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WILKENING v. BARNHART

April 26, 2004.

TRACI WILKENING, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant



The opinion of the court was delivered by: MARTIN ASHMAN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Pursuant to 42 U.S.C. § 405(g), Plaintiff Traci Wilkening seeks judicial review of the final decision of the Commissioner of Social Security in which the Commissioner declined to waive Plaintiffs obligation to refund disability benefit overpayments. The parties have consented to have this Court conduct any and all proceedings in this case, including the entry of final judgment. See 28 U.S.C. § 636(c); Local R. 73.1(a).

  Plaintiffs Motion to Reverse the Final Decision of the Commissioner of Social Security seeks to reverse the decision on two grounds: (1) that the Commissioner failed to prove the existence of an overpayment to Plaintiff or its amount, and (2) that Plaintiff was not at fault in causing the overpayment. In the alternative, Plaintiff seeks remand to the ALJ to hear additional evidence on the amount of overpayment and the issue of fault. For the reasons set forth below, the Court affirms the final decision of the Commissioner. I. Background Facts and Procedural History

  A. Plaintiffs Background and Medical History

  Plaintiff was born on July 29, 1970, and was thirty years old on the date of her hearing before the Administrative Law Judge ("ALJ"). (R. at 22, 97.) Plaintiff obtained a GED in 1987. (R. at 13.) She also studied English and Psychology at Elgin Community College in 1992, but did not finish her coursework. (Id.) However, Plaintiff did complete and pass two classes. (Id.)

  Plaintiff was diagnosed with bipolar disorder in 1990 and began receiving disability benefits in October of that year. (R. at 13, 189.) In addition, the record suggests that Plaintiff may also have suffered from depression, (R. at 13), and occasional bouts of substance abuse. (R. at 104.) She has been prescribed and has taken medication that included Lithium, Xanax, and Risperdal, although she did not take these medications continually. (R. at 13.) Plaintiff worked off and on at various jobs after she began receiving benefits, including The Message Center and First Card in Elgin, Illinois. (R. at 89-91, 120-22.)

  B. Plaintiffs Eligibility for Disability Benefits

  Plaintiffs trial work period*fn1 began running in November 1990 and ended in April 1992. (R. at 113.) Her extended period of eligibility*fn2 then ended in October 1995. (R. at 99.) Plaintiff worked during portions of her extended period of eligibility, specifically from October 1993 through December 1994. (R. at 114-15.) Accordingly, she was not entitled to payments she received during those months. (Id.) Moreover, as of November 1995 (the first month following the close of her extended period of eligibility) Plaintiff was no longer entitled to any benefits at all. (Id.) However, she continued to receive payments. (R. at 171, 189.) Plaintiff did not notify the Social Security Administration ("SSA") of her receipt of these payments. And according to SSA records, Plaintiff did not regularly or timely notify the SSA of her work activity until she filed a written report on June 30, 1997. (R. at 76, 82-83, 191.) Yet even after Plaintiff reported her work activity, the SSA failed to terminate her benefits, continuing to pay Plaintiff until March 1999. (R. at 171, 189.)

  C. Overpayments on Behalf of Plaintiffs Children

  While ineligible for benefits, Plaintiff accepted overpayments both personally and on behalf of two of her children, Samantha Wilkening and Christopher Huber. (R. at 22.) The overpayments made to Plaintiff on behalf of her children eventually totaled $9060. (R. at 136, 140.) However, these overpayments are not at issue. Plaintiffs mother, Bonnie Wilkening, took both children into her custody in September 1996 and began receiving the overpayments made on their behalf in March 1998. (R. at 154.) Upon Bonnie Wilkening's request, the SSA ultimately waived recovery of the overpayments made to the children. (R. at 178-81.) Accordingly, only the overpayments Plaintiff received remain at issue. (R. at 22-23.)

  D. The First Notice of Overpayment and Plaintiffs Requests for Waiver

  Plaintiff received two written notices of overpayment from the SSA, The first of these notices referred only to the overpayments made to Plaintiff on behalf of her children. (R. at 37-46.) This notice, which is undated, quoted a total combined overpayment of $7535.40. (Id.) Plaintiff apparently received the notice in early 1996, because on February 29, 1996, Plaintiff filed the first of three requests for waiver of overpayment with the SSA. (R. at 47.) When the SSA did not respond to her initial request, Plaintiff filed a second on May 16, 1996, then a third on March 5, 1997. (R. at 55, 65.) The SSA finally replied to these waiver requests on June 19, 1997, rejecting the requests and communicating its decision to Plaintiff by a letter dated September 20, 1997. (R. at 75-78.) This letter informed Plaintiff that the SSA was arranging a personal conference at which Plaintiff could review her file and meet with a claims representative before the SSA made its final decision to deny waiver. (R. at 77.)

  E. Plaintiffs July 5, 1996 Disability Determination and Medical Review

  Before attending the personal conference, Plaintiff received a medical review from state examiners at the behest of the SSA on July 5, 1996. (R. at 101-11.) The examining doctor concluded that Plaintiffs bipolar disorder still qualified as a listed disability. (R. at 101.) Thereafter, the SSA sent Plaintiff a letter informing her that she still met the disability requirements and stating that her "status as a Social Security beneficiary is unchanged." (R. at 190.) However, the same letter informed Plaintiff that she must report any changes in her work status and reiterated that her trial work period had ended. (Id.)

  F. The Dismissal of Plaintiffs Initial Request for Administrative Review

  Four months after the medical review, on November 19, 1997, Plaintiff attended the personal conference with a claims representative from the SSA. (R. at 81-82, 95.) At this conference, the claims representative again refused waiver of overpayment. (R. at 95.) The claims representative also noted that "[Plaintiff] is now again working ...


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