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Catherine M. Daviau v. Michael J. Astrue

January 4, 2012


The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:



Plaintiff Catherine Daviau brings the above-captioned action pursuant to 42 U.S.C. § 205(g) of the Social Security Act, seeking a review of the Commissioner of Social Security's decision that she is not entitled to a waiver of recovery of overpayment of disability insurance benefits.


From May 1988 through March 1996, plaintiff received social security disability insurance benefits ("DIB").*fn1 (T. 14, 34). Defendant contends that, during that time, plaintiff was overpaid $14,311.50 due to her return to work.*fn2 (T. 14, 34). According to defendant, those benefits have allegedly been recovered. (T. 14). In October 1996, plaintiff became re-entitled to DIB and collected payments through July 2004. (T. 14, 34). Defendant claims that plaintiff returned to substantial gainful work in February 2002 resulting in an overpayment of benefits in the amount of $16,607.49. (T. 14, 34).

In August 2004, plaintiff received a letter from the Social Security Administration ("SSA") entitled Notice of Disability Cessation. In that correspondence, the SSA advised plaintiff that due to substantial work, her eligibility payments should have ceased as of May 2002.

(T. 18). The notice stated:

Earlier, we wrote to tell you that we had information about your work and earnings that could affect your Social Security disability payments. We also told you that we planned to decide that your disability ended because of your substantial work. We are now writing to tell you our decision.*fn3 (T. 18).

The notice explained that plaintiff was paid for her trial work period ("TWP") and her extended period of eligibility ("EPE"). The notice also stated, "we pay benefits for the month disability ends and the following two months no matter how much is earned. In your case, this is February 2002 through April 2002."*fn4 (T. 18). Plaintiff was advised, "[b]ecause we did not stop your checks until August 2004, you were paid $17,395.49 too much in benefits". (T. 19). Plaintiff was advised that she could appeal the determination and request a waiver of overpayment. (T. 19). In September 2004, plaintiff requested that the SSA waive collection of the overpayment. (T. 22). In January 2005, the SSA denied that request but suggested that plaintiff appear for a personal conference as plaintiff had the right to meet with the agency to discuss the overpayment. (T. 31). The conference was held on June 23, 2005. (T. 33). In August 2005, plaintiff was advised that the initial decision to deny her request for a waiver was correct. (T. 36). The notice stated, "[i]t has been determined that you did not exercise a high degree of care in reporting your work". (T. 36).

In October 2005, plaintiff requested a hearing by an Administrative law Judge ("ALJ").

(T. 40). On September 14, 2006, a representative from District Office 110 prepared a document entitled "Report of Contact" which provided:

W/E*fn5 came into D.O. 110 and returned check in the amount of $697 and inquiry as to status of her hearing request of waiver and personal conference denial. There is nothing pending in ODAR, per query. As personal conference was denied on 8/8/05 and W/E was into [sic] the office on 10/3/05, we are using that as a protective filing. Medical folder does not contain any information from the waiver or personal conference, so we will reconstruct, then forward folder to ODAR.*fn6 (T. 45).

On October 7, 2006, plaintiff prepared a second Request for Waiver of Overpayment which is noted as "Reconstructed". (T. 64). On November 3, 2006, a representative from District Office 110 prepared another "Report of Contact" which states:

We have no record of hearing been filed or personal denial even though W/E requested one on 10/4/05 and came into the office on 10/3/05. We have been unable to locate paperwork from waiver/personal conference denial and have reconstructed it to the best we could. Original waiver determination was attached to letter sent to W/E on 8/8/05 but she never responded to our requests for a copy. It appears good cause for late filing exists. Hearing request being forwarded for your action. (T. 53).

On January 20, 2007, plaintiff prepared a third Request for Waiver of Overpayment. (T. 83). On March 16, 2007, an administrative hearing was held. Plaintiff appeared and elected to proceed pro se. On March 30, 2007, the ALJ issued a decision finding that plaintiff received an overpayment and that plaintiff was not without fault in creating the overpayment. (T. 14). On June 26, 2009, the Appeals Council denied plaintiff's request for review making the ALJ's determination final. (T. 3).

On August 3, 2009, plaintiff commenced this action pro se. (Dkt. No. 1). On February 24, 2010, defendant filed an answer. (Dkt. No. 11). On June 15, 2010, plaintiff filed a letter that briefly summarized her arguments. (Dkt. No. 13). On July 14, 2010, defendant filed a motion for judgment on the pleadings. (Dkt. No. 14).


I. Standard of Review

A Commissioner's determination will be set aside when the factual findings are not supported by "substantial evidence." 42 U.S.C. § 405(g); see also Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). Substantial evidence has been interpreted to mean "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The Court may also set aside the Commissioner's decision when it is based upon legal error. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). "The Supreme Court has defined substantial evidence as 'more than a mere scintilla' and as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Quinones v. Chater, 117 F.3d 29, 33 (2d Cir.1997) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

Plaintiff is pro se and in the absence of a plaintiff's brief, the Court assumes that the plaintiff generally alleges that the ALJ committed legal error and that his decision was not supported by substantial evidence. Edel v. Astrue, 2009 WL 890667, at *15 (N.D.N.Y. 2009) (citations omitted).

II. Waiver of Overpayment "Whenever the Commissioner of Social Security finds that more or less than the correct amount of payment has been made to any person under this subchapter, proper adjustment or recovery shall be made". 42 U.S.C. § 404(a)(1). The Social Security Act provides that an overpayment of benefits shall not be recovered where the claimant is "without fault if such adjustment or recovery would defeat the purpose of this title or would be against equity and good conscience." Langella v. Bush, 161 F. App'x 140, 142 (2d Cir. 2005) (citing 42 U.S.C. § 404(b); 20 C.F.R. § 404.506). Adjustment or recovery will defeat the purposes of Title II in (but is not limited to) situations where the person from whom ...

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