present to the Secretary evidence warranting the piercing of the corporate veil of these foreign affiliates which would support a finding that plaintiff in fact worked for American companies rather than for the foreign affiliates of these companies.
Accordingly, this Court finds that substantial evidence exists on the record to support the Secretary's finding that plaintiff did not have "wages" from "employment" during the years 1965 to 1985 within the meaning of section 410(a).
II. Equal Protection
The plaintiff contends that section 410(a) of the Act, which defines "employment," is unconstitutional because it treats American citizens working in the United States or overseas for American employers different from American citizens working overseas for the foreign affiliates of American companies. The plaintiff argues that under the equal protection clause section 410(a) must include work performed overseas for the foreign affiliates of American companies as "employment" under the coverage of the Social Security system.
The constitutionality of Social Security legislation is tested under a "rational basis" standard. Weinberger v. Salfi, 422 U.S. 749, 768-70, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975); see also Tyson v. Heckler, 727 F.2d 1029 (11th Cir. 1984) (applying "rational basis" standard to section 410(a)). A rational reason clearly supports the Congressional decision not to include overseas work for foreign affiliates of American companies within the definition of "employment" where, as recognized by Congress at the time it drafted and passed the legislation, the United States has no legal power to "levy the employer tax of the old-age and survivors insurance program upon foreign subsidiaries of American employers." S. Rep. No. 1987, 83d Cong., 2d Sess., reprinted in 1954 U.S. Code Cong. & Ad. News 3710, 3719. Accordingly, recognizing the limitation, Congress enacted section 3121(l) of the IRC in order to close this gap in the insurance program as best it could within the scope of its legislative reach.
The plaintiff contends that the Secretary should credit his wages since 1964 and raise his monthly retirement benefits accordingly where, in response to plaintiff's 1968 inquiry concerning his retirement benefits, the Secretary allegedly "entrapped" him into believing that the earnings that plaintiff received prior to 1968 entitled him to the "maximum" monthly retirement benefit payable.
The Secretary's April 30, 1968 letter to plaintiff stated that "you have worked sufficient years under social security to be fully insured for benefits at retirement age." However, whether an individual is "fully insured" simply goes to eligibility for benefits and not to the amount of those benefits.
As the Secretary's letter further provided, the amount of benefits is a function of the number of years for which a worker has maximum creditable earnings.
The Secretary stated:
There are no earnings posted for the years 1962, 1963, and 1965 through the present year. For all years since 1952 that you worked, you were credited with the maximum earnings allowed by the social security law. Since retirement benefit computations are based on average monthly or yearly earnings, having maximum creditable earnings for all years results in the highest monthly benefit rate.