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Lauro v. Commissioner of Social Security

United States District Court, N.D. New York

July 18, 2017

UMBERTO LAURO, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          UMBERTO LAURO Plaintiff, pro se

          COMMISSIONER OF SOCIAL SECURITY BENIL ABRAHAM, ESQ. U.S. Social Security Administration Attorneys for Defendant

          MEMORANDUM-DECISION AND ORDER

          Mae A. D'Agostino U.S. District Judge

         I. INTRODUCTION

         On June 5, 2012, Plaintiff pro se Umberto Lauro commenced this action pursuant to 42 U.S.C. § 405(g) seeking review of an unfavorable decision made by the Commissioner of Social Security ("Commissioner") that found Plaintiff at fault for causing a $690.00 overpayment in Supplemental Security Income ("SSI"). See Dkt. No. 1. On February 5, 2013, the Court issued an order reversing the Commissioner's decision and remanded the case for further administrative action. See Dkt. No. 28. On November 20, 2014, Plaintiff filed a motion to reopen his case with this Court. See Dkt. No. 29.

         On February 23, 2015, this Court denied Plaintiffs motion to reopen his case because the Commissioner had not issued a final decision. See Dkt. No. 36 at 3. On July 15, 2015, administrative law judge ("ALJ") Robert E. Gale issued a partially favorable decision. See Dkt. No. 51 at 154-62. On April 18, 2016, the Appeals Council denied Plaintiffs request for review. See Id. at 149-50. The Court now considers Plaintiffs brief for judicial review of the Commissioner's decision, see Dkt. No. 46, and Defendant's brief in response. See Dkt. No. 48.

         II. BACKGROUND

         In September 2007, the Social Security Administration received an IRS alert of a 2006 W-2G form with Plaintiffs name and New York State driver's license number. See Dkt. No. 43 at 9 and 71. The W-2G reported that Plaintiff won $1, 963.22 from the Turning Stone Casino on September 16, 2006. See Id. Plaintiffs income increased as a result of the gambling winnings and he received a notice on February 9, 2008 that stated he was overpaid $690.00 in SSI for September 2006. See Id. at 32-34. Plaintiff requested a waiver of recovery of the overpayment and claimed that he never received $1, 963.22 from Turning Stone Casino; instead, he alleged that he was the victim of identity theft. See Id. at 62-63. On September 15, 2008, Plaintiffs request for a waiver of overpayment was denied. See Id. at 38-39; Dkt. No. 53 at 6-7. On November 15, 2008, Plaintiff had a personal conference with Ms. Kraeger, a service representative for the Social Security Administration. See Id. at 40. After the conference, Plaintiffs request for a waiver of recovery of overpayment was denied again. See Id. at 41-42. Plaintiff then requested reconsideration of the agency's determination, which was denied on January 8, 2009. See Id. at 53; Dkt. No. 53 at 15. On January 21, 2009, Plaintiff requested a hearing in front of an administrative law judge. See Id. at 57.

         On February 27, 2009, Plaintiff received a notice stating "even though you are eligible for Supplemental Security Income (SSI) payments, we will not pay you for June 2009 through November 2009." Id. at 51. The non-payment of Plaintiff s SSI was a penalty for Plaintiffs second failure to report his gambling winnings. See Id. at 51-53. On March 17, 2009, Plaintiff requested reconsideration of the penalty, claiming again that he was the victim of identity theft. See Id. at 54-56. On March 18, 2009, Plaintiffs reconsideration request was denied. See Id. at 58-60. On March 20, 2009, Plaintiff requested a hearing before an administrative law judge because "I feel that my payments are being stopped unfairly for 6 months and I feel that there is a personal vendetta against me by the Rome SSA office (especially by Mr. Rejman)." Id. at 61 (errors in the original).

         The request for a hearing was granted and on March 25, 2010, Plaintiff appeared before ALJ Barry Ryan. See Id. at 129-144. On May 5, 2010, ALJ Ryan issued an unfavorable decision. See Id. at 15-20. ALJ Ryan found "[t]he beneficiary was overpaid benefits and was not 'without fault' in creation of the overpayment. Therefore, adjustment or recovery cannot be waived. Furthermore, the six month administrative sanction was properly imposed for the time period of June 2009 through November 2009." Id. at 20.

         Plaintiff appealed ALJ Ryan's decision and on December 16, 2011, Administrative Appeals Judge David A. Tepper granted Plaintiffs request for review. See Dkt. No. 43 at 125-28. On April 14, 2012, the Appeals Council reviewed the ALJ's decision and issued a partially favorable decision for Plaintiff. See Id. at 5-7. In the decision, the Appeals Council adopted the findings of the ALJ with the exception that the Administration "did not have the authority to impose administrative sanctions for the period June 2009 through November 2009 due to the claimant's statements regarding his gambling winnings." Id. at 10. On June 5, 2012, Plaintiff filed a civil action in this Court for judicial review of the Appeals Council's finding. See Dkt. No. 1.

         On February 5, 2013, the Court remanded the case pursuant to sentence six of section 205(g) of the Social Security Act, based on a stipulation by the parties because the agency could not locate Plaintiffs administrative file. See Dkt. No. 51 at 233-35. The Appeals Council thereafter remanded the case to an ALJ for a de novo hearing on July 22, 2014. See Id. at 302-05.

         On July 15, 2015, ALJ Gale issued a partially favorable decision adopting the earlier Appeals Council's decision. See Dkt. No. 51 at 154-62. Plaintiff requested review of ALJ Gale's decision on August 5, 2015. See Id. at 203-04. The Appeals Council denied Plaintiffs request, which made ALJ Gale's ruling the Commissioner's final decision. See Id. at 149-50. On June 6, 2016, this Court reopened Plaintiffs case. See Dkt. No. 44. Currently before the Court are Plaintiffs brief requesting judicial review of the Commissioner's decision, see Dkt. No. 46, and Defendant's brief in response, see Dkt. No. 48.

         III. ...


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