Appeal from an order entered in the United States District Court for the Eastern District of New York, Nickerson, J., dismissing plaintiff-appellant's appeal from a decision of the Secretary of the Department of Health and Human Services holding the plaintiff-appellant had not proved that he was retired and that he was therefore ineligible for social security benefits. Affirmed.
Meskill, Pierce and Winter, Circuit Judges.
Plaintiff-appellant Anthony Ciccone appeals from an order entered in the United States District Court for the Eastern District of New York, Nickerson, J., dismissing his appeal from a decision of the Secretary of the Department of Health and Human Services (Secretary). Ciccone claims that the Secretary improperly denied his application for retirement benefits in violation of statute and the Fifth Amendment to the United States Constitution.
The district court concluded that Ciccone's refusal to state his former occupation constituted a valid reason to deny his claim and that the Fifth Amendment cannot be used to "frustrate the collection of highly relevant information the submission of which is a fair prerequisite to receipt of benefits." Ciccone v. Bowen, No. 86 Civ. 795, slip op. at 4 (E.D.N.Y. Mar. 3, 1988), App. of Appellant at 89. We affirm the decision of the district court.
Appellant Ciccone, a self-employed individual, filed for old age insurance benefits under the Social Security Act, 42 U.S.C. § 402(a) (1982 & Supp. IV 1986), on August 18, 1983, claiming that the had retired at the end of June 1983. App. of Appellant at 45-48. In support of his application, Ciccone filed a copy of his 1983 federal tax return with the Secretary. Id. at 62-65. Appellant has not filed a tax return since 1983.*fn1 Neither his application nor his 1983 tax return revealed Ciccone's occupation, id. at 47, 62-65 and when requested by the Secretary to supply this information, Ciccone refused. Id. at 37-40, 49, 52-54. Although there was no evidence that Ciccone had not retired, id. at 42-43, the Secretary claimed he needed to know what appellant's occupation had been to determine whether appellant had stopped working.
Because appellant failed to furnish the requested information, the Secretary ruled that he could not receive benefits. Id. at 53. This ruling was affirmed by the Secretary on reconsideration, id. at 55-58, by an Administrative Law Judge, id. at 19-23, and by the district court, Ciccone v. Bowen, No. 86 Civ. 795 (E.D.N.Y. Mar. 3, 1988), App. of Appellant at 86-90.
On appeal, Ciccone claims that he has proved his retirement and therefore is entitled to receive social security benefits. Second, he claims that his Fifth Amendment right not to incriminate himself allows him to refuse to provide the information requested by the Secretary and still be eligible for benefits.
The Social Security Act provides for benefits to be paid to retirees in an amount based, in part, on prior and current wages. 42 U.S.C. §§ 402(a), 415(a)(1)(A) (1982), 415(f)(2) (1982 & Supp. IV 1986). The Secretary is empowered to make regulations concerning proof of entitlement, 42 U.S.C. § 405(a) (1982), and is required to keep records of past wages of self-employed individuals, 42 U.S.C. § 405(c)(2)(A). If the Secretary's records contain no evidence of self-employment wages for a certain period, and if no tax return has been filed for that period, then the records are "conclusive" as to the absence of earnings for that period after a limitations period of three years, three months and fifteen days has expired. 42 U.S.C. §§ 405(c)(1)(B), 405(c)(4)(C). See Yoder v. Harris, 650 F.2d 1170, 1171-73 (10th Cir. 1981); Shore v. Califano, 589 F.2d 1232, 1233 (3d Cir. 1978); Taylor v. Weinberger, 528 F.2d 1153, 1155 (4th Cir. 1975); Singer v. Weinberger, 513 F.2d 176, 177-78 (9th Cir. 1975). If an individual earns wages during a period in which he or she otherwise is entitled to benefits, i.e., after "retirement," deductions will be taken against the amount to which the individual is entitled. 42 U.S.C. § 403 (1982 & Supp. IV 1986). In the case of a self-employed individual, these deductions will be taken unless the individual proves to the Secretary that he or she received no outside income. 42 U.S.C. § 403(f)(4)(A). Section 403(f)(4)(A) provides that
[a]n individual will be presumed, with respect to any month, to have been engaged in self-employment in such month until it is shown to the satisfaction of the Secretary that such individual rendered no substantial services in such month . . . . The Secretary shall by regulations prescribe the methods and criteria for determining whether or not an individual has rendered substantial services with respect to any trade or business.
Id. Nevertheless, appellant argues that section 405(c)(4)(C) is controlling, and that his failure to file tax returns subsequent to 1983 is ...