Richter v. Soc. Sec. Admin.

• Decision Date: 09 September 2019
• Docket Number: 8:19CV340
• Parties: RUTH RICHTER, Plaintiff, v. SOCIAL SECURITY ADMINISTRATION and ANDREW M. SAUL, Commissioner, Defendants.
• Court: U.S. District Court — District of Nebraska

RUTH RICHTER, Plaintiff, v. SOCIAL SECURITY ADMINISTRATION and ANDREW M. SAUL, Commissioner, Defendants.

8:19CV340

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

September 9, 2019

MEMORANDUM AND ORDER

Plaintiff, Ruth Richter, who appears pro se, filed her complaint and a motion for leave to proceed in forma pauperis ("IFP") on August 5, 2019 (Filings 1, 2). The court will grant Plaintiff's IFP motion, and, pursuant to 28 U.S.C. § 1915(e)(2), will conduct an initial review of the complaint to determine whether summary dismissal is appropriate.

I. SUMMARY OF COMPLAINT

"Plaintiff seeks an immediate injunction against Defendant," Social Security Administration ("SSA"),¹ alleging:

Defendant has and continues to violate Plaintiff's constitutional right to due process in the matter of Plaintiff's SSI payments which Defendant is in part withholding in order to pay itself back on a charge against Plaintiff of "overpayment." The alleged "overpayment" matter has not been heard in a conference or hearing. This is the second time Defendant has withheld a portion of Plaintiff's SSI on an "overpayment" charge without being heard first. First time was in 2016 into 2017. Now dates are 2018 into 2019. It should be noted this time Plaintiff filed a timely appeal with the Appeals Council—and with appeal ongoing the Defendant is once again wrongly withholding partial SSI monthly payment to me. In 2017 an ALJ in her fully favorable decision to Plaintiff determined it was wrong to have withheld from my SSI payments while appeal was in progress (SI 02260.001A.4) by the Administration. Plaintiff did get those withholdings back in 2017 but like now Plaintiff's payments should not have been withheld while case was still open.

(Filing 1) In a supplemental filing, Plaintiff requests "a court order to restore Plaintiff's full amount SSI benefits immediately and to immediately be paid for the SSI benefits she was denied by Defendant." (Filing 6)

II. STANDARDS ON INITIAL REVIEW

The court is required to review in forma pauperis complaints to determine whether summary dismissal is appropriate. The court must dismiss a complaint or any portion of it that states a frivolous or malicious claim, that fails to state a claim upon which relief may be granted, or that seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

Pro se plaintiffs must set forth enough factual allegations to "nudge[] their claims across the line from conceivable to plausible," or "their complaint must be dismissed." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.").

"The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party 'fair notice of the nature and basis or grounds for a claim, and a general indication of the type of litigation involved.'" Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999)). However, "[a] pro se complaint must be liberally construed, and pro se litigants are held to a lesser pleading standard than other parties." Topchian, 760 F.3d at 849 (internal quotation marks and citations omitted).

As part of its initial review, this court also has an independent obligation to determine whether subject matter jurisdiction exists. See Sac & Fox Tribe of the Mississippi in Iowa, Election Bd. v. Bureau of Indian Affairs, 439 F.3d 832, 836 (8th Cir. 2006); Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action.").

III. DISCUSSION

Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., provides for the payment of monthly benefits to indigent persons under the supplemental security income ("SSI") program. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987). "The basic purpose underlying the supplemental security income program is to assure a minimum level of income for people who are age 65 or over, or who are blind or disabled and who do not have sufficient income and resources to maintain a standard of living at the established Federal minimum income level." 20 C.F.R. § 416.110.

A. Applicable Statutes and Regulations

If an SSI beneficiary has been overpaid, the SSA can recoup the overpayment by reducing the amount of future benefit payments. See 42 U.S.C. § 1383(b)(1)(A) ("Whenever the Commissioner of Social Security finds that more ... than the correct amount of benefits has been paid with respect to any individual, proper adjustment or recovery shall ... be made by appropriate adjustments in future payments to such individual or by recovery from such individual ...."); 20 C.F.R. § 416.570(a) ("When a recipient has been overpaid, the overpayment has not been refunded, and waiver of adjustment or recovery is not applicable, any payment due the overpaid recipient ... is adjusted for recovery of the overpayment. Adjustment will generally be accomplished by withholding each month the amount set forth in § 416.571 from the benefit payable to the individual ...."). "Any adjustment or recovery of an overpayment for an individual in current payment status is limited in amount in any month to the lesser of (1) the amount of the individual's benefit payment for that month or (2) an amount equal to 10 percent of the individual's total income (countable income plus SSI and State supplementary payments) for that month." 20 C.F.R. § 416.571; see 42 U.S.C. § 1383(b)(1)(B).

Before the SSA can initiate the recoupment process, it must notify the overpaid recipient of its intent to adjust the payments and of his or her right to request a waiver of the proposed adjustment. See 20 C.F.R. § 416.558(a) ("Whenever a determination concerning the amount paid and payable for any period is made and it is found that, with respect to any month in the period, more ... than the correct amount was paid, written notice of the correct and incorrect amounts for each such month in the period will be sent to the individual against whom adjustment or recovery of the overpayment ... may be effected .... When notifying an individual of a determination of overpayment, the Social Security Administration will, in the notice, also advise the individual that adjustment or recovery is required, as set forth in § 416.571, ... and of his or her right to request waiver of adjustment or recovery of the overpayment under the provisions of § 416.550."). The written notice should also inform the individual of his or her right to request a reconsideration of the overpayment determination itself. See SSA Programs Operations Manual System ("POMS") § 02201.025A.² The notice is to be sent at least 60 days before the adjustment will begin. Id.

Waiver of adjustment or recovery of an overpayment of SSI benefits may be granted under certain circumstances when the overpaid individual was without fault in connection with the overpayment. See 20 C.F.R. § 416.550; 42 U.S.C. § 1383(b)(1)(B). A request for waiver may be submitted at any time, including after the overpayment has been completely recovered. See POMS, §§ SI 02201.005H.3, SI 02220.001A.4.b.

A request for reconsideration of the initial overpayment determination must be submitted within 60 days of the individual receiving the notice of overpayment, absent a showing of good cause for a delayed filing. See 20 C.F.R. § 416.1409. An SSI beneficiary may request both a reconsideration of the overpayment determination and a waiver of overpayment collection. See POMS, § SI 02201.025A.

A request for reconsideration is the first step in the standard process for appealing an SSA determination. See 20 C.F.R. §§ 416.1400, 416.1407. If the beneficiary is dissatisfied with the reconsidered determination, he or she can request a hearing before an administrative law judge ("ALJ"). See 20 C.F.R. § 416.1429. If the beneficiary is dissatisfied with the ALJ's decision, he or she can request a review by the Appeals Council. See 20 C.F.R. § 416.1467. If the Appeals Council denies review or issues its own adverse decision, the beneficiary can then file an action in federal district court. See 20 C.F.R. § 416.1481. Only upon the completion of the full administrative review process is there a "final decision of the Commissioner" that triggers the right to judicial review under 42 U.S.C. §§ 405(g). 42 U.S.C. § 1383(c); 20 C.F.R. § 416.1400(a)(5).

If a request for reconsideration of the facts of an overpayment (i.e., the overpayment amount, the period of time involved, and the reason for the overpayment) or a request for a waiver is made within 30 days of the notice of overpayment, it is the SSA's policy that recovery of the overpayment through a reduction in SSI benefits will begin "only after the determination is made on the request." POMS, § SI 02220.001A.2. It is also the SSA's policy that if a request for reconsideration is filed more than 30 days, but less than 60 days, from the overpayment notice date, any recovery efforts will be halted and, effective the month of the request, any payments that were withheld to recover the overpayment will be refunded. See POMS § SI 02220.017A.1.a. The adjustment of benefits will resume only when the reconsideration determination affirms the facts of the overpayment. Id. Similarly, if a request for reconsideration of a waiver denial is filed within 60 days of the denial notice, recovery of the overpayment will not resume unless and until the reconsideration determination affirms the denial. See POMS § SI 02220.017A.2. In either case, the overpayment recovery will not be stopped if the individual pursues further levels of appeal, such as requesting a hearing before an ALJ, or a review of the ALJ's decision by the Appeals Council. See POMS...