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March 22, 1997

KEVIN BUBNIS, Plaintiff, against SHIRLEY CHATER, in her capacity as Commissioner of the Social Security Administration, Defendant.

The opinion of the court was delivered by: SPATT

 SPATT, District Judge.

 The plaintiff Kevin Bubnis (the "plaintiff" or "Bubnis") commenced this action on or about April 18, 1995 pursuant to 42 U.S.C. ยง 405(g) of the Social Security Act to review a final administrative determination of the Commissioner of the Social Security Administration. The plaintiff challenges the method by which the Social Security Administration, under 42 U.S.C. 424(a), calculated the Workers' Compensation offset to his social security disability benefits. The defendant, Shirley S. Chater, Commissioner of Social Security (the "defendant" or the "Commissioner") moves, pursuant to Fed. R. Civ. P. 12(c), for judgment in her favor on the pleadings. The plaintiff cross moves for judgment on the pleadings pursuant to Fed.R.Civ.P 12(c).


 The plaintiff filed an application for disability benefits with the Social Security Administration ("SSA") on July 30, 1990, claiming an inability to work due to a "disabling condition on October 16, 1987." (Tr. at 29.) According to a disability report submitted by the plaintiff to the SSA dated August 2, 1990 by a SSA reviewer, the "disabling condition" is described as a "back injury" which occurred on October 16, 1987 which stopped him from working as of that date. (Tr. at 63). The report further states that the initial injury to the plaintiff's back occurred while he was working as an asphalt laborer. (Tr. at 67.) Describing the circumstances of his injury in rather unrefined terms, the plaintiff stated:

They screwed up they got the machine stuck yelling and screaming to get things to get it unstuck. I pick up a cement post and I didn't realize how heavy it was till it was to [sic] late.

 (Tr. at 68.)

 A subsequent physician's report asserts that the injury occurred while the plaintiff was trying to lift a heavy cement block. The plaintiff further claims that his back was re-injured at work on October 28, 1990 causing him "more damage and far more pain and less mobility than previously reported." (Tr. at 89.) After this occurrence, the plaintiff was examined by several physicians, including orthopedic surgeons and neurologists, whose records document that the plaintiff was injured on the job. The physicians subsequently filed reports with the Workers' Compensation Board.

 In addition to the disability claim filed with the Social Security Administration, the plaintiff also applied for workers' compensation benefits. In a Workers' Compensation Board Decision filed on February 15, 1990, Bubnis was awarded $ 300 per week for the period from October 21, 1988 to June 14, 1989. For the period from June 14, 1989 to February 13, 1990, the plaintiff was awarded $ 150 per week. The plaintiff also received a lump sum award of $ 39,000.00, including $ 4,000.00 for attorney's fees, allocated at a reduced earnings rate of $ 150.00. (Tr. at 147.) The Workers' Compensation Board's decision classified plaintiff as having a permanent partial disability and his workers' compensation case was closed. (Tr. at 147.)

 Initially, in a Social Security Notice ("Notice") dated September 27, 1990, the SSA denied the plaintiff's claim for disability benefits. According to this Notice, the SSA's denial was based on its determination that the plaintiff's condition was "not severe enough" to prevent him from working, and he was further advised of his right to appeal the SSA's decision. (Tr. at 31.)

 On November 15, 1990, the plaintiff filed a "Request for Reconsideration" with the SSA, stating that "since first being hurt in 1987 [his] pain has increased." (Tr. at 34.) In a "Notice of Reconsideration" dated January 28, 1991, the SSA notified the plaintiff that it found "the previous determination denying [plaintiff's] claim was proper under the law." (Tr. at 54.) The Notice of Reconsideration also stated that if the plaintiff believed the reconsideration determination to be incorrect, he could "request a hearing before an administrative law judge of the Office of Hearings and Appeals." (Tr. at 54.) The plaintiff subsequently filed a "Request for Hearing by Administrative Law Judge" which was received by the SSA on March 18, 1991. (Tr. at 57.) The plaintiff's request stated,

The Social Security Administration is incorrect. I am totally disabled and unable to do any work. I am unable to climb stairs. I sleep on my couch at home now because of this.

 (Tr. at 57.)

 In a decision dated November 21, 1991, Administrative Law Judge Joseph Halpern found that "based upon the application filed on July 30, 1990, the [plaintiff] is entitled to a period of disability commencing October 16, 1987, and to disability insurance benefits accordingly under Sections 216(i) and 223, respectively, of the Social Security Act." (Tr. at 218.)

 The plaintiff received a "Notice of Award" dated February 3, 1992 which described the disability benefits he was entitled to from the SSA beginning June, 1989. On April 28, 1992, the SSA sent the plaintiff a "Notice of Change in Benefits" informing him that he had been paid too much and describing the measures he could take if he believed the SSA was incorrect in its determination that he was overpaid benefits. On July 6, 1992, the SSA sent the plaintiff another letter telling him that he had received $ 3,396.20 more than he was entitled to in Social Security benefits and requested that he refund the overpayment within 30 days. In this same letter the SSA warned the plaintiff that if it did not receive a refund from him, the SSA would take steps to recover the overpayment by withholding the plaintiff's full benefit beginning with the payment the plaintiff would normally receive about September 3, 1992.

 On March 8, 1993 the SSA sent the plaintiff a letter summarizing his Social Security record. This letter informed the plaintiff that the SSA had used $ 2303.40 of his benefits to recover some of the overpayment he had received and that the amount of overpayment outstanding was $ 1092.80. It further advised the plaintiff regarding the workers' compensation lump sum payment of $ 39,000.00, stating:

You have received a lump-sum award of $ 39,000.00 to settle your workers' compensation claim. A lump-sum award affects Social Security benefits in the same way periodic payments do. We treat a lump-sum award as if it were paid on a weekly basis.
When we figure how much to reduce you [sic] and your family benefits, we treated the lump-sum as if you had been paid $ 150.00 each week. However, we could exclude $ 4,000.00 of the legal, medical, and other expenses. For this reason, we lowered the weekly rate from $ 150.00 to $ 134.51. . . .

 (Tr. at 246.)

 The letter also stated that the plaintiff would be notified later of the determination with respect to his request that the SSA reconsider the proration of his lump sum. On August 8, 1993, the SSA sent the plaintiff another update of his Social Security record. This letter detailed a re-computation of the plaintiff's workers' compensation benefits amending the prorated amount from $ 150.00 to $ 134.61 and explained that the SSA must "consider workers' compensation and/or public disability payments" in the determination of the Social Security benefit. The letter also conveyed to the plaintiff that he had a right to appeal the SSA's determination.

 On or about September 9, 1993, apparently in response to a communication sent to the SSA on behalf of the plaintiff by "his representative", the plaintiff was sent a "Notice of Reconsideration" confirming the information contained in the August 8, 1993 letter regarding the reduction of his Social Security benefits and stating that the proration of the lump sum workers' compensation payment was correct and in accordance with the law. This Notice of Reconsideration further informed the plaintiff that if he thought the SSA was "wrong", that he had a right to request a hearing before an Administrative Law Judge. In response to the Notice of Reconsideration, on or about October 18, 1993, the plaintiff filed a "Request for Hearing by Administrative Law Judge" which identified his representative as Aba Heiman, Esq., ("Heiman") of Scheine, Fusco, Brandenstein & Rada, P.C. Explaining why the plaintiff desired a hearing, the Request stated:

The Social Security Administration cannot change the terms of a lump sum settlement of a Workers Compensation case under the State statute. In New York State, a lump sum settlement is not an allocation of future payments but rather, terminates claimant's rights. Therefore, the lump sum settlement ought not be allocated as in other states. Proof of the termination of rights is the fact that there is no allocation for future medical. We, therefore, challenge the notice of reconsideration dated September 9, 1993 and request a hearing.

 (Tr. at 254.)

[Billigmeier ] holds in a similar context, that where a claimant receives a lump sum settlement for an unrelated injury, prior to payments made on a current injury that the lump sum payment is not to be viewed as an advance payment of benefits to be considered over an allocated period but, rather, a final payment that is separate from any periodic payments (see Matter of Newman v. Public Oversight Board, 127 A.D.2d 302, 304, 515 N.Y.S.2d 347, lv. denied 70 N.Y.2d 606, 519 N.Y.S.2d 1030, 514 N.E.2d 388).

 (Tr. at 256, 295.)

 Plaintiff's counsel elaborated on this argument in a brief submitted to the Administrative Law Judge and requested that:

... [the ALJ] issue an order to the Office of Disability Operations compelling them to acquiesce in the case holdings which hold that the Social Security Administration must look to state law in applying Workers' Compensation offset provisions, and further directing the Administration to recompute the offset based upon a lifetime allocation of claimant's lump sum settlement award for his earlier Workers' Compensation case.

 (Tr. at 298, 303-04.)

 In a decision dated September 8, 1994, Administrative Law Judge Emanuel Poverstein, determined that:

the [Social Security] Administration's proration of a $ 39,000.00 lump-sum workers' compensation award at $ 150.00 a week or $ 650.00 a month (less legal expenses), in imposition of the workers' compensation against the claimant's disability insurance benefits was correct.

 (Tr. at 313.)

 At the same time, the plaintiff was further advised that if he did not agree with the ALJ's decision, he was entitled to file an appeal and was informed, "to file an appeal, you must file your request for review within 60 days from the date you get this notice." (Tr. at 307.)

 Counsel for the plaintiff, in a letter addressed to the SSA's Appeals Council and dated September 23, 1994, requested that:

... the Administrative Law Judge's decision be reversed as a matter of legal interpretation and public policy considerations and further as a matter of acquiescing in the Circuit Court's direction to follow the State Court's interpretation of Workers' Compensation benefit issues.

 (Tr. at 305-06.)

 However, the timeliness of plaintiff's request for review of the ALJ's decision was questioned by Roxie R. Nicoll, ("Nicoll") Hearings and Appeals Analysis, Department of Health and Human Services, who in a letter dated January 31, 1995, stated:

On September 8, 1994, the Administrative Law Judge issued a decision in this case which advised that the claimant had 60 days following receipt of the decision in which to file a request for review. On January 19, 1995, a request for review was filed; however, there is no statement or other information in the file as to why the request was not filed within the prescribed 60-day limit. We observe that your letter is dated September 23, 1994; however, it was not received by the Appeals Council until January 19, 1995.
. . .
An explanation for the untimely filing and any confirming evidence should be submitted within 20 days from the date of this letter. If we do not hear from you, we will assume that no additional information will be ...

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