The opinion of the court was delivered by: Pitman, United States Magistrate Judge:
REPORT AND RECOMMENDATION
TO THE HONORABLE JED S. RAKOFF, United States District Judge,
Plaintiff, Anthony Litvin, brings this action pursuant to section 205(g) of the Social Security Act ("Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for waiver of overpayment of disability insurance benefits ("DIB") under Title II of the Act.
The Commissioner has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Docket Item 11). For the reasons set forth below, I respectfully recommend that the Commissioner's motion be denied and the case be remanded for further proceedings consistent with this opinion.
Plaintiff filed an application for DIB on July 31, 1991, and was approved on the basis of a mental impairment (Tr.*fn1 14, 18-19). His DIB became effective in February 1991 (Tr. 14). Plaintiff returned to work in August 1992, and continued to work through February 1993 (Tr. 14, 25). During this time period, plaintiff filed a report with the Social Security Administration ("SSA") dated September 21, 1992, addressing the continuing nature of his disability and his work activity (Tr. 121-28, 157-59). In this report, he stated that he felt able to return to work and did not list any limitations on performing such work (Tr. 121, 126-27). Additionally, plaintiff did not list any limitations with respect to performing his daily activities (Tr. 124-25).
On January 4, 1994, the SSA notified plaintiff that it reviewed his DIB and determined that his disability was continu- ing (Tr. 21). On February 23, 1994, the SSA also notified plaintiff that, as of that point in time, he had used six months of his trial work period*fn2 (Tr. 23).
On May 26, 1995, plaintiff filed another work activity report with the SSA, stating that he returned to work in approximately mid-March 1995, and as of the date of the report, was still working (Tr. 166-68). Based upon this information, by notices dated August 7, 1995 (Tr. 25-26) and August 22, 1995 (Tr. 27-28), the SSA notified plaintiff that he no longer qualified for DIB as of August 1995. Specifically, the SSA explained that plaintiff completed his "9-month trial work period" in April 1995 -- a trial work period that consisted of the months August 1992 through February 1993, March 1995, and April 1995 -- and, thereafter, continued to perform substantial gainful activity (Tr. 25, 27). However, plaintiff's DIB were reinstated*fn3 as of August 1995(Tr. 25, 27) because plaintiff informed the SSA that he stopped working in June 1995 (Tr. 170-71).
On November 27, 1995, plaintiff filed another report with the SSA to address the continuing nature of his disability and his work activity to date (Tr. 131-38). In this report, plaintiff stated that he did not feel able to return to work because he was having difficulty concentrating, was forgetful, was not sleeping at night, and was experiencing headaches (Tr. 131, 136). With respect to performing his daily activities, however, he listed no limitations and stated that he did not need assistance (Tr. 134-35).
On December 14, 1995, the SSA notified plaintiff that his DIB would be reviewed once again and requested updated medical and employment information (Tr. 32-33). Plaintiff did not respond to this request, and the SSA sent him a notice dated December 29, 1995 that stated his benefits may be stopped if he did not contact the SSA within ten working days (Tr. 34). Notwithstanding this, on April 24, 1996, the SSA determined that plaintiff was still disabled (Tr. 35).
The SSA initiated the next review of plaintiff's DIB on March 6, 1999, once again requesting updated medical and employment information (Tr. 38-40). After the review was completed, by notice dated August 20, 1999, the SSA informed plaintiff that he was no longer eligible for DIB as of October 1999 because his health improved and he was now able to work (Tr. 43-45). Plaintiff submitted a request for reconsideration of the SSA's decision (Tr. 46-49, 149-54), and the SSA reversed its decision on November 5, 1999 (Tr. 50-53).
On October 2, 2001, plaintiff contacted the SSA to report that he had returned to work on September 20, 2001 (Tr. 8, 102, 105). At this time, plaintiff received incorrect information from an SSA representative that he was in a trial work period that would run from October 2001 through June 2002 (Tr. 8, 102, 105).
On November 5, 2002, plaintiff filed a report addressing the continuing nature of his disability and his work activity to date (Tr. 118-19). In this report, plaintiff stated that his health was "better" than it had been in October 2000 and that he was still working (Tr. 118).
On September 16, 2003, the SSA sent plaintiff a notice requesting that he contact the agency to discuss his DIB (Tr. 54), and on September 22, 2003, the SSA sent plaintiff forms to complete regarding his medical condition and work activity (Tr. 56-57). Plaintiff was again contacted by the SSA --- on October 7, 2003 (Tr. 58), November 15, 2003 (Tr. 59), and January 26, 2004 (Tr. 62) --- about submitting the requested information.
On February 18, 2004, the SSA notified plaintiff that a decision to terminate his DIB as of October 2002 was forthcoming. (Tr. 66). Specifically, the SSA explained that the decision was based upon his performing "substantial work" after the completion of his trial work period, which the SSA identified as October 2001 though June 2002 (Tr. 66-68). The SSA then attempted to contact plaintiff a number of times --- specifically, April 7, 2004 (Tr. 70), April 22, 2004 (Tr. 71-72), April 30, 2004 (Tr. 73), May 4, 2004 (Tr. 74), and May 5, 2004 (Tr. 75-76) -- about submitting further documentation with respect to his DIB review, but no response was received. Thus, on May 18, 2004, the SSA notified plaintiff that it had determined he was no longer disabled as of October 10, 2003 (Tr. 79-81).*fn4
Plaintiff, however, states that he contacted the SSA by calling its
"800" number on a monthly basis --- from November 2002*fn5
through February 2004 -- about the status of his DIB, and
that each time, he was told by an SSA representative that he was in a
trial work period (Tr. 105, 213). Additionally, plaintiff states that
he was informed by an SSA representative on April 7, 2004 that "I was
. . . 'still in a trial work period, and if I can't work in the
future, I will be reinstated with no waiting period'" (Tr. 104, 110,
On August 3, 2004, the SSA notified plaintiff that his DIB should have actually been terminated as of March 2002, and as a result, he had been overpaid DIB in the amount of $28,904.60*fn6 (Tr. 82). Plaintiff requested reconsideration of the SSA's decision, and after reconsideration, the SSA informed plaintiff by notice dated March 17, 2005 that it was adhering to its decision (Tr. 83-84). In this notice, the SSA explained that because plaintiff's trial work period actually ended in April 1995 --- not June 2002 -- and he continued to perform "substantial gainful work" as of December 2001, his DIB should have been terminated as of March 2002 (Tr. 83-84). Plaintiff then filed a request for a waiver of overpayment on the grounds that he was without fault and unable to repay the amount due (Tr. 102-05, 141-48).
On June 7, 2005, the SSA notified plaintiff that his waiver request was going to be denied based on the information in his file, but that he was entitled to a personal conference prior to the issuance of that decision (Tr. 87-88). Plaintiff's personal conference was scheduled for July 5, 2005 (Tr. 87).
On July 5, 2005, the SSA denied plaintiff's request for waiver of overpayment (Tr. 101). Specifically, the SSA stated:
IN JUNE 31, 1991, YOU FILED FOR DISABILITY BENEFITS AND YOUR RIGHTS AND RESPONSIBILITIES WERE EXPLAINED TO YOU. YOU WERE ADVISED THAT IF YOU WORKED OVER THE SUBSTANTIAL GAINFUL ACTIVITY AMOUNT IT WOULD AFFECT YOUR DISABILITY BENEFITS. SINCE YOU CONTINUED TO WORK AND CONTINUED TO RECEIVE YOUR FULL DISABILITY BENEFITS YOU WERE OVERPAID. (Tr. 101). On July 22, 2005, plaintiff requested review of the SSA's decision by an administrative law judge (Tr. 91-92, 106-10). He later waived his right to a formal hearing and, instead, sought a determination of his appeal based solely on the record (Tr. 197).
Administrative Law Judge ("ALJ") James B. Reap issued a decision with respect to plaintiff's appeal on December 28, 2006 (Tr. 11-17), finding that plaintiff received an overpayment, was at fault in causing and accepting the entire overpayment, and the overpayment could not be waived (Tr. 17). On February 9, 2007, plaintiff requested review of the ALJ's decision by the Appeals Council of the SSA Office of Hearings and Appeals ("Appeals Council") (Tr. 199-200, 207). The Appeals Council granted ...