Bradford Weir v. Louis W. Sullivan, M.D., Secretary of Health and Human Services, 972 F.2d 357, 10th Cir. (1992)
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Scribd Government DocsBradford Weir v. Louis W. Sullivan, M.D., Secretary of Health and Human Services, 972 F.2d 357, 10th Cir. (1992)
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Scribd Government Docs972 F.
2d 357
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
Bradford WEIR, Plaintiff-Appellant,
v.
Louis W. SULLIVAN, M.D., Secretary of Health and Human
Services, Defendant-Appellee.
No. 91-2265.
United States Court of Appeals, Tenth Circuit.
Aug. 10, 1992.
Before JOHN P. MOORE, BARRETT and BRORBY, Circuit Judges.
ORDER AND JUDGMENT*
BRORBY, Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Bradford Weir appeals from an order of the district court affirming the final
decision of the Secretary and denying Mr. Weir's motion to remand his claim
for retirement insurance benefits to the Secretary for a recalculation of his
earnings record for 1969 through 1971. The final decision of the Secretary
denied Mr. Weir credit for any earnings for those years because, according to
his federal income tax returns, he was self-employed and had net earnings of
less than $400 in each year. 42 U.S.C. 411(b)(2). In his brief in the district
court, Mr. Weir contended that he was an employee during those years, and his
tax returns indicate otherwise because his employer refused to give him a W-2
form and his accountant "had to do [his] best with what material he had." The
district court carefully reviewed the record in light of Mr. Weir's contention and
denied the motion.
3
Mr. Weir makes the same arguments on appeal as in the district court. We have
examined the record and affirm the order of the district court affirming the final
decision of the Secretary and denying Mr. Weir's motion to remand for
substantially the same reasons set forth in the court's thorough and wellreasoned Memorandum Opinion and Order, entered September 10, 1991, a
copy of which is attached.
The judgment of the United States District Court for the District of New
Mexico is AFFIRMED.
ATTACHMENT
5 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
IN
MEXICO
6BRADFORD WEIR, Plaintiff,
7vs.
8LOUIS W. SULLIVAN, M.D., Secretary of Health and Human
9Services, Defendant.
Sept. 9, 1991.
10
No. CIV 90-958 JP/SGB
MEMORANDUM OPINION AND ORDER
11
Plaintiff invokes this court's jurisdiction under 42 U.S.C. 405(g), seeking
judicial review of a final decision of the Secretary of Health and Human
Services ("Secretary"). The Secretary determined that plaintiff's earnings'
record should not be credited with self-employment income for the years 1969
through 1971. Plaintiff moves this court for an order remanding the matter to
the Secretary for a recalculation of his earnings' record. The court reviews the
Secretary's decision to determine whether the Secretary's findings are supported
by substantial evidence and whether the Secretary applied correct legal
standards in making his findings. Williams v. Bowen, 844 F.2d 748 (10th
Cir.1988).
Administrative History
12
Plaintiff applied for Retirement Insurance Benefits on July 5, 1988. Soon
thereafter, a notice of award was sent to plaintiff. Plaintiff, however, questioned
the award computation and sought a re-computation on the ground that the
earnings' record relied upon by the Secretary was incorrect for the years 1954,
1968, 1969, 1970 and 1971. The Secretary reaffirmed the Secretary's award.
Plaintiff requested and received a de novo review before an administrative law
judge ("ALJ"). A hearing was held before the ALJ at which plaintiff appeared.
The ALJ found that plaintiff's earnings' record had been correctly posted with
earnings for 1954 and 1968 and with self-employment income for 1969 through
1971. The Appeals Council, upon reviewing the ALJ's decision, found that the
decision was correct as to the finding involving years 1954 and 1968, but was
incorrect for the years 1969 through 1971. The Appeals Council concluded that
the earnings' record was incorrectly credited with self-employment income
because the amount of income did not meet the statutory minimum amount
under 221(b)(2) of the Social Security Act, 42 U.S.C. 411(b)(2). The
decision of the ALJ, as amended by the Appeals Council, therefore, became the
final decision of the Secretary for judicial review purposes.
Statement of the Facts
13
Plaintiff applied for Retirement Insurance Benefits on July 5, 1988. Plaintiff
claims that he was an employee and not self-employed for the years 1969, 1970
and 1971. Plaintiff's tax returns filed for the respective years reveal that the
income at issue was derived from income other than wages. Plaintiff's income
tax returns reported that he had five dollars in self-employment income for
1969 (TR 52, 53); two-hundred eighty-six dollars ($286.00) for 1970 (TR 62);
and two-hundred seventy-four ($274.00) for 1971 (TR 67). The tax returns in
question were prepared by the same tax preparer.
Plaintiff's Testimony
14
Plaintiff testified about his educational background. He is a high-school,
college and law school graduate. (TR 27). Plaintiff stated that his employer
refused to provide him with W-2 forms because the employer did not pay taxes.
Plaintiff testified that his tax preparer had to do the best he could with the
information provided. (TR 29-30).
Issues
15
Plaintiff contends that the Secretary's determination that plaintiff was self-
employed is not supported by substantial evidence.
Discussion
A. Standard of Review
16
The function of this Court on review is not to try the Plaintiff's claim de novo,
but to determine upon the whole record whether the Secretary's decision is
supported by substantial evidence. Cagle v. Califano, 638 F.2d 219-21 (10th
Cir.1981). Substantial evidence is more than a scintilla, but less than a
preponderance of the evidence. Richardson v. Perales, 402 U.S. 389, 401
(1971). It is such relevant evidence as reasonable minds might accept as
adequate to support a conclusion. Id. It is well settled that, if there is substantial
evidence to support the Secretary's decision, then that decision must be upheld.
Cagle, 638 F.2d at 220. However, the district court should not blindly affirm
the Secretary's decision, but must instead scrutinize the entire record to
determine if the Plaintiff's claim is supported by substantial evidence and the
law has been correctly applied. Hogan v. Schweiker, 532 F.Supp. 639, 642
(D.Colo.1982).
17
The Secretary evaluates earnings' records when determining the amount of an
award for Retirement Insurance Benefits. To qualify, an individual must have a
certain number of work credits. An applicant must show his eligibility through
documents. See, 20 C.F.R. 404.703; 20 C.F.R. 404.704. In addition to whatever
documents the applicant provides, the Social Security Administration keeps a
record of the earnings of individuals covered by social security. 20 C.F.R.
404.801. If a claimant's earnings' record is incorrect, the claimant can correct
the record before the time limit ends for the year in question if satisfactory
evidence shows that the Secretary's records are incorrect. 20 C.F.R. 404.821.
The time limit for making such changes is three years, three months, and fifteen
days after any year in which a claimant received earnings. 20 C.F.R. 404.802.
After the time limit has run, an earnings' record may be corrected if one of the
conditions delineated in 20 C.F.R. 404.822 applies. Earnings' records are
afforded great weight after the expiration of the time period. Finally, the Act
provides that "self-employment income" does not include net earnings from
self-employment which are less than $400.00 in any one year. See, 42 U.S.C.
411(b)(2), 20 C.F.R. 404.1096(c)(1). In the case at bar, plaintiff did not
challenge his earnings' record during the applicable time period. Plaintiff has
not demonstrated that an exception as set forth in 404.822 applies.
Accordingly, the earnings' record of the Secretary is afforded great weight.
Plaintiff's tax returns reflect that the self-employment income for the years in
question totaled less than four-hundred dollars. Plaintiff, therefore, did not meet
the minimum earnings requirement. The court finds that the Secretary's
determination is supported by substantial evidence.
Conclusion
18
The Secretary's decision not to amend plaintiff's earnings' record is supported
by substantial evidence. The decision of the Secretary should be affirmed.
19
WHEREFORE, IT IS HEREBY ORDERED that the motion is denied.
This order and judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
Cir.R. 36.3
