Kainer-Cargile v. Astrue
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cole on 10/10/2013:Mailed notice(jms, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
)
ALLISON KAINER-CARGILE,
)
)
Plaintiff,
)
)
v.
)
)
CAROLYN COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)
)
Case No: 11 cv 7435
Magistrate Judge Jeffrey Cole
MEMORANDUM OPINION AND ORDER
The plaintiff, Allison Kainer-Cargile, is appealing a decision by the
Commissioner that she received an overpayment of disability benefits for which she was
“not without fault.” Ms. Kainer-Cargileainer-Cargile asks for a remand of this case back
to the Commissioner, and the Commissioner asks that her decision be affirmed.
Ms. Kainer-Cargile is deaf, and she was apparently receiving child’s benefits
based on her father’s earnings record and supplemental security income based on her
own account, stemming from applications she filed in 1997 and 1998.
She began
receiving benefits shortly after that. (Administrative Record (R.), 30-40). Ms. KainerCargile started working in 2000, earning between $5,814 in 2000, and $23,214 in 2004.
Her average salary during that period was about $16,420 a year. (R. 67). By written
notice, she was informed on November 20, 2006, that her benefits were terminated, that
she had been overpaid during that period by $66,535, and that she had to pay it back. (R.
47). Ms. Kainer-Cargile filed a request for a waiver of repayment, but was denied. She
then requested a hearing. (R. 51-60, 86-91).
On January 9, 2008, an administrative law judge (“ALJ”) convened a hearing, at
which Ms. Kainer-Cargile, her husband, and a friend appeared and testified. Ms. KainerCargile was not represented by counsel (R. 115), but a sign-language interpreter was
provided for her. (R. 112-144). On January 25, 2008, the ALJ issued a decision finding
that Ms. Kainer-Cargile was not without fault in receiving and accepting the
overpayment and recovery was not waived. (R. 9-11). This became the final decision of
the Commissioner when the Appeals Council denied the request for review of the
decision on June 16, 2011. (R. 3-5). See 20 C.F.R. §§ 404.955; 404.981. Ms. KainerCargile has appealed that decision to the federal district court under 42 U.S.C. § 405(g),
and the parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28
U.S.C. § 636(c).
I.
BACKGROUND
A.
Ms. Kainer-Cargile’s Contacts with the Social Security Administration
The record includes the transcripts of telephone calls Ms. Kainer-Cargile made to
the Social Security offices. Being deaf, she made the calls with a TTD system. The
transcripted first call is from the fall of 2006. At that time, Ms. Kainer-Cargile inquired
as to why her benefits were being terminated as she had been told her working didn’t
matter because her benefits were from her deceased father’s earning record. The woman
at the office, Ms. Faulkner, explained that earning from working could always affect
whether one could receive a disability payment. The two went on to discuss Ms. KainerCargile’s earnings totals – the agency had sent inquiries to her employers. (R. 15).
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When Ms. Faulkner asked whether Ms. Kainer-Cargile was disputing her earnings
record, she replied:
no, I’m not disputing it, it sounds about right but my whole thing is that I
was told every year when either my mother or I called just to follow up
with someone, especially back in tx, that it didn’t matter how many hours
I worked and stuff bec (sic) I was getting my dad’s check, and it would all
changed (sic) when I get married, but then just recently a few months
back, I got married and called and some lady said it doesn’t matter if im
married or not it’s the earnings so over the years its up and down, so im
just totally lost on what ssi expects you know. . . .
(R. 15).
Ms. Faulkner allowed that Ms. Kainer-Cargile had gotten at least a part of it right.
She explained that once she married, she could not receive benefits on her father’s
earnings record, because “in order to continue to receive benefits as a child, [she] would
have to marry a SS disability beneficiary.” (R. 15). She could, however, apply for
benefits based on her own record. (R. 15-16). And, she would have to have earnings less
than the cutoff for substantial gainful activity, which was about $860 per month. (R. 16).
Ms. Faulkner said it was too late to stop her next check, but that after that she’d be
receiving a letter stating her benefits were terminated. (R. 16). Then she should contact
her local office in Aurora, Illinois, if she wanted to contest it or request a waiver of
repayment. (R. 17).
But Ms. Kainer-Cargile’s benefits did not stop after that last check. So, on
November 7, 2006, she called the local office to explain what she had been told, that she
was understandably confused, and to ask what was going on. The woman at that office,
Lillian, told her that the records showed that she was receiving Social Security benefits.
Ms. Kainer-Cargile reiterated that she had been told her benefits had supposedly been
terminated. Ms. Kainer-Cargile asked whether it would be best if she came into the
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office so things could be straightened out. Lillian assured her that her benefits had not
been terminated and there was no need for her to come into the office. (R. 18).
There is one more phone call in the record, from April 24, 2007. It provides an
excellent example of what all too many people dealing with a government agency have to
endure.
After finally being connected to an automated system and being asked to
indicate what language she wished to proceed in, Ms. Kainer-Cargile asked to speak with
a live operator. She then was taken through a menu of nine options. She requested a live
operator once more, and was told she would have to wait for a minute. While she was
waiting, she was told that, in order to save time, the system needed her to say her social
security number, her first name and its spelling, her last name and its spelling, her date of
birth, her mother’s maiden name, and the state where she was born. (R. 25-26). After
each of Ms. Kainer-Cargile’s responses, the system repeated the answer and requested
verification. (R. 25-26). When an operator finally got on the line – her name was Jean –
she required Ms. Kainer-Cargile to repeat all the information she had just provided in
order to save time. (R. 25). In direct contradiction to the information that Ms. KainerCargile was given the last time she called, Jean told her the records showed she had been
overpaid about $66,000. (R. 25).
By that time, Ms. Kainer-Cargile was understandably beyond frustrated. She
explained that she had gotten too much different information from too many different
people, she could only rarely get through on the phone, and she wanted to make an
appointment in order to straighten things out face to face. An interpreter was to have
been arranged for her, but when she arrived for her long-awaited appointment, the
interpreter wasn’t there. (R. 136-37).
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B.
The Administrative Hearing Testimony
At the hearing, Ms. Kainer-Cargile, her husband, and their friend confirmed
everything to this point. When Ms. Kainer-Cargile had called the local offices in the
past, they had told her she was fine receiving benefits off her father’s earnings until she
got married. (R. 118, 141). When she dutifully reported that she was soon to be married,
her problems began. (R. 118). Ms. Kainer-Cargile added that, she was unaware that her
earning the small income she did was inconsistent with receiving benefits off of her
father’s earnings. (R. 124). Her husband explained that, when the amount of benefits Ms.
Kainer-Cargile received fluctuated from time to time, they assumed that was because her
income was fluctuating as well. (R. 130). Both Ms. Kainer-Cargile and her husband
were operating under the misconception that, because Ms. Kainer-Cargile dutifully
reported her income to the IRS, the Social Security Administration would be aware of it
as well. (R. 127, 132-33). It’s a misconception born of commonsense that the agencies
would share information, rather than waiting five or six years while overpayments
accumulated.
The ALJ seemed unimpressed. He gave Ms. Kainer-Cargile the file that he was
working with to adjudicate her claim. Ms. Kainer-Cargile noticed that the very first page
in the file was a document she had never seen before – it was from her brother’s file – so
she asked about it. The ALJ explained:
I added it to the record at the last minute because it was an application
similar to the one you filed for child insurance benefits. I couldn’t find
your application but I found his and I just wanted to show you a question
on it.
(R. 115). Later in the hearing, the subject came up again. The ALJ said that he:
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looked through the file for your application and to be honest I couldn’t
find it. It may be in there, but there are a lot of papers and I looked and
looked and I didn’t see it, but the one that your brother signed was filed
with Social Security on November 30, 1998. The record says your
application was filed on September 15, ‘97. . . .
(R. 125).
The ALJ then read from Ms. Kainer-Cargile’s brother’s 1998 application,
including the notice that if a disabled child receiving benefits goes to work, he or she
must notify the Social Security Administration. (R. 125).
II.
THE ALJ’S DECISION
In his decision, the ALJ summarized the hearing testimony. (R. 10). He made no
mention of the transcripts of the phone calls Ms. Kainer-Cargile made to the Social
Security offices. He said that he “read to them from her brother’s application for Child’s
Insurance Benefits . . . , as I could not find hers in this record, to show the standard
language about the need to report earnings from work after age 18 that is contained in all
such applications.” (R. 11). The ALJ then concluded that Ms. Kainer-Cargile was “not
without fault in causing or accepting overpayment” because she “should have known to
report earnings when receiving benefits based on disability after age 18 . . . .” (R. 11).
Accordingly, he determined that recovery of overpayment was not waived. (R. 11).
III.
DISCUSSION
A.
The Standard of Review
The applicable standard of review of the Commissioner’s decision is a familiar
one. The court must affirm the decision if it is supported by substantial evidence. 42
U.S.C. §§ 405(g). Substantial evidence is such relevant evidence as a reasonable mind
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might accept to support a conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008),
citing Richardson v. Perales, 402 U.S. 389, 401 (1971). The court may not reweigh the
evidence, or substitute its judgment for that of the ALJ. Terry v. Astrue, 580 F.3d 471,
475 (7th Cir. 2009); Berger, 516 F.3d at 544. Where conflicting evidence would allow
reasonable minds to differ as to whether a claimant
is disabled, it is the ALJ’s
responsibility to resolve those conflicts. Elder v. Astrue, 529 F.3d 408, (7th Cir. 2008);
Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997). Conclusions of law are not entitled
to such deference, however, so where the Commissioner commits an error of law, the
court must reverse the decision regardless of the volume of evidence supporting the
factual findings. Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir. 2007).
While the standard of review is deferential, the court cannot act as a mere “rubber
stamp” for the Commissioner’s decision. Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir.
2002).
An ALJ is required to “minimally articulate” the reasons for his decision.
Berger, 516 F.3d at 544; Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001).
Although the ALJ need not address every piece of evidence, the ALJ cannot limit his
discussion to only that evidence that supports his ultimate conclusion. Herron v. Shalala,
19 F.3d 329, 333 (7th Cir. 1994). The ALJ’s decision must allow the court to assess the
validity of his findings and afford the claimant a meaningful judicial review. Hopgood
ex rel. L.G. v. Astrue, 578 F.3d 696, 698 (7th Cir. 2009). The Seventh Circuit calls this
building a “logical bridge” between the evidence and the ALJ’s conclusion. Sarchet v.
Chater, 78 F.3d 305, 307 (7th Cir. 1996).
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B.
The Law Applicable to Overpayment Cases
When the Social Security Administration has made an overpayment of disability
benefits, the it may not recover an overpayment from the recipient when: (1) the recipient
is without fault and (2) “recovery would defeat the purpose of [the Social Security Act]
or would be against equity and good conscience.” 42 U.S.C. 404(b). According to the
regulations governing the implementation of this statutory provision, “[a]lthough the
[Administration] may have been at fault in making the overpayment, that fact does not
relieve the overpaid individual or any other individual from whom the Administration
seeks to recover the overpayment from liability for repayment if such individual is not
without fault.” 20 C.F.R. § 404.507. A finding of fault can be based on any of the
following:
(a) An incorrect statement made by the individual which he knew or
should have known to be incorrect; or
(b) Failure to furnish information which he knew or should have known to
be material; or
(c) With respect to the overpaid individual only, acceptance of a payment
which he either knew or could have been expected to know was incorrect.
Id. In determining whether a person is without fault in causing the overpayment of
benefits, the ALJ must “specifically take into account any physical, mental, educational,
or linguistic limitation such individual may have (including any lack of facility with the
English language).” 42 U.S.C. 404(b); see also 20 C.F.R. § 404.507 (same).
See,
generally, Wilkening v. Barnhart, 139 Fed.Appx. 715, 719 (7th Cir. 2005); Bonner v.
Chater, 1995 WL 272665, 2 (7th Cir. 1995). “‘The decision which must be reached in a
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fault determination is highly subjective, highly dependent on the interaction between the
intentions and state of mind of the claimant and the peculiar circumstances of his
situation.’” Begoun v. Astrue, 2011 WL 307375, 7 (N.D.Ill. 2011); Jefferson v. Bowen,
794 F.2d 631, 633 (11th Cir.1986) (quoting Harrison v. Heckler, 746 F.2d 480, 482 (9th
Cir.1984)).
C.
Analysis
The ALJ’s decision was a brief one, but there is more than one problem with it.
First and foremost, the entire decision – that Ms. Kainer-Cargile ought to have known she
had to report that she was working – is based on a notice in her brother’s application.
There is no evidence that Ms. Kainer-Cargile ever saw any such notice. As such the ALJ
had no basis for finding that she was made aware of the reporting requirements. See
Begoun, 2011 WL 307375, 9 (“There is no evidence in the record, however, that the
August 23, 1996 letter actually was sent to Claimant at his then-current residence or that
he received it.”). As such, substantial evidence does not support the ALJ’s finding that
she should have know she had to report that she was working, no matter how meager her
income.1
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To support the ALJ’s decision in this case, the Commissioner relies on evidence that the ALJ did
not mention and, according to the ALJ himself, did not even see. (Defendant’s Response, at 5). This
is yet another in a long line of instances in which the Commissioner violates the Chenery doctrine.
See, e.g., Roddy v. Astrue, 705 F.3d 631, 637 (7th Cir. 2013); Hughes v. Astrue, 705 F.3d 276, 279
(7th Cir. 2013); Kastner v. Astrue, 697 F.3d 642, 648 (7th Cir. 2012); Spiva v. Astrue, 628 F.3d 346,
348 (7th Cir. 2010). The Seventh Circuit has characterized this tactic as “sanctionabl[e].” Hughes
v. Astrue, 705 F.3d 276, 279 (7th Cir. 2013). The ALJ’s only basis for his decision was Ms. KainerCargile’s brother’s application. The only other evidence he mentioned was the hearing testimony,
which ran counter to his conclusion.
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Second, although the ALJ summarized the hearing testimony, he did not say
whether he found any part of it credible or disbelieved it in its entirety. One may
suppose that he disbelieved everything Ms. Kainer-Cargile, her husband, and their friend
said, since he found the way he did. But he gave no explanation for it, and he was
required to. The reasons for a credibility finding must be expressed, not implied.
Golembiewski v. Barnhart, 322 F.3d 912, 916 (7th Cir. 2003); Brindisi ex rel. Brindisi v.
Barnhart, 315 F.3d 783, 788 (7th Cir. 2003). Here, the ALJ provides absolutely no
rationale that would allow a court to engage in a meaningful review of his decision. That
means this case must be remanded. Arnett v. Astrue, 676 F.3d 586, 592 (7th Cir. 2012)(“.
. . ALJ [must] explain[] his analysis of the evidence with enough detail and clarity to
permit meaningful review.”); Hopgood ex rel. L.G. v. Astrue, 578 F.3d 696, 698 (7th Cir.
2009)(“. . . if the decision . . . is so poorly articulated as to prevent meaningful review, a
remand is required.”).
Third, and this impinges on credibility as well, the ALJ made no mention of the
phone call transcripts. An ALJ does not have to mention every piece of evidence in a
record, but he cannot ignore evidence contrary to his conclusion. Arnett, 676 F.3d at
592; Golembiewski, 322 F.3d at 917. The transcripts were important in this case – and
essentially contrary to the ALJ’s findings – because they corroborated all the hearing
testimony. What is more, they shed a very favorable light on Ms. Kainer-Cargile’s
credibility and her subjective belief and state of mind. She inquired time and again about
her case and received varied information. Her story is that she was only aware that she
had to report she was getting married. She thought that once she did, her benefits would
cease. And she reported it. When she told that her benefits were not terminated and
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everything was fine, she nevertheless followed up because of all the confusion she had
been subjected to. That is not the action of a person intent on gaming the system. Such a
person would take the money and run. Ms. Kainer-Cargile acted in what certainly
appears to have been an innocent and honest manor. But the ALJ ignored all this and, in
so doing, he completely – and inappropriately – disregarded the subjective component of
the determination of fault. See Begoun, 2011 WL 307375, 9; Bosnich v. Astrue, 2009
WL 2241803, at *6–7 (N.D.Ill.2009); Lozano v. Apfel, 1999 WL 731702, 4 (N.D.Ill.
1999); Besbeas v. Chater, 898 F.Supp. 630, 632 (N.D.Ill. 1995).
Finally, the ALJ gave no consideration to the fact that Ms. Kainer-Cargile is deaf.
As already noted, an ALJ must “specifically take into account any physical, mental,
educational, or linguistic limitation such individual may have (including any lack of
facility with the English language).” 42 U.S.C. 404(b); see also 20 C.F.R. § 404.507
(same); Wilkening, 139 Fed.Appx. at 719; Bonner, 1995 WL 272665, 2. Here, some of
the difficulties Ms. Kainer-Cargile had are apparent from the record, such as navigating
the automated phone system and trying to get an appointment with an interpreter. Other
than noting that there was a sign language interpreter at the hearing, the ALJ made no
mention of Ms. Kainer-Cargile being deaf, and failed to consider any impact it might
have had on her Odyssey through the Social Security bureaucracy.
Ms. Kainer-Cargile asks that, above and beyond a remand, the court simply
determine she was without fault and that it would be inequitable to force her to pay back
the $66,000 overpayment she received. This, of course, cannot be done. See Briscoe ex
rel. Taylor v. Barnhart, 425 F.3d 345, 356-57 (7th Cir. 2005). The court’s task is to
review the ALJ’s decision, not render its own decision on the evidence.
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CONCLUSION
The plaintiff’s motion for remand [#25] is GRANTED, and the Commissioner’s
motion for summary judgment is DENIED.
ENTERED:
UNITED STATES MAGISTRATE JUDGE
DATE: 10-10-13
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