15-3760-cv
Petre v. Comm’r of Soc. Sec.

                                    UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to a summary
order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of
Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in
a document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 21st day of November, two thousand sixteen.

PRESENT:             JOSÉ A. CABRANES
                     ROSEMARY S. POOLER,
                                  Circuit Judges,
                     JOHN G. KOELTL,
                                  District Judge.*


GHEORGHE PETRE,

                               Plaintiff-Appellant,                  15-3760-cv

                               v.

COMMISSIONER OF SOCIAL SECURITY,

                               Defendant-Appellee.


FOR PLAINTIFF-APPELLANT:                                  Gheorghe Petre, pro se, Bronx, NY.

FOR DEFENDANT-APPELLEE:                                   Varuni Nelson, Arthur Swerdloff,
                                                          Kathleen A. Mahoney, Assistant United
                                                          States Attorneys, for Robert L. Capers,



     *
    The Honorable John G. Koeltl, of the United States District Court for the Southern District of
New York, sitting by designation.

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                                                             United States Attorney, Eastern District
                                                             of New York, Brooklyn, NY.

       Appeal from a judgment of the United States District Court for the Eastern District of New
York (Nicholas G. Garaufis, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court be and hereby is
AFFIRMED.

        Appellant Gheorghe Petre, proceeding pro se, appeals from the District Court’s grant of
judgment on the pleadings, which dismissed his action seeking review of a final determination of the
Commissioner of Social Security (“Commissioner”) determining that his Disability Insurance
Benefits (“DIB”) were correctly calculated under the applicable regulations. He argues on appeal
that the administrative law judge (“ALJ”) and District Court failed to apply the proper regulations
and miscalculated his DIB. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.

        When a judgment upholds a benefits determination by the Commissioner, we conduct a de
novo review of the administrative record “to determine whether there is substantial evidence
supporting the Commissioner’s decision and whether the Commissioner applied the correct legal
standard.” Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010) (internal quotation marks omitted).
Under the substantial evidence standard, “once an ALJ finds facts, we can reject those facts only if a
reasonable factfinder would have to conclude otherwise.” Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443,
448 (2d Cir. 2012) (internal quotation marks omitted).

        Here, an independent review of the record and relevant case law reveals that the District
Court properly granted judgment on the pleadings. We affirm for substantially the reasons stated by
the District Court in its thorough November 9, 2015 decision.

        Petre’s arguments concerning the applicable regulations are meritless because they are
premised on a misunderstanding of the applicable calculation formula for DIB. The monthly DIB
amount is based on a beneficiary’s primary insurance amount (“PIA”). 42 U.S.C. § 423(a)(2); see 20
C.F.R. § 404.201(a). As the District Court correctly noted, PIA for beneficiaries whose disability
began after 1979 is calculated based on average indexed monthly earnings (“AIME”). 42 U.S.C.
§ 415(a)(1)(A)–(B); 20 C.F.R. § 404.204(b)(1). The AIME is based on all earnings for years worked,
from the year the beneficiary turned 22 and up to the second year before the year in which the
beneficiary became eligible for benefits. 20 C.F.R. § 404.211(e)(1). The regulation specifically
prevents calculations based on less than two benefit computation years. Id. Petre’s argument that the
single highest year of earnings is used for DIB is incorrect, as is his argument that a different
regulation applied to the DIB calculations in lieu of § 404.211.


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                                        CONCLUSION

        We have considered all of Petre’s remaining arguments and find them to be without merit.
For the foregoing reasons, we AFFIRM the judgment of the District Court.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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