United States District Court, D. Maryland
CARL E. A., JR., Plaintiff,
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
AMENDED 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 7]. I issued a
Report and Recommendations on September 7, 2018. [ECF 20]. On
October 15, 2018, the Social Security Administration
(“SSA”) filed an Objection to the Report and
Recommendations. [ECF 23]. Judge Bennett then recommitted the
matter to me with instructions to consider the objection,
including the new arguments contained therein, and to make
any changes required. [ECF 25]. This Amended Report and
Recommendations supersedes the original Report and
Recommendations. I have now considered the parties'
cross-motions for summary judgment, Plaintiff's Reply,
the SSA's Objection to the Report and Recommendations,
and Plaintiff's Response. [ECF 12, 18, 19, 23, 26]. 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 SSA's motion be
denied, and the case be remanded pursuant to sentence four of
42 U.S.C. § 405(g).
January 31, 2013, Plaintiff applied for widower's
insurance benefits. (Tr. 19-21). On March 9, 2013, the SSA
notified Plaintiff 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 Plaintiff'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 Plaintiff's
request for further review, (Tr. 4-8), so the ALJ's 2016
decision constitutes the final, reviewable decision of the
background, Plaintiff 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, Plaintiff's ex-wife, Carol A., is
entitled to a share of Plaintiff's monthly retirement
income. (Tr. 51-77). Accordingly, the government pays $1,
428.12 to Carol A. each month, representing a share of
Plaintiff's pension benefits. (Tr. 82). Plaintiff married
Patricia R. on August 23, 2003. (Tr. 15). Patricia R. died in
2010. (Tr. 20). Subsequently, Plaintiff 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.
found that Plaintiff became entitled to receive widower's
benefits in July 2012. (Tr. 13). Despite this entitlement,
the ALJ determined that Plaintiff's receipt of a
government pension subject to the GPO provision required
reduction of his Social Security widower's benefits.
Id. To calculate the GPO amount, the ALJ included
the portion of Plaintiff's pension, $1, 428.12, that is
paid 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 Plaintiff's full pension
amount, including the court-ordered allotment, or $3, 063.33,
exceeded the amount of his widower's benefits, $2,
084.30. (Tr. 13-14). Consequently, the ALJ found that no
widower's benefits were payable to Plaintiff. (Tr.
13-14). Plaintiff's sole argument on appeal is that the
ALJ erred by wrongfully including, in the GPO amount, the
portion paid to his ex-wife pursuant to the QDRO.
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).
case turns solely on the question of whether the ALJ applied
the correct legal standards in determining the amount of his
GPO. 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.
determined that Plaintiff's full pension amount, $4,
595.00, included the “portion of his pension that goes
to his ex-wife under a court-ordered allotment.” (Tr.
14). Plaintiff 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 he does not
“receive” it. (Tr. 104). The ALJ rejected
Plaintiff's interpretation of the word “received,
” and found that Plaintiff's “earned benefit
is ‘received' by him and then per a court order
part is paid to his ex-wife.” (Tr. 14). Importantly,
the ALJ framed the issue as “hing[ing] on [the]
interpretation of the word ‘received' in [the GPO
provision, ] 42 U.S.C. 402(k)(5)(A).”). (Tr. 14).
However, the word “received” is not found in the
relevant portion of the GPO statute. See 42 U.S.C.
§ 402(k)(5)(A). Instead, the word “receive”
is found in the SSA regulation defining a
“pension” as “any monthly periodic benefit
(or equivalent) you receive that is based on your Federal,
State, or local government employment.” 20 C.F.R §
404.408a(a)(1)(i). While the ALJ may have intended to refer
to this regulation rather than the statute, the ALJ did not
provide any explanation of this regulation in his analysis,
and did not cite any case law or other authority to support
his interpretation. (Tr. 12-14). Indeed, the ALJ never
discussed how the GPO provision is applied, using the
standard of “an amount equal to two-thirds of the
amount of any monthly periodic benefit payable to such
individual…” 42 U.S.C. § 402(k)(5)(A).
Despite finding that the $1, 428.12 in question “goes
to [Plaintiff's] ex-wife under a court-ordered allotment,
” he does not reconcile this finding with the
statute's requirement that the amount be payable
to Plaintiff. See (Tr. 14).
appeal, the SSA now argues that “it is clear that
[Plaintiff and his ex-wife] negotiated and agreed on the
pension allocation to” his ex-wife based on their
Voluntary Separation and Property Settlement Agreement (the
“Settlement Agreement”). [ECF 23 at 2]; (Tr.
59-77). As a result, the SSA contends, the “entire
monthly amount of $4, 595.00 is payable to Plaintiff, but he
has chosen to assign a portion of the pension payments to
… his former wife.” [ECF 23 at 3]. This
argument, focusing on the voluntary nature of the allocation,
blatantly contradicts the ALJ's finding that the $1,
428.12 “goes to [Plaintiff's] ex-wife under a
court-ordered allotment” and that “a court has
ordered [the $1, 428.12] taken from the claimant and given to
his ex-wife.” (Tr. 14).
analysis provided by the ALJ in the instant case falls short
of explaining why the $1, 428.12 paid to Plaintiff's
ex-wife should be included in the calculation of
Plaintiff's GPO amount. The QDRO “order[s]”
the Office of Personnel Management to “make payments
directly to [Carol A.] if, as, and when [Plaintiff's]
retirement benefits become payable to him” and that
“the former spouse, [Carol A.], … shall receive
fifty percent of the marital portion of [Plaintiff's]
federal civil service retirement benefits.” (Tr.
49-50). In addition, the QDRO denotes Plaintiff's ex-wife
as an “alternate payee” and states that
“[b]enefits will be paid from the plan from which
benefits are assigned…to the alternate payee, [Carol
A.], under the following formula: [b]enefit = number of years
married while in program/number of years in program X
50%.” (Tr. 55). The QDRO further states that the
“plan will pay benefits to the alternate payee for as
long as the participant receives benefits under the plan or
until the alternate payee's death.” Id.
Court notes that great deference must be given to an
agency's interpretation of a statute that it is entrusted
to administer. Chevron U.S.A., Inc. v. Natural Resources
Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81
L.Ed.2d 694 (1984). In this case, however, a complete
Chevron analysis is unnecessary, because the ALJ
failed to provide any interpretation of the governing
statute, namely the GPO provision. See 42 U.S.C.
§ 402(k)(5)(A). The ALJ did not explain whether the $1,
428.12 owed to Plaintiff's ex-wife under the QDRO and the
Separation Agreement, is “payable to” Plaintiff,
as required by the statute. See id. Instead, the ALJ
asserted an unsupported interpretation of the word
“received, ” and cited to the GPO provision,
which does not use that word. (Tr. 14). Accordingly, the ALJ
did not apply the correct legal standards to determine that
Plaintiff's Social Security widower's benefits should
be reduced pursuant to section 402(k)(5)(A). I therefore
recommend remand. In so recommending, I express no opinion as
to whether the ALJ's ultimate conclusion that
Plaintiff's Social Security widower's benefits should
be reduced is correct.
reasons set forth above, I respectfully recommend that the
Court DENY Plaintiff's Motion for Summary Judgment, [ECF
12], DENY Defendant's Motion for Summary Judgment, [ECF
18], and REMAND the case to the Commissioner under sentence
four of 42 U.S.C. § 405(g) for further proceedings in
accordance with this Report and Recommendations; and order
the Clerk to CLOSE this case.
objections to this Report and Recommendations must be served
and filed within fourteen (14) days, pursuant to Federal Rule