1 

15-3760-cv 

Petre v. Comm’r of Soc. Sec. 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

Rulings by summary order do not have precedential effect. Citation to a summary 

order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of 

Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in 

a document filed with this Court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 21st day of November, two thousand sixteen. 

PRESENT: JOSÉ A. CABRANES

ROSEMARY S. POOLER, 

Circuit Judges,

JOHN G. KOELTL, 

 District Judge.*

 

GHEORGHE PETRE, 

Plaintiff-Appellant, 15-3760-cv 

v. 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant-Appellee. 

 

FOR PLAINTIFF-APPELLANT: Gheorghe Petre, pro se, Bronx, NY. 

FOR DEFENDANT-APPELLEE: Varuni Nelson, Arthur Swerdloff, 

Kathleen A. Mahoney, Assistant United 

States Attorneys, for Robert L. Capers, 

 

*

 The Honorable John G. Koeltl, of the United States District Court for the Southern District of 

New York, sitting by designation. 
2 

United States Attorney, Eastern District 

of New York, Brooklyn, NY. 

Appeal from a judgment of the United States District Court for the Eastern District of New 

York (Nicholas G. Garaufis, Judge). 

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the order of the District Court be and hereby is 

AFFIRMED. 

Appellant Gheorghe Petre, proceeding pro se, appeals from the District Court’s grant of 

judgment on the pleadings, which dismissed his action seeking review of a final determination of the 

Commissioner of Social Security (“Commissioner”) determining that his Disability Insurance 

Benefits (“DIB”) were correctly calculated under the applicable regulations. He argues on appeal 

that the administrative law judge (“ALJ”) and District Court failed to apply the proper regulations 

and miscalculated his DIB. We assume the parties’ familiarity with the underlying facts, the 

procedural history of the case, and the issues on appeal. 

When a judgment upholds a benefits determination by the Commissioner, we conduct a de 

novo review of the administrative record “to determine whether there is substantial evidence 

supporting the Commissioner’s decision and whether the Commissioner applied the correct legal 

standard.” Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010) (internal quotation marks omitted). 

Under the substantial evidence standard, “once an ALJ finds facts, we can reject those facts only if a 

reasonable factfinder would have to conclude otherwise.” Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 

448 (2d Cir. 2012) (internal quotation marks omitted). 

Here, an independent review of the record and relevant case law reveals that the District 

Court properly granted judgment on the pleadings. We affirm for substantially the reasons stated by 

the District Court in its thorough November 9, 2015 decision. 

Petre’s arguments concerning the applicable regulations are meritless because they are 

premised on a misunderstanding of the applicable calculation formula for DIB. The monthly DIB 

amount is based on a beneficiary’s primary insurance amount (“PIA”). 42 U.S.C. § 423(a)(2); see 20 

C.F.R. § 404.201(a). As the District Court correctly noted, PIA for beneficiaries whose disability 

began after 1979 is calculated based on average indexed monthly earnings (“AIME”). 42 U.S.C. 

§ 415(a)(1)(A)–(B); 20 C.F.R. § 404.204(b)(1). The AIME is based on all earnings for years worked, 

from the year the beneficiary turned 22 and up to the second year before the year in which the 

beneficiary became eligible for benefits. 20 C.F.R. § 404.211(e)(1). The regulation specifically 

prevents calculations based on less than two benefit computation years. Id. Petre’s argument that the 

single highest year of earnings is used for DIB is incorrect, as is his argument that a different 

regulation applied to the DIB calculations in lieu of § 404.211. 
3 

CONCLUSION 

We have considered all of Petre’s remaining arguments and find them to be without merit. 

For the foregoing reasons, we AFFIRM the judgment of the District Court. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk