Marcellus Davis, Jr. v. Michael Astrue

FILED
NOT FOR PUBLICATION MAR 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARCELLUS DAVIS, Jr., No. 10-56411
Plaintiff - Appellant, D.C. No. 2:09-cv-03500-JFW-
RNB
v.
MICHAEL J. ASTRUE, Commissioner of MEMORANDUM *
Social Security,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted March 6, 2012 **
Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
Marcellus Davis, Jr., appeals pro se from the district court’s judgment
upholding the Social Security Administration Commissioner’s decision regarding
the calculation of Davis’s monthly benefits. We have jurisdiction pursuant to 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1291. We review de novo the district court’s decision, and may set aside
the Commissioner’s decision only if it is based on legal error or is not supported by
substantial evidence in the record. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.
1999). We affirm.
The Commissioner properly reduced Davis’s monthly Supplemental
Security Income benefits based on the retirement benefits that Davis began to
receive. See 42 U.S.C. § 1382(b) (explaining that Supplemental Security Income
benefits are reduced by the amount of income an individual receives); id. at
§ 1382a(a)(2)(B) (defining income to include retirement benefits). The
overpayment rules cited by Davis do not apply to him because the Commissioner
has not acknowledged, or sought an adjustment or recovery of, any overpayment.
See 20 C.F.R. § 404.512 (an adjustment or recovery to recoup an overpayment will
not be made if certain conditions apply (emphasis added)).
The Commissioner lacked jurisdiction to review workers’ compensation
benefits awarded to Davis by other agencies. See, e.g., 33 U.S.C. § 921(b) (orders
under the Longshore and Harbor Workers’ Compensation Act are reviewed by the
Benefits Review Board). Further, we lack jurisdiction to review the
Commissioner’s decision not to reopen Davis’s prior Social Security benefits
determination. See Matlock v. Sullivan, 908 F.2d 492, 493 (9th Cir. 1990)
2 10-56411
(“Appeals Council decisions to refrain from considering untimely petitions for
review are not final decisions subject to review in federal court.”). Davis’s
contention that the Administrative Law Judge (“ALJ”) violated his due process
rights in the prior hearing is unpersuasive. See Boettcher v. Sec’y of Health &
Human Servs., 759 F.2d 719, 723 (9th Cir. 1985) (explaining the procedural
protections afforded at a hearing before an ALJ).
Davis’s contention that the magistrate judge and district court judge should
be recused is unavailing. See United States v. Johnson, 610 F.3d 1138, 1147-48
(9th Cir. 2010) (adverse rulings are insufficient to warrant recusal).
AFFIRMED.
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