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Schenck v. Commissioner of Social Security

United States District Court, S.D. New York

July 16, 2015

GINETTE NELLY SCHENCK, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge.

Plaintiff Ginette Nelly Schenck filed this action pursuant to 42 U.S.C. ยงยง 405(g) and 1383(c)(3) to obtain judicial review of the final decision of the Acting Commissioner of Social Security (the "Commissioner"), finding that Plaintiff had been overpaid Supplemental Security Income ("SSI") benefits from December 2009 to February 2012, that she remained ineligible for SSI benefits, and that she was not entitled to a waiver of recovery of such benefits under the Social Security Act (the "Act"). The Commissioner has moved for judgment on the pleadings. Because the Commissioner's decision is supported by substantial evidence, Defendant's motion is granted.

BACKGROUND[1]

A. Factual Background

1. The Initial Finding of Plaintiff's Ineligibility

Plaintiff first began receiving SSI benefits in August 1976, at the age of 39 (she is now 78). (SSA Rec. 27, 95). On December 11, 2009, the Social Security Administration (the "SSA") issued her a Notice of Planned Action (the "December 2009 Notice"), informing Plaintiff that as of December 1, 2009, she was no longer eligible for monthly SSI benefits because she owned resources worth more than $2, 000. (Id. at 103-14). The December 2009 Notice calculated Plaintiff's ineligibility for December 2009 based upon a Chase checking account containing $3, 000 and a Chase savings account containing $1, 199.09, totaling $4, 199.09, and for January 2010 based upon the $3, 000 Chase checking account alone. (Id. at 113-14). The December 2009 Notice also gave Plaintiff certain information, including the definition of the term "resources" as used by the SSA; examples of types of resources; the qualifications necessary to continue to receive SSI benefits; and Plaintiff's options to challenge the determination and continue receiving SSI benefits. (Id. at 103-12). Although Plaintiff was to stop receiving benefits beginning in January 2010 ( id. at 103), the SSA continued to pay her (for reasons not reflected in the record) until March 2012 ( id. at 28-29, 44).

On February 26, 2010, the SSA issued Plaintiff a new Notice of Planned Action (the "February 2010 Notice"), informing her once again that she was ineligible for SSI benefits as of December 1, 2009, and letting her know that she would stop receiving benefits beginning in April 2010. (SSA Rec. 115-24). The February 2010 Notice provided the same general information as the December 2009 Notice ( id. at 115-21), and listed the assets that were the bases for Plaintiff's ineligibility for SSI from December 2009 to February 2010 on ( id. at 122-24). The Notice recalculated Plaintiff's ineligibility for December 2009 based upon a Chase checking account containing $501 and three Chase savings accounts containing $1, 199.09, $2, 501, and $1, 074.99, for total resources of $5, 276.08. (Id. at 122). The Notice calculated Plaintiff's resources for January 2010 and for February 2010 onward at $4, 076.99, based upon the same checking account and the latter two savings accounts. (Id. at 123-24). The Notice also informed Plaintiff that it replaced all previous determinations regarding eligibility for the periods it covered, in this case December 2009 to January 2010. (Id. at 116).

Plaintiff requested reconsideration on March 12, 2010 (SSA Rec. 35-37), and provided additional information to the SSA in connection with the review of her eligibility for benefits on November 10, 2010 (the "Redetermination Summary") ( id. at 125-35). In the Redetermination Summary, Plaintiff claimed to own a Dime Savings Bank savings account containing $1, 800 up to December 2009, which account Plaintiff indicated had been set aside for burial expenses; Plaintiff did not indicate whether any assets remained after December 2009. (Id. at 127). Plaintiff also claimed to own one Chase checking account and three Chase savings accounts that, together, contained: $5, 276.98 in December 2009; $2, 101 in January 2010 through October 2010; and $1, 700 in November 2010. ( See id. at 127-28). The Redetermination Summary informed Plaintiff of her reporting obligations ( id. at 131-33), including her obligation to report if the value of her resources exceeded $2, 000 at any point ( id. at 132).

The SSA took no further action until February 1, 2012, when it issued Plaintiff a third Notice of Planned Action (the "February 1, 2012 Notice"). (SSA Rec. 138-48). The February 1, 2012 Notice gave Plaintiff the same general information as the prior Notices, and informed her that she was ineligible for SSI benefits as of December 1, 2011, and would stop receiving payments beginning March 2012. (Id. ). The Notice identified three Chase bank accounts - two checking, one savings - containing a total of $5, 065.17 for both December 2011 and January 2012 onward. (Id. at 147-48). The Notice also informed Plaintiff that it replaced all previous determinations regarding eligibility for the periods it covered, though in this case it did not cover any previously determined periods. (Id. at 116).

On February 6, 2012, the SSA issued a Notice of Change of Payment (the "February 6, 2012 Notice") informing Plaintiff that she was ineligible for benefits for the period from January 1, 2010, through November 30, 2011. (SSA Rec. 149-77). As with the Notices of Planned Action, the Notice informed Plaintiff that it replaced all prior determinations regarding this period, thus leaving in place the February 2010 Notice's determination for December 2009 and the February 1, 2012 Notice's determination for December 2011 and January 2012 onward. (Id. at 150). The Notice calculated Plaintiff's assets over this period at between $31, 329.19 and $33, 978.58 in each month, consisting primarily of cash in the amount of either $26, 676.59 or $29, 275.10. (Id. at 155-77).

On February 10, 2012, Plaintiff again filed a request for reconsideration. (SSA Rec. 220-25). As part of this request, Plaintiff submitted a statement signed on February 15, 2012. (Id. at 224-25). In it, Plaintiff disclaimed ownership of all but one of the bank accounts identified by the SSA. (Id. at 220). Plaintiff further stated that she had closed a Citibank account after using the money to pay for medical treatments, though she acknowledged having no record of these treatments. (Id. at 224). She went on to identify for the first time a "Sun Life insurance policy" (presumably the First SunAmerica policy identified at SSA Rec. 136), which she believed to have a surrender value of $15, 000. (Id. ). Plaintiff disclaimed any additional resources. (Id. ). The SSA, reviewing the request for reconsideration, noted that Plaintiff claimed to have purchased the life insurance policy using some of her previous cash resources, but could not provide any evidence of this purchase or any evidence in support of her claims not to own some of the additional resources attributed to her. (Id. at 226-29). Accordingly, the SSA denied Plaintiff's request for reconsideration on March 14, 2012. (Id. at 228-29).

On May 13, 2012, Plaintiff requested that the SSA waive recovery of the overpayment. (SSA Rec. 38-45). Plaintiff repeatedly stated that she did nothing wrong and was not overpaid; she also made references to travel to Europe both for treatment and for a court appearance. (Id. at 38-40). She claimed that she had spent all of the assets in her bank accounts (save for $5 in a checking account) on medical treatments, and that the life insurance policy attributed to her was an annuity owned by her cousin that she could not cancel or convert to cash. (Id. at 40-41, 44).

On June 7, 2012, the SSA informed Plaintiff that, based upon current information, it could not waive collection of the overpayment, calculated at $34, 395.80. (SSA Rec. 46-47).[2] On June 27, 2012, at Plaintiff's request, the SSA allowed Plaintiff to review her file and on the same day held an in-person conference at which Plaintiff contested the denial of the waiver of overpayment. (Id. at 48). The SSA determined that Plaintiff had very large balances in a Chase bank account that had been transferred from a previously undisclosed Swiss bank account and then used to purchase the life insurance policy. (Id. ). The SSA stated that Plaintiff had claimed she was told by the Swiss bank that the insurance policy would not deprive her of SSI eligibility, and thus she had not reported it. (Id. ). ...


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