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Lawrence Ventimiglia v. Michael J. Astrue

September 28, 2011


The opinion of the court was delivered by: P. Kevin Castel, District Judge:


Plaintiff Lawrence Ventimiglia seeks judicial review of a final decision by the Commissioner of Social Security (the "Commissioner") finding that plaintiff has been receiving the correct amount of retirement insurance benefits provided for in Title II of the Social Security Act ("the Act"). Plaintiff asserts that the decision of the Administrative Law Judge ("ALJ") was "not supported by substantial evidence on the record." (Compl. p. 3.) Specifically, he alleges that (1) the Social Security Administration ("SSA") owes the plaintiff benefits withheld and (2) his monthly benefits were reduced without justification and should be restored to a higher amount. (Docket No. 3.) Defendant has moved for judgment on the pleadings pursuant to Rule 12(c), Fed. R. Civ. P. For the reasons explained below, the defendant's motion is granted.


A. Plaintiff's Initial Retirement Plaintiff was born on November 10, 1938. (R. 31.) In August 2000, two months before turning 62 years old, plaintiff filed an application for Social Security retirement benefits. (R. 31-32.) His application stated that he was the president of his own insurance sales business and that he would be transferring the business to his wife, Nancy Ventimiglia, after which he did not plan to work for the company. (R. 32.) He attained 62 years of age on November 10, 2000. (R. 31.) The original date of his entitlement is January 2001, which is when he began receiving benefits. (R. 16.) Because he retired 36 months prior to full retirement age, plaintiff was entitled to a reduced monthly benefit.

B. Social Security Administration's Finding That Plaintiff Was Not Retired Plaintiff's wife applied for spousal retirement benefits on plaintiff's account on August 27, 2003. (R. 33-35.) During the interview portion of the process, a SSA employee noted that plaintiff's wife was "not running [the] company" based on her inability to answer "the [simplest] questions." (R. 42.) In a letter dated October 29, 2003, the SSA informed plaintiff that they received new and material evidence and would be reopening his retirement application. (R. 44.) The SSA requested that plaintiff submit his tax returns and statements from insurance companies regarding the gross receipts and commissions that his business received. (Id.)

On November 30, 2004, the SSA notified plaintiff that, after reopening his application, it found that he had not established that he was retired as of January 2001 and he had continued to perform substantial services in the sales and management of the company as a licensed Insurance agent. (R. 56.) Plaintiff argued that the earnings he received from the company came from residual income from renewals. (R. 62.) The SSA believed, however, that plaintiff put his business in his wife's name to misleadingly appear retired, though the company's income was directly attributable to his sales. (Id.)

The SSA stated it would assign the income to plaintiff's Annual Earnings Test, which would deduct money from his benefit payment based on the amount of earnings he made in excess of the annual exempt amount, until he reached full retirement age in January 2004. (Id.) On or about March 28, 2005, the SSA notified plaintiff that he had not established he was retired and they would not pay him the benefits as he requested. (R. 65.)

The SSA raised plaintiff's monthly benefit amount based on the later retirement date, but determined that he owed the SSA repayment of benefits for the period during which it believed he was not yet retired. In a letter dated April 29, 2005, plaintiff was notified that beginning April 2005, he would receive $1,345 per month in benefits, but owed the SSA $22,146 from overpayment of benefits for the period before January 2004. (R. 24, 755.) The plaintiff requested reconsideration, and the SSA notified plaintiff on September 13, 2005 that the agency maintained its determination that he was not retired until January 2004. (R. 63-68.) To recoup the overpayment, the agency withheld plaintiff's benefits beginning December, 2005. (Exhibit A to the Declaration of Tom Ferraro dated August 3, 2011.) On September 20, 2005, plaintiff requested a hearing before an ALJ to appeal the SSA's decision. (R. 69.) In September 2006, plaintiff was informed that he still owed $7,389.30 in overpaid benefits, but would receive $1,393 per month in benefits beginning in October. (R. 756.) This monthly benefit amount was changed beginning November 2006, to $1,187 per month, because the agency withheld $206 of his monthly amount until November 2009 to correct the balance of $7,183.30 due in overpayments. (R. 757.)

C. ALJ Cohen's Decision Finding That Plaintiff Was Retired and Subsequent Reduction in His Benefit Amount

Plaintiff appeared before ALJ Jay Cohen on October 31, 2007 and was not represented by counsel. (R. 20.) On November 6, 2007, ALJ Cohen reversed the SSA's decision, finding that plaintiff had been bona fide retired since his original application in November 2000 and that he had not been overpaid benefits. (R. 17-25.)

In a letter dated December 10, 2007, the SSA notified the plaintiff that due to ALJ Cohen's decision, he would be reimbursed for months previously withheld from him. (R. 730.) The SSA also changed plaintiff's earning amounts for 2001 through 2004 to zero. (R. 728.) Because plaintiff would be paid benefits for every month from January 2001, he became ineligible for the higher full-retirement-age benefit amount and his monthly benefit would decrease. (R. 730). He would no longer have benefits deducted, however, for months in which he exceeded the earnings threshold. (Id.) As a consequence of the agency's withholding of benefits based on the now-reversed finding that he had been overpaid, the SSA owed plaintiff $10,325.70 for benefits due to him through November 2007. (Id.) Beginning December 2007, he would receive benefits totaling $1,262 per month. (Id.)

On February 15, 2008, plaintiff filed a request for reconsideration of the SSA's decision that his monthly benefit would decrease. (R. 739.) In the Notice of Reconsideration, dated March 28, 2008, the SSA affirmed that plaintiff was receiving the maximum benefit amount. (R. 737-40.) The notice explained that full retirement age for individuals born between January 2, 1938 and January 1, 1939 is 65 years and two months. (R. 739.) The letter stated that if an individual receives benefits before full retirement age, the benefit would be reduced by 5/9 of one percent for each month he retired before full retirement age. (Id.) If the beneficiary works after retirement, but before full retirement age of 65 years and two months, any months in which he is not entitled to a full Social Security Benefit because he exceeds the earnings threshold are not counted into his benefit reduction. (Id.) The notice stated that based on plaintiff's original date of entitlement, January 2001, his PIA had been reduced by 36 months of entitlement prior to his full retirement age of 65 years and two months, but that his earnings exceeded the threshold in 22 of those 36 months, therefore his PIA would only be reduced by 14 months. (R. 740.) When ALJ Cohen later determined that plaintiff had been bona fide retired since the original date of entitlement, the PIA was adjusted back to 36 months of reduction for early retirement. (Id.)

D. ALJ Wieselthier's Decision Affirming Plaintiff's Monthly Benefit Amount Plaintiff filed a request for a hearing by an ALJ to reconsider the SSA's decision that he was receiving the highest possible benefit. (R. 741.) Plaintiff disagreed with the determination because "[w]hen the [SSA] [declared] that I was overpaid and [stopped] my monthly benefits, it forced me to go back to work -- So in fact I did not retire and I should receive benefits as if I retired at 65." (Id.)

Plaintiff appeared at a hearing before ALJ Sol Wieselthier on June 23, 2008, and was again not represented by counsel. (R. 766.) Plaintiff testified that he was "refused these benefits from the beginning and [was] put [] back into the workforce." (R. 768.) He stated that he is "receiving benefits after the fact," not early benefits. (Id.) He further said that ...

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