Ransom, Jr. v. Commissioner, SSA

Filing 27

MEMORANDUM OPINION AND ORDER. The Court finds that the Commissioner's Decision should be AFFIRMED. There was no underpayment of SSI. Signed by Magistrate Judge Christine A. Nowak on 3/31/2021. (baf, )

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
RAY LEE RANSOM, JR.,
Plaintiff,
v.
COMMISSIONER, SSA,
Defendant.

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CIVIL ACTION NO. 4:19-CV-00708-CAN

MEMORANDUM OPINION AND ORDER
Plaintiff brings this appeal for judicial review, under 42 U.S.C. § 405(g), of the final
decision of the Commissioner of Social Security (“Commissioner”) finding Plaintiff was not
underpaid supplemental security income. After reviewing the Briefs submitted by the Parties, as
well as the evidence contained in the administrative record, the Court finds that the
Commissioner’s decision should be AFFIRMED.
PROCEDURAL HISTORY OF THE CASE
On April 29, 2015, Plaintiff Ray Lee Ransom, Jr. (“Plaintiff”) filed an application for
supplemental security income (“SSI”) under Title XVI of the Social Security Act [TR 207-12],
alleging disability beginning on May 1, 1991 [TR 270]. Plaintiff’s application was approved and
Plaintiff was sent notice on February 26, 2016, that, as of April 2015 he met all the rules to be
eligible for SSI, and he was entitled to receive SSI payments from March 2016 on; the notice
advised Plaintiff he was entitled to back payments for May-August 2015 and November 2015February 2016 [TR 213]. On April 22, 2016, Plaintiff received a further notice from the Social
Security Administration (“SSA”) informing him that upon consideration of Martinez he was not
eligible to receive backpay for the time period of August 2007-November 2011 because his total

income was too high [TR 237]. The Notice expressly states his “fugitive felon status did not affect
[the SSA’s] ability to pay [Plaintiff]” [TR 238].
Plaintiff requested a reconsideration of the decision on May 17, 2016 [TR 241]. Upon
reconsideration, on January 13, 2017, this time referencing Clark, the SSA reaffirmed its earlier
decision, stating: “the excess income decision on the Clark relief was correct” [TR 241-43].1
Plaintiff disagreed with this decision and requested an administrative hearing (“Hearing”) before
an Administrative Law Judge (“ALJ”) on January 18, 2017 [TR 244]. An initial Hearing was held
on January 9, 2018 [TR 99-156]. On March 13, 2018, the ALJ issued a partially favorable
decision, stating Plaintiff was overpaid benefits for the period of August 2007 and November 2011,
but that the amount of overpayment needed to be recalculated [TR 32-37].2 The ALJ found
Plaintiff’s wages from his alleged drug dealing were not to be used in any computation, but that
Plaintiff had self-employment income in 2008, and also acknowledged receiving free food and
shelter [TR 36-37]. The ALJ specifically found that Plaintiff had an earned income of $12,097.00
in 2008 [TR 37].

And “that the $12,097 earned in self-employment in 2008 constituted

income/excess resources in 2008. The money alleged earned from drug dealing has not been
proven and is thus not counted as income/excess resources” [TR 37]. The ALJ determined that
Plaintiff was eligible for benefits during the period of August 2007 to November 2011 but was
liable for a portion of overpayment during the same period [TR 37]. Relevant herein, the ALJ
relied on both Plaintiff’s own testimony admitting his work and earnings in 2008, and an IRS
transcript, in finding that Plaintiff had earned income in 2008 that should be considered in
The ALJ’s Decision recites that the SSA initially notified Plaintiff that pursuant to his request for Martinez relief, he
was not entitled to SSA [TR 23]. In the reconsideration the SSA affirms the earlier decision although it was stated in
the reconsideration his request was for Clark relief rather than Martinez relief [TR 23]. On January 18, 2017, the SSA
issued a notice stating the January 13, 2017 notice should have stated Martinez relief rather than Clark relief [TR 23].
2
Plaintiff became ineligible to receive benefits from November 8, 2011 to January 5, 2015 due to his incarceration
[TR 65]. See 20 C.F.R. § 416.211(a)(1) (“you are not eligible for SSI benefits for any month throughout which you
are a resident of a public institution”).
1

MEMORANDUM OPINION AND ORDER – Page 2

recalculating Plaintiff’s benefits [TR 37]. SSA recalculated Plaintiff’s benefits pursuant to the
ALJ’s decision from the initial hearing and provided notice to Plaintiff of his recalculated benefits
on March 16, 2018 [TR 323-25].
Plaintiff again requested reconsideration of the SSA’s calculation of benefits on March 23,
2018 [TR 334-38]. Plaintiff claimed his Title II benefits should not be included in his Title XVI
payments because his Title II benefits were from Clark relief rather than Martinez relief [TR 334,
338]. Upon reconsideration on July 6, 2018, the SSA notified Plaintiff that Martinez relief did not
apply to the type of warrant issued against him, but that he was a Clark class member [TR 33942]. Plaintiff was further notified his SSI benefits were stopped in January 2008 because of the
warrant and at that time it was determined Plaintiff had been overpaid from August 2007 to
December 2007 [TR 339]. Plaintiff was further notified that “irrespective of whether it was
Martinez or Clark relief, payments were subject to the regular payment, non-payment, and reduced
payment provisions” of the Act and that beginning January 2008 Plaintiff was ineligible for SSI
benefits for twelve consecutive months due to excess income [TR 24, 339-40]. Plaintiff requested
another Hearing before an ALJ on July 25, 2018 [TR 343-48], which was held on December 14,
2018 [TR 157-206].
At the Hearing, Plaintiff argued the SSA used Clark relief when they should have used
Martinez relief in calculating his Title XVI benefits [TR 25]. The ALJ opined that the sole issue
before him at the hearing is whether Plaintiff was underpaid Title XVI SSI benefits [TR 25]. After
the second Hearing, the ALJ issued an unfavorable decision on March 28, 2019 [TR 20-30],
finding the issue of whether Plaintiff qualified for Martinez/Clark relief need not be reached as
Plaintiff had not been underpaid benefits and the SSA has correctly determined the amount of

MEMORANDUM OPINION AND ORDER – Page 3

benefit to which Plaintiff is entitled [TR 26]. More fully, at the second Hearing, the ALJ found as
follows:
The Administration has determined that Clark relief is the only applicable relief
present in this case, but it is not necessary for the undersigned to determine whether
the claimant is entitled to Clark relief and/or Martinez relief, as neither Clark nor
Martinez provides the relief the claimant is requesting.
The undersigned certainly acknowledges the inconsistencies in the
Administration’s determinations. Initially, the Administration issued notices
purporting that the claimant was entitled to Martinez relief, but in the latest
determination, explicitly finding that supplemental security income benefits were
suspended based on a warrant for probation or parole violation (PPV) and was only
entitled to Clark relief, as fully documented above in the section entitled
“Jurisdiction and Procedural History.” Although at times changing whether the
claimant was entitled to Martinez or Clark relief, in the Administration’s latest
reconsideration determination prior to this hearing, the Administration
emphatically determined the claimant was not entitled to Martinez relief and was
only entitled to Clark relief [].
***
However, I need not reach the issue as to whether he was entitled to Martinez or
Clark relief. Clark relief provides:
For all individuals whose benefits were suspended solely on the basis of an
outstanding probation or parole violation warrant, SSA will fully reinstate all
benefits retroactive to the date the benefits were suspended on an ongoing basis.
However, if there is another basis for suspending benefits for any portion of the
retroactive period or ongoing benefit period, SSA may suspend such benefits upon
notice to the individual with appeal rights in conformity with SSA regulations.
Unless otherwise provided, all payments to Class Members are subject to regular
payment, non-payment, and reduced payment provisions of the Social Security Act.
***
In this case, the record establishes that the claimant engaged in substantial gainful
activity in 2008 earning $12,097.00. In the Hearing Decision rendered by
Administrative Law Judge Walters, which is a final and binding determination, it
was specifically held that the claimant earned $12,097.00 in 2008 constituting
excess income. The claimant does not dispute the earnings in 2008, and at the
current hearing, he acknowledged he worked in 2008 and was not entitled to
supplemental security income benefits in 2008. . . Simply, the claimant was not
eligible for Title XVI supplemental security income benefits in 2008, irrespective
of his warrants, which he has acknowledged.
***
Therefore, the claimant was not eligible for Title XVI supplemental security
income benefits for the year 2008 (a period of 12 consecutive months) because of
excess income and was not eligible for Title XVI supplemental security income
MEMORANDUM OPINION AND ORDER – Page 4

benefits from January 2009 to November 2011 because the benefits had been
suspended for 12 consecutive months for another reason other than suspension for
his warrants based on the recalculation.
[TR 26-28].
In sum, the SSA found Plaintiff was not entitled to relief under Clark because his benefits
were suspended for a reason other than an outstanding warrant [TR 27]. By Plaintiff’s own
admissions, he had income in 2008 of $12,097.00 [TR 28]. Based on the amount of income
Plaintiff earned in 2008, the ALJ determined that Plaintiff’s income made him ineligible for SSI
benefits [TR 28]. Further, Plaintiff was not eligible for benefits from January 2009 to November
2011 due to the twelve consecutive months of suspension of benefits in 2008 [TR 28]. Because
Plaintiff’s ineligibility of benefits was based on excess income and the suspension of benefits for
twelve consecutive months, which resulted in termination of benefits, the ALJ found that he “need
not reach the issue of whether Clark or Martinez relief applies” [TR 29]. The ALJ at the second
Hearing thus determined that Plaintiff had not been underpaid benefits, and also that the SSA’s
calculation of benefits between August 2007 through November 2011 was correct [TR 29]. The
ALJ opined Plaintiff had in fact been overpaid, but that such overpayment had been waived
[TR 29].
Plaintiff requested review of the ALJ’s decision by the Appeals Council on May 6, 2019
[TR 11-19], and the Appeals Council denied such request on September 10, 2019 [TR 5-7].
Plaintiff then filed the instant suit on September 30, 2019 [Dkt. 1].
STANDARD OF REVIEW
In an appeal under § 405(g), the Court must review the Commissioner’s decision to
determine whether there is substantial evidence in the record to support the Commissioner’s factual
findings and whether the Commissioner applied the proper legal standards in evaluating the

MEMORANDUM OPINION AND ORDER – Page 5

evidence. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1985), cert denied, 514 U.S. 1120
(1995); 42 U.S.C. § 405(g). A denial of disability benefits is reviewed only to determine whether
the Commissioner applied the correct legal standards and whether the decision is supported by
substantial evidence in the record as a whole. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995);
Hollis v. Bowen, 837 F.2d 1378, 1382 (5th Cir. 1988). Substantial evidence is relevant evidence
that a reasonable mind might accept as adequate to support a conclusion. Cook v. Heckler, 750
F.2d 391, 392 (5th Cir. 1985); Jones v. Heckler, 702 F.2d 616, 620 (5th Cir. 1983). It is more than
a mere scintilla and less than a preponderance. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001).
A finding of no substantial evidence is appropriate only if no credible evidentiary choices or
medical findings support the decision. Id. This Court may neither reweigh the evidence in the
record nor substitute its judgment for the Commissioner’s but will carefully scrutinize the record
to determine if the evidence is present to support the Commissioner’s decision. Harris v. Apfel,
209 F.3d 413, 417 (5th Cir. 2000); Hollis, 837 F.2d at 1383; Villa v. Sullivan, 895 F.2d 1019, 1022
(5th Cir. 1990); Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir.1988). Any findings of fact by
the Commissioner that are supported by substantial evidence are conclusive. Ripley v. Chater, 67
F.3d 552, 555 (5th Cir.1995).
ANALYSIS
Plaintiff argues on appeal that the ALJ’s decision is not supported by substantial evidence
[Dkt. 20 at 1].

Specifically, Plaintiff asserts that (1) because he did not work for twelve

consecutive months in 2008, the ALJ erred in finding that there was no underpayment of benefits;
(2) the IRS transcript relied upon by the ALJ is not substantial evidence to support the SSA’s
decision to suspend benefits; and, (3) Plaintiff is entitled to payment of benefits for 2008 under

MEMORANDUM OPINION AND ORDER – Page 6

Clark [Dkt. 20 at 1-2].3 Conversely, the Commissioner contends that the substantial evidence
supports the ALJ’s decision that Plaintiff’s eligibility for benefits was properly terminated due to
twelve consecutive months of benefit suspension [Dkt. 22 at 2]. Specifically, the Commissioner
avers that Plaintiff’s income in 2008 exceeded the maximum SSI benefits payable, and thus his
benefits were properly suspended [Dkt. 22 at 3]. The Commissioner further asserts that the ALJ
did not err in finding that there was no underpayment of SSI [Dkt. 22 at 2].
ALJ’s Decision is Supported by Substantial Evidence
To reiterate, Plaintiff avers that the ALJ’s decision upholding the determination that
Plaintiff had excess income, and therefore his benefits were properly suspended and terminated, is
not supported by substantial evidence [Dkt. 20 at 1]. Plaintiff asserts that such suspension of
benefits should only have occurred for the five months in which he worked (not the entire twelve
month period), that his benefits were in truth suspended due to a warrant not excess income, and
that an IRS transcript does not constitute substantial evidence on which the ALJ may rely [Dkt. 20
at 1-2]. The Commissioner asserts that such benefits were properly terminated based on the excess
countable income Plaintiff earned during 2008 [Dkt. 22 at 2-3].

Plaintiff asserts additional, new arguments in his “Brief[s] Not in Support of the Commissioner’s Decision”
(hereinafter “Reply Briefs”) [Dkt. 23; 24; 25]; however, the arguments asserted in Plaintiff’s reply briefs are not
properly before the Court. See Hollis v. Lynch, 827 F.3d 436, 451 (5th Cir. 2016) (“Reply briefs cannot be used to
raise new arguments.”) (citing Benefit Recovery, Inc. v. Donelon, 521 F.3d 326, 329 (5th Cir. 2008)). Although in its
Order Directing Filing Briefs the Court stated “Plaintiff may serve, file, and submit to the Court a brief in reply to the
brief of the Defendant within ten (10) days of service of Defendant’s brief” [Dkt. 17 at 2], such order directs Plaintiff
only to reply to the arguments raised by Defendant. This order does not permit Plaintiff to raise new arguments in his
reply brief. The Fifth Circuit has repeatedly held that an argument not raised in the original briefing is not properly
before the court. See Butler v. Soc. Sec. Admin., 146 F. App’x 752, 753 (5th Cir. 2005) (In evaluating whether to
consider an argument raised for the first time in a reply brief, the court held that “this court does not consider issues
raised for the first time in a reply brief.”); Madrid v. Colvin, No. 4:12-CV-800-Y, 2013 WL 6641305, at *6 (N.D. Tex.
Dec. 17, 2013) (“The Court, however, will not consider issues raised for the first time in [plaintiff’s] reply brief.”);
see also Dotson v. Colvin, No. 3:16-00997, 2017 WL 1164596, at *8 (M.D. Tenn. Mar. 29, 2017) (“an issue presented
for the first time in a reply to a response is waived”), report and recommendation adopted, No. 3:16-CV-00997, 2017
WL 4005113 (M.D. Tenn. Sept. 12, 2017). The arguments Plaintiff raised in his Opening Brief are properly before
the Court and will be addressed. Any new arguments presented by Plaintiff in his Reply Briefs are not properly before
the Court for consideration.
3

MEMORANDUM OPINION AND ORDER – Page 7

Excess Income and Suspension for Twelve Consecutive Months
While Plaintiff continues to advance that his benefits were suspended due to a warrant,
such argument is unavailing upon consideration of the record. The ALJ held that because Plaintiff
earned income in excess of the maximum SSI benefits payable for 2008, he was ineligible to
receive SSI benefits [TR 29-30].
A person is eligible for SSI if he meets all the basic requirements listed in 20 C.F.R.
§ 416.202; eligibility is determined each month on the basis of countable income in that month.
See Hall v. Astrue, No. CIV. SKG-09-1086, 2011 WL 502386, at *4 (D. Md. Feb. 10, 2011) (“For
the purpose of determining SSI eligibility and benefit amount, income is defined as ‘anything you
receive in cash or in kind that you can use to meet your needs for food and shelter.’”). In
calculating “countable income” the SSA considers earned income from different sources, as well
as unearned income.

See 20 C.F.R. §§ 416.1100, 416.1104, 416.1111, 416.1121.

Under

§ 416.1111 the SSA lists multiple different types of earned income, one such type is “[n]et earning
from self-employment.” 20 C.F.R. § 416.1111(b); see also Kinchen v. Astrue, No. CIVA 08-5118JCZ-SS, 2009 WL 3150312, at *3 (E.D. La. Sept. 24, 2009) (“Net earnings from self-employment
income are included in earned income.”). The statute describes how the SSA calculates net
earnings from self-employment: “We count net earnings from self-employment on a taxable year
basis. However, we divide the total of these earnings equally among the months in the taxable
year to get your earnings for each month.” Id. Thus, in calculating income from self-employment,
the SSA is looking at the amount of income for the year, not the time spent working. See United
States v. Shull, 189 F. App’x 180, 183 (4th Cir. 2006) (discussing the difference between employee
wages and incomed earned through self-employment and explaining that “employee wages count
as income for the month in which the wages are actually received, while income earned through

MEMORANDUM OPINION AND ORDER – Page 8

self-employment is divided ‘equally among the months in the taxable year’”). Further, under
§ 416.1112(c)(5), the SSA excludes $65.00 a month from earned monthly income. 20 C.F.R.
§ 416.1112(c)(5). Then, under § 416.1112(c)(7), half of the earned monthly income is excluded,
to determine the amount of earned income that is countable for determining eligibility and benefit
amount. 20 C.F.R. § 416.1112(c)(7). The SSA also includes unearned income in the calculation
of countable income. Unearned income is a benefit derived from things such as annuities or
payment plans, alimony or support payments, dividends and royalties, rents, death benefits, prizes
and awards, gifts and inheritance, and support and maintenance in kind. See 20 C.F.R. § 416.1121.
The SSA also excludes $20.00 worth of unearned income when determining an individuals’
monthly income. 20 C.F.R. § 416.1124 (c)(12). In 2008, the maximum SSI benefit payable to an
individual

was

$637.00.

See

SSI

Monthly

Payment

Amounts,

1975-2020,

https://www.ssa.gov/oact/cola/SSIamts.html (last visited March 31, 2021); see also 20 C.F.R.
§ 416.405 (Cost-of-living adjustments in benefits).
Here, in determining Plaintiff’s monthly countable income, the SSA considered the income
from Plaintiff’s online computer sales business, support and maintenance in kind, and DIB in
calculating his countable income for 2008 [TR 323-25]. Plaintiff conceded that his earned income
was $12,097.00 and was derived from self-employment [TR 109, 171, 179; Dkt. 20 at 1]. The
SSA also relied on transcripts from the IRS, showing Plaintiff’s taxes for 2008; evincing that
Plaintiff earned $12,097.00 through self-employment [TR 264-69]. The SSA determined that
Plaintiff was receiving $212.33 worth of unearned income, in the form of shelter and free food for
2008 [TR 323], as well as $413.00 in DIB [TR 238]. The SSA ultimately determined that Plaintiff
had a countable income in excess of the maximum SSI payment in 2008 and found suspension of

MEMORANDUM OPINION AND ORDER – Page 9

Plaintiff’s benefits was proper [TR 276, 278].4 See Saporito v. Comm’r of Soc. Sec., 248 F. App’x
311, 313 (3d Cir. 2007) (“The determination of whether an individual is eligible in a given month
is based on whether the individual meets that requirements in that same given month. Suspension
of payments due to excess income is effective as of the first month that the countable income is
over the maximum amount.”) (emphasis in original) (internal citation omitted). Upon review of
the SSA’s determination, the ALJ at the second Hearing correctly determined that the SSA had
properly calculated and suspended Plaintiff’s benefits for 2008 due to excess income.
Further, the ALJ was correct in holding that such suspension of Plaintiff’s benefits for
twelve months was due to excess income, not a warrant as urged by Plaintiff. As noted above,
under § 416.1111, when an individual is self-employed his earnings from such self-employment
are counted on a taxable year basis. 20 C.F.R. § 416.1111(b). This means that the income that
Plaintiff earned during 2008, whether earned in one month, five months, or twelve months, is
considered income for the entire year.
The SSA’s regulations relating to the termination of benefits after suspension states:
We will terminate your eligibility for benefits following 12 consecutive months of
benefit suspension for any reason beginning with the first month you were no longer
eligible for regular SSI cash benefits, federally-administered State
supplementation, special SSI cash benefits described in § 416.262, or special SSI
eligibility status described in § 416.265. We will count the 12-month suspension
4

The Commissioner also completed this calculation in his Brief in Support of the Commissioners Decision [Dkt. 22
at 3]. “The maximum SSI benefit payable in 2008 was $637.00. See Social Security Administration, SSI Federal
Payment Amounts, available at https://www.ssa.gov/oact/cola/SSIamts.html (last visited April 4, 2020). As noted
above, the agency does not count all of the individual’s income to determine his eligibility and benefit amount. 20
C.F.R. § 416.1100. Earned income from self-employment in a taxable year is divided equally among the months in
the taxable year. 20 C.F.R. § 416.1111(b). Thus, based on 2008 earnings of $12,097.00, Ransom’s monthly earnings
are $1,008.08 ($12,097.00 ÷ 12). The regulations provide that $65.00 is first excluded from earned income in a month,
20 C.F.R. § 416.1112(c)(5), which in Ransom’s case would leave $943.08 remaining ($1,008.08 - $65.00). One-half
of that amount is then excluded, resulting in the portion of earned income countable for determining eligibility and
benefit amount. 20 C.F.R. § 416.1112(c)(7). In this case, Ransom’s countable earned income from self-employment
would be $471.54 ($943.08 - $471.54). From Ransom’s monthly unearned income, which includes Title II Disability
Insurance Benefits of $413.00 and free food and shelter valued at $212.33, $20.00 is excluded, leaving $605.33
($212.33 + $413.00 - $20.00). The total of Ransom’s countable monthly income, therefore, was $1,076.87 ($471.54
+ $605.33). This amount far exceeds $637.00, the maximum SSI benefit payable in 2008.” [Dkt. 22 at 3, FN 2]
MEMORANDUM OPINION AND ORDER – Page 10

period from the start of the first month that you are no longer eligible for SSI
benefits (see § 416.1320(a)) or the start of the month after the month your special
SSI eligibility status described in § 416.265 ended. This termination is effective
with the start of the 13th month after the suspension began.
20 C.F.R. § 416.1335.
Plaintiff argues that because he only worked five months in 2008, his benefits should only
have been terminated for those five consecutive months [Dkt. 20 at 4]. However, application of
the plain language of the statutes shows that Plaintiff’s income was considered to be earned over
the entirety of 2008 and caused suspension of SSI benefits for twelve consecutive months.
Moreover, as the Commissioner aptly notes, Plaintiff admitted on numerous occasions, contrary
to his arguments before this Court, to working for the entirety of 2008, not just five months [TR 67
(“self-employed computer business from Jan 1, 2008-Dec 31, 2008”), 109 (“So, how long did that
job last? Just a year.”), 163 (“I should be paid from January 2009 all the way to November 2011,
excluded from January 2008 from December 2008 because I worked”), 347 (“with the exception
of January 2008 thru December 2008 – I’m owed my Title 16 SSI benefits”)]. See 20 C.F.R.
§ 416.1335; see also Quinn v. Astrue, No. 2:10-CV-2170 DAD, 2013 WL 552522, at *3 (E.D. Cal.
Feb. 13, 2013) (finding that where “plaintiff’s benefits were suspended in February of 2004 [due
to his improved financial circumstances] and he reapplied for benefits over one year later on
June 23, 2005[,]” plaintiff’s benefits were properly terminated under 20 C.F.R. § 416.1335 as his
benefits were “suspended for twelve continuous months”) (internal citations omitted). The
suspension of Plaintiff’s benefits for twelve consecutive months in turn warranted termination of
his benefits under § 416.1335. See Tammy McKaughan v. Commissioner Of Social Security, No.
1:19-CV-0849 JLT, 2020 WL 5633031, at *3 (E.D. Cal. Sept. 21, 2020) (“Once benefits have been
suspended ‘for any reason’ for twelve continuous months, a claimant’s benefits will be
terminated . . . Plaintiff’s benefits were ‘terminated in 2013 for non-medical reasons,’ as Plaintiff
MEMORANDUM OPINION AND ORDER – Page 11

had excess income after receiving survivor’s benefits in 2012.”) (internal citation omitted);
Watkins v. Berryhill, No. 3:16-CV-30117-KAR, 2017 WL 4365158, at *12 (D. Mass. Sept. 29,
2017) (“Plaintiff's record was automatically terminated because his benefit payments had been
suspended for twelve consecutive calendar months.”).

The ALJ’s decision to uphold the

determination by the SSA in denying Plaintiff benefits for 2008 due to excess income is supported
by substantial evidence.
IRS Transcript
Plaintiff also contends that the IRS transcript relied on by the ALJ is insufficient evidence,
and that the ALJ should have obtained his actual tax returns [Dkt. 20 at 2]. However, the IRS was
only able to supply the transcript due to the tax returns being destroyed in compliance with a
document destruction policy approved by Congress [Dkt. 20-3]. Therefore, although Plaintiff
argues his actual tax return should have been considered by the ALJ, that document is no longer
available, and further, would not have altered the outcome of the countable income analysis infra.
The Court further notes that there is no evidence in the record to support Plaintiff’s claim that he
asked the ALJ to subpoena the IRS for a 2008 tax return showing “the actual months [he] worked”
[Dkt. 22 at 5 n.4 (citing Dkt. 20 at 3)], but that even had the ALJ subpoenaed such records, the
IRS retained none to provide. Moreover, in addition to the IRS transcript, the ALJ relied on
Plaintiff’s own testimony admitting his work and earnings in 2008 in finding that Plaintiff had
earned income in 2008 that should be considered in recalculating Plaintiff’s benefits [TR 37].
Clark Relief
Plaintiff also contends that he is entitled to relief under the decision in Clark v. Astrue, 602
F.3d 140 (2nd Cir. 2010). As set forth in the ALJ’s Decision, dated March 28, 2019:
Under the authority of the 20 CRF 416.535, where the claimant receives
supplemental security income benefits of less than the correct amount, an
MEMORANDUM OPINION AND ORDER – Page 12

adjustment may be effectuated. The amount of the underpayment is the difference
between the amount paid to a recipient and the amount of payment actually due
such recipient for a given period (20 CRF 416.538). If an underpaid recipient is
alive, the amount of the underpayment due him or her will be paid to him or her in
a manner provided by the Regulations found at 20 CFR 416.542.
In a class action proceeding, on September 24, 2009, the United States District
Court for the Northern District of California approved a nationwide class action
settlement agreement in the case of Martinez v. Astrue. Generally, the Martinez
settlement changes the types of arrest warrants used to prohibit payment of Social
Security Retirement, Disability Insurance Benefits, and Supplemental Security
Income Benefits.
In Clark v. Astrue dated March 19, 2010, a separate class action proceeding, the
Second Circuit United States District Court of Appeals held that the “Social
Security Administration’s practice of treating a warrant alleging a recipient was
violating a condition of probation or parole as sufficient and irrebuttable evidence
that the recipient was in fact violating a condition of probation or parole was
inconsistent with the plain meaning of the Social Security Act.”
[TR 26].
While Plaintiff asserts that he is entitled to Clark relief, such assertion is based on
Plaintiff’s belief that his benefits were suspended for twelve consecutive months due to a warrant
rather than excess income [Dkt. 20 at 2, 4]. As noted infra, such an argument is unfounded.
Although Plaintiff’s benefits were suspended in August of 2007 due to a warrant being issued for
his arrest [TR 18], such suspension was continued due to Plaintiff earning excess income. Starting
in January 2008, Plaintiff was earning income in excess of the maximum SSI payment for 2008
and became in eligible to receive SSI benefits [TR 276, 278]. This ineligibility continued for
twelve consecutive months based on monthly earnings, through December 2008, resulting in the
termination of Plaintiff’s SSI benefits. The SSA explained to Plaintiff in a letter dated July 6,
2018, that he was initially eligible to receive Clark benefits for the period his benefits were
terminated for a warrant, but that such eligibility terminated upon his income exceeding the
maximum SSI payment [TR 339-42].

The SSA explained that “[u]nder Clark, the period

MEMORANDUM OPINION AND ORDER – Page 13

considered for relief stops once it is determined SSI benefits have stopped or would have stopped
for 12 consecutive months for reasons other than having a PPV warrant. As a result, you are not
eligible for Clark relief for any month after December 2007” [TR 340]. Giammarinaro v. Astrue,
No. 8:12-CV-2167-T-EAJ, 2013 WL 12157304, at *4 (M.D. Fla. Feb. 5, 2013) (In discussing
Clark relief, the court found that the “SSA was directed to reopen all claims of class members who
had been denied SSI payments solely on the basis of an outstanding probation or parole warrant
and to determine benefits based on the original application date.”) (emphasis added). Therefore,
because Plaintiff’s benefits were suspended for twelve consecutive months on a basis other than a
warrant, the ALJ was correct in affirming the decision of the SSA that Plaintiff is not entitled to
Clark benefits. See HALLEX I-5-4-70. Clark v. Astrue (IV)(1) (“For all individuals whose
benefits were suspended solely on the basis of an outstanding probation or parole violation warrant,
SSA will fully reinstate all benefits retroactive to the date the benefits were suspended and on an
ongoing basis. However, if there is another basis for suspending benefits for any portion of the
retroactive period or ongoing benefit period, SSA may suspend such benefits upon notice to the
individual with appeal rights in conformity with agency regulations.”) https://www.ssa.gov/
OP_Home/hallex/I-05/I-5-4-70.html (last visited March 31, 2021).
CONCLUSION
For the foregoing reasons, the Court finds that the Commissioner’s Decision should be
AFFIRMED. There was no underpayment of SSI.
IT IS SO ORDERED. SIGNED this 31st day of March, 2021.

___________________________________
Christine A. Nowak
UNITED STATES MAGISTRATE JUDGE
MEMORANDUM OPINION AND ORDER – Page 14