UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Kevin R. Warriner

v. Civil No. 08-cv-250-JL

Michael J. Astrue, Commissioner,

New Hampshire Social Security Administration

O R D E R

Pursuant to 42 U.S.C. § 405(g), pro se claimant Kevin

Warriner appeals the final decision of the Social Security

Administration (“SSA”) affirming the decision of the

Administrative Law Judge (“ALJ”) denying him relief. Warriner

had sought a reversal of an April 2005 decision to collect an

overpayment of benefits by withholding money from his Social

Security Income (“SSI”) benefit checks. Claimant states that the

regulations utilized by the ALJ in denying his claim, as applied

to his case, are unfair. Because claimant is proceeding pro se

and in forma pauperis, the matter is before me for preliminary

review to determine whether it states any claim upon which relief

might be granted. See United States District Court District of

New Hampshire Local Rule (“LR”) 4.3(d)(1)(B).

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Standard of Review

Under this Court’s local rules, when a plaintiff commences

an action pro se and in forma pauperis, the magistrate judge is

directed to conduct a preliminary review. LR 4.3(d)(1)(B). In

conducting the preliminary review, the Court construes pro se

pleadings liberally, however inartfully pleaded. See Erickson v.

Pardus, ___ U.S. ___, 127 S. Ct. 2197, 2200 (2007) (following

Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Haines v. Kerner,

404 U.S. 519, 520-21 (1972) to construe pro se pleadings

liberally in favor of the pro se party). “The policy behind

affording pro se plaintiffs liberal interpretation is that if

they present sufficient facts, the court may intuit the correct

cause of action, even if it was imperfectly pled.” See Castro v.

United States, 540 U.S. 375, 381 (2003) (noting that courts may

construe pro se pleadings so as to avoid inappropriately

stringent rules and unnecessary dismissals of claims); Ahmed v.

Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). All of the

factual assertions made by a pro se plaintiff and inferences

reasonably drawn therefrom must be accepted as true. See id.

This review ensures that pro se pleadings are given fair and

meaningful consideration.

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1Warriner reports that in his entire adult life he has

earned a total of $11,682.

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Background

Kevin Warriner is a forty-eight year old man who suffers

from a pathological gambling disorder, a disabling mental

illness. Because his disability renders him unable to work,1 in

2000, on the advise of his psychiatric treatment providers,

Warriner applied for, and received, SSI benefits from the SSA. 

The benefits are paid to Warriner through a representative payee

who is responsible for appropriately distributing the money to

Warriner. As a result, none of the SSI benefits Warriner has

received have been spent on gambling.

Every year, Warriner’s tax documents are submitted to the

SSA. These documents report Warriner’s income and work history,

as well as his gambling wins and losses for the year. Warriner

says that in 2005, a worker at the SSA decided to review these

records. The SSA determined that during 2002 and 2003, Warriner

received gambling winnings that exceeded his gambling losses, and

should have therefore been counted as income under SSA

regulations. Accordingly, the SSA notified Warriner that he had

been overpaid $11,382 during those two years, and that deductions

would be made from his SSI checks, going forward, to recover the

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overpayment. Deductions have been taken from Warriner’s SSI

checks every month since April of 2005.

Warriner requested reconsideration of the SSA’s decision to

recover the alleged overpayment on the grounds that he had not,

in fact, had gambling winnings exceeding his gambling losses in

2002 and 2003, despite what his tax records showed. He also

argued that any overpayment was not entirely his fault, and that

responsibility for the overpayment rested at least in part with

the SSA, as he had been forthcoming with his documentation, and

the agency had been in possession of Warriner’s 2002 and 2003

records for two or three years prior to deciding to review them. 

In addition, Warriner asserted that the SSA regulation requiring

gambling winnings to be considered as income should not apply to

him, given that the SSA has recognized him as having a disability

which causes him to lose any gambling winnings immediately, as

his illness compels him to continue to gamble until all of his

winnings are lost. 

Warriner’s request to reconsider the recovery withholding

was denied by the SSA on January 24, 2007. On February 2, 2007,

Warriner requested a hearing. A hearing was held on August 8,

2007. The ALJ denied Warriner’s request on August 15, 2007. 

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Warriner appealed the denial to the SSA’s Appeals Council On

April 24, 2008, the Appeals Council notified Warriner of its

decision affirming the ALJ’s denial of relief. This timely

appeal followed.

Discussion

42 U.S.C. § 405(g) provides for judicial review of a

decision of the SSA:

Any individual, after any final decision of the 

Commissioner of Social Security made after a 

hearing to which he was a party, irrespective of 

the amount in controversy, may obtain a review of 

such decision by a civil action commenced within 

sixty days after the mailing to him of notice of 

such decision or within such further time as the 

Commissioner of Social Security may allow. . . . 

Warriner has complied with the requirements of the statute that

direct him to obtain a final decision from the Commissioner of

the SSA, and then to file this appeal within sixty days of the

mailing of that decision. Accordingly, I find that this matter

is appropriately before this Court and may proceed at this time.

Conclusion

I order that the complaint be served upon defendant. The

Clerk’s office is directed to issue the necessary summons form

and forward to (I) the United States Attorney for the District of

New Hampshire, (ii) the Attorney General of the United States,

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and (iii) the Social Security Administration, by certified mail,

return receipt requested, the summonses and copies of the

complaint (document no. 1) and this Order. See Fed. R. Civ. P.

4(c)(2) and 4(I). 

Defendant is instructed to answer or otherwise plead within

sixty days of service. See Fed. R. Civ. P. 12(a)(3). 

Plaintiff is instructed that all future pleadings, written

motions, notices, or similar papers shall be served directly on

the defendant by delivering or mailing the materials to them or

their attorney(s), pursuant to Fed. R. Civ. P. 5(b). 

SO ORDERED.

________________________________

James R. Muirhead

United States Magistrate Judge

Date: November 3, 2008

cc: Kevin R. Warriner, pro se

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