Opinion
Case No. 01-4079-SAC
October 16, 2003
REPORT AND RECOMMENDATION
This matter comes before the court upon plaintiff's Complaint, filed on June 25, 2001, appealing Social Security Commissioner's (the "Commissioner") determination that plaintiff is not entitled to Wife's Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq (the "Act") prior to October 1997.
I. PROCEDURAL BACKGROUND
Plaintiff's husband filed an Application for Retirement Insurance Benefits on January 16, 1997, requesting benefits beginning with the earliest possible month which would be advantageous. Plaintiff filed her applications for Retirement Insurance Benefits and Wife's Insurance Benefits on October 8, 1997, requesting benefits beginning with the earliest possible month which would be advantageous, provided that there is no permanent reduction in her ongoing monthly benefits. Plaintiff's Wife's Insurance Benefits began in November 1997 — the month she attained age 65. Subsequently, her entitlement date was changed to October 1997 — the month in which she filed an application. In July 1998, Plaintiffs husband asked for reconsideration of Plaintiff's first month of entitlement. The request for reconsideration was denied and, on September 10, 1999, after a hearing, the Administrative Law Judge (ALT) found that Plaintiff was not given misinformation regarding her entitlement to Wife's Insurance Benefits and, therefore, plaintiff's first month of entitlement should not be changed. On April 24, 2001, the Appeals Council of the Social Security Administration denied Plaintiff's request for review of the ALJ's decision. Thus, the decision of the ALT stands as the Commissioner's final decision.
(R. at 21-24).
(R. 25-31).
II. STANDARD OF REVIEW
The standard for judicial review of the Commissioner's final decision is set forth in 42 U.S.C. § 405(g). The court must determine whether there is substantial evidence in the record to support the Commissioner's findings. "Substantial evidence" requires a finding that there is more than a scintilla of evidence that a reasonable mind might accept as adequate to support a conclusion. Any new evidence not considered by the ALT but submitted to and considered by the Appeals Counsel is incorporated into the record and will be considered by the court.
See Richardson v. Perales, 402 U.S. 389, 401-02 (1971) (holding that the "findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. . . ."); see also Marshall v. Chater, 75 F.3d 1421, 1425 (10th Cir. 1996).
See Richardson, 402 U.S. at 401-02.
See O'Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994).
In evaluating the Commissioner's decision, the court should not reweigh the evidence or substitute its judgment for that of the Commissioner. The court, however, should not merely accept the Commissioner's findings. When supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed.
See Glass v. Shalala, 42 F.3d 1392, 1395 (10th Cir. 1994); see also Hamilton v. Secretary of HHS, 961 F.2d 1495, 1500 (10th Cir. 1992).
See Claassen v. Heckler, 600 F. Supp. 1507, 1509 (D. Kan. 1985).
See Richardson v. Perales, 402 U.S. 389, 401 (1971).
IV. ALJ's DECISION
In his decision, the ALT made the following findings:
1. The claimant's application for Wife's Insurance Benefits was filed on October 8, 1997.
2. The claimant was born on November 2, 1932.
3. The claimant requested that she be entitled to benefits at the earliest possible month that would be most advantageous, provided that there was no permanent reduction in her ongoing benefits.
4. The claimant was not given misinformation regarding her entitlement.
5. The claimant is not entitled to benefits prior to October 1997.
(R. at 14).
Plaintiff asserts that ALT erred in concluding that Social Security Administration ("SSA") representatives did not provide misinformation to her or her husband regarding plaintiff's eligibility for reduced benefits prior to October 1997.
V. DISCUSSION
Mr. Haley first inquired about Social Security Benefits in January 1997, when he visited the Lawrence, Kansas, branch office of the SSA. Mr. Haley testified that he went to the Social Security office to "file for benefits and see about my Medicare." During that first visit, Mr. Haley claims that he was told he was not eligible for benefits because he was not retired and his spouse was not eligible for benefits because he was not eligible. Following a conversation with a third party, Mr. Haley returned to the Social Security office for a follow-up inquiry. It appears that he was again told that he was ineligible. Mrs. Haley did not accompany her husband during either of his two January 1997 visits to the SSA office. On January 16, 1997, Mr. Haley filed an application for Retirement Insurance benefits. In his application, Mr. Haley stated that he wanted his benefits to begin "with the earliest possible month that will be the most advantageous." Mr. Haley began receiving benefits shortly thereafter.
(R. at 60).
(R. at 22).
On October 1, 1997, Mrs. Haley applied for Retirement Insurance and Wife's Insurance Benefits. Mrs. Haley testified that during her visit to the SSA office in October, 1997, she did not discuss with anyone her eligibility for reduced benefits. Mr. Haley did not accompany his wife to the SSA office. On both applications, Mrs. Haley requested that her benefits begin "with the earliest possible month that will be the most advantageous, provided that there is no permanent reduction in my ongoing monthly benefit." Mrs. Haley began receiving benefits in November, 1997, but her entitlement date was subsequently changed to October, 1997.
(R. at 26 and 30).
Today Mrs. Haley claims that she was not given the "most advantageous" date for the commencement of benefits because she could have received benefits beginning in January 1997 — the month in which Mr. Haley filed his application. Plaintiff alleges that neither she nor her husband were ever informed about the possibility of receiving reduced Wife's Insurance Benefits as early as January 1997. Plaintiff argues that failure to inform either her husband or her of this possibility constitutes misinformation and entitles her to a retroactive filing date of January 1997.
The statutory basis for plaintiff's claim of retroactive benefits because of misinformation is 42 U.S.C. § 405(j)(5), which allows an applicant to receive an earlier "deemed" filing date:
In any case in which it is determined to the satisfaction of the [Commissioner of Social Security] that an individual failed as of any date to apply for monthly insurance benefits under [the Act] by reason of misinformation provided to such individual by any officer or employee of the Social Security Administration relating to such individual's eligibility for benefits under [the Act], such individual shall be deemed to have applied for such benefits on . . . the date on which such misinformation was provided to such individual.
The party arguing that an earlier deemed filing date should be used because of misinformation provided by a SSA officer must demonstrate that the following requirements are satisfied:
(1) The misinformation must have been provided to you by one of [SSA's] employees while he or she was acting in his or her official capacity as our employee . . .
(2) Misinformation is information which we consider to be incorrect, misleading, or incomplete in view of the facts which you gave to the employee, or of which the employee was aware or should have been aware, regarding your particular circumstances . . . In addition, for us to find that information you received was incomplete, the employee must have failed to provide you with the appropriate additional information which he or she would be required to provide in carrying out his or her official duties.
(3) The misinformation may have been provided to you orally or in writing.
(4) The misinformation must have been provided to you in response to a specific request by you to us for information about your eligibility for benefits or the eligibility for benefits of the person referred to in paragraph (b)(2)(i) of this section for [whom] you were considering filing an application.
Certain types of information cannot constitute misinformation, including "general information pamphlets that [SSA] issues to provide basic [SSA] program information;" general information reviewed or prepared by the SSA but "disseminated by the media;" and "information provided by other governmental agencies."
In determining whether misinformation was provided, two types of evidence may be considered: "preferred evidence" and "other evidence." "Preferred evidence is written evidence which relates directly to [an] inquiry about . . . eligibility for benefits . . . and which shows that [misinformation was given] which caused [the potential claimant] not to file an application." Preferred evidence includes, but is not limited to "[a] notice, letter or other document which was issued by [the SSA] or [the SSA's] record of the telephone call, letter or in-person contact."
Id.
In the absence of "preferred evidence," the SSA will consider "other evidence." "Other evidence" includes, but is not limited to:
1) the claimant's statements about the alleged misinformation, including statements about: (A) the date and time of the alleged contact(s); (B) how the contact was made, e.g., by telephone or in person; (C) the reason(s) the contact was made; (D) who gave the misinformation; and (E) questions the applicant asked and the facts he gave SSA, and the questions SSA asked and the information SSA gave him, at the time of the contact;
2) statements from others who were present at the time of the alleged misinformation;
3) identity of the SSA employee or that employee's recollection of the inquiry;
4) an evaluation of the credibility and the validity of the claimant's allegations in conjunction with other relevant information, and
5) any other information regarding the claimant's alleged contact.
20 C.F.R. § 404.633(d)(2). See also Hogan v. Apfel, 1998 U.S.Dist.LEXIS 3917, at *6-7 (E.D.Pa. March 19, 1998).
Although claimant's statements are considered within this framework, such statements alone cannot form the basis for a finding of misinformation.
After a thorough review, the court has been unable to find any "preferred" evidence to support Mrs. Haley's claim that misinformation was given to her by a SSA employee. During the hearing, Mrs. Haley testified that she received a letter from the SSA informing her that she was not entitled to any benefits. However, in response to the ALJ's inquiry, she stated that she did not have the letter with her, but would "look for it" and send it to the ALT. Following this initial discussion about the letter, the ALT noted that he would "hold the record open pending receipt of that last, final written correspondence from Social Security." It appears that this letter was never provided. In the absence of any written communications from the SSA to the claimant, or other information that could provide "preferred" evidence, the court's review is directed to "other" evidence included in the record.
(R. at 69).
Id.
Id.
The court must now decide whether the ALJ's conclusion that the plaintiff did not receive misinformation within the meaning of the statute and the regulations is supported by substantial evidence. "The substantial evidence rule is fully applicable to determination as to when an application was filed or should be deemed filed because of misinformation." "`The burden of proof is on the claimant to demonstrate that she received misinformation from an agency employee that caused her to fail as of a particular date to apply for monthly insurance benefits.'" Credibility determinations are peculiarly the province of the finder of fact, and the court will not upset such determinations absent a showing that they are not supported by substantial evidence. The Commissioner's findings will be sustained if supported by substantial evidence even where substantial evidence may support the plaintiff's position and despite the fact that court's independent analysis of the evidence may differ from that of the ALT or the Commissioner.
See Morton v. Barnhart, 2003 U.S. Dist. LEXIS 5459 (S.D.N.Y. April 4, 2003). See also Grubart v. Chater, No. 96-6083, 104 F.3d 353 (table), 1996 WL 685767 at *1 (2d Cir. Nov. 29, 1996); Thorp v. Apfel, 1998 U.S. Dist. LEXIS 15468, 1998 WL 683767 at *2 (W.D.N.Y. Sept. 17, 1998).
See Morton, 2003 U.S. Dist. LEXIS at *24, quoting Thorp, 1998 WL 683767 at *3.
See Williams v. Bowen, 844 F.2d 748, 755 (10th Cir. 1988) (special deference is traditionally afforded a trier of fact who makes a credibility finding); see also Adams v. Chater, 93 F.3d 712, 715 (10th Cir. 1996).
See Grubart v. Shalala, 913 F. Supp. 243, 246 (S.D.N.Y. 1996).
At the administrative level, two questions were before the ALT: (1) whether, in January 1997, Mr. Haley was provided information that misled him into believing his wife was ineligible for benefits prior to her 65th birthday and caused him to pass such information on to Mrs. Haley, and (2) whether, in October 1997, Mrs. Haley was provided information that misled her into believing she was ineligible for benefits prior to her 65th birthday. The ALT found that no misinformation was provided to either Mr. or Mrs. Haley regarding Mrs. Haley's eligibility. Before this court, plaintiff's counsel disputes the ALJ's credibility determination and states unequivocally that it was the duty of the SSA representatives to supply the plaintiff and her husband with all information needed to make informed decisions.
The court agrees that SSA representatives must supply potential Social Security recipients with all information necessary to make informed decisions. However, this duty does not exist in a vacuum. In order for the SSA representative to be effective in performing his or her duty, the claimant, or potential claimant, must provide information that will form the basis for such representative's advice. In this case, the record reveals that Mr. Haley failed to provide information essential to the completion of his application. Ms. Humbarger, a Social Security Claims Representative, indicated that, although she did not specifically recall her exact conversation with Plaintiff's husband, she did know how she routinely proceeded in these types of cases. In her report, Mrs. Humbarger noted that Mr. Haley
did not allege retirement of any land when he filed his retirement claim in 1/97 and . . . he was only interested in signing up to Medicare. In [Questionable Retirement] cases I always take a full retirement claim go over the QR Questionnaire to see if payments may be possible. In his case he refused to submit a QR Questionnaire or explain the details of his corporation. . . . I would have tried to get him to protect his spouse but he also did not want to do this. . . .
(R. at 35).
Ms. Humbarger's recollection of her meeting with Mr. Haley appears to be supported by Mr. Haley's own application. On pages 4 and 5, Mr. Haley's application plainly states: "I do not want this application to protect my spouse's filing date for social security benefits. At this time, my spouse is either not eligible, does not wish to file for benefits or (see remarks below)." There is no additional information pertaining to Mrs. Haley in the "remarks" section of the application.
(R. at 21-22).
(R. at 23).
During the hearing, the ALJ inquired whether Mr. Haley asked about his wife's benefits. Mr. Haley replied: "[n]o, I didn't. At the time I was really just, just concerned with mine, you know." In the very next line, the ALJ posed the following question: "Okay, did she say anything about your wife?" To which Mr. Haley replied: "Well, I, I, I did. I asked her, well, if I can't draw it, can my wife draw it, and she said, no, your wife can't draw it if you're not drawing it, because you make too much. I do remember that." The two answers reveal that if Mr. Haley asked anything, he asked whether his wife could draw his benefits, not whether his wife was entitled to benefits on her own. Similarly, Mrs. Haley's testimony shows that she did not specifically inquire about a possibility of receiving reduced retroactive benefits when she visited the SSA office in October 1997. Given what appears to have been a very limited inquiry into Mrs. Haley's benefits, it is difficult to find basis for misinformation. In order to constitute misinformation, the information provided by the SSA representative must be in response to aspecific request by the claimant. There is no evidence that such a specific inquiry about reduced benefits has ever been made.
(R. at 65-66).
(R. at 66).
See 20 C.F.R. § 404.633(c)(4). See also example number 5 in GN E00204.008F of the Program Operations Manual System, which clearly states that "General information given to a third party who is not making a specific inquiry on behalf of a specific person" is not misinformation.
On her application, Mrs. Haley stated that she wished her benefits to commence on the "earliest possible date" without a permanent reduction to her benefits. Mrs. Haley clearly limited the SSA's ability to change the date of her entitlement by declining an earlier entitlement date if it resulted in permanent reduction in her benefits. In Social Security Ruling 64-16, the Commissioner provides the following summary of the reduction provisions found in Section 202(q) of the Act:
(R. at 26).
Section 202(q)(1) of the Act states in pertinent part that where a person becomes entitled to wife's insurance benefits for months before the month in which she attains 65, her benefit amount must be reduced by 25/36 of 1 percent multiplied by the number of months she is under age 65 beginning with the first month for which she is entitled to such benefits. Her benefit will continue at a reduced rate even after age 65,
See SSR 64-16. See also 42 U.S.C. § 402(q).
Based on the facts in this matter, it appears that Mrs. Haley's benefits may have been permanently reduced if she requested an eligibility date prior to the month in which she turned 65. J. Davis, a SSA representative who advised Mrs. Haley in October of 1997, noted in a December 18, 1998 Report of Contact that "the claim which was signed by Mrs. Haley in 10/97 elected `earliest month without reduction.' This would be age 65 which is what she was given." This court will not second-guess the opinion of a SSA representative who deals with these issues on a day-to-day basis.
Despite evidence to the contrary in the record, Mr. and Mrs. Haley now claim that they asked about Mrs. Haley's benefits and were told she was not entitled to any. Furthermore, they claim to have never been told anything about reduced benefits. As noted above, Mr. Haley's testimony and contention is contrary to the testimony of the SSA representative. Mrs. Haley's testimony is, similarly, contrary to the September 1, 1998 Report of Contact signed by J. Davis and entitled "Spouse's Month of Election." In this report, J. Davis stated that despite her efforts, Mrs. Haley made a more disadvantageous "11/97 B" election although "it would have been explained that the `10/97 A' election may not have been a permanent reduction." J. Davis further observed that "Filing for Medicare was the primary intention. It was only because I was trying to do the most advantageous procedure for `B' that I didn't take a `Medicare only' claim. Receiving benefits did not seem to be of any interest."
(R. at 34).
Id.
Id. It appears that despite Mrs. Haley's refusal to make the "10/97 A" election, her benefits were retroactively adjusted to begin in October 1997, for which month she received a reduced amount of benefits.
Credibility determination generally should be left to the ALT. The court will not reject the ALJ's determination unless it is wholly unsupported by substantial evidence. The ALT found that "Mr. Haley's testimony is vague and inconsistent, as are previous statements he made in writing." The court finds that this observation is justified. Both Mr. and Mrs. Haley have made inconsistent statements on the record. Furthermore, the statements made by both the plaintiff and her husband have been contradicted by the reports submitted by the SSA representatives who aided them in preparation of their applications. The ALT, not this court, is in the best position to judge the credibility of a witness. The court finds that substantial evidence exists to support the ALJ's conclusion that "neither [Mr. Haley's] testimony, nor that of Mrs. Haley provides any basis for an earlier entitlement to benefits."
See Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (A court may overturn the ALJ's credibility determination only when there is a conspicuous absence of credible evidence to support it.)
(R. at 14).
See Adams v. Chater, 93 F.3d 712, 715 (10th Cir. 1996), quoting Casias v. Secretary of HHS, 933 F.2d 799, 801 (10th Cir. 1991) (The ALT is "`optimally positioned to observe and assess witness credibility.'").
(R. at 14).
Having thoroughly reviewed the record, it appears that the information provided to Mr. and Mrs. Haley was not incorrect, misleading or incomplete in view of the facts that both the plaintiff and her husband supplied to the SSA representatives. No credible evidence has been supplied to demonstrate that such misleading or incorrect information was provided to the plaintiff, either orally or in writing. The record supports the finding that neither Mr. Haley nor Mrs. Haley made a specific inquiry regarding the eligibility date for Mrs. Haley's Wife Insurance Benefits. The ALT did not err in ruling that neither the plaintiff nor her husband were credible.
The court finds that substantial evidence supports the ALJ's determination that Mrs. Haley was not provided misinformation regarding her eligibility date and, as a consequence, was not entitled to reduced Wife's Insurance Benefits prior to October 1997.
IT IS THEREFORE RECOMMENDED that the decision of the Commissioner be affirmed for the reason set forth above.
Copies of this recommendation and report shall be mailed either electronically or via the United States Postal Service to counsel of record for the parties. Pursuant to 28 U.S.C. § 636 (b)(1), as set forth in Federal Rule of Civil Procedure 72(b) and D. Kan Rule 72.1.4, the parties may serve and file written objections to the recommendation within 10 days after being served with a copy.
The filing of this Report and Recommendation terminates the referral of this case to the undersigned.