJ rejected Mr. Andersen's interpretation of the
word “received, ” and found that Mr.
Andersen's “earned benefit is ‘received'
by him and then per a court order part is paid to his
ex-wife.” (Tr. 14).
stated that the $4, 595.00 amount represents the benefit
amount that Mr. Andersen “worked for, earned, and
receive[d].” (Tr. 14). However, this Court finds that
Mr. Andersen does not receive $1, 428.12 of that amount,
because it is payable to and the property of his ex-wife by
operation of Maryland law. See Md. Code Ann., Fam.
Law § 8-205(2)(i)(2018) (“The court may transfer
ownership of an interest in: a pension, retirement, profit
sharing, or deferred compensation plan, from one party to
either or both parties.”). The SSA argues that while
Mr. Andersen's ex-wife may be entitled to that amount,
Mr. Andersen “constructively receives” it and
then gives it to his ex-wife pursuant to court order.
SSA's and the ALJ's interpretation of the word
“receive” is not supported by case law or other
authority. Rather, the dictionary definition and plain
meaning of the word “receive” is “to take
or acquire (something given, offered, or transmitted);
get.” American Heritage Dictionary 1458 (4th
ed. 2009). This case is distinguishable from those cases in
the Social Security context that recognize
“constructive receipt.” See Kennedy v.
Shalala, 995 F.2d 28, 29-30 (4th Cir. 1993). In
Kennedy, the Social Security claimant
“constructively received” a benefit paid directly
to her spouse because, as a dependent, the claimant was
deemed to have received the benefit even though it was
received in the name of her spouse. Id. The
Kennedy court noted that the spouse was obligated to
use the amount for the claimant's benefit. Id.
at 30. In contrast, Mr. Andersen is not a dependent of, and
is no longer married to, his ex-wife. He derives no benefit
from her half of the marital portion of his retirement
benefit, and her receipt of the funds directly from the
government does not diminish any financial obligation he owes
her. Thus, Mr. Andersen neither receives nor constructively
receives $1, 428.12 of his $4, 595.00 government pension.
QDRO states that the Office of Personnel Management
“shall make payments directly to [Carol Andersen] if,
as, and when [Mr. Andersen's] retirement benefits become
payable to him” and that “the former spouse,
Carol G. Andersen, … shall receive fifty percent of
the marital portion of [Mr. Andersen's] federal civil
service retirement benefits.” (Tr. 49-50). Mr. Andersen
did not choose this arrangement or negotiate this payment in
his divorce proceedings. (Tr. 101). Instead, the QDRO
“ordered and directed” Mr. Andersen to provide a
survivor benefit to his ex-wife pursuant to the Civil Service
Retirement Spouse Equity Act of 1984 (“CSRSEA”).
See Pub L. No. 98-615, 98 Stat. 3195 (1984); (Tr.
51, 101). By operation of Maryland law and the CSRSEA, and
not by Mr. Andersen's or his ex-wife's choice, the
Circuit Court for Prince George's County in Maryland
ordered that a portion of Mr. Andersen's pension be
transferred to his ex-wife. (Tr. 49-52). Under Maryland
Family Law, when Mr. Andersen and his ex-wife divorced, the
benefits earned by Mr. Andersen during his marriage to his
ex-wife were then owned by both parties and were divided
between the two. Md. Code Ann., Fam. Law § 8-201(e)(1)
(2018) (defining “marital property” as
“property, however titled, acquired by 1 or both
parties during the marriage.”); (Tr. 49-52). This is
not a case, then, where a claimant entered an agreement with
intent to manipulate his pension amount
“received.” The amount payable to Mr.
Andersen's ex-wife is the amount she owns under Maryland
analysis provided by the ALJ in the instant case falls short
of explaining why the $1, 428.12 received by and payable to
Mr. Andersen's ex-wife should be included in the
calculation of Mr. Andersen's GPO amount. The ALJ simply
asserts an unsupported interpretation of the word
“received, ” which is contrary to the word's
plain meaning. Accordingly, the ALJ did not apply the correct
legal standards to determine that Mr. Andersen's Social
Security widower's benefits should be reduced pursuant to
reasons set forth above, I respectfully recommend that the
Court DENY Plaintiff's Motion for Summary Judgment, [ECF
No. 12], DENY Defendant's Motion for Summary Judgment,
[ECF No. 18], and REMAND the case to the Commissioner under
sentence four of 42 U.S.C. § 405(g) for further