Mash v. Commissioner of Social Security Administration , 209 F. App'x 972 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 12, 2006
No. 06-13468 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00148-CV-OC-10-GRJ
JESSIE MASH,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 12, 2006)
Before DUBINA, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Jessie Mash, proceeding pro se, appeals the judgment that affirmed the
denial of his request for review regarding the calculation of his social security
disability and retirement benefits by the Social Security Commissioner, 42 U.S.C.
§ 415. We affirm.
Mash was injured while employed by the Commonwealth of Massachusetts
and, since 1988, he has received Accidental Disability Retirement benefits from
Massachusetts. The administrative law judge determined that Mash’s disability
benefits are subject to the Windfall Elimination Provision (WEP) of the Social
Security Act because they are periodic payments from an employer’s primary
retirement or disability plan based on earnings uncovered under the Social Security
Act. The WEP eliminates the situation where an individual who had earned
covered and non-covered wages would receive both full Social Security benefits
and the pension benefits provided by the non-covered employment. See Stroup v.
Barnhart, 327 F.3d 1258, 1259-60 (11th Cir. 2003). The Social Security
Commissioner affirmed the administrative law judge.
Mash challenged the decision of the administrative law judge in the district
court. Mash argued that a letter from the Massachusetts State Board of Retirement,
which explained that his benefits were based on his employment with the state, was
not made part of the record and that, without this letter, there was no basis to hold
that his benefits were based on non-covered employment. The magistrate judge
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found that the letter had been made part of the record and concluded that the
administrative law judge’s decision was supported by substantial evidence. Mash
did not object to the magistrate judge’s factual finding, and the district court
adopted the magistrate judge’s report and recommendations.
We review a social security case to determine whether the Commissioner’s
decision is supported by substantial evidence and whether the correct legal
standards were applied. Crawford v. Comm’r, 363 F.3d 1155, 1158 (11th Cir.
2004). When a party fails to object to a magistrate judge’s report, we review the
magistrate judge’s factual findings for manifest injustice. United States v. Roberts,
858 F.2d 698, 701 (11th Cir. 1988)
Marsh now argues that the WEP does not apply to his Massachusetts
benefits. We disagree. Mash’s brief reveals that he is confused about why the
WEP applies to the calculation of his federal retirement benefits. Mash cites a
number of Social Security Administration publications for the proposition that
public disability benefits can only be used to reduce Social Security disability
benefits, 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
Massachusetts benefits are a pension, not public disability benefits, because the
benefits are based on his uncovered employment with the state government.
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Because “pro se pleadings are . . . liberally construed,” Tannenbaum v.
United 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
Massachusetts State Board of Retirement was made part of the administrative
record. Based on our independent review of the record, the letter was included.
There was no manifest injustice in the magistrate judge’s factual finding.
To the extent that we can construe Mash as arguing that the WEP does not
apply to his benefits even if they are based upon his previous state employment, we
cannot 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
before the district court was that the administrative law judge’s decision had to be
overturned because the letter from the Massachusetts State Board of Retirement
was not part of the record. Although represented by counsel in the district court,
Mash never argued that the WEP did not apply to his social security benefits
regardless of the content of the letter from the Massachusetts State Board of
Retirement.
AFFIRMED.
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