Gagnon v. Colvin

234 F. Supp. 3d 897, 2017 U.S. Dist. LEXIS 7342, 2017 WL 219494
CourtDistrict Court, N.D. Illinois
DecidedJanuary 19, 2017
DocketCase No: 15 C 4306
StatusPublished

This text of 234 F. Supp. 3d 897 (Gagnon v. Colvin) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gagnon v. Colvin, 234 F. Supp. 3d 897, 2017 U.S. Dist. LEXIS 7342, 2017 WL 219494 (N.D. Ill. 2017).

Opinion

MEMORANDUM OPINION AND ORDER

Jeffrey Cole, UNITED STATES MAGISTRATE JUDGE

The plaintiff, Scott Gagnon, seeks review of the final decision of the Commissioner (“Commissioner”) of the Social Security Administration (“Agency”) finding that he is liable for an overpayment of Social Security Disability Insurance Benefits in the amount of $31,408.70 for the period of June 2007 through April 2012. (Administrative Record (R.) 9-10). Mr. Gagnon seeks review of that determination under 42 U.S.C. § 405(g), hoping to have it overturned, and the Commissioner asks that the determination be affirmed.

BACKGROUND

Mr. Gagnon has been a somewhat reluctant participant in these proceedings. Litigating pro se, he neither wrote, filed, nor signed his initial complaint. His mother did. [Dkt. # 1,10]. He failed to show up at the first hearing in this case. [Dkt. # 10]. He was given six weeks to file a response to the Commissioner’s opening brief in this case. [Dkt. #18]. He’s neither filed a response, nor asked for more time in which to do so. It is now many weeks since his response was due. Pro se status does not relieve a litigant of his litigation duties; he must comply with orders and schedules. Dukes v. Cox, 657 Fed.Appx. 596, 598-99 (7th Cir. 2016); Pearle Vision, Inc. v. Romm, 541 F.3d 751, 758 (7th Cir. 2008); Raven v. Madison Area Tech. Coll., 443 Fed.Appx. 210, 212 (7th Cir. 2011). Not showing up for hearings, ignoring deadlines, and failing to ask for extensions does not evince a lack of legal sophistication that might on occasion be excused in the case of a pro se litigant. Instead, it seems Mr. Gagnon no longer cares about this case, which 'will have to be decided based on the administrative record and what the Commissioner has filed with the court.1

That’s unfortunate, because the Commissioner’s brief is rather sketchy and un-illuminating. More is expected of a brief from an agency of the United States. Freeport-McMoRan Oil & Gas Co. v. F.E.R.C., 962 F.2d 45, 47 (D.C. Cir. 1992). Barely five pages long, it cites a single case, from the Eighth Circuit. In the main, it relies on sections from the agency’s Program Operations Manual System, an internal guide[899]*899book that has no legal force here. Schweiker v. Hansen, 450 U.S. 785, 789, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981); Parker for Lamon v. Sullivan, 891 F.2d 185, 190 (7th Cir. 1989). In other words, it is not the kind of “pertinent authority” that litigants are expected to cite to support their arguments. See Crespo v. Colvin, 824 F.3d 667, 674 (7th Cir. 2016)(“... arguments that are unsupported by pertinent authority, are waived (even where those arguments raise constitutional issues).”).

Mr. Gagnon was found disabled and entitled to disability benefits due to anxiety disorder and affective/mood disorder in 2007. (R. 62). In February 2008, Mr. Gag-non submitted a Continuing Disability Review Report in which he informed the Social Security Administration that he had begun working at a large grocery store in January 2008 and was earning about $15 per hour working 6 to 8 hours a day, 4 to 5 days a week. (R. 32). He explained that he was doing this on a trial basis to see if he was able to do it. (R. 37). Prior to that he had worked in the same capacity for 10 to 20 hours a week in 2006 and 2007. (R. 32).

The Administration sent Mr. Gagnon a notice on September 10, 2008, informing him that it had information that he was performing substantial work beginning in March 2007, meaning that his disability had ended and he was not entitled to payments he had received in June 2007, August 2007, and from October 2007 on. (R. 38). The notice explained that Mr. Gag-non had been allowed a 9-month trial work period beginning in June 2006 and ending in February 2007. (R. 39). The notice also indicated that Mr. Gagnon would be getting word about any overpayment he received during that time. (R. 40). Finally, the notice gave Mr. Gagnon 15 days to provide any information he thought was pertinent to the Administration’s decision. (R. 41).

Mr. Gagnon didn’t get his 15 days; he didn’t even get 3 days. The Administration sent its Notice of Disability Cessation on September 12, 2008, telling Mr. Gagnon that it had determined that his disability ended, and he was not entitled to payments received in June 2007, August 2007, and from October 2007 on. (R. 42). Because the Administration didn’t stop sending him checks until September 2008, he was paid $14,400.10 too much in disability benefits. (R. 43). There is no dispute that Mr. Gagnon eventually paid this back; it was withheld from his subsequent benefit checks. (R. 79,100).

In October 2008, Mr. Gagnon provided another continuing disability report to the Administration, stating that he had been working 4 to 5 hours a day 4 to 5 hours a week as a grocery inventory clerk since 2005, earning 10.50 an hour. (R. 56). Three months after that, in January 2009, the Administration determined that Mr. Gag-non had not experienced medical improvement and his disability continued. (R. 62-63). Apparently, at about that time, it restarted Mr. Gagnon’s disability insurance payments. (R. 77).

There seems to be no further contact between Mr. Gagnon and the Administration until January 2012, when Mr. Gagnon wrote to the Administration asking them to stop his disability benefits checks because he had improved and would soon be working full-time at the grocery store. (R. 64). In March 2012, the Administration determined internally that Mr. Gagnon had performed substantial gainful activity from November 2008 to January 2009, and in April 2009, August 2009, November 2009, and from October 2010 on. (R. 76). It sent Mr. Gagnon notice of this determination on April 14, 2012, again giving him 15 days to respond. (R. 77). Mr. Gagnon responded by explaining that he had only been working part-time and attached his [900]*900W-2. He reminded the Administration that he- -had already repaid the previous overpayment. (R. -79-80). The Administration than wrote’to Mr, .Gagnon telling' him. its decision stood and he would, once again, be getting information about another overpayment (R. 84).

- The Administration sent Mr. Gagnon the bill on July 18, 2012, in the amount of $31,950.90: (R. 89). The amount was due in less- than a month, on August 3, 2012. (R. 89).- For some reason, the notice Stated that'the Administration had not received payment—how could it have, it had just sent the notice—and that payment should be sent right away. It did give Mr. Gagnon the option of asking for monthly payment plan. (R. 89). - .

On October 1, 2012, the Administration sent another notice to Mr. Gagnon, informing him of the $31,950 overpayment. This one broke - the amount down on a month-by-month basis. (R.- 93-94). It sent another notice telling-Mr. Gagnon he was no longer entitled to disability benefits as of October 2010. on October 31, 2012. (R. 97).

On November 9, 2012, Mr. Gagnon exercised his option to request a waiver of repayment, arguing that overpayment was not his .fault and he could not afford to pay over $30,000 back to the Administration. (R. 99).

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Related

Securities & Exchange Commission v. Chenery Corp.
318 U.S. 80 (Supreme Court, 1943)
Schweiker v. Hansen
450 U.S. 785 (Supreme Court, 1981)
Parker v. Sullivan
891 F.2d 185 (Seventh Circuit, 1989)
Pearle Vision, Inc. v. Romm
541 F.3d 751 (Seventh Circuit, 2008)
Louquetta O'Connor-Spinner v. Carolyn Colvin
832 F.3d 690 (Seventh Circuit, 2016)
Crespo v. Colvin
824 F.3d 667 (Seventh Circuit, 2016)
Meuser v. Colvin
838 F.3d 905 (Seventh Circuit, 2016)
Raven v. Madison Area Technical College
443 F. App'x 210 (Seventh Circuit, 2011)
Dukes v. Cox
657 F. App'x 596 (Seventh Circuit, 2016)

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Bluebook (online)
234 F. Supp. 3d 897, 2017 U.S. Dist. LEXIS 7342, 2017 WL 219494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gagnon-v-colvin-ilnd-2017.