Ronald M. HAWRELAK, Plaintiff-Appellant, v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant-Appellee.
No. 15-3253
United States Court of Appeals, Seventh Circuit.
Decided June 24, 2016
Rehearing and Rehearing En Banc Denied September 9, 2016
161
Before FRANK H. EASTERBROOK, Circuit Judge, ILANA DIAMOND ROVNER, Circuit Judge, DIANE S. SYKES, Circuit Judge
Submitted June 23, 2016
Andrew Neltner, Attorney, Social Security Administration, Office of the General Counsel, Region V, Chicago, IL, Gail L. Noll, Attorney, Office of the United States Attorney, Springfield, IL, for Defendant-Appellee.
ORDER
Ronald Hawrelak appeals the district court‘s judgment affirming the decision of* the Commissioner of Social Security to
This appeal arises under the Social Security Act‘s “windfall elimination provision,” which reduces the benefits received by certain individuals who also receive pensions for work that did not require them to pay social security taxes. See
Hawrelak, a naturalized American citizen from Canada, receives monthly retirement benefits from both countries. In December 2005 he began receiving $1,715.20 per month from the Social Security Administration and an additional $278.93 per month (in Canadian dollars) from the Canada Pension Plan, that country‘s equivalent to Social Security. These benefits were based on contributions made during the 24 years Hawrelak had worked in the United States and the 10 years he previously had worked in Canada.
Hawrelak wrote to the Social Security Administration in February 2006 seeking assurance that the Canadian benefits would not affect his Social Security benefits. The agency didn‘t respond until June 2007, when it informed him that his Social Security benefits would be retroactively reduced to $1,483.40 and that he would be responsible for thousands of dollars he had been overpaid. The notice attributed the overpayment to Hawrelak‘s receipt of “a pension based on work [that] is not covered by Social Security,” and explained that this circumstance had required the agency to recalculate his benefits. The agency later agreed to waive the overpayment but has continued to pay him the reduced amount.
Hawrelak sought reconsideration of the agency‘s decision, and in April 2008 the agency determined that his benefits had been properly reduced under the windfall elimination provision. An administrative law judge upheld that decision in March 2009, as did the Appeals Council in July 2011.
Hawrelak then sought judicial review in the district court, but by then the record of his hearing before the ALJ had gone missing, so the case was remanded for a new hearing. In May 2014 the ALJ again upheld the agency‘s reduction of his benefits. The Appeals Council rejected Hawrelak‘s challenge to the ALJ‘s decision, and the district court affirmed.
Hawrelak, however, misapprehends the applicability of any totalization agreement to his circumstances. As the ALJ properly found, Hawrelak‘s two pensions are not based on a totalization agreement; his work history in both the United States and Canada qualified him for benefits without totalization, so the agreement does not apply to his case. See Vanlerberghe, 82 F.Supp.2d at 1215 (claimant who receives retirement benefits from two countries is “not in need of the savings provisions of a totalization agreement“); Newton v. Shalala, 874 F.Supp. 296, 299 (D. Or. 1994) (“Because plaintiff has enough United States earnings to qualify for United States coverage, she cannot receive totalized benefits under the treaty.“)
Hawrelak next contends, also as he did before the ALJ, that his employer never contributed to the Canada Pension Plan on his behalf and, therefore, that the windfall elimination provision does not apply to him. This argument is based on guidance in the agency‘s Program Operations Manual System, which says that the agency will not apply the provision “i[f] only employee contributions are involved and the payment amount is based on employee contributions plus interest, i.e., a savings plan.” POMS RS 00605.364.A.1.b, https://secure.ssa.gov/apps10/poms.nsf/lnx/0300605364. The ALJ rejected this argument, noting that nothing in the record supported Hawrelak‘s assertion that his employer did not contribute to the Canada Pension Plan.
Substantial evidence supports the ALJ‘s decision. Absent exceptions not relevant here, Canadian law requires employers to contribute to the Canada Pension Plan. See Canada Pension Plan, R.S.C. 1985, c. C-5, § 9 (requiring employers to contribute a percentage of an employee‘s salary to the plan); Canada Pension Plan Regulations, C.R.C. 1978, c. 385, § 7 (same). Thus, the Plan is not, as Hawrelak contends, a mere “savings plan” to which only he was required to contribute. Indeed, the same agency manual cited by Hawrelak points to the Canada Pension Plan as an example of a social security program that is subject to offset under the windfall elimination provision. See POMS GN 00307.290.C.6., https://secure.ssa.gov/poms.nsf/lnx/0200307290.
We have considered the remainder of Hawrelak‘s arguments—which mostly involve complaints about various procedural missteps that delayed the processing of his case—and none provides a basis for overturning the ALJ‘s decision. McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011) (recognizing that “administrative error
AFFIRMED.
FRANK H. EASTERBROOK
Circuit Judge
ILANA DIAMOND ROVNER
Circuit Judge
DIANE S. SYKES
Circuit Judge