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Bolognese v. Leavitt

June 26, 2008

GERALD BOLOGNESE, PLAINTIFF,
v.
MICHAEL O. LEAVITT, SECRETARY OF THE U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES DEFENDANT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION and ORDER

INTRODUCTION

Plaintiff Gerald Bolognese ("Plaintiff") brings this action pursuant to 42 U.S.C. §§ 405(g) and 1395ff(b), seeking review of a final decision of the Secretary of the United States Department of Health and Human Services ("Secretary") denying his request for a waiver of a surcharge imposed on his monthly Medicare Part B premiums. Specifically, Plaintiff alleges that the decision of Administrative Law Judge ("ALJ") James E. Dombeck denying his request for a waiver was erroneous and not supported by substantial evidence contained in the record and was not supported by the applicable law.

Plaintiff seeks reversal of the Secretary's ruling and such other and further relief as may be just and proper. The Secretary moves for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) ("Rule 12(c)") on the grounds that ALJ Dombeck's decision was supported by substantial evidence contained in the record. Plaintiff cross-moves for judgment on the pleadings on the grounds that the ALJ's decision was contrary to law, was not supported by substantial evidence, and resulted from biased decision making on behalf of the ALJ.

For the reasons set forth below, I find that the decision of the Secretary is supported by substantial evidence and is in accordance with applicable law. I further find that Plaintiff waived his bias claim by failing to raise it during the administrative proceedings. Therefore, I grant the Secretary's motion for judgment on the pleadings, and deny plaintiff's cross-motion for judgment on the pleadings.

BACKGROUND

Plaintiff, born on January 20, 1943 (Tr. 19), was employed as a tire builder for Dunlop Tires, Inc. ("Dunlop Tires") from 1967 to 1991 (Tr. 19, 141). As a result of a back injury sustained by Plaintiff in the late 1980s, Dunlop Tires placed him on disability retirement effective February 1, 1991 (Tr. 19. 113). Upon his retirement, under the terms of the Goodyear Dunlop Tires North America Ltd. 1950 Pension Plan ("the Dunlop Plan"), Plaintiff became entitled to a basic pension benefit and a Temporary Disability Supplement (Tr. 19, 72, 172-73). Plaintiff also was entitled to continued health insurance coverage under the Dunlop Plan (Tr. 19). However, the Dunlop Plan provided that once a retired employee became eligible for Medicare coverage, the plan would pay secondary to Medicare, thereby covering only the portions of medical bills not covered by Medicare (Tr. 22, 112). Once the Dunlop Plan became the secondary provider, it would pay the Medicare-eligible participant a "Special Medicare Benefit" in order to partially reimburse the participant for his or her Medicare Part B premiums (Tr. 75, 112, 114).

Plaintiff applied for Social Security disability benefits in 1991 (Tr. 142). In December 1992, following denial by the Social Security Administration and a subsequent appeal by Plaintiff, an ALJ awarded Plaintiff disability benefits retroactive to August 1991 (Tr. 19, 25, 142). When the Dunlop Plan learned that Plaintiff had become eligible for Social Security disability benefits, it prospectively terminated his Temporary Disability Supplement, effective February 1, 1993 (Tr. 73).

Under the Social Security Act, individuals under the age of 65, such as Plaintiff at the time he was awarded Social Security benefits, are eligible to enroll in Medicare Part A hospital insurance benefits once they have been entitled to Social Security disability benefits for 25 months. 42 C.F.R. § 406.12. Individuals entitled to enroll in Part A may also enroll in the Part B program. 42 C.F.R. § 407.10. Plaintiff became entitled to Medicare Part A and Medicare Part B supplemental medical insurance in August 1993 (Tr. 25, 109). See 42 C.F.R. § 406.12. He enrolled in Medicare Part A during his initial enrollment period, which ran from May 1, 1993, through November 30, 1993 (Tr. 25). He would have been automatically enrolled in Medicare Part B at that time, but he opted to decline enrollment in Part B (Tr. 25, 109, 129). The Dunlop Plan continued to pay on a primary basis for the medical services provided to Plaintiff until 2002 (Tr. 23).

Upon declining Part B coverage during the initial enrollment period, an individual may subsequently enroll during the "general enrollment period," see 42 C.F.R. § 407.(a)(2), which extends from January 1 through March 31 of each calendar year, id. § 407.15. By failing to enroll for Part B coverage after the expiration of the initial enrollment period, the Social Security Administration may require a Medicare applicant to pay a surcharge on the monthly Medicare premiums. See id. § 508.22. This surcharge is calculated by increasing the monthly premium by ten percent for each full twelve-month period between the close of the individual's initial enrollment period and the close of the enrollment period in which he enrolled. Id. §§ 408.22, 408.24(a).

Plaintiff enrolled in the Part B program on January 15, 2003 (Tr. 133), and his Part B coverage became effective on July 1, 2003 (Tr. 25, 110). Upon reviewing his application for the Part B program, the Social Security Administration determined that because Plaintiff had delayed his enrollment by a total of 112 months (from November 30, 1993, the last day of his initial enrollment period, through March 31, 2003, the last day of the general enrollment period for 2003), his monthly premium would be increased by a 90 percent surcharge--ten percent for each period of twelve months of the delayed enrollment (Tr. 129-31).

Plaintiff requested reconsideration and an administrative hearing on the imposition of the surcharge. Plaintiff appeared and was represented by a paralegal at an administrative hearing before ALJ Dombeck on September 28, 2004 in Buffalo (Tr. 135). In a comprehensive and well-reasoned decision dated December 6, 2004, the ALJ denied Plaintiff's request for waiver of the surcharge (Tr. 16-26). Plaintiff made a timely request for review to the Medicare Appeals Council ("Appeals Council") (Tr. 6-13). The ALJ's decision became the final decision of the Secretary when the Appeals Council denied Plaintiff's request for review of the ALJ's decision on May 31, 2006 (Tr. 1-2). On July 26, 2006, Plaintiff filed this action appealing the Secretary's decision.

DISCUSSION

I. Jurisdiction and Scope ...


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