                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-21-2007

Elshinnawy v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2056




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"Elshinnawy v. Comm Social Security" (2007). 2007 Decisions. Paper 898.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/898


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                           NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 06-2056


                        ABDELFATTAH M. ELSHINNAWY,
                                          Appellant

                                          v.

          COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION


                   On Appeal From the United States District Court
                       For the Eastern District of Pennsylvania
                              (D.C. Civ. No. 05-cv-03061)
                    District Judge: Honorable Lawrence f. Stengel


                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 5, 2006


           Before: BARRY, CHAGARES AND ROTH, CIRCUIT JUDGES

                                (Filed: June 21, 2007)


                                      OPINION


PER CURIAM

      Abdelfattah M. Elshinnawy appeals the order of the United States District Court

for the Eastern District of Pennsylvania denying his motion for summary judgment and

granting the motion for summary judgment of the Commissioner of the Social Security
Administration (“SSA” or “the agency”). We will affirm.

                                             I.

       The parties are well-versed with the factual background of this case, so we will

only summarize it here. Elshinnawy was born in Egypt on February 1, 1933. He came to

the United States in 1959 at age twenty-six and became a citizen in 1971. He completed

his doctorate degree in engineering during the mid-1960s and entered the workforce.

Elshinnawy worked as an engineer, first in private industry, and later for the United States

Navy. In November 1997, Elshinnawy filed an application for Social Security retirement

insurance benefits.1 The application contains his acknowledgment that his civil service

annuity or pension benefits from his Navy employment (“CSA”) would offset his Social

Security benefits; he agreed to notify the agency as soon as he learned the amount of the

CSA to avoid overpayment by Social Security. In January 1998, Elshinnawy received an

interim CSA payment covering most of 1997, with notice that the monthly payment

amount had not yet been determined. Elshinnawy later received an annuity adjustment

payment covering all benefits due from February 1, 1995 (the date on which he turned

sixty-two years of age) through January 31, 1998, with a final interim payment being

made on February 1998. His monthly CSA payment, as of December 1997, was $574.00.




   1
    It appears that retirement insurance benefits (“RIB”) are the only Social Security
benefits at issue in this appeal. For purposes of this opinion, we will refer to these
benefits by the agency to Elshinnawy as h is “Social Security benefits” or “retirement
benefits.”

                                             2
       Elshinnawy received his first Social Security retirement benefits payment in

February 1998. In late June, 1998, Elshinnawy notified the agency of the amount of his

CSA. The agency did not immediately offset the amount of his retirement benefits due to

the CSA, but it finally began doing so in March 2000, after notification of the reduction in

February 2000. On May 3, 2000, the SSA notified Elshinnawy that he had been overpaid

by the agency in the amount of $5,791.00 for the period between January 1998 and March

2000. The agency gave him the options to either reimburse the amount or to have the

agency withhold an amount from his benefits payments until the overpayment was repaid.

       In July 2000, elshinnawy filed a request for a waiver of overpayment recovery. In

his request, he stated that he believed he was not at fault for the overpayment, but he did

not complete the financial statement section of the form to support his waiver request. In

August 2000, Elshinnawy filed a request for reconsideration of the overpayment

determination. He challenged the application of the windfall elimination provision

(“WEP”), the modified formula for computing Social Security retirement benefits when a

claimant is also entitled to a pension based on employment not covered under Social

Security, as is the case here with Elshinnawy’s CSA. In 2002, the agency upheld the

initial determination that the WEP was correctly applied to reduce Elshinnawy’s Social

Security benefits, and that the calculation amount was correct.

       Elshinnawy requested a hearing before an Administrative Law Judge (“ALJ”), and

a hearing was held. The ALJ issued an unfavorable decision, finding that Elshinnawy

was not without fault in receiving the overpayment, that the agency’s calculations were

                                             3
correct, and that the amount of the overpayment was correct. On appeal, the Appeals

Council remanded for reconsideration of evidence not previously presented to the ALJ,

namely a June 1998 letter evidencing that Elshinnawy notified the SSA regarding his

CSA. The Appeals Council directed the ALJ to conduct a supplemental hearing on

whether the WEP was applied correctly, and, if an overpayment existed, whether

Elshinnawy was not without fault in causing it. Elshinnawy was also given another

opportunity to submit a fully completed waiver request or to explain to the ALJ why he

declined to submit it.

        In 2004, the ALJ conducted another hearing on the matter2 but again issued an

unfavorable decision. The Appeals Council affirmed, concluding that the WEP was

properly applied, as Elshinnawy was receiving a pension from non-covered employment.

The Appeals Council also agreed that the agency’s calculations were correct in the

overpayment determination. Lastly, the Appeals Council found that recover of

overpayment could not be waived because Elshinnawy was not without fault; he did not

properly report his CSA to the agency, and he received excess benefits that he should

have known to be incorrect. The Appeals Council’s decision became the Commissioner’s

final decision. See 20 C.F.R. § 404.981.

        In June 2005, Elshinnawy filed a pro se civil action in the United States District

Court for the Eastern District of Pennsylvania, seeking judicial review of the



   2
       Elshinnawy was represented by counsel at the ALJ hearing.

                                              4
Commissioner’s decision. The parties filed cross motions for summary judgment. The

Magistrate Judge issued a report and recommendation that Elshinnawy’s motion for

summary judgment be denied and that the agency’s motion be granted. Elshinnawy filed

objections to the report and recommendations. By order entered February 28, 2006, the

District Court overruled the objections and adopted the report and recommendation.

Elshinnawy appeals.

                                             II.

         We have appellate jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291.

We exercise plenary review of the District Court’s order, but we may reverse the grant of

summary judgment in the Commissioner’s favor only if the Commissioner’s decision is

not supported by substantial evidence. See Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir.

2002). Substantial evidence “does not mean a large or considerable amount of evidence,

but rather such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999), citing Pierce

v. Underwood, 487 U.S. 552 (1988). Because Congress has delegated to the

Commissioner the responsibility to administer complex benefits programs, we defer to the

Commissioner’s interpretation of Social Security legislation, as long as it is reasonable

and not arbitrary and capricious. Sanfilippo v. Barnhart, 325 F.3d 391, 393 (3d Cir.

2003).

                                            III.

         During the administrative proceedings, Elshinnawy argued that the agency

                                             5
miscalculated the amount of his retirement benefits. To the extent that he raises these

challenges here, we will address them briefly. In brief summary of the applicable

statutes, the agency determines the amount of retirement benefits by calculating the

primary insurance amount, which is based on a percentage of the individual’s “average

indexed monthly earnings.” 42 U.S.C. § 415(a). The average indexed monthly earnings

are determined by dividing the total wages paid in by the number of months in the

individual’s “benefit computation years.” 42 U.S.C. § 415(b)(1). The benefit

computation years equal the number of “elapsed years” minus five years. 42 U.S.C. §

415(b)(2). Elapsed years are “the number of calendar years after 1950 (or, if later, the

year in which the individual attained age 21) and before the year in which the individual .

. . attained age 62,” excluding any calendar year included in a period of disability. 42

U.S.C. § 415(b)(2)(B)(iii).

       First, elshinnawy contends that the agency used an incorrect number of elapsed

years in calculating his retirement benefits. He points to the agency’s April 2002

reconsideration determination, which states that the “elapsed years” are calculated with

reference to the number of years after the year the individual attains “age 22.” On that

basis, elshinnawy argues that agency should have used thirty-nine elapsed years instead

of the forty elapsed years in its calculation. We conclude that substantial evidence

supports the Appeals Council’s finding that the reference to ‘age 22" in expressing the

“elapsed years” portion of the April 2002 analysis is a typographical error, and the

calculation using forty elapsed years and thirty-five benefit computation years in

                                             6
Elshinnawy’s case is correct under the statute. Second, Elshinnawy asserts that the

number of years in the calculation should be reduced because he did not arrive in the

United Stats until 1959 at age twenty-six, and he was unable to enter the work force

during the years he was a student. Elshinnawy has not shown any statutory or regulatory

authority for the agency to deviate from the prescribed method of calculating retirement

benefits based on his personal circumstances, either under a theory of “disability” due to

his not being present in the United States until age twenty-six, or under any other theory.3

                                            IV.

       The main focus of Elshinnawy’s arguments on appeal relate to whether the agency

properly applied the Windfall Elimination Provision, or WEP. In summary, and as

relevant to this matter, the WEP applies to a benefits claimant who becomes eligible for

benefits after 1985 and also becomes available for a benefit from non-covered

employment (in this case, Elshinnawy’s CSA). See 42 U.S.C. § 415(a)(7)(A).

Calculation under the WEP operates to reduce the percentage used to compute the

primary insurance amount. 42 U.S.C. § 415 (a)(7)(B). One of the statutory exceptions is

that the WEP does not apply to individuals who have thirty or more “years of coverage,”


   3
      On appeal, elshinnawy contends that the statutory formula is unconstitutional and
discriminatory. His argument seems to be that the formula negatively impacts his
benefits calculation as an immigration. We do not address Elshinnawy’s constitutional
claim because it was not raised during the proceedings below and was not preserved for
review. We note that Elshinnawy does not explain how his retirement benefits were
calculated any differently for him as an immigrant as compared to non-immigrant retirees
of like age who similarly delayed entering the workforce for years beyond age twenty-one
in order to pursue educational goals.

                                             7
a term defined in section 415(a)(1)(C)(ii). 42 U.S.C. § 415(a)(7)(D).

       Elshinnawy argues that the agency determined, without explanation, that he did

not qualify for any of the statutory exceptions to applying the WEP. Indeed, he asserts

that he qualifies for the exception as one who has more than thirty “years of coverage.”

The essence of his argument is that, under his interpretation, the number of “years of

coverage” is the same as the number of his benefit computation years. As discussed

earlier, Elshinnawy has thirty-five benefit computation years, totaled from his forty

elapsed years minus five.4 See 42 U.S.C. § 415(b)(2). As applicable to Elshinnawy,

section 415(a)(1)(C)(ii) defines “years of coverage” as “the number equal to the number

of years after 1950 each of which is a computation base year (within the meaning of

subsection (b)(2)(B)(ii) of this section) and in each of which he is credited with wages . . .

.” Elshinnawy interprets this to mean that a “year of coverage” is the same as a benefit

computation year, every one of which is a year “credited” with covered earnings,

regardless of whether the wages were earned in a particular year. Extending his

argument, he asserts that, because he has thirty-five benefit computation years, he also

must have thirty-five years of coverage, and therefore he is exempt from application of

the WEP. We are not persuaded by Elshinnawy’s interpretation of “years of coverage” to

contemplate averaging his earnings over a greater number of years than were covered by


   4
    Elshinnawy refers to having thirty-five “years of coverage” and thirty-five
“computation base years,” each credited with an average monthly covered earnings
amount. However, it appears that he actually refers to his thirty-five “benefit
computation years.”

                                              8
Social Security, especially when the Commissioner’s implementing regulations explain

that a “year of coverage” is, in fact, dependent on a showing of minimum covered

earnings in a particular year. See, e.g., 20 C.F.R. § 404, Subpt. C., App. IV. There is

substantial evidence in the administrative record to support the agency’s determination

that Elshinnawy does not qualify for the exception to the WEP application for having

thirty or more years of coverage.

                                            V.

       When a claimant’s retirement benefits should have been calculated under the WEP

but were not, an overpayment to the claimant results. Waiver of an overpayment is

appropriate when the claimant is (1) “without fault” in causing the overpayment, and 92)

recovery would defeat the purpose of Title II of the Social Security Act, or would be

against equity and good conscience. 42 U.S.C. § 404(b); 20 C.F.R. § 404.506(a).

       We agree with the District Court’s conclusion that there is substantial evidence in

the administrative record that Elshinnawy was overpaid for the period between January

1998 and March 2000, and that he was not “without fault.” As noted earlier, Elshinnawy

acknowledged on his initial retirement benefits application that receipt of his CSA could

cause an overpayment in Social Security benefits. he received his final interim CSA

payment in February 1998, and notified the SSA in late June 1998, after the CSA amount

was finalized. Elshinnawy continued to receive the same amount of Social Security

benefits for almost two years until the agency discovered the error; he continued to accept

payments that he either knew or could have been expected to know were incorrect in

                                             9
amount. See 20 C.F.R. § 404.507(c). He argues that he notified the agency in June 1998

of his CSA amount, and the overpayment resulted from the agency’s lack of response

until twenty months later. however, even though the SSA may have been at fault in

making the overpayment, that fact does not relieve Elshinnawy from liability for

repayment if he is not without fault. See 20 C.F.R. § 404.507. Because Elshinnawy is

not without fault, he does not qualify for a waiver of recover of the overpayment.5

                                            VI.

       In conclusion, we find that the Commissioner’s final decision is supported by

substantial evidence and that the agency applied the correct statutes and regulations in

evaluating Elshinnawy’s case. We will affirm the judgment of the District Court. The

motion to vacate the Magistrate Judge’s report and recommendation and the District

Court’s order is denied.6



   5
     As the District Court noted, Elshinnawy refused to submit requested financial
information to support his waiver request because he viewed it as a “degrading” exercise.
Elshinnawy argues that, under 20 C.F.R. § 404.506(f)(8), submission of financial
information is not compulsory. Presumably, he bases his argument on the provision’s
wording that financial information is collected “if necessary.” We note that section
404.506(f)(8) concerns the submission of “updated” financial information; the provision
is not at odds with section 404.506(c)’s direction that an individual requesting a waiver is
to provide information to support a claim that recover would defeat the purpose of title 11
of the Act (see § 404.508) or be against equity and good conscience (see § 404.509). In
particular, the inquiry under section 404.508 depends upon whether the person has
sufficient income and other financial resources to meet his ordinary and necessary
expenses, including ordinary household living expenses and medical expenses.
   6
     We have reviewed Document #15 of the District Court record, upon which
Elshinnawy’s motion before this Court relies, and it does not alter our conclusion.

                                             10
