Jessie Mash v. Commissioner of Soc. Security, (11th Cir. 2006)

Status: Not Published

Docket Number: 05-00148

Parts: 06-13468

Linked as:

Text

[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DEC 12, 2006

THOMAS K. KAHN

N o . 06-13468

CLERK

N o n - A r g u m e n t Calendar

D . C. Docket No. 05-00148-CV-OC-10-GRJ

JE S S IE MASH,

Plaintiff-Appellant,

versus

COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,

Defendant-Appellee.

A p p e al from the United States District Court

fo r the Middle District of Florida

(D ecem b er 12, 2006)

B efo re DUBINA, CARNES and PRYOR, Circuit Judges.

P E R CURIAM:

Jessie Mash, proceeding pro se, appeals the judgment that affirmed the

d en ial of his request for review regarding the calculation of his social security d isab ility and retirement benefits by the Social Security Commissioner, 42U.S.C.

§ 415. We affirm.

M ash was injured while employed by the Commonwealth of Massachusetts an d , since 1988, he has received Accidental Disability Retirement benefits from M assach u setts. The administrative law judge determined that Mash's disability b e n e f its are subject to the Windfall Elimination Provision (WEP) of the Social S e cu r ity Act because they are periodic payments from an employer's primary retirem en t or disability plan based on earnings uncovered under the Social Security A c t. The WEP eliminates the situation where an individual who had earned co v ered and non-covered wages would receive both full Social Security benefits an d the pension benefits provided by the non-covered employment. See Stroup v. B arn h art, 327 F.3d 1258, 1259-60 (11th Cir. 2003). The Social Security C o m m is sio n e r affirmed the administrative law judge.

M a sh challenged the decision of the administrative law judge in the district co u rt. Mash argued that a letter from the Massachusetts State Board of Retirement, w h ic h explained that his benefits were based on his employment with the state, was n o t made part of the record and that, without this letter, there was no basis to hold th at his benefits were based on non-covered employment. The magistrate judge fo u n d that the letter had been made part of the record and concluded that the ad m in istrativ e law judge's decision was supported by substantial evidence. Mash d id not object to the magistrate judge's factual finding, and the district court ad o p ted the magistrate judge's report and recommendations.

W e review a social security case to determine whether the Commissioner's d e c is io n is supported by substantial evidence and whether the correct legal s ta n d a r d s were applied. Crawford v. Comm'r, 363 F.3d 1155, 1158 (11th Cir. 2 0 0 4 ). When a party fails to object to a magistrate judge's report, we review the m ag istrate judge's factual findings for manifest injustice. United States v. Roberts, 8 5 8 F.2d 698, 701 (11th Cir. 1988) M arsh now argues that the WEP does not apply to his Massachusetts b en efits. We disagree. Mash's brief reveals that he is confused about why the W E P applies to the calculation of his federal retirement benefits. Mash cites a n u m b e r of Social Security Administration publications for the proposition that p u b lic disability benefits can only be used to reduce Social Security disability b en efits, not Social Security retirement benefits, but these authorities do not apply to Mash. The administrative law judge and the magistrate judge found that Mash's M assach u setts benefits are a pension, not public disability benefits, because the b en efits are based on his uncovered employment with the state government. B ecau se "pro se pleadings are . . . liberally construed," Tannenbaum v. U n ited States, 148 F.3d 1262, 1263 (11th Cir. 1998), we will assume that Mash also is challenging the magistrate judge's factual finding that the letter from the M assach u setts State Board of Retirement was made part of the administrative reco rd . Based on our independent review of the record, the letter was included.

There was no manifest injustice in the magistrate judge's factual finding.

T o the extent that we can construe Mash as arguing that the WEP does not ap p ly to his benefits even if they are based upon his previous state employment, we can n o t reach this argument because it was not raised before the district court.

Kelley v. Apfel, 185 F.3d 1211, 1215 (11th Cir. 1999). Mash's only argument b efo re the district court was that the administrative law judge's decision had to be o v ertu rn ed because the letter from the Massachusetts State Board of Retirement w as not part of the record. Although represented by counsel in the district court, M ash never argued that the WEP did not apply to his social security benefits reg ard less of the content of the letter from the Massachusetts State Board of R e tir e m e n t.

A F F IR M E D .