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Gallagher v. Astrue

United States District Court, Second Circuit

June 10, 2013

BERNARD R. GALLAGHER, Plaintiff,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION Respondent.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction and Preliminary Matters

Bernard R. Gallagher ("Gallagher" or "Petitioner") commenced an action, pursuant to 42 U.S.C. § 405(g), to review the final determination of Defendant Commissioner of Social Security that Plaintiff was not entitled to a waiver of the recovery of an overpayment of benefits. See Dkt. No. 1.

By Report and Recommendation ("the R&R") dated September 13, 2012 (Dkt. No. 15), United States Magistrate Judge Hugh B. Scott recommended that the decision of the Commissioner be affirmed and the Complaint dismissed. Gallagher filed objections to the R&R (Dkt. No. 16). Respondent filed a reply (Dkt. No. 18). Gallagher was directed to file a reply by October 29, 2012 (Dkt. No. 19). Gallagher, however, did not file a reply.

This matter was transferred to the undersigned on May 29, 2013. Dkt. No. 20.

For the reasons set forth below, the R&R is accepted and adopted in its entirety. The decision of the Commissioner is affirmed and the Complaint is dismissed.

II. Factual Background

Gallagher was found to be disabled and entitled to disability benefits with an onset date of November 7, 1997. Administrative Transcript [Tr.] 38. In May of 2002, Plaintiff was advised that his disability benefits had ended because he had engaged in substantial gainful activity. He was further advised that he was entitled to a 36-month period of extended entitlement to benefits, beginning in January of 2000, for any month in which he did not engage in substantial gainful activity. Tr. 43-49. In July of 2005, Gallagher was advised that he had engaged in substantial gainful activity during the period of extended entitlement. Tr. 52. On May 8, 2006, the Social Security Administration ("SSA") determined that Plaintiff had received an overpayment of benefits totaling $30, 119. Gallagher was also advised that he was "at fault" for causing the overpayment, and that his request for waiver of overpayment was denied. Tr. 55, 57-60, 63, 207.

An administrative hearing was held on April 2, 2009 before Administrative Law Judge ("ALJ") Grenville W. Harrop, Jr. Tr. 256-288. Gallagher testified that at the time of hearing he was working 32 hours per week for the Internal Revenue Services, at the hourly rate of $15.06. Tr. 268-269. Gallagher also testified that he had $71, 428 in the bank, which represented a settlement compensating him for his father's death from lung cancer. Tr. 274-275. He stated that his monthly expenses were approximately $1200 to $1300 per month. Tr. 275. In an April 7, 2009 letter to the ALJ, Gallagher stated that he has "always been capable of work" but felt that he was underemployed due to his disabilities. Tr. 254. The ALJ determined that Gallagher had been overpaid in the amount of $30, 119. Further, the ALJ determined that Gallagher was without fault for the overpayment, but that recovery of the overpayment would not defeat the purpose of Title II of the Act or be against equity and good conscience.[1] Tr. 20-22. The ALJ recommended a repayment schedule. Tr. 21. The decision of the ALJ became the Commissioner's final decision when the Appeals Council denied Gallagher's request for review on January 6, 2011.

III. Standard of Review

In reviewing the Report and Recommendation, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1)(C). The Court is required to make a de novo determination as to the aspects of the Report to which objections are made. United States v. Male Juvenile , 121 F.3d 34, 38 (2d Cir. 1997). However, a plaintiff is not entitled to de novo review upon making general or conclusory objections that do not address specific issues in the magistrate's report and recommendation. See Vargas v. Keane, 1994 U.S. Dist. LEXIS 17701, No. 93-CV-7852 (MBM), 1994 WL 693885 (S.D.N.Y. Dec. 12, 1994); Klawitter v. Chater, 1995 U.S. Dist. LEXIS 16162, No. 93-CV-0054E (JTE), 1995 WL 643367 at "1 (W.D.N.Y. Oct. 18, 1995); Murphy v. Grabo, 1998 U.S. Dist. LEXIS 5043, No. 94-CV-1684 (RSP), 1998 WL 166840 at *1 (N.D.N.Y. Apr. 9, 1998). Nor is de novo review warranted where an objection merely reiterates arguments made before the magistrate judge. Camardo v. General Motors Hourly-Rate Employees Pension Plan , 806 F.Supp. 380, 382 (W.D.N.Y. 1992). Under such circumstances, a report and recommendation is reviewed for clear error. Montalvo v. Barnhart, No. 02-CV-0494 , 457 F.Supp.2d 150, 2006 U.S. Dist. LEXIS 91065, 2006 WL 3001161, at *3 (W.D.N.Y. 2006).

IV. Analysis of Plaintiff's Objections to the R&R

Here, Plaintiff appears to lodge three objections to Magistrate Judge Scott's R&R. First, Plaintiff asserts that Magistrate Judge Scott erred by not specifically addressing the ALJ's allegedly erroneous statement of law during the administrative hearing, in which the ALJ stated that "in an overpayment situation, there are two steps: [o]ne is to be found without fault in causing the overpayment. And secondly, whether it would be against equity and good conscience - in other words, that you do not have the money to pay back an overpayment...." Objections at 1; Tr. 275. Plaintiff also asserts that Magistrate Judge Scott erred in his evaluation of Quinlivan v. Sullivan , 916 F.2d 524 (9th Cir. 1990), a Ninth Circuit case, which Plaintiff previously submitted to the Court in support of his contention that the "the meaning of equity and good conscience' should be more broadly defined." And, in what appears to be a third objection to the R&R, Plaintiff argues that "[he] should have been covered under [his] father[]s [social security] benefits, because [he] was permanently disabled as a minor." Objections at 1.

A. Plaintiff's First Objection - (The Magistrate Judge Erred in Failing to Address ALJ's ...


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