Hendrix v. Colvin

Decision Date02 October 2015
Docket NumberCase No.: 3:15cv54/RV/EMT
CourtU.S. District Court — Northern District of Florida
PartiesJESSIE L. HENDRIX, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION

This case has been referred to the undersigned magistrate judge pursuant to the authority of 28 U.S.C. § 636(b) and Local Rules 72.1(A), 72.2(D) and 72.3 of this court pertaining to review of administrative determinations under the Social Security Act ("the Act") and related statutes, 42 U.S.C. § 401, et seq. It is now before the court pursuant to 42 U.S.C. § 405(g) of the Act for review of a final determination of the Commissioner of the Social Security Administration ("the Commissioner of the SSA") denying Plaintiff's request for waiver of recovery of an overpayment in disability insurance benefits ("DIB") paid under Title II of the Act, 42 U.S.C. §§ 401-34.

Upon review of the record before this court, it is the opinion of the undersigned that the findings of fact and determinations of the Commissioner are supported by substantial evidence and comport with proper legal principles. It is therefore recommended that the decision of the Commissioner be affirmed.

I. PROCEDURAL HISTORY

In January 2007 Plaintiff was granted DIB for himself and on behalf of his minor daughter (tr. 15). On October 29, 2011, the SSA informed Plaintiff that he had been overpaid $75,8631 in DIB, that the SSA had suspended his benefits for the period June 2008 through February 2011, and that the SSA had terminated his benefits effective March 2011 (tr. 56). The SSA later determined that Plaintiff also received an overpayment of $37,925 in auxiliary benefits for his daughter during the same period, for a total overpayment of $113,788 (see tr. 5, 15, 60, 712). Plaintiff requested waiver of recovery of the overpayment of $113,788 (tr. 60-67), which was denied both initially (tr. 71-72) and after a personal conference (tr. 77-80). Plaintiff then requested a hearing before an administrative law judge ("ALJ") (tr. 81-82). The ALJ conducted a hearing on January 7, 2013, at which Plaintiff, representing himself, appeared and testified (tr. 164-99). On June 19, 2013, the ALJ issued a decision denying Plaintiff's request for waiver of recovery of the overpayment (tr. 13-17), and on December 15, 2014, the Appeals Council denied Plaintiff's request for review of the ALJ's decision (tr. 4-8). Thus, the decision of the ALJ stands as the final decision of the Commissioner, subject to review in this court. Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1262 (11th Cir. 2007). This appeal, filed by Plaintiff pro se, followed.3

II. FINDINGS OF THE ALJ

In his June 19, 2013, decision, the ALJ made the following findings (tr. 13-17):

1) Plaintiff and his dependent child were overpaid benefits in the amount of $113,788 during the period June 2008 to February 2011.
2) Plaintiff is at fault in causing the overpayment(s) at issue.
3) "Recovery of the overpayment is not waived, and [Plaintiff] is liable for repayment of $133,788 during the period June 2008 to February 2011 (20 CFR 404.506)."
III. STANDARD OF REVIEW

Judicial review of the Commissioner's decision is limited to a determination of whether it is supported by substantial evidence and whether proper legal standards were applied. See Lewis v. Callahan, 125 F.3d 1436 (11th Cir. 1997). Supporting evidence need not be preponderant to be substantial so long as it amounts to more than a scintilla; in other words, it is such relevant evidence that a reasonable person might accept as adequate to support the conclusion reached. See id. at 1440. If the decision is supported by substantial competent evidence from the record as a whole, a court will not disturb that decision. Neither may a court reweigh the evidence nor substitute its judgment for that of the ALJ. See Wolfe v. Chater, 86 F.3d 1072 (11th Cir. 1996); see also Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). This "substantial evidence" standard of review applies equally to overpayment and waiver determinations. See Viehman v. Schweiker, 679 F.2d 223, 227 (11th Cir. 1982).

In a case such as this, where the Commissioner has determined that an overpayment has been made, the Commissioner shall: (1) require such overpaid person to refund the amount in excess of the correct amount; or (2) "decrease any payment . . . payable to his estate or to any other person on the basis of the wages and self-employment income which were the basis of the payments to such overpaid person"; or (3) obtain recovery by means of reduction in tax refunds; or (4) apply any combination of the foregoing. 42 U.S.C. § 404(a)(1)(A). However, "there shall be no adjustment of payments to, or recovery by the United States from, any person who is without fault if such adjustment or recovery would defeat the purpose of [Title II] or would be against equity and good conscience." 42 U.S.C. § 404(b) (emphasis added).

In considering whether an overpaid person is at fault, the Commissioner should take into account any physical, mental, educational, or linguistic limitation the overpaid individual may have, id., as well as his age. 20 C.F.R. § 404.507. Fault may be found in instances where, for example, the overpaid individual made an incorrect statement he knew or should have known to be incorrect, failed to furnish information he knew or should have known to be material, or accepted a payment which he either knew or could have been expected to know was incorrect. See id. Conversely, theSSA may find an individual to be without fault if he "accepts such overpayment because of reliance on erroneous information from an official source within the [SSA] . . . with respect to the interpretation of a pertinent provision of the [SSA] or regulations pertaining thereto . . . ." 20 C.F.R. § 404.510a.

Even if an individual is found to be without fault, however, waiver of overpayment can be granted only if recovery of the overpayment would either defeat the purpose of Title II or would be against equity and good conscience. 42 U.S.C. § 404(b); see also 20 C.F.R. § 404.506(a). A recovery defeats the purpose of Title II if it "deprives a person of income required for ordinary and necessary living expenses." 20 C.F.R. § 404.508(a). A recovery is against equity and good conscience if an individual "[c]hanged his position for the worse . . . or relinquished a valuable right . . . because of reliance upon a notice that a payment would be made or because of the overpayment itself . . . ." 20 C.F.R. § 404.509(a)(1).

IV. RELEVANT EVIDENCE OF RECORD

On June 19, 2013, the date of the ALJ's decision, Plaintiff was fifty-two years of age (tr. 55), with a high school education (tr. 189) and over twenty years working as a laundry supervisor for the Department of Justice at a federal prison (tr. 184). Plaintiff stopped working in August 2006 after being diagnosed with multiple myeloma and suffering kidney failure (tr. 185-87). In a letter dated June 16, 2007, sent to the SSA Office in Fort Walton Beach, Florida, Plaintiff informed the SSA that his health had improved and he had returned to work on a trial basis (tr. 107).

The SSA sent Plaintiff a Notice of Change in Benefits dated November 2, 2007, in which he was advised that his benefits were being increased to give him credit for additional earnings that were not included when his benefits had previously been calculated (tr. 148-49). Plaintiff received similar Notices on November 7, 2008 (tr. 150-51), November 6, 2009 (tr. 152-53), and November 5, 2010 (tr. 154-55).

On February 17, 2011, Plaintiff submitted a Work Activity Report to the SSA which showed he worked for the U.S. Department of Justice from January to August 2006 and for the U.S. Army Reserve from May to June 2006, with both jobs ending by August 2006 (tr. 26). Plaintiff also reported that he earned over $3,600 per month starting in June 2007 "and every month after" through 2010 (tr. 27, 29). In a letter dated March 16, 2011, the SSA requested further information about thework Plaintiff had reported (see doc. 6-2 at 6 [Bates stamp missing]-7 & tr. 159). Attached to the letter is a Work and Earning Summary which reflects earnings for Plaintiff of approximately $42,608 in 2007; $56,424 in 2008; $57,649 in 2009; and $45,622 in 2010 (tr. 161).

A Social Security Disability Information statement dated March 30, 2011, informed Plaintiff that the evidence in his disability claim had been reviewed; the SSA found that Plaintiff's "disability was continuing"; and that the evidence showed he had "not worked in any trial work months" (tr. 162).4

On April 5, 2011, Plaintiff submitted a Work Activity Report virtually identical to his Report of February 17, 2011 (tr. 32-37).

In a Notice of Proposed Decision dated August 22, 2011, the SSA advised Plaintiff that it had information about his earnings that could affect his Social Security disability payments and provided him with an opportunity to submit additional information in response (tr. 40). Plaintiff was informed that SSA records showed his nine-month trial work period—during which he could test his ability to work and still receive DIB—had been from June 2007 through February 2008 (tr. 41). The Notice further stated that the SSA likely would decide that Plaintiff's disability had ended in March 2008, with additional benefits payable only for that month and the following two months (tr. 42), because he had performed substantial work and thus was not entitled to benefits for June 2008 forward (tr. 40). On September 8, 2011, the SSA sent Plaintiff a Notice of Revised Decision stating that it had decided that his disability had ended in March 2008 and that he was not entitled to DIB payments as of June 2008 (tr. 44-46).

V. HEARING TESTIMONY5

At the January 7, 2013, administrative hearing Plaintiff testified that he stopped working in August 2006 when he became ill, returned to work in June 2007, and had been...

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