this document was to enable [him] to be entitled to retirement insurance benefits . . . ," he responded, "certainly that was a consideration . . ." (Rec. 61).
In sum, this court finds that the ALJ's decision is adequately supported by substantial evidence and thus must be affirmed.
C. Plaintiff's Objections
Plaintiff makes extensive objections to the magistrate judge's Report-Recommendation. He argues first that the SSA erroneously considered he and his wife to be doing business together. He claims that by longstanding custom, practice and usage, the SSA treats spouses as autonomous parties and that he and his wife should therefore be considered as "doing business at arm's length, independently and autonomously." (Plaintiff's Objections to Report-Recommendation 1). As evidence of this proposition, plaintiff notes that at one stage of the application process a representative of the Ogdensburg Social Security office refused to accept plaintiff's passport as evidence of his date of birth. Upon plaintiff's request, that decision was immediately reviewed by the Operations Supervisor, who happened to be the representative's husband. This, plaintiff claims is proof of the SSA's longstanding practice of treating spouses autonomously in the transaction of business.
The weight of precedent decisively defeats this argument. Whatever the Ogdensburg Social Security Office's hiring policies, the SSA has the authority and duty to pierce fictitious family arrangements designed to circumvent the earnings test and impede the proper administration of the retirement insurance benefits program. Martin v. Sullivan, 894 F.2d 1520, 1532-33 (11th Cir. 1990); Gardner v. Hall, 366 F.2d 132, 135 (10th Cir. 1966); Dondero v. Celebrezze, 312 F.2d 677, 678 (2d Cir. 1963); Newman v. Celebrezze, 310 F.2d 780, 781 (2d Cir. 1962); Toner v. Schweiker, 537 F. Supp. 846, 854 (W.D.N.Y. 1982). The double standard of which plaintiff complains here is a facade. Plaintiff's excitement over the hiring policy of the Ogdensburg Social Security office does not change the fact that he has attempted to deceive the SSA as to his actual earnings.
Plaintiff further claims that the denial of his retirement benefits acts "to punish a senior citizen because he sold or gave away his property." (Objections 3). He alleges that the Secretary's decision violates his rights under the Fifth Amendment because it "in effect, deprives him of his property." Id. Although plaintiff does not specify whether this alleged "taking" violates his rights under the Due Process Clause of the Fifth Amendment or the Takings Clause, both claims fail.
To state a claim under either the Due Process Clause or the Takings Clause, a plaintiff must allege facts showing that the state or federal action deprives him of a protected property interest. Story v. Green, 978 F.2d 60, 62 (2d Cir. 1992) (citing Board of Regents v. Roth, 408 U.S. 564, 576-79, 92 S. Ct. 2701, 2708-10, 33 L. Ed. 2d 548 (1972) (due process claim)); West Farms Assoc. v. State Traffic Comm'n, 951 F.2d 469, 472 (2d Cir. 1991) (due process claim); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1000-04, 104 S. Ct. 2862, 2871-74, 81 L. Ed. 2d 815 (1984) (takings claim). To have a property interest in a public benefit, a plaintiff must have "more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Story v. Green, 978 F.2d at 62 (quoting Board of Regents v. Roth, 408 U.S. at 577, 92 S. Ct. at 2709). Property interests are created and defined by "existing rules or understandings that stem from an independent source [of law]," defining eligibility for them. Story v. Green, 978 F.2d at 62 (quoting Board of Regents v. Roth, 408 U.S. at 507, 92 S. Ct. at 2709).
In the instant case, the independent source of law which creates plaintiff's alleged property interest is the Social Security Act. The act, together with the existing rules and procedures for its execution, define one's eligibility for the benefits at issue. There must be more than a presumption that one is eligible for full benefits or a unilateral expectation such an interest. Instead, there must be some legitimate entitlement to the full benefits that vests in plaintiff, namely, plaintiff must be "eligible" for full benefits within the meaning of the Act and as defined by the SSA. 42 U.S.C. § 402 (a), § 403 (a). SSA properly determined that plaintiff's alleged retirement was fraudulent and that he was therefore ineligible for the benefits because he was not "retired" within the meaning of the act. 42 U.S.C. § 403 (a); Martin v. Sullivan, 894 F.2d 1520 (11th Cir. 1990); Holden v. Califano, 641 F.2d 405 (6th Cir. 1981). Accordingly, because plaintiff is not eligible for full benefits, he does not have a legitimate claim of entitlement. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548).
Even working on the assumption that plaintiff does have a legitimate entitlement to the benefits, this court finds that both the due process clause and the takings clause are satisfied here. Under the due process analysis, as set forth in Mathews v. Eldridge, the court must assess the nature of the private interest, the nature of the governmental interest, and the risk of an erroneous deprivation of a legitimate interest in order to decide whether a person has received adequate process. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976). The nature of the private interest here is the expectancy of a government benefit, which is afforded some protection. See Mathews, 424 U.S. at 340-42, 96 S. Ct. at 905-6; Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970); Richardson v. Belcher, 404 U.S. 78, 81, 92 S. Ct. 254, 257, 30 L. Ed. 2d 231 (1971). The nature of the government's interest in assuring that retirement benefits go only to those who are eligible, those who are truly "retired", however, is a more compelling interest which is therefore afforded greater protection. Finally, there is very little risk of erroneous deprivation here. Upon review of plaintiff's application the SSA made a formal decision that he was ineligible for full benefits. That decision was reconsidered, affirmed, and finally, the entire process was reviewed and plaintiff was allowed to testify at an administrative hearing. Under Mathews v. Eldridge, it is clear that the process which plaintiff received was more than adequate.
Under a takings analysis, the reduction of benefits by the Social Security Administration does not rise to the level of compensable "property" protected by the takings clause. Social security benefits are not considered accrued property rights. Watts v. Veneman, 155 U.S. App. D.C. 84, 476 F.2d 529 (D.C. Cir. 1973). "Social security benefits are not contractual and may be altered or eliminated at any time." United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 174, 101 S. Ct. 453, 459, 66 L. Ed. 2d 368 (1980). The Supreme Court has repeatedly refused to find a taking where Congress has altered, amended or limited public benefits such as social security. Id.; Hoffman v. City of Warwick, 909 F.2d 608, 617 (1st Cir. 1990); Zucker v. U.S., 758 F.2d 637, 640 (Fed. Cir.) cert. denied 474 U.S. 842, 106 S. Ct. 129 (1985). In the instant case, the denial of full benefits which allegedly eliminated plaintiff's entitlement came from the SSA which directly implements the benefit program established by Congress. There is no compensable property interest which has been "taken" when Congress, through the Social Security Act 42 U.S.C. § 403 (a)(1), reduces a claimant's benefits. United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 174, 101 S. Ct. 453, 459, 66 L. Ed. 2d 368 (1980).
Plaintiff also contends that the record is incomplete and inaccurate because it does not contain a copy a letter dated August 28, 1991, from Assistant United States Attorney (AUSA) Edward R. Broton to the Office of the Inspector General of the Department of Health and Human Services. In that letter, AUSA Broton merely refers a copy correspondence he received from plaintiff, alleging impropriety on the part of an SSA employee, to the SSA.
Plaintiff further avers that based upon this letter, the U.S. Attorney had represented him in the past, and therefore his present representation of the defendant "constitutes a criminal breach of the lawyer-client relationship." (Letter from Plaintiff to court dated Feb. 13, 1993).
First, plaintiff has misconstrued both the actions of AUSA and the legal significance of the letter which is "missing" from the record. The U.S. Attorney's office is precluded from representing a private citizen against the government. (Rep.-Rec. p. 11; Letter of AUSA William H. Pease to the court dated Feb. 18, 1993). Secondly, this letter merely referred plaintiff's letter elsewhere. Such a letter is far from that which is needed to establish an attorney-client relationship. Thirdly, this letter's absence from the record is not the enigma of which plaintiff complains. Section 205(g) of the Act merely requires that "as part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based." 42 U.S.C. § 405(g). Clearly, the omitted item is not part of the transcript, nor is it evidence upon which the Secretary's determination was based. This document has no relevance to this action.
Plaintiff also complains of the post-dating procedure used by the SSA in the dating of certain documents. In particular, plaintiff complains that the SSA's decision on reconsideration was dated August 5, 1991, and was received by plaintiff on that same date, meaning that the SSA had post-dated the notice. Plaintiff claims that this "criminal act" was done "knowingly, willfully and with stealth." (Objections 6). The SSA has explained that it often post-dates decisions three days to account for mailing and handling time. The post-dating of the decision allows claimants more time to file an appeal because the time limitation on filing begins to run on the date that the claimant receives the notice on reconsideration, rather than the date that the decision was actually made. Thus, post-dating the decision is a reasonable procedure, and does not constitute any dishonesty on the part of the SSA.
Moreover, the post-dating of plaintiff's notice on reconsideration is irrelevant and immaterial. The plaintiff has not been injured by the SSA's action, in fact, he was benefitted by it. Plaintiff's complaint of this post-dating procedure is yet another empty criticism of the SSA. Plaintiff is clearly irate that he has been denied benefits to which he believes he is entitled. This court agrees with the magistrate judge that by protesting every facet of the process which he has received, from the determination that he had not actually retired and was therefore ineligible for benefits, to the magistrate judge's report-recommendation, plaintiff has "wasted a tremendous amount of valuable governmental resources". (Rep.-Rec. 10).
Plaintiff raises numerous other issues which the magistrate judge found to be "so patently frivolous that they need not be addressed." (Rep.-Rec. 12). This court agrees. The remaining claims are completely irrelevant to the real issue at hand: which is whether the Secretary's decision is supported by substantial evidence.
Based upon Magistrate Judge Smith's Report-Recommendation and because the Secretary's decision is supported by substantial evidence, it is hereby ORDERED that the complaint be dismissed.
January 15, 1994
Binghamton, New York
Thomas J. McAvoy
Chief U.S. District Judge