United States District Court, N.D. New York
UMBERTO LAURO Plaintiff, pro se
COMMISSIONER OF SOCIAL SECURITY BENIL ABRAHAM, ESQ. U.S.
Social Security Administration Attorneys for Defendant
MEMORANDUM-DECISION AND ORDER
D'Agostino U.S. District Judge
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.
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.
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
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).
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.
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.
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.
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.