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Ming v. Astrue

August 13, 2009

ADELE R. MING, PRO SE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge

MEMORANDUM AND ORDER

Plaintiff Adele Ming was overpaid disability insurance benefits ("DIB") by the Social Security Administration ("SSA") and requested a waiver of overpayment recovery. An Administrative Law Judge ("ALJ") denied plaintiff's waiver request by written decision dated June 23, 2005, concluding that plaintiff was not without fault in accepting the overpayments and that recovery by the SSA would not be against equity or good conscience, nor would it defeat the purpose of Title II of the Social Security Act ("Title II"). The Appeals Council subsequently denied plaintiff's request for review on August 29, 2007. The ALJ's decision became the Commissioner's final decision on that date. In response, plaintiff filed this complaint, pro se, on October 29, 2007, pursuant to 42 U.S.C. § 405(g), requesting review of the Commissioner's final decision. The Commissioner moved for judgment on the pleadings pursuant to the Federal Rules of Civil Procedure 12(c). Plaintiff filed an affidavit opposing the motion. For reasons set forth more fully below, defendant's motion is denied and the matter is remanded for further proceedings consistent with this opinion.

BACKGROUND

In August 1993, plaintiff began receiving DIB after sustaining a brain injury as a result of a serious car accident. (R.*fn1 at 231, 286; Compl. at ¶ 4.) Plaintiff's spouse, Richard Ming, and two children, Melissa and Matthew Ming, also received DIB. (R. at 91, 94, 280.) Plaintiff, a public school teacher with twenty years of experience, began working again in February of 1994, but was allowed a trial work period by the SSA, lasting nine months. (R. at 67, 284-85, 287.) The trial work period permitted plaintiff to test her ability to work without relinquishing her right to receive benefits if her disability resurfaced. (R. at 67.) Plaintiff also was paid for three months following the end of the trial work period, making the last month of her entitlement to benefits January 1995. (Id.) When plaintiff continued to work after January 1995, DIB payments should have ceased. Instead, plaintiff and her family members continued to receive DIB payments until June 2000. Plaintiff and her spouse received numerous letters between November 1995 and April 2000 notifying them that plaintiff's reported income warranted a reevaluation of her entitlement to disability checks and that overpayments had occurred. (R. at 16, 30, 43, 49, 51, 56, 60, 66.) The record reflects that plaintiff began receiving overpayment notices in October 1998. (R. at 51.)

Plaintiff maintains that she was not at fault in receiving the overpayments. (R. at 134.) She claims to have visited a local Social Security Office ("the local SSA office") several times to report her work activity, where she was told that she would be notified of a cessation of DIB by mail. (R. at 135, 183-84, 274, 288.) In her June 12, 2003 waiver request, plaintiff wrote she had been told "payments will stop soon." (R. at 135.) This statement is inconsistent with a statement plaintiff made almost two months later. On an SSA form dated August 6, 2003, plaintiff stated that she visited the local SSA office several times, and that she was told that because she was on an extended thirty-six month trial work period, her benefits would stop when necessary. (R. at 183-84.) Plaintiff also stated that because she was repeatedly "assured everything was O.K." and "told . . . not to worry because [she] was entitled to it," she felt "misinformed by SSA." (Id.)

On April 18, 2000, the SSA sent plaintiff a letter explaining that her benefits were likely to cease because of her work activity. (R. at 67.) The letter also explained that "[a]fter the [nine month] trial work period . . . [y]ou get an extended period of eligibility that begins right after the trial work period" that lasts for thirty-six months, whereby the SSA "restart[s] payments for any months(s) [sic] your work is not substantial if your health problems still meet our rules." (Id.) Plaintiff mentioned this extended period of eligibility in her pleadings, alleging that she was entitled to benefits for the entire thirty-six months, thus reducing the amount she owes the SSA. (Pl.'s Aff. in Opp'n to Def.'s Mot. at 2-3; R. at 273-76.) Plaintiff does not allege, nor does the record show, any gap in employment earnings during this period. (R. at 28.)

On December 18, 2000, the SSA sent several notices of overpayment to the Ming family. (R. at 86-99.) The letters stated that plaintiff received overpayments in the amount of $72,482, which included money paid to plaintiff's spouse and two children, less what was already recovered by the SSA in the form of returned checks and withheld tax refunds. (Id.) Three years later, plaintiff requested that the SSA waive overpayment recovery, alleging that the overpayment was not her fault. (R. at 134-41.) The SSA rejected plaintiff's request and scheduled a personal conference for August 6, 2003. (R. at 168, 182.) On that date, plaintiff explained that her husband's liver cancer had worsened, reducing his ability to earn income increasing their medical expenses. (R. at 183-184.) Despite this change in circumstance, SSA claims representative, E. Aponte, denied plaintiff's request for a waiver, finding that plaintiff's alleged visits to the local SSA office were undocumented and that she was not without fault in causing the overpayment. (R. at 185.)

On October 10, 2003, following the initial denial of plaintiff's waiver request, she requested a hearing with an ALJ. (R. at 213-15.) Plaintiff appeared with counsel at the May 19, 2005 hearing and asserted that she was not at fault for the overpayment because she notified the SSA of her employment in person and because repayment would be too great a financial burden.

(R. at 281-82.) Plaintiff stated that she had visited the local SSA office on Avenue U in Brooklyn, New York to report her work activity a "week or two" after returning to work, filled out a form, and was told she would be notified when her checks would stop. (R. at 277, 288.) The ALJ reviewed plaintiff's monthly expenses and assets. (R. at 290-93.) At the end of the hearing, plaintiff agreed to pay the remaining balance*fn2 in monthly installments of $250.00, still claiming to be without fault. (R. at 297.) At the time of plaintiff's hearing, she had already repaid approximately $19,000.00 of the overpayment in the form of returned checks and withheld tax refunds. (R. at 295-96.)

By written decision dated June 23, 2005, the ALJ denied plaintiff's request for a waiver of overpayment recovery, stating that "even if [plaintiff] . . . timely report[ed] her return to work and . . . did not cause the overpayment" plaintiff, "who was a school teacher, clearly knew, or at the very least should have known, that she and her children were not entitled to the social security checks they continued to receive for more than six years after she started working."*fn3 (R. at 14.) Accordingly, the ALJ found that plaintiff was not without fault in accepting the overpayments and that recovery by the SSA would not defeat the purpose of Title II, nor would it be against equity or good conscience. (R. at 15.)

On July 29, 2005, plaintiff wrote a letter expressing dismay that her May 29 hearing ended abruptly, before several issues were addressed. (R. at 273-76.) Plaintiff disputed the amount she owed, claiming that her period of entitlement ended in November 1997, not in February 1995, and that she should not "be asked to pay back monies [her] deceased husband used for [their] 2 children." (R. at 274, 276.)

On August 29, 2007, the Appeals Council denied plaintiff's request for review of the ALJ's decision because her "continued receipt of the disability payments when [she was] working was not reasonable," and because the ALJ's determination that plaintiff was "'not without fault' is supported by the record." (R. at 6.) Plaintiff filed this action for review of the Commissioner's final decision on October 29, 2007, pursuant to 42 U.S.C. § 405(g).

DISCUSSION

A. Standard of ...


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