Goldstein v. Colvin
Filing
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ORDER by Judge Howard R. Lloyd denying 50 plaintiff's Motion to Set Aside Judgment; finding as moot 52 defendant's Motion to Appear by Telephone. (hrllc2, COURT STAFF) (Filed on 7/27/2015)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
United States District Court
Northern District of California
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STEVEN MICHAEL GOLDSTEIN,
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Case No. 5:13-cv-03504-HRL
Plaintiff,
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v.
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CAROLYN W. COLVIN, et al.,
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Defendants.
ORDER DENYING PLAINTIFF'S
"MOTION TO SET ASIDE
JUDGMENT"
Re: Dkt. Nos. 50, 52
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In this action, plaintiff appeals the Commissioner’s decision denying his claim for survivor
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benefits based on retirement benefits paid to his (now deceased) father. This court previously
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denied plaintiff’s request for interim payment of those claimed benefits. Now before the court is
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plaintiff’s “Motion to Set Aside Judgment and Provide Interim Benefits via 42 USC 423(g)&(h).”
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In effect, this is plaintiff’s second motion for reconsideration of this court’s decision denying his
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requests for payment of interim survivor benefits. The matter is deemed submitted without oral
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argument. Civ. L.R. 7-1(b); 7-9(d).1 For the reasons stated below, plaintiff’s motion is denied.
Plaintiff argues that 42 U.S.C. § 423(g) provides express authority for an award of interim
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survivor benefits because the statute applies “[i]n any case where an individual is a recipient of
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disability insurance benefits, or of child’s, widow’s, or widower’s insurance benefits based on
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Defendant’s motion for leave to appear by phone at the motion hearing is denied as moot.
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disability . . ..” 42 U.S.C. § 423(g)(1)(A) (emphasis added). However, § 423(g) “authorizes
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interim benefits to individuals appealing the termination of their disability benefits on account of
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an official determination that they are no longer disabled.” Taylor v. Heckler, 769 F.2d 201, 202
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(4th Cir. 1985) (emphasis added) (citing S.Rep. No. 648, 97th Cong., 2d Sess. 6–7 (1982),
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reprinted in 1982 U.S.Code Cong. & Ad.News 4373, 4377–78; H.Conf.Rep. No. 985, 97th Cong.,
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2d Sess. 10 (1982), reprinted in 1982 U.S.Code Cong. & Ad.News, 4399, 4400); see also Jackson
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v. Colvin, No. 14-MC-18S, 2014 WL 6908895 at *2 (W.D.N.Y., Dec. 9, 2014) (“The Social
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Security Act authorizes interim benefits only when a claimant has been awarded benefits that were
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subsequently terminated.”). The instant case is not a situation where the subject benefits were
awarded to plaintiff and then subsequently terminated. And, while some courts conclude that they
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United States District Court
Northern District of California
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have inherent power to award interim benefits in original entitlement cases, this court has already
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stated its agreement with those that hold that courts cannot use such remedial powers absent
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express statutory authority.
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As for 42 U.S.C. § 423(h), that subsection appears to allow payment of interim benefits in
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situations where an administrative law judge (ALJ) has issued a favorable decision to the claimant.
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42 U.S.C. § 423(h)(1). In this case, the ALJ issued a decision adverse to plaintiff.
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Plaintiff’s second motion for reconsideration is denied.
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SO ORDERED.
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Dated: July 27, 2015
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________________________
HOWARD R. LLOYD
United States Magistrate Judge
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5:13-cv-03504-HRL Notice has been electronically mailed to:
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Lynn M. Harada Lynn.Harada@ssa.gov, ODAR.OAO.COURT.1@ssa.gov,
sf.ogc.ndca@ssa.gov
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Steven Michael Goldstein
GoldyCISSP@hotmail.com
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United States District Court
Northern District of California
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