IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JAMES H. FENNER, 

Plaintiff, Civ. No. 3:14-cv-01318-MC 

v. OPINION AND ORDER 

CAROLYN W. COL VIN, 

Acting Commissioner of the Social Security 

Administration, 

Defendant. 

MCSHANE, Judge: 

Claimant James Harold Fenner brings this action for judicial review of a final decision of 

the Commissioner of Social Security reducing his retirement benefits under the Windfall 

Elimination Provision ("WEP") of the Social Security Act. 42 U.S.C. § 415(a)(7); 20 C.F.R. § 

404.213. 

The issues before this Coutt are whether the Administrative Law Judge (ALJ) e!1'ed in 

concluding (1) that Fenner's previous non-profit work did not qualify as an exception to the 

WEP; (2) that Fenner's pension from work in Germany is not a military pension under the WEP; 

and (3) that Fenner had fewer than thirty years of qualifying earnings. Because the ALJ provided 

specific, clear and convincing reasons for his determinations that are supported by substantial 

evidence in the record, the Commissioner's decision is AFFIRMED. 

FACTUAL BACKGROUND 

Fenner was an officer with the United States Air Force who was stationed in Germany on 

active duty during the Vietnam War between 1966-69. Tr. 162. Fenner subsequently lived in 

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Germany between 1974-87, where he maintained a role in the Air Force Reserve as well as a 

teaching position with a non-profit university in Berlin. Tr. 80. Fenner additionally worked for a 

non-profit in Euskirchen, Germany. Fenner returned to the United States in 1987 and worked 

full-time until retiring in 2003. 

In June 2006, Fenner began receiving the retirement benefits now at issue from the SSA. 

Tr. 105. In September 2008, Fenner began receiving a pension from the German government 

stemming from his time working in Berlin. Tr. 38. In April 2010, Fenner notified the SSA of the 

pension he was receiving from the Geiman government. Tr. 71. 

PROCEDURAL BACKGROUND 

On December 16, 2010, the Social Security Administration ("the SSA") determined it 

had overpaid retirement benefits to Fenner based on the fact that Fenner's benefits are subject to 

the WEP. Tr. 77. The agency based this decision on a pension Fenner received from work 

performed in Gennany, resulting in earnings from which social security taxes were not deducted. 

Fenner requested reconsideration of the recalculation and sought a waiver of the 

overpayment order, arguing that he was exempted from the WEP based on the three arguments 

he poses in the instant action. Tr. 79, 81. The Commissioner denied Fenner's requests. Tr. 86. 

Following those denials, Fenner sought a hearing and appeared prose and testified before 

Administrative Law Judge ("ALJ") Steve Lynch. Tr. 157. 

The ALJ issued his opinion on October 26, 2012, finding that Fenner was not exempted 

from WEP and liable for overpayment. Tr. 15. Fenner' s subsequent request for review was 

denied by the Appeals Council on May 14, 2014. Tr. 147. Fenner now brings this action seeking 

judicial review under 42 U.S.C. § 405(g); 20 C.F.R. § 422.210. 

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Case 3:14-cv-01318-MC Document 25 Filed 01/12/16 Page 2 of 5
STANDARD OF REVIEW 

The reviewing court shall affirm the Commissioner's decision if the decision is based on 

proper legal standards and the legal findings are supported by substantial evidence in the record. 

See 42 U.S.C. § 405(g); Batson v. Comm 'r of Soc. Sec. Adm in., 359 F.3d 1190, 1193 (9th Cir. 

2004). To determine whether substantial evidence exists, this Court reviews the administrative 

record as a whole, weighing both the evidence that supports and that which detracts from the 

ALJ's conclusion. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "If the evidence can 

reasonably support either affoming or reversing, 'the reviewing comi may not substitute its 

judgment' for that of the Commissioner." Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 523 

(9th Cir. 2014) (quotingReddickv. Chate1~ 157 F.3d 715, 720-21 (9th Cir. 1998)). 

DISCUSSION 

The Windfall Elimination Provision ("WEP") operates to prevent retirement benefit 

windfalls for individuals who split careers between employment that is taxed for social security 

purposes and employment that is not. Newton v. Shala/a, 874 F. Supp. 296, 298 (D. Or. 1994). 

Under the WEP, the SSA may recalculate Title II retirement benefits for retirees who receive a 

separate, additional pension. 42 U.S.C. § 415(a)(7). A retiree is eligible for WEP recalculation if 

the retiree: (1) attains age of sixty-two after 1985; (2) becomes eligible for a periodic SSI 

payment based on work where the individual did not pay taxes after 1985; or (3) becomes 

disabled after 1985. 42 U.S.C. § 415(a)(7). As the ALJ properly found, Fenner is eligible under 

the WEP, as he attained age sixty-two in 2006 and received an additional pension from the 

German government. Tr. 12-14, 38. 

Fenner first argues that he should be exempt from the WEP pursuant to an exception that 

applies to individuals who are or were employees of a non-profit organization which did not 

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withhold social security taxes on employees' earnings as of the end of 1983, but began 

withholding on Januaiy 1, 1984. 42 U.S.C. § 4 l 5(7)(E)(ii); SSA POMS RE 00605.362(B)(2). 

The ALJ was not presented with record evidence that the Fraunhofer society, for which Fenner 

worked, fell within this category of employer. Fenner concedes that neither he nor that 

organization were able to find records that it withheld the requisite social security taxes. PL' s 

Reply to Answer, 1, ECF No. 13. The ALJ did not err in his findings regarding this exception. 

Fenner additionally argues that he should be exempt from the WEP because his Air Force 

Reserve military eainings between 1979-86 fit into the WEP exemption for pension based 

wholly on uniformed military service from·l957-87, 42 U.S.C. § 415(7)(A)(ii); SSA POMS RS 

00605.383(A). This argument fails, as Fenner's Geiman pension derives from his non-profit 

employment rather than his military employment. Tr. 14, 38. The ALJ did not err in his findings 

related to this exception. 

Finally, Fenner argues that he should be exempt from the WEP because he attained the 

requisite thirty years of covered earnings, which are year during which earnings are subject to 

social security taxes. 42 U.S.C. § 415(7)(D); SSA POMS RS 00605.362(A)(l). In this case, 

covered earnings are not proven from 1961-66. Fenner did not introduce proof of earnings into 

the record suppo1ting the contention that Fenner received covered earnings for those years, and 

the record reflects only verification of employment for 1963, 1964, and 1965, and no proof that 

earnings were subject to social security deductions. In addition, regarding earnings from 1979-

86, Fenner argues that the Air Force told him that it was in fact withholding social security taxes, 

when it was not. Tr. 147--49. Fenner's position is that, had he known the Air Force was not 

properly withholding social security taxes on his earnings, he would have made the requisite 

changes to pay said taxes. Fenner does not argue that he indeed paid such taxes. This set of 

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circumstances is unfortunate, but it does not create enor in the ALJ's findings, nor does it bring 

Fenner within the required thirty years of covered earnings, per the requirements of the WEP. 

The ALJ did not en in his findings related to this exception. 

CONCLUSION 

Because the Commissioner's decision is based on proper legal standards and supported 

by substantial evidence in the record, the Commissioner's final decision is AFFIRMED. 

IT IS SO ORDERED. 

Dated this l"L.day of January, 2016. 

5 - OPINION AND ORDER 

Michael J. McShane 

United States District Judge 

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