ENTRY ON JUDICIAL REVIEW

DAVID F. HAMILTON, Judge.

Plaintiff Rodney Burton seeks judicial review of the Commissioner of Social Security's determination that an Administrative Law Judge ("ALJ") properly reduced his disability insurance benefits based on his receipt of workers' compensation benefits. As explained below, this court affirms the ALJ's decision.

Background

Mr. Burton was born on April 9, 1941, and he has a high school education. On July 8, 1969, a bomb exploded while he was working at the Crane Naval Weapons Center in southern Indiana. Mr. Burton sustained severe injuries to his left hand and forearm, along with shrapnel wounds to his right hand and abdomen. As a result of his injuries, Mr. Burton's left hand was amputated at the wrist. R. 100. He attempted to return to work on a few occasions, but he has not worked full-time since late 1971. Based on an application for disability insurance benefits filed sometime in 1971, the Social Security Administration determined that Mr. Burton was entitled to a closed period of disability benefits from July 1969 through November 1970. R. 595.

Mr. Burton filed another application for disability insurance benefits in June 1980. R. 47. In that application, he reported that he had previously been awarded a "lump sum" of Social Security disability benefits and that, since receiving that award, he had applied for benefits and had been denied. R. 36-39.

He also reported that he had begun receiving workers' compensation benefits in 1969 and that he continued to receive such benefits in the amount of $952 per month. R. 37. The Social Security Administration denied Mr. Burton's June 1980 application for disability benefits. R. 681. The Administration explained that it had previously determined when deciding an earlier claim for benefits that Mr. Burton was not disabled on or before December 31, 1975, when his insured status expired. Because the facts had not changed since the earlier decision, the Administration determined that Mr. Burton was not entitled to benefits. Id.

Mr. Burton later notified the Administration that he had been receiving workers' compensation benefits since he had last worked in 1971. R. 45. He indicated that he had first received $379 per month, but currently received $1475 per month. Id.

Mr. Burton again applied for disability insurance benefits on September 20, 1988, claiming that he had been disabled since December 31, 1971. R. 40. He also reported that he was receiving or expected to receive workers' compensation benefits. Id. The Administration denied this application on December 21, 1988. R. 43.

On August 14, 1994, ALJ Manuel J. Carde reopened Mr. Burton's June 1980 application, and found that Mr. Burton was disabled beginning in 1973. R. 588-91. After this decision, Mr. Burton was notified by the Administration that he was entitled to benefits retroactive to June 1979. However, due to his receipt of workers' compensation benefits, he was also notified that the Administration would withhold all disability insurance benefits he was entitled to after July 1980, except for all cost-of-living increases payable after that date. R. 601-02.

On November 30, 1994, Mr. Burton asked the Administration to reconsider its computation of his disability benefits. R. 611. He argued that the workers' compensation offset was incorrectly figured and applied, and that the Administration erred by using June 1980 as the application date in computing his benefits and should have used an application date of 1973. Id.

Although the Administration's Office of Disability and International Operations would normally consider Mr. Burton's request for reconsideration, Mr. Burton's case was accelerated directly to the Appeals Council to determine the proper application date. On April 6, 1995, the Appeals Council notified Mr. Burton that ALJ Carde's decision was erroneous because he did not have any regulatory or statutory authority to reopen Mr. Burton's June 1980 application for benefits. R. 614. Because no basis existed for reopening any application, the Appeals Council also denied Mr. Burton's request to reopen his application filed in the mid-1970s. Id. The Appeals Council then forwarded the remaining portion of Mr. Burton's reconsideration request to the Office of Disability and International Operations for determination.

On May 9, 1995, the Administration notified Mr. Burton that, upon reconsideration, it had determined that the workers' compensation offset had been correctly applied. R. 616. The Administration explained that it had first received notice of his entitlement to workers' compensation in June 1980 and that, pursuant to Social Security regulations, July 1980 was the first month the offset applied. Id. Mr. Burton then requested a hearing before an ALJ, and on May 14, 1996, appeared with a representative at a pre- hearing conference before an ALJ. R. 20-35. During the conference, Mr. Burton's representative stipulated that there was no need for a hearing. R. 29.

On June 12, 1997, the ALJ determined that the Administration had properly offset Mr. Burton's workers' compensation benefits against his disability insurance benefits. R. 13-17. The ALJ's decision became the Commissioner's final decision on September 28, 1999, when the Appeals Council denied Mr. Burton's request for review. This action then followed.

Standard of Review

The Social Security Act provides that if the findings of the Commissioner are supported by substantial evidence, they are conclusive. 42 U.S.C. § 405(g); Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971). To determine whether substantial evidence exists, the court reviews the record as a whole, but does not attempt to substitute its judgment for the ALJ's by reweighing the evidence, resolving material conflicts, or reconsidering facts and/or the credibility of witnesses. Luna v. Shalala, 22 F.3d 687, 689 (7th Cir. 1994). The court must examine the evidence that favors the claimant as well as the evidence that supports the Commissioner's conclusion. Nelson v. Apfel, 131 F.3d 1228, 1237 (7th Cir. 1997). "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is entitled to benefits," the court must defer to the Commissioner's resolution of that conflict. Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997). A reversal and remand may be required, however, if the ALJ committed an error of law. Nelson, 131 F.3d at 1234.

Discussion

The Social Security Act limits the combined amount of Social Security disability insurance benefits and workers' compensation benefits that a person is entitled to receive. A person's monthly Social Security disability benefits must be reduced by the amount that the person's combined Social Security and workers' compensation benefits exceed the higher of (1) eighty percent of the person's pre-disability earnings or (2) the person's total monthly Social Security benefits. See 42 U.S.C. § 424a; 20 C.F.R. § 404.408(c).

Mr. Burton contends that the Commissioner improperly adjusted his disability benefits due to his receipt of workers' compensation benefits. Mr. Burton's claim presents an unusual challenge because the record here spans over 30 years, and, as a likely result of this long time period, the record is missing some important documents. The court is confident, however, that there is enough evidence in the record for the court to provide Mr. Burton with adequate judicial review.

Mr. Burton first argues that he is entitled to disability insurance benefits beginning in 1975 based on an application for benefits he filed "shortly after April 1973." Pl. Br. at 1. Mr. Burton maintains that a hearing on this application was held in the summer of 1976 in Louisville, Kentucky, and that an ALJ never issued a decision on this application.

The record does not contain a copy of the application allegedly filed by Mr. Burton around April 1973, nor does it contain a copy of the Commissioner's decision on this application. However, the record supports a finding that the application was denied and that Mr. Burton was aware of this denial long ago.

First, Mr. Burton stated in his 1980 application for disability insurance benefits that he had previously filed an application for benefits and that the application had been filed after his closed period of benefits had ended in 1970. R. 39. He also stated that this application had been denied. Id. Second, the Administration indicated in its denial of Mr. Burton's 1980 application that it had denied his previous application filed after December 1975, the date he was last insured. R. 681. Third, the Appeals Council stated in its 1999 denial of Mr. Burton's request for reconsideration that it "acknowledges the additional contentions that no decision was issued following a hearing before an Administrative Law Judge in 1975 and that Administrative Law Judge Manuel Carde agreed at a pre-hearing conference that an application date of December 31, 1975 may be established." R. 6. The Appeals Council further stated, however, that "the Louisville, Kentucky hearing office informed the Social Security Administration on July 3, 1980 that a hearing decision was issued in your case on December 6, 1976." Id. Thus, substantial evidence supports a finding that the disability benefits application filed by Mr. Burton in the mid-1970s had been denied and that Mr. Burton was aware of this denial.

In addition, the Appeals Council noted in its 1995 decision that no basis existed for reopening any application (including the application filed in the mid-1970s) in Mr. Burton's case. See R. 614-15, citing 20 C.F.R. § 404.988 (stating that an application for benefits may not be reopened more than four years after the date of the notice of the initial determination, absent circumstances such as fraud). That decision denying Mr. Burton's request to reopen an application is not subject to judicial review. Federal courts "lack jurisdiction to review agency decisions declining to reopen previous determinations except for those refusals having constitutional implications." Campbell v. Shalala, 988 F.2d 741, 745 (7th Cir. 1993), citing Califano v. Sanders, 430 U.S. 99, 107-09 (1977), and Reynolds v. Bowen, 844 F.2d 451, 454 (7th Cir. 1988). There is no indication that the Administration's refusal to reopen Mr. Burton's prior applications has any constitutional implications. This court therefore has no jurisdiction to review the Administration's refusal to reopen Mr. Burton's applications.

Mr. Burton next argues that the ALJ erred in finding that the Social Security Administration had notice in June 1980 of his entitlement to workers' compensation benefits. The timing of this notice determines the date from which the Administration may offset Mr. Burton's disability benefits. Social Security regulations governing the reduction of disability insurance benefits provide, in relevant part:

Under section 224 of the [Social Security] Act, a disability insurance benefit to which an individual is entitled under section 223 of the Act for a month (and any monthly benefit for the same month payable to others under section 202 on the basis of the same earnings record) is reduced (except as provided in paragraph (b) of this section) by an amount determined under paragraph (c) of this section if:

(1) The individual first became entitled to disability insurance benefits after 1965 but before September 1981 based on a period of disability that began after June 1, 1965, and before March 1981, and

(i) The individual entitled to the disability insurance benefit is also entitled to periodic benefits under a workers' compensation law or plan of the United States or a State for that month for a total or partial disability (whether or not permanent), and

(ii) The Commissioner has, in a month before that month, received a notice of the entitlement, and

(iii) The individual has not attained age 62, or

(2) The individual first became entitled to disability insurance benefits after August 1981 based on a disability that began after February 1981, and

(i) The individual entitled to the disability insurance benefit is also, for that month, concurrently entitled to a periodic benefit (including workers' compensation or any other payments based on a work relationship) on account of a total or partial disability (whether or not permanent) under a law or plan of the United States, a State, a political subdivision, or an instrumentality of two or more of these entities, and

(ii) the individual has not attained age 65.

20 C.F.R. § 404.408(a)(1) (2). Social Security regulations further provide:

Where public disability benefits are paid periodically but not monthly, or in a lump sum as a commutation of or a substitute for periodic settlement, such as a compromise and release settlement, the reduction under this section is made at the time or times and in the amounts that the Administration determines will approximate as nearly as practicable the reduction required under paragraph (a) of this section. 20 C.F.R. § 404.408(g).

In his June 1980 application for disability benefits, Mr. Burton noted that he had been receiving workers' compensation benefits since 1969 and that he was still receiving such benefits at the time of the application. R. 36-39. Similarly, in his September 1988 application for benefits, Mr. Burton indicated that he was receiving or expected to receive workers' compensation benefits. R. 40. Thus, substantial evidence supports the ALJ's finding that the Social Security Administration had notice in June 1980 of Mr. Burton's entitlement to workers' compensation benefits.

Mr. Burton also argues that the Social Security Administration should have used 20 C.F.R. § 404.408(a)(1) to compute the amount of any workers' compensation offset instead of 20 C.F.R. § 404.408(a)(2). As noted above, 20 C.F.R. § 404.408(a)(1) requires that the Administration have notice of Mr. Burton's entitlement to workers' compensation benefits before his disability insurance benefits may be reduced. Such notice is not required by 20 C.F.R. § 404.408(a)(2) before benefits may be reduced.

There is no evidence in the record that supports Mr. Burton's contention that the Administration applied section 404.408(a)(2) in reducing his benefits. The ALJ found that the Administration had applied section 404.408(a)(1), see R. 14, and this conclusion is supported by substantial evidence. If the Administration had applied section 404.408(a)(2), it should have reduced Mr. Burton's disability benefits beginning in June 1979, the first month he was entitled to such benefits, and should not have waited until after June 1980 (when it first received notice of his eligibility for workers' compensation) to begin reducing his benefits. The ALJ found that Mr. Burton became entitled to workers' compensation payments on July 8, 1969, and that his disability insurance benefits were properly reduced beginning in July 1980 and continuing through the date of the decision. R. 16. Mr. Burton contends that the ALJ erred in reaching this conclusion because it is unclear from the record whether he received workers' compensation benefits continuously from 1980 through the time of the ALJ's decision.

From September 25, 1988, through March 7, 1990, Mr. Burton received a monthly "scheduled award" from the U.S. Department of Labor, pursuant to the Federal Employees Compensation Act, 5 U.S.C. § 8107. R. 658-62. As the ALJ explained, Mr. Burton "contends that he was told verbally [sic] by the Department of Labor that these payments are different from workers' compensation and that the offset provisions of the law were not intended to apply to non-workers' compensation payments." R. 15. Mr. Burton asked the ALJ to subpoena records from the U.S. Department of Labor and to request a definition of "scheduled award."

The ALJ decided not to issue a subpoena because he found that "the nature of the claimant's payments is reasonably clear from the record." R. 13. After reviewing the record, the ALJ concluded that Mr. Burton's "workers' compensation payments were subject to offset whether paid on a recurring basis, as a scheduled award, or as a lump sum." R. 16. The ALJ's conclusion is supported by substantial evidence in the record.

The ALJ relied on two Social Security rulings in reaching his decision. The first, Social Security Ruling 71-34C, adopted as Administration policy the decision in Ladner v. Secretary of H.E.W., 304 F. Supp. 474 (S.D.Miss. 1969). The claimant in Ladner had been entitled to permanent partial disability benefits. These benefits were paid pursuant to a schedule provided for in the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 908(c). The court concluded that the claimant's receipt of such scheduled payments did not prevent the application of the offset provisions of the Social Security Act because both workers' compensation benefits and disability benefits were paid to compensate the claimant for a disability. Ladner, 304 F. Supp. at 476-77.

The ALJ also relied on Social Security Ruling 92-6c, in which the Administration adopted the First Circuit's decision in Davidson v. Sullivan, 942 F.2d 90 (1st Cir. 1991). The claimant in Davidson had been paid workers' compensation benefits under a provision of New Hampshire's workers' compensation statute providing for a "Scheduled Permanent Impairment Award." The First Circuit had explained in Davidson the policy behind the Social Security Act's offset provision:

The offset provision was enacted to prevent the duplication of disability benefits that had resulted in payments in excess of predisability earnings, which was perceived by Congress to have "reduced the incentive of the worker to return to the job, and impeded the rehabilitative efforts of the state programs."

Id. at 92, quoting Richardson v. Belcher, 404 U.S. 78, 82-83 (1971). Because the court concluded that the "Scheduled Permanent Impairment Award" was a "periodic benefit under a state workmen's compensation law or plan," the court found that the award was subject to the Social Security Act's offset provision. Id. at 95.

The ALJ here reasonably relied on the above Social Security rulings in concluding that Mr. Burton's "scheduled award" payments were subject to the Social Security Act's offset provisions. A scheduled award under the Federal Employee's Compensation Act compensates an individual for "permanent loss of use of a bodily member of function." Staacke v. U.S. Secretary of Labor, 841 F.2d 278, 281 (9th Cir. 1988). Such awards, however, are still based on an individual's monthly pay rate. See 5 U.S.C. § 8107(a). Thus, as explained by the Eighth Circuit, scheduled awards "do not depart from the theoretical wage-loss underpinning of workers' compensation." Olson v. Apfel, 170 F.3d 820, 823-24 (8th Cir. 1999) (noting that "the federal statutes providing workers' compensation benefits to federal employees expressly tie both scheduled and unscheduled disability benefits to the injured employee's prior monthly pay"). The ALJ therefore did not err in concluding that Mr. Burton's scheduled award payments were a periodic benefit subject to the workers' compensation offset.

Conclusion

For the foregoing reasons, the court AFFIRMS the Commissioner's decision to reduce Mr. Burton's disability insurance benefits based on his receipt of workers' compensation benefits. Final judgment will be entered immediately.

So ordered.