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Maqsood v. Commissioner of Social Security

United States District Court, Second Circuit

July 30, 2013

KHAWAR MAQSOOD, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

ORDER

PAUL G. GARDEPHE, District Judge.

Pro se Plaintiff Khawar Maqsood filed this action on November 22, 2010 pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking review of the Commissioner of Social Security's calculation of Plaintiff's disability insurance benefits. (Dkt. No. 2) On December 9, 2010, this Court referred this action to Magistrate Judge Theodore H. Katz for a Report and Recommendation ("R&R"). (Dkt. No. 6) On May 3, 2011, the Commissioner moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) (Dkt. No. 15)

On May 11, 2011, and October 9, 2012, Plaintiff filed two separate motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. Nos. 17, 30) On January 27, 2012, Judge Katz issued a 25-page R&R recommending that the Court grant the Commissioner's motion for judgment on the pleadings, deny Plaintiff's first motion for summary judgment, and dismiss the action with prejudice. (Dkt. No. 22) For the reasons stated below, the Court will adopt the R&R of Judge Katz in its entirety.

BACKGROUND

On August 10, 2004, Plaintiff applied to the Social Security Administration ("SSA") for disability insurance benefits after he was injured on the job and suffered multiple heart attacks. (R&R at 2; Cmplt. ¶¶ 4, Al) On July 25, 2005, an Administrative Law Judge ("All") issued a decision "fully favorable" to Plaintiff, finding that Plaintiff has "severe" impairments that leave him unable to perform his former work. (R&R at 3 (quoting Pltf. First Mot. for Summ. J., Ex. C at 2-3)) The All further found the Plaintiff to be disabled based on his medical condition, age, education, and work experience. (R&R at 3 (citing Pltf. First Mot. for Summ. J., Ex. C at 2-3)) Accordingly, the All found that Plaintiff was disabled as of July 22, 2004. (R&R at 3 (citing Pltf. First Mot. for Summ. J., Ex. C at 3))

On June 20, 2005, prior to receiving the ALJ's decision, Plaintiff applied for Supplemental Security Income ("SSI"). (R&R at 3 (citing Cmplt. ¶ A9)) Plaintiff received one SSI payment in the amount of $653. (R&R at 3 (citing Cmplt. ¶ A9))

On August 29, 2005, the SSA issued a Notice of Award, info' ning Plaintiff that, as of January 2005, he was entitled to monthly benefit payments of $644. (R&R at 3 (citing R. at 30-33)) On December 3, 2005, the SSA issued a Notice of Change in Benefits, explaining that Plaintiff was entitled to a retroactive payment of his monthly benefits for the period from January 2005 through July 2005, minus the $653 in SSI benefits he had received, and minus attorney's fees in the amount of $1, 127. (R&R at 4 (citing R. at 34))

Plaintiff requested that the SSA review his monthly benefit amount. (R&R at 4 (citing R. at 37)) The SSA reviewed Plaintiffs work history through 2006 and notified Plaintiff in an August 2, 2006 letter that he was receiving "the highest possible amount based on how much [he] [had] earned." (R&R at 4 (quoting R. at 37))

On June 18, 2008, after Plaintiff's requests for reconsideration, the SSA Appeals Council issued an order remanding Plaintiff's case to an AU for a hearing to determine whether Plaintiff's retroactive and monthly benefits had been correctly calculated. (R&R at 6 (citing R. at 83)) A hearing was held before AU Newton Greenberg on October 29, 2008. (R&R at 6 (citing R. at 178-88)) Plaintiff testified at the hearing. (R&R at 6 (citing R. at 178-88)) He was not represented by an attorney. (R. at 180) On February 13, 2009, ALJ Greenberg issued a decision finding that Plaintiff's benefits had been correctly calculated and that he was "receiving the highest possible monthly disability insurance benefit." (R&R at 6; R. at 6-13) On October 26, 2010, the SSA Appeals Council denied Plaintiff's request for review, making ALJ Greenberg's decision the Commissioner's final decision. (R&R at 7 (citing R. at 2-5))

Plaintiff filed this action on November 22, 2010, seeking review of the SSA's calculation of his retroactive and monthly benefits. (Dkt. No. 2 (Cmplt.)) Plaintiff primarily contends that the SSA miscalculated his benefits by using incorrect wage figures and by applying the wrong statute, and that he is entitled to additional retroactive benefits, including SSI benefits. (See Cmplt. ¶¶ A2-A4, A9, A15-A17)

On December 9, 2010, this Court referred this action to Magistrate Judge Katz for an R&R. (Dkt. No. 6) On May 3, 2011, the Commissioner moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Dkt. No. 15) On May 11, 2011, Plaintiff filed an "Affirmation in Opposition to Motion and Under Rule 56.1 for Summary Judgment." (Dkt. No. 17) On January 27, 2012, Judge Katz issued a 25-page R&R recommending that the Court grant the Commissioner's motion, deny Plaintiff's motion, and dismiss the action with prejudice.

On February 7, 2012, Plaintiff filed an objection to the R&R. (See Dkt. Nos. 23-26) In his objection, Plaintiff continues to assert that his benefits were calculated based on incorrect wage figures and under the wrong statute, and that he is entitled to SS1 benefits. (Pltf. Objection (Dkt. No. 23) at 6, 11, 15-17) Plaintiff further contends that the Commissioner is in default, having not responded to Plaintiff's motion for summary judgment. (Pltf. Objection (Dkt. No. 23) at 14-15) Plaintiff repeats these arguments in a second motion for summary judgment filed on October 9, 2012 (Dkt. No. 30), in an affirmation in support of that motion filed on March 21, 2013 (Dkt. No. 31), and in a letter hand-delivered to the Court on June 20, 2013. (Dkt. No. 32)

DISCUSSION

I STANDARD OF ...


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