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Joel Mesias v. John Doe (Ssi Representative

August 24, 2012


The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.


Plaintiff pro se Joel Mesias ("plaintiff") brings this action against a representative of the Social Security Administration ("defendant" or "SSA"), pursuant to 42 U.S.C. § 405(g), seeking review of defendant's determination that plaintiff was not without fault in accepting an alleged overpayment of Supplemental Security Income ("SSI") benefits, and that plaintiff was therefore not entitled to a waiver. On June 29, 2012, defendant filed a motion for judgment on the pleadings. For the reasons set forth below, defendant's motion is GRANTED.


Plaintiff filed an application for SSI benefits on July 21, 1993, and, being found eligible due to schizophrenia, paranoia, and other psychotic disorders, began receiving benefits. (Administrative Record ("Admin. R.") (Doc. No. 18) at 12, 113.)*fn1 During 1999, plaintiff began working. (Id. at 12, 134, 172.) Plaintiff had reported earnings of $2,935.55 in 1999 and $21,021.97 in 2000. (Id. at 14, 118.) However, he continued to receive SSI benefits from SSA through October 2000. (Id. at 14.) SSA sent plaintiff notices on November 28, 2000 and July 30, 2002 assessing an overpayment in the amount of $4,666.42. (Id. at 54, 57, 117.)

On April 24, 2003, plaintiff requested a waiver of the overpayment. (Id. at 29.) In his request, plaintiff indicated "Yes" to the prompt "Did you tell us about the change or event that made you overpaid?" (Id. at 30.) However, in response to the next prompt "If yes, how, when and where did you tell us?," plaintiff answered that he wrote a letter to SSA and visited an SSA office, where he made a request for a waiver and explained that he was using the benefits for travel expenses and to pay off debt. (Id.) He also stated: "If anything at all should be returned, I think that in my opinion half or maybe a third of what you are asking for because of your own clerical error might be a more reasonable amount to work with." (Id. at 31.) In the request for a waiver, plaintiff did not state that he told SSA, either in the alleged letter or during his alleged visit to an office, that he had begun working again. On November 4, 2003, SSA informed plaintiff that his waiver request was not approved. (Id. at 37.) A personal conference was scheduled for November 26, 2003.*fn2 (Id. at 37.) On the same day, SSA determined that, because plaintiff had not timely notified SSA of his earnings, he was not without fault in causing the overpayment, and his request for a waiver was denied. (Id. at 39.) Plaintiff requested reconsideration of this decision, (id. at 43), and SSA again denied his request, (id. at 44).

On June 28, 2006, Administrative Law Judge ("ALJ") David Z. Nisnewitz conducted a hearing in the case. (Id. at 128.) Plaintiff testified that in 1997, he "came to the [SSA] office to try to get some help. They said that they would increase my SSI and promised me a refund and promised to help me find work . . . ." (Id. at 133.) He then testified that he began working part-time for a retail data services company in September 1999. (Id. at 133, 138.) When asked whether he notified them that he went back to work, he replied, "Well, they had promised me a refund, and they were trying to help me find work, so I thought that they somehow knew that I was working when I started working. . . . I think Social Security knows everything . . . ." (Id. at 137.) He then testified that SSA contacted him to inquire about his employment status about three months after he started working. (Id. at 137.) Thereafter, the following exchange took place:

Q But did you ever notify the [SSA] that you went back to work?

A More or less, I did six months after I started working.

Q How did you notify them?

A They had contacted me, and I called them up, and we agreed --

Q Well, why did you continue to take the money if you knew you were working?

A Take the money? I didn't have enough money to get by on. I was just evicted. I lost everything. I didn't even have any clothes to go to work with. (Id. at 141.) He also testified that he did not know who he spoke to during the call, but that he did receive publications regarding SSI benefits, including "How Your Earnings Affect Your SSI Payments." (Id. at 147.)

In a decision dated March 28, 2007 ("the first ALJ decision"), ALJ Nisnewitz found that the overpayment could not be waived because plaintiff was not without fault in accepting it. (Id. at 101--08.) In a decision dated May 6, 2009 ("the first Appeals Council decision"), the Appeals Council vacated the first ALJ decision, remanded the case, and instructed the ALJ to determine whether plaintiff's paranoid schizophrenia impacted his ability to understand and comply with the SSA reporting requirements. (Id. at 122--25.)

On September 21, 2009, ALJ Nisnewitz held a second hearing at which plaintiff appeared and was represented by Victoria C. Salzano. (Id. at 161.) Plaintiff testified that he worked some in February of 1999 and then began working again in October 1999. (Id. at 167, 172--74.) He also testified that he earned between $19,000 and $33,910 per year from 2001 to 2006. (Id. at 168--70, 174.) He described his employment duties with Retail Data Services (RDS), for whom he began working in late 1999, which offers a price-checking service to retail businesses that facilitates price competition. RDS ...

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