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Piskor v. Saul

United States District Court, N.D. Ohio, Eastern Division

September 6, 2019

STEPHEN A. PISKOR, Plaintiff,
v.
ANDREW M. SAUL[1], COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          DONALD C. NUGENT, JUDGE

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          GEORGE J. LIMBERT, U.S. MAGISTRATE JUDGE

         This matter is before the undersigned on Plaintiff Stephen Piskor's (“Plaintiff”), pro se, request for judicial review of the final decision of the Commissioner of Social Security Administration (“Defendant”) adjudicating Plaintiff liable for repayment of $7, 859.61 during the period of April 1, 2013 to March 1, 2016 due to excess resources. ECF Dkt. #1. In his brief on the merits, filed March 29, 2019, Plaintiff requested a judgment: (1) to find that he is not liable for repayment because the Social Security Administration (“SSA”) was not justified in reducing or stopping his SSI payments; and (2) to restart his SSI benefits and receive back pay from the period beginning January 1, 2018 to the present. See ECF Dkt. #15. On April 29, 2019, Defendant filed a brief on the merits. ECF Dkt. #16. On May 7, 2019, Plaintiff filed a reply brief. ECF Dkt. #17.

         For the following reasons, the undersigned recommends that the Court AFFIRM the ALJ's decision and DISMISS Plaintiff's complaint in its entirety WITH PREJUDICE.

         I. FACTUAL AND PROCEDURAL HISTORY

         Plaintiff began receiving SSI on May 1, 1995.[2] ECF Dkt. #11 (“Tr.”)[3] at 15. The record before the undersigned reveals three sources of income that led the SSA to determine that they had overpaid SSI to Plaintiff: royalties from a self-published book, a large settlement, and benefits received by living with his brother. ECF Dkt. #16 at 10-14; ECF Dkt. #16-2 at 1.

         A. ROYALTIES

         Plaintiff self-published a book about his family genealogy, entitled Gypsy Violins: Hungarian Slovak Gypsies in America, around 2011 or 2012. ECF Dkt. #15 at 2; ECF Dkt. #16 at 1; Tr. at 16-17. Plaintiff stated that he had been researching and documenting his family history for over 50 years and the book was his life's work. ECF Dkt. #15 at 1-4. Plaintiff received royalties in the total amount of $972.94 for the period between October 2012 and November 2015. ECF Dkt. #16 at 1; ECF Dkt. #15 at 2; Tr. at 50-52.

         SSA determined that the royalty payments were to be treated as earned income. Tr. at 55. On December 15, 2015, SSA sent Plaintiff a Notice of Planned Action, stating that SSA would lower his monthly SSI payments by $88.00, from $733.00 to $645.00, beginning January 2016 due to his increased income from royalty payments as well as the food or shelter he received by living with his brother Russell, discussed more in depth below. ECF Dkt. #16-1 at 1-2. On January 13, 2016, SSA sent Plaintiff a Notice of Overpayment, stating that SSA overpaid him $588.61 of SSI from April 2013 through December 2015 due to his wages and the food or shelter he received by living with his brother. ECF Dkt. #16-2 at 1. Plaintiff either could have paid the $588.61 sum by February 12, 2016 or SSA would withhold $73.30 each month starting April 2016 until the debt was paid back. Id. at 3-4; Tr. at 148. The $73.30 amount the SSA would withhold would not amount to more than 10% of Plaintiff's total income, which is the most SSA could hold back without consent. ECF Dkt. #16-2 at 3.

         B. SETTLEMENT

         In 2009, Plaintiff was appointed the guardian of his mother, Esther Piskor, and her estate on the grounds that she was incompetent and required nursing care. ECF Dkt. #16 at 2; see Tr. at 56 (referring to Plaintiff as “Guardian of his mother”); 276-77, 281 (Plaintiff testified at the hearing before the ALJ that he was his mother's guardian.). In 2011, Plaintiff began investigating the nursing home where his mother resided by placing hidden cameras in her room. He discovered eight nursing aids were physically abusing his mother, which led to the firing and criminal conviction of some members of the nursing staff. ECF Dkt. #16 at 2; ECF Dkt #17 at 4; Tr. at 100.

         In 2013, Plaintiff filed a personal injury lawsuit on his mother's behalf against the quasi-governmental agency in charge of the nursing home where she was abused. ECF Dkt. #16 at 2. The case resulted in a substantial settlement of $1, 000, 000, which the court approved on March 31, 2015. Id.; Tr. at 58-67. The settlement was divided so that Plaintiff's share consisted of $100, 000.00 “for extraordinary guardian services rendered.” Tr. at 58.[4] Plaintiff received his share of the settlement in four separate installments conditioned upon Plaintiff keeping the matter confidential. ECF Dkt. #16 at 3; Tr. at 62-65; 100. The first payment of $25, 000 was made in March 2015, the second payment of $10, 000 was made in December 2015, the third payment of $10, 000 was made in March 2016, the fourth payment of $15, 000 was made in June 2016, the fifth payment of $20, 000 was made in December 2016, and the final payment of $20, 000 was made in March 2017. Tr. at 65-66, 100; ECF Dkt. #15 at 7.

         In May 2015, Plaintiff sought to establish a special needs trust on his behalf in order for him to remain eligible to receive SSI. ECF Dkt. #16 at 3; Tr. at 56, 100-01. Plaintiff's attorneys advised him that “it would be best to deposit the money in the Attorney Trust Account until litigation for a special needs trust is approved.” ECF Dkt. #15 at 5; see also ECF Dkt. #1 at 4. Plaintiff testified before an ALJ that the purpose of spending down part of his funds and depositing a portion in his attorney's trust account was an effort to protect his Social Security benefits. Tr. at 285-86.

         In November 2015, a magistrate judge found that the Probate Court lacked authority to set up such a trust and denied Plaintiff's request. ECF Dkt. #16 at 3; Tr. at 56-57, 100-01. The magistrate suggested that Plaintiff could have a conservator appointed for the limited purpose of establishing a special needs trust on his behalf and urged him to do so. ECF Dkt. #16 at 3; Tr. at 56; ECF Dkt. #17 at 1-2. Plaintiff further noted that:

The trust fund [the magistrate judge] said she would approve was very strict and I would have had to go to her every time I wanted something. It took her months to deny everything and I'm now supposed to go back to her for my money. The attorneys recommended against it, they filed appeals saying she was wrong. My attorneys said, I should place my money in their trust fund and I would have to go to them if I wanted something.

Tr. at 101. In January 2016, the Probate Court upheld the magistrate's decision, denied Plaintiff's objections, and dismissed the case. Tr. at 56-57. Plaintiff followed the advice of his attorneys and continued to place the settlement funds in his attorneys' client trust account, where he had access to the money on demand, and decided to spend down what he received. ECF Dkt. #16 at 3; ECF Dkt. #1 at 4; Tr. at 101.

         In a letter dated November 14, 2016, Plaintiff listed details of his funds from May 1, 2015 up to the time in the letter. Tr. at 100-03. He noted that the settlement funds were deposited directly into his checking account, and, afterwards, he deposited a portion of the installments in his attorney's trust account. Id. at 102. For example, the first $25, 000 installment from May 2015 was deposited into Plaintiff's checking account, and, shortly thereafter, he purchased a 2008 Mercedes R350 wagon for $11, 750 and deposited $9, 508 into his trust fund account. Id.; see also Id. at 201-02. He also noted that the withdrawal process consisted of him having to formally request funds from the attorney trust account and then wait until it was mailed to him and cleared by the bank. Id. Plaintiff further stated that he made three withdrawals from the attorney trust account. ECF Dkt. #15 at 5; Tr. at 279-80.

         On March 7, 2016, a few months after his request to establish a special needs trust was denied, Plaintiff reported the settlement to SSA, specifically noting his $100, 000 share. Tr. at 40, 53-54; ECF Dkt. #16 at 3. SSA advised ...


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