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Gusky v. Astrue

United States District Court, W.D. New York

July 2, 2013

JOSEPH H. GUSKY, Plaintiff,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant

Page 181

For Joseph H. Gusky, Plaintiff: Anthony Szczygiel, Legal Services for the Elderly, Buffalo, NY.

For Michael J. Astrue as Commissioner of the Social Security Administration, Defendant: Jane B. Wolfe, LEAD ATTORNEY, U.S. Attorney's Office, Buffalo, NY.

OPINION

HONORABLE MICHAEL A. TELESCA, United States District Judge.

Page 182

DECISION AND ORDER

I. Introduction and Preliminary Matters

Joseph P. Gusky (" Gusky" or " Plaintiff" ), through counsel, 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 February 28, 2012 (Dkt. No. 11), United States Magistrate Judge Leslie G. Foschio recommended that the decision of the Commissioner's motion for judgment on the pleadings (Dkt. No. 6) be granted and Gusky's motion for judgment on the pleadings be denied (Dkt. No. 8). See Dkt. No. 14 at p 14. Plaintiff filed objections to the R& R on March 8, 2012 (Dkt. No. 12), and Defendant filed a Reply on March 21, 2012 (Dkt. No. 13).

This matter was transferred to the undersigned on June 24, 2013. Dkt. No. 14.

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 (Dkt. No. 1) is dismissed.

II. Factual and Procedural Background

Plaintiff filed an application for disability benefits on February 20, 1998, was determined to be disabled under the meaning of the Act, and received disability benefits beginning April 1, 1995. Administrative Trans. [Tr.] 30, 43.

On March 22, 2004, the Social Security Administration (" SSA" ) advised Plaintiff that upon review of his earnings records, SSA earnings records, and work information provided by his employers, the SSA had determined that Plaintiff performed substantial work activity beginning October 1998, that Plaintiff's nine month trial work period ended effective February 2000, and that Plaintiff's benefits would be terminated effective March 2003. Tr. 48-50. In correspondence dated April 2, 2004, the SSA advised Plaintiff that because the SSA did not stop Plaintiff's disability checks until ...


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