Plakstis-Balsamo v. Commissioner of Social Security

Filing 24

ORDER terminating Plaintiff's 16 Motion for Hearing as it was erroneously filed as a motion and granting 18 Motion for Judgment on the Pleadings -- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, the Commissioner&# 039;s motion for judgment on the pleadings is granted and this appeal is dismissed. The Clerk of the Court is directed to mail a copy of this Electronic Order and the Attached Written Memorandum and Order to pro se plaintiff, enter judgment in favor of the defendant and close the case. SO ORDERED by Judge Dora Lizette Irizarry on 7/29/2015. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ENES G. PLAKSTIS-BALSAMO, pro se,
:
:
Plaintiff,
:
:
-against:
:
COMMISSIONER OF SOCIAL SECURITY, :

MEMORANDUM & ORDER
13-CV-5419 (DLI)

Defendant.

:
:
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DORA L. IRIZARRY, U.S. District Judge:
Pro se plaintiff Enes G. Plakstis-Balsamo (the “Plaintiff”) filed the instant action against
Defendant Acting Commissioner of Social Security (the “Defendant”) seeking judicial review of
the denial of retroactive old-age insurance benefits (“Retirement Benefits”), under Title II of the
Social Security Act (“the Act”). Defendant moves for judgment on the pleadings, pursuant to
Federal Rule of Civil Procedure 12(c), seeking affirmance of the denial of retroactive retirement
benefits. Plaintiff opposes the motion. For the reasons stated below, the Defendant’s motion is
granted and its’ decision to deny retroactive retirement benefits is affirmed.
BACKGROUND
Plaintiff was born on March 6, 1944. (Certified Administrative Record (“R.”) 26, Dkt.
Entry No. 19.) She began working in 1960 at the age of 16. (R. 122, 147.) In August 1965, she
married her first husband; Edward A. Plakstis. (R. 19.) She continued to work until 1970 when
she stopped working to raise a child. (R. 122, 147.) Plaintiff resumed work in 1984 until 1988
when she again stopped working, this time to raise her grandchildren. (R. 147.) In April 1989,
Plaintiff and her first husband divorced. (R. 19.) From 1989 to 2007, Plaintiff reported the same
address to the Internal Revenue Service (“IRS”) on her income taxes. (R. 70-80.) In June 1990,
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Plaintiff married her second husband Vito J. Balsamo. (R. 19.) Plaintiff resumed work in 1996
until she stopped working permanently in 2001 due to back and foot problems. (R. 20, 36, 174.)
In January 2008, Plaintiff and her husband moved to a new residence and reported the new
address to the IRS in a joint income tax return filed that year. (R. 87, 90.) In December 2008,
the Social Security Administration (“SSA”) sent a Personal Earnings and Benefit Estimate
Statement 1 (“Earnings Statement”) to Plaintiff’s prior address. (Pl. Aff. at Ex. E; Dkt. Entry No.
16.)
On January 5, 2009, Plaintiff protectively filed an application for retirement benefits and
Supplemental Security Income (“SSI”). (R. 13, 19-22, 89-90.) On January 22, 2009, Plaintiff
applied for retirement benefits and SSI at an appointment with the SSA. (R. 13, 19-22, 89-90.)
On January 29, 2009, the SSA notified Plaintiff that she was not eligible for SSI because she was
under age 65 and neither blind nor disabled. (R. 28-31, repeated at R. 94-97.) However, in
notices dated January 27, 2009 and February 3, 2009, the SSA informed Plaintiff that she was
entitled to monthly retirement benefits beginning January 2009 and Medicare coverage
beginning March 2009 because Plaintiff turned age 65 on March 6, 2009.

(R. 19, 23-27

(repeated at R. 91-93), 98-99.) The notices also stated that Plaintiff could have started receiving
reduced retirement benefits at age 62.
After receiving the notice, Plaintiff filed a request for reconsideration stating that she
never received an Earnings Statement 2 and, therefore, did not know until she filed applications
for retirement benefits and SSI in January 2009 that she could have received reduced retirement

1

A “Personal Earnings and Benefit Estimate Statement” is based on an individual’s reported and projected earnings
and sent to a wage-earner annually three months prior to her birthday and/or can be requested at any time. See 20
C.F.R. § 404.633(e)(2).

2

The statement referred to by the Plaintiff is known as the “Personal Earnings and Benefit Estimate Statement.” See
20 C.F.R. § 404.633(e)(2).

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benefits starting at age 62. 3 (R. 32-37.) Plaintiff requested the SSA to retroactively pay her for
the benefits she would have received between her 62nd birthday in March 2006 and her
retirement benefits filing date of January 5, 2009. (R. 37; see 64-67.) Plaintiff’s request for
reconsideration was denied in a notice dated May 22, 2010. (R. 39-43.)
In June 2010, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) 4.
(R. 44; see R. 45-59; see also R. 13.) In documentation submitted and made part of the record
before the ALJ, Plaintiff stated that she never received annual earnings statements, and that the
SSA never informed her of the possibility of receiving retirement benefits at age 62 when she
inquired at the SSA about her husband’s benefits. (R. 60-63, 68-69.) Plaintiff again requested
the SSA award her $ 13,273.20 in retroactive retirement benefits. (R. 14.)
On July 26, 2011, Plaintiff appeared pro se and testified at a hearing before ALJ David Z.
Nisnewitz 5. (R. 128-76.) At the hearing, she testified that she contacted the SSA on January 5,
2009 to make an appointment to apply for retirement benefits through her husband’s earnings
record. (R. 140.) Prior to her contact with the SSA on January 5, 2009, Plaintiff said that she
had called the SSA several times to ask about getting benefits through her first husband’s
earnings records. (R. 141, 144, 146-48, 156-57.) She stated that during the phone calls she was
never told about her own entitlement to reduced retirement benefits at age 62. (R. 141, 144, 146,
156-57.) Plaintiff testified that she could not provide detailed information (dates or names)

3

After her initial request for reconsideration could not be located, Plaintiff filed a second request for reconsideration
making the same argument and was given a protective filing date of February 3, 2009. (R. 34-36.)

4

On May 19, 2011, Plaintiff received a notice explaining the ALJ hearing process. (R. 45-51.) On July 5, 2011 she
received a notice of hearing. (R. 52-57.) The SSA procedures used to process Plaintiff’s request for ALJ hearing,
do not qualify as misinformation within the meaning of the Act and the Commissioner’s regulations. See 42 U.S.C.
§ 402(j)(5); 20 C.F.R. § 404.633.

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ALJ Nisnewitz swore in Plaintiff after she began her testimony. (R. 145.) Although Plaintiff cites this as a reason
to deny Defendant’s motion, that small defect is not relevant to the Court’s legal analysis. Therefore, the Court need
not address this argument. (R. 15.)

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regarding the phone calls to SSA. (R. 157.) Then, on January 22, 2009, Plaintiff attended her
application at the SSA office where she was told she could not get benefits through her current
husband’s record, but that she had enough earnings to get benefits through her own earning
record at age 62. (R. 141-42; see R. 144, 147.) Although Plaintiff initially stated that she never
received an earnings statement from the SSA she later testified at the hearing that she received
one in December 2008. (R. 132, 136, 138, 140-44, 146, 148, 150, 169, 172-73.)
On February 16, 2012, the ALJ issued a decision finding that Plaintiff was not entitled to
retirement benefits from age 62 to her retirement benefits application date of January 2009. (R.
15.) The ALJ found that the SSA had not provided Plaintiff with any misinformation, which
would have enabled her to receive benefits from an earlier filing date. (R. 13-18.) Plaintiff filed
a request for review of the ALJ’s decision. (R. 104-05; see R. 120-26.) Although Plaintiff
submitted additional documents to the Appeals Council, 6 it determined that this evidence did not
provide a basis for changing the ALJ’s decision. (R. 107-27; see R. 7; 4-5.) On August 8, 2013,
the ALJ’s decision became the Commissioner’s final decision when the Appeals Council denied
Plaintiff’s request for review. (R. 4-7.) Plaintiff filed the instant action on September 30, 2013
seeking judicial review of the denial of retroactive retirement benefits pursuant to 42 U.S.C. §
405(g) and 1383(c)(3). (See Complaint (“Compl.”), Dkt. Entry No. 1.)

6

Plaintiff received a notice concerning the class action Padro et al. v. Astrue. (R. 107-11.) The Padro case has no
bearing on this case because Plaintiff is not a member of the class of people whose claims for disability were denied
or partially denied by particular ALJ’s that were “generally biased” against people applying for Social Security
disability benefits. (R.108.) Plaintiff’s claim is for retirement benefits and is not for disability benefits.
Furthermore, ALJ Nisnewitz was not named as a defendant in the Padro class action. See Padro v. Astrue, 11-CV1788, 2013 WL 5719076 (E.D.N.Y. Oct. 18, 2013). The Defendant Commissioner expressly denies any
wrongdoing. (Id.)

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DISCUSSION
I.

Standard of Review
Unsuccessful claimants for retirement benefits under the Act may bring an action in

federal district court seeking judicial review of the Commissioner’s denial of their benefits
“within sixty days after the mailing . . . of notice of such decision or within such further time as
the Commissioner of Social Security may allow.” 42 U.S.C. §§ 405 (g), 1383(c)(3). A district
court, reviewing the final determination of the Commissioner, must determine whether the
correct legal standards were applied and whether substantial evidence supports the decision. See
Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1996). The former determination requires the court
to ask whether “the claimant has had a full hearing under the [Commissioner’s] regulations and
in accordance with the beneficent purposes of the Act.” Echevarria v. Sec’y of Health & Human
Servs., 685 F.2d 751, 755 (2d Cir. 1982) (internal quotations omitted). The latter determination
requires the court to ask whether the decision is supported by “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).
The district court is empowered “to enter, upon the pleadings and transcript of the record,
a judgment affirming, modifying, or reversing the decision of the Commissioner of the Social
Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). A remand
by the court for further proceedings is appropriate when “the Commissioner has failed to provide
a full and fair hearing, to make explicit findings, or to have correctly applied . . . the regulations.”
Manago v. Barnhart, 321 F. Supp. 2d 559, 568 (E.D.N.Y. 2004).

A remand to the

Commissioner is also appropriate “[w]here there are gaps in the administrative record.” Rosa v.
Callahan, 168 F.3d 72, 83 (2d Cir. 1999) (quoting Sobolewski v. Apfel, 985 F. Supp. 300, 314

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(E.D.N.Y. 1997)). ALJ’s, unlike judges, have a duty to “affirmatively develop the record in light
of the essentially non-adversarial nature of the benefits proceedings.” Tejada v. Apfel, 167 F. 3d
770, 774 (2d Cir. 1999).
Pro se pleadings are held to less stringent standards than pleadings drafted by attorneys
and the Court is required to read the Plaintiff’s pro se pleadings liberally and interpret them
raising the strongest arguments they suggests. See Erickson v. Pardus, 551 U.S. 89 (2007);
Huges v. Rowe, 449 U.S. 5, 9 (1980); Sealed Petitioner v. Sealed Defendant #1, 537 F.3d 185,
191-93 (2d Cir. 2008).
II.

Retirement Benefits Claims
Retirement benefits under Title II are payable to an individual who is (1) fully insured; (2)

has attained age 62; and (3) has filed an application for retirement benefits. See 42 U.S.C. §
402(a); 20 C.F.R. § 404.310. Full retirement age is the age at which an applicant may receive
unreduced benefits. 20 C.F.R. § 404.409(a). Full retirement age has historically been 65, but
gradually is being raised to age 67. Id. However, individuals can elect to apply for and receive
retirement benefits as early as age 62. 20 C.F.R. § 404.409(c). Their benefits will be reduced as
explained in 20 C.F.R § 404.410. 7
The Act states that no individual shall be entitled to a monthly benefit for any month
prior to the month in which the application for such benefits is filed. 42 U.S.C. § 402(j)(4). The
Commissioner’s regulations state that an individual must file an application to qualify for
retirement benefits. 20 C.F.R. § 404.603. An applicant can be found to have an earlier deemed
application date when it is determined to the satisfaction of the Commissioner that she failed to
7

Given that Plaintiff was born in 1944, her full retirement age was 66 (March 6, 2010). (See R. 64-65.) Based on
the January 2009 application, she was awarded $450.80 per month in partially reduced retirement benefits. (See R.
64; see also R. 13.) If she had applied for benefits in March 2006 when she turned sixty-two, Plaintiff would have
been eligible for only $368.70 per month. (See R. 65.)

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apply for monthly insurance benefits by reason of misinformation provided by any officer or
employee of the SSA. 42 U.S.C. § 402(j)(5). If the applicant makes this showing, she shall be
deemed to have applied for such benefits either on the date on which such misinformation was
provided or the date on which she met all requirements for entitlements to such benefits,
whichever is later. 42 U.S.C. § 402(j)(5)(A)-(B).
The Commissioner’s regulations describe how an applicant can establish an earlier
deemed filing date by reason of misinformation.

See 20 C.F.R. § 404.633(c)(2).

“Misinformation is information which the [SSA] considers to be incorrect, misleading, or
incomplete in the view of the facts which the [applicant] gave to the employee, or of which the
employee was aware or should have been aware, regarding [the applicant’s] particular
circumstances . . . .” 20 C.F.R. § 404.633(c)(2). Furthermore, “[t]he misinformation must have
been provided to [the applicant] in response to a specific request by [the applicant] to [the SSA]
for information about [the applicant’s] eligibility for benefits . . . for which [the applicant was]
considering filing an application.” 20 C.F.R. § 404.633 (c)(4).
The Commissioner’s regulations identify the evidence that will be considered in making a
determination of misrepresentation. 20 C.F.R. § 404.633(d)(1)&(2). “Preferred evidence” is
written evidence that relates directly to the inquiry about eligibility for benefits or the eligibility
of another person and which shows that the SSA gave misinformation that caused the individual
not to file an application. 20 C.F.R. § 4040.633(d)(1). Preferred evidence includes, but is not
limited to, a notice, letter, or other document issued by the SSA and addressed to the individual,
or the SSA record of a telephone call, letter, or in-person contact.
404.633(d)(1)(i)&(ii).

20 C.F.R. §

In the absence of preferred evidence, the SSA will consider other

evidence, including the individual’s statements about the alleged misinformation that caused the

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individual not to file an application. 20 C.F.R. § 404.633(d)(2). However, the SSA will not find
that misinformation was given by the agency based solely on the individual’s statements, and
other evidence must support those statements. Id. The SSA also will consider the following: (1)
statements from the accusing individual including: specific details such as the date and time of
the alleged contacts(s), how the contact was made (e.g. by telephone or in person), the reason(s)
the contact was made, who gave the misinformation, the questions the individual asked and the
facts she provided, and the questions agency employees asked and the information given at the
time of the contact; (2) statements from others who were present when the alleged
misinformation was given (e.g., a neighbor who accompanied the individual to the SSA office);
and (3) statements and recollections of the SSA employee (if identifiable).

20 C.F.R. §

404.633(d)(2)(i)-(iii).
III.

ALJ’s Decision
On February 16, 2012, the ALJ issued a decision concluding that Plaintiff was not

eligible for retroactive retirement benefits from March 2006, when she turned age 62, through
her application date of January 2009. (R. 18.) The ALJ stated that, in January 2009, Plaintiff
filed an application for SSA retirement benefits and these were granted. (R. 13, 17.) The ALJ
followed closely the procedures in the Act and the Commissioner’s regulations to determine
whether Plaintiff was eligible for an earlier application date due to misinformation provided by
an officer or employee of the SSA. (R. 15.) The ALJ found that Plaintiff was not provided
misinformation in her contact with SSA officers or employees in 1997, on January 5, 2009, or on
January, 22, 2009. (R. 16-17.) Additionally, based on Plaintiff’s own testimony and the SSA’s
records, the ALJ determined that the Plaintiff is not entitled to benefits prior to the January 2009
application date because the SSA did not provide her with misinformation at any time. (R. 17.)

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This included Plaintiff’s claim that she did not receive earning statements until December 2008
because those earning statements, even if she had received them, did not contain misinformation.
The ALJ concluded that the earliest possible month that the Plaintiff could be entitled to
retirement benefits was January 2009. (R.18.)
IV.

Application
The Commissioner moves for judgment on the pleadings, seeking affirmance of the

denial of Plaintiff’s retroactive retirement benefits, on the grounds that the factual findings are
supported by substantial evidence and that the correct legal standards were applied.

(See

generally Mem. of Law in Supp. of Def.’s Mot. for J. on the Pleadings at 1 (“Def. Mem.”);
Reply Mem. of Law in Further Supp. of Def.’s Mot. for J. on the Pleadings (“Def. Reply
Mem.”), Dkt. Entry No. 19; Dkt. Entry No. 21.) Plaintiff opposes the motion contending that the
ALJ erred by failing to develop the record regarding misinformation she received from the SSA
in a 1997 telephone call with the SSA and when her earnings statements were sent to the wrong
address. (See generally Pl. Aff. at 2-4.)
Based upon the record of this matter, the Court finds that the claimant has had a full
hearing and, in accordance with the beneficent purposes of the Act, the correct legal standards
were applied.

Additionally, substantial evidence supported the ALJ’s decision to deny

retroactive retirement benefits and to determine that the SSA did not misinform Plaintiff.
Accordingly, the Commissioner’s motion for judgment on the pleadings is granted as explained
in detail below.
A.

SSA Telephone calls and Appointments

In the July 26, 2011 hearing, Plaintiff reported that she had received misinformation in
1997 when a SSA representative did not discuss Plaintiff’s eligibility for receiving benefits under

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her own employment record, and did not ask whether the Plaintiff had been receiving earnings
statements. (R. 16.) Plaintiff stated that she had contacted the SSA to determine the effect of her
remarriage on receiving retirement benefits under her deceased husband’s employment record.
(Id.) The ALJ specifically noted that, during this conversation, Plaintiff did not inquire about her
eligibility for receiving retirement benefits based on her own employment record nor did she
request her earnings statements. (R. 16.) In addition, he found that, under section 404.633(c),
this information would not be deemed additional information that an SSA employee would be
required to provide in response to Plaintiff’s inquiry about applying for benefits under her
deceased husband’s employment record.

(Id.) There is no testimony or other evidence in the

record that indicates Plaintiff contacted the SSA in 1997 to request information about her
eligibility for benefits under her employment record. In light of the evidence, the SSA did not
provide Plaintiff with incorrect, misleading, or incomplete information constituting
misinformation during that conversation.
Additionally, the only evidence supporting Plaintiff’s claims were her own statements.
Plaintiff could not provide specific details or statements from other persons present at this
conversation to support her individual statements that the SSA provided her with
misinformation. The Court cannot find that the SSA provided misinformation based solely on
Plaintiff’s statements.

Therefore, the ALJ correctly concluded that Plaintiff is entitled to

retirement benefits from January 5, 2009 only, the date in which her application for Social
Security Benefits is deemed protectively filed. (R. 18.)
B.

Earnings Statements

The Commissioner’s regulations state that general informational pamphlets, general
information disseminated by the media, and “the Personal Earnings and Benefits Estimate

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Statement that is based on an individual’s reported and projected earnings” are not satisfactory
proof that the SSA provided misinformation. 20 C.F.R. § 404.633(e). The ALJ correctly noted
that “the [earnings] statement may be considered along with additional evidence regarding
misinformation provided by an employee; however, the statement alone, and likewise the lack of
such a statement, cannot qualify as misinformation under section 404.633(e)(2).” (R. 17.)
Plaintiff does not provide evidence to support her claim that she did not apply for retirement
benefits at age 62 because she did not receive an earnings statement until December 2008 8.
Plaintiff’s earnings statement was an estimate, which could have been requested at any time prior
to December 2008. The lack of receipt of such a statement does not qualify as misinformation
under the Act.
Additionally, Plaintiff’s claim that she did not know that she could request an earnings
statement is not sufficient to establish an earlier filing date as a “lack of knowledge about the
rules concerning the receipt of benefits is not sufficient to establish an earlier filing date.”
Bennerman v. Commissioner of Soc. Sec., 11-CV-6384, 2013 WL 6796351, at *4 n.3 (E.D.N.Y.
Dec. 23, 2013).

Therefore, the ALJ again concluded correctly that Plaintiff is entitled to

retirement benefits from January 5, 2009 only.

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Plaintiff submitted to the Appeals Council, a one-page document from an SSA informational pamphlet that
mentioned the Personal Earnings and Benefit Estimate Statement and highlighted the section that read as follows:
“Each year we will send you a Social Security Statement showing your earnings history and an estimate of the
retirement, disability and survivor’s benefits you and your family may receive based on those earnings.” (R. 118.)
This document is not evidence of misinformation pursuant to section 404.633(e)(1). 20 C.F.R. § 404.633(e)(1).
Plaintiff also submitted to the Appeals Council a September 30, 1999 SSA Press Office news release entitled “Social
Security Begins Issuing Annual Statements to 125 Million Workers.” (R. 112-13.) This document also is not
evidence of misinformation pursuant to section 404.633(c)(4).

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CONCLUSION
For the reasons set forth above, the Commissioner’s motion is granted and this appeal is
dismissed.
SO ORDERED.

Dated: Brooklyn, New York
July 29, 2015

/s/
_
DORA L. IRIZARRY
United States District Judge

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