Bronstein v. Apfel, CIV.A. 00-K-1223.

• Decision Date: 13 August 2001
• Docket Number: No. CIV.A. 00-K-1223.,CIV.A. 00-K-1223.
• Citation: 158 F.Supp.2d 1208
• Parties: Byron BRONSTEIN, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Colorado

158 F.Supp.2d 1208

Byron BRONSTEIN, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant.

No. CIV.A. 00-K-1223.

United States District Court, D. Colorado.

August 13, 2001.

Byron R. Bronstein, Denver, CO, Pro Se.

Yvette G. Keesee, Social Security Admin., Denver, CO, for Defendant.

ORDER ON PENDING MOTIONS

KANE, Senior District Judge.

In this action Plaintiff Byron Bronstein, appearing pro se, challenges the decision of the Social Security Administration ("SSA") to begin recouping an alleged overpayment of Supplemental Security Income ("SSI") benefits before holding a hearing. Defendant Kenneth S. Apfel, as Commissioner of the SSA, asserts Mr. Bronstein failed to exhaust his administrative remedies before bringing suit and therefore moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. Mr. Bronstein has also filed a motion for joinder of claims based on the SSA's renewed withholding of benefits from his monthly SSI check in connection with the alleged overpayment. For the reasons stated below, I deny the SSA's motion to dismiss and deny Mr. Bronstein's motion as moot.

STATUTORY AND REGULATORY BACKGROUND

Title XVI of the Social Security Act ("Act") provides for the payment of disability benefits to indigent persons under the SSI program. See 42 U.S.C. §§ 1381-1383d; Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). Section 1631(b)(1) of the Act authorizes the SSA to recoup overpayments of benefits to SSI recipients. 42 U.S.C. § 1383(b)(1). If the recipient is currently receiving SSI benefits, the overpayment may be recouped by reducing the amount of his or her future SSI payments until the entire overpayment amount has been recovered. Id.; 20 C.F.R. §§ 416.570, 416.571 (2000).

The process to recoup an alleged overpayment from on-going SSI payments begins with the SSA notifying the overpaid individual that he or she has received excess SSI benefits, the amount of the overpayment, how the overpayment came about, the rate at which it will be recouped from future SSI benefit payments and the date, at least 60 days in the future, when recoupment will begin. SSA Programs Operations Manual System § 02201.025A (Feb.2001)[hereinafter "POMS"];¹ see 20 C.F.R. § 416.558(a). The notice must also inform the SSI recipient of his right to appeal the SSA's overpayment determination by submitting a request for reconsideration and also his right to seek a waiver of the repayment obligation or a different rate of recoupment. Id. A request for reconsideration generally must be submitted to the SSA within 60 days of the individual receiving the notice of overpayment. 20 C.F.R. § 416.1409. A request for waiver may be submitted at any time, including after the overpayment has been completely recovered. POMS, §§ SI 02220.001A.4.b, SI 02220.017A.4.c; see 42 U.S.C. § 1383(b)(1)(B) (no deadline set for requesting waiver).²

If a request for reconsideration or waiver is made within 30 days of the notice of overpayment, SSA policy, consistent with relevant authority, is to begin recoupment through a reduction in benefits "only after the determination is made on the request." POMS, § SI 02220.001A.2; see 20 C.F.R. § 1404(c) (individual has right to reconsideration before initial determination to reduce benefits goes into effect). If recoupment is inadvertently made during this period, the benefits withheld are refunded to the individual.³ POMS, § SI 02220.017A.4.d. If a request for reconsideration or waiver is filed more than 30 days after receipt of the overpayment notice, recoupment is halted and, effective the month of the request, any payments that were withheld to recover the overpayment are refunded. Id. § SI 02220.017A.4.e.

From this point, requests for reconsideration and waiver follow slightly different paths. A request for reconsideration is the first step in the standard process for appealing an SSA determination.⁴ 20 C.F.R. §§ 416.1400, 416.1407. At this stage of the appeals process, an SSI beneficiary appealing an initial overpayment determination may select a case review, an informal conference or a formal conference as the vehicle through which to make his or her case against the overpayment determination. See 20 C.F.R. §§ 416.1413, 416.1413b. If the individual selects one of the conference options, he or she is entitled to an oral hearing before the SSA official who will make the reconsidered determination. Id. § 416.1413(b), (c). At a formal conference, the individual seeking reconsideration has the right to argue his position, present written and oral evidence and examine, cross-examine and subpoena witnesses.

The SSA is required to schedule a reconsideration conference promptly upon receiving a request for one and to notify the individual in writing of the date, time and place of the conference. See 20 C.F.R. § 416.1413c; POMS, § SI 04020.050D.2, E. The SSA's conference notice also identifies the SSA determination to be addressed at the conference. POMS, § SI 04020.050D.2. Once the conference has been held, the SSA decision-maker prepares a written record of the conference summarizing the pertinent issues, the evidence submitted and other relevant information. POMS, § SI 04020.050B.5; see 20 C.F.R. § 416.1413(c). The decision-maker who presided over the conference subsequently provides the individual with written notice of the reconsidered determination, POMS § SI 04020.050F.10; see 20 C.F.R. §§ 416.1413(c), 416.1422, including information on how to continue the administrative appeal process by requesting a hearing before an Administrative Law Judge (ALJ). 20 C.F.R. § 416.1422.

A waiver request is not an appeal of the SSA's overpayment determination but rather a request for relief authorized by section 1631(b)(1)(B) of the Social Security Act. 42 U.S.C. § 1383(b)(1)(B). Pursuant to the Act, an SSI recipient is entitled to a waiver of overpayment recoupment if the recipient was without fault with respect to the overpayment and recovery of the overpayment would defeat the purposes of the SSI program, be against equity and good conscience or (because of the small amount involved) impede the efficient or effective administration of the SSI program. Id.; see 20 C.F.R. § 416.550-416.556. If the SSA does not grant the waiver request immediately, its policy, consistent with relevant authority, is to notify the individual of its proposed denial of waiver, explain the basis for the proposed denial and schedule a "personal conference" for the individual to present his or her case for waiver. POMS, §§ SI 02260.006A-B, SI 02260.006D.1; see Page v. Schweiker, 571 F.Supp. 872 (M.D.Pa.1983) (cited in POMs; holding individual who requests waiver of SSI overpayment entitled to opportunity for prerecoupment hearing); Califano v. Yamasaki, 442 U.S. 682, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979) (same with respect to request for waiver of overpayment of old age, survivors and disability benefits). The SSA does not make its initial determination on the waiver request until after the personal conference, POMS, § SI 02260.006, and provides notice of that determination in writing to the individual. 20 C.F.R. §§ 416.558(b), 416.1404. If the individual is dissatisfied with the outcome, he or she may appeal the decision by making a request for reconsideration of the waiver determination. POMS, § SI 02260.006B.7; see 20 C.F.R. § 416.1404. This reconsideration request is processed as described above.

FACTUAL BACKGROUND

In considering the SSA's motion to dismiss, I do not presume the truthfulness of the complaint's factual allegations and may consider evidence outside of the pleadings as necessary. See Pringle v. United States, 208 F.3d 1220, 1222 (10th Cir.2000). The evidence submitted to date in this action establishes the following:

On March 22, 2000 and March 27, 2001, Mr. Bronstein submitted "Requests for Reconsideration" to the SSA in apparent response to a notice of overpayment he had received at some earlier date. Decl. of Olga C. Kelley, Exh. 1. There is no evidence currently in the record concerning the date or content of the overpayment notice, but the SSA alleges the overpayment resulted from unreported earnings received by Mr. Bronstein. In his requests for reconsideration, Mr. Bronstein stated he disagreed with the SSA's determination of his earnings, that he wanted to enter the PASS (Plan for Achieving Self Support) program and that Medicaid did not cover the cost of all his medicine. Id. In both requests, he checked the box indicating that he wanted a formal conference. Id. In its briefing in support of its motion to dismiss, the SSA states it treated Mr. Bronstein's requests as requests both for reconsideration and for waiver of the overpayment. Def.'s Reply Br. at 2 & n.2.

By letter dated March 28, 2000, the SSA notified Mr. Bronstein it was reviewing his case to determine whether he was still eligible for SSI benefits and that it had scheduled an appointment with him for April 12, 2000 so it could collect information "to make sure you are still eligible" and "discuss the request for reconsideration you filed." Kelley Decl., Exh. 2. Aside from stating the date, time and place of the meeting, this notice does not contain any of the information required for notice of a formal conference on a reconsideration request or notice of a personal conference on a waiver request.

Mr. Bronstein met with SSA representative Joe Rodriguez on April 12, 2000. The only evidence in record concerning this meeting is a brief "Report of Contact" prepared by one of Mr. Rodriguez's co-workers. Kelley Decl., Exh. 3. According to this report and the SSA, at the meeting Mr. Bronstein received an "oral explanation" from Mr. Rodriguez regarding the overpayment determination and the PASS program. Decl. of Olga C. Kelley at 3. Mr. Rodriguez also requested information from Mr. Bronstein verifying that he had stopped working. Kelley Decl., Exh. 3. The Report of Contact...