PACK v. COLVIN
ORDER ADOPTING REPORT AND RECOMMENDATIONS - Plaintiff's objections to the Magistrate Judge's Report and Recommendation are OVERRULED and we ADOPT the recommendations set forth in the Magistrate Judge's Report and Recommendation. Pl aintiff's Motion for Petition, Motion for Audit, Motion to Remand, and Motion to Submit Addition[al] Information are DENIED. Final judgment shall enter in favor of the Defendant and against Plaintiff. Signed by Judge Sarah Evans Barker on 7/20/2016. Copy Mailed.(CKM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
CLARA Z. PACK,
CAROLYN W. COLVIN,
ORDER OVERRULING PLAINTIFF’S OBJECTIONS TO THE MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION
This is an action for judicial review of the final decision of the Commissioner of
Social Security that Plaintiff Clara Z. Pack, proceeding pro se, was overpaid $9,936 in
benefits and that, while she was not at fault for this overpayment, she must repay that
amount. An Administrative Law Judge (“ALJ”) found that Plaintiff had received an
overpayment in July 2012 for which she was at fault. Tr. at 20. On appeal, the Appeals
Council affirmed the ALJ’s determination that Plaintiff was overpaid but determined that
the ALJ had miscalculated the overpayment by $12 and erred in finding that Plaintiff was
at fault. The Appeals Council further concluded that Plaintiff must repay the
overpayment amount, despite not being at fault, because she had not filed a waiver to
avoid repayment. The Appeals Council’s decision became the final decision of the
Commissioner of Social Security (“Commissioner”). This case was referred for
consideration to Magistrate Judge Baker, who issued a Report and Recommendation
affirming the Appeals Council’s holding. This cause is now before the Court on
Plaintiff’s objections to the Report and Recommendation and her request for remand.
For the reasons detailed herein, we ADOPT the Magistrate Judge’s Report and
Recommendation and uphold the Appeals Council decision. We OVERRULE Plaintiff’s
objections and DENY her request for remand.
Standard of Review
Following a magistrate judge’s report and recommendation, the Court’s standard
of review “depends upon whether a party files objections.” Hawrelak v. Colvin, No. 13cv-3026, 2015 WL 5736090 at *1 (C.D. Ill. Sept. 30, 2015). “If a party does not object to
the report and recommendation, the Court need not conduct a review by any standard.”
Id. (citing Lardie v. Birkett, 221 F. Supp. 2d 806, 807 (E.D. Mich. 2002)). When a party
raises objections to elements of a magistrate judge’s report and recommendation, the
Court reviews those elements de novo, determining for itself whether the Commissioner’s
decision regarding those issues is supported by substantial evidence or was the result of
an error of law. Fed. R. Civ. Pro. 72(b). “The [court] may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the magistrate
judge with instructions.” Fed R. Civ. P. 72(b). See 28 U.S.C. § 636(b)(1).
Here, Plaintiff has raised objections to the Magistrate Judge’s Report and
Recommendation (“Report”). Therefore, our review of those aspects of the report is de
novo, regarding whether the Commissioner’s decision was supported by substantial
evidence or the result of an error of law. “Substantial evidence means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Dixon
v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). In our review of the Appeals
Council’s decision, we will not “reweigh evidence, resolve conflicts, decide questions of
credibility, or substitute our own judgment for that of the Commissioner.” Clifford v.
Apfel, 227 F.3d 863, 869 (7th Cir. 2000). “The standard of review for procedural errors is
harmless error, or whether the error is such that the Court believes it may change the
ultimate decision of the…Appeals Council.” Hawrelak, No. 13-cv-3026, 2015 WL
5736090 at *1 (citing McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011)). We
confine the scope of our review to the rationale offered by the Commissioner. See SEC v.
Chenery Corp., 318 U.S. 80, 93-53 (1943); Tumminaro v. Astrue, 671 F.3d 629, 632 (7th
Factual & Procedural Background
Following a hearing on June 13, 2013, the ALJ ruled that Plaintiff was overpaid
benefits totaling $9,924 1 and that she was at fault for the overpayment. Specifically, the
ALJ found that Plaintiff’s Social Security retirement benefits were subject to the Windfall
Elimination Provision (“WEP”) reduction2 and that her widow’s benefits were subject to
The ALJ found that Plaintiff had been overpaid $9,934 in July 2012, and that Plaintiff had been
underpaid $10 between March 2011 and December 2011. The ALJ combined these sums to
calculate Plaintiff’s total overpayment at $9,924.
2 The WEP is a reduction that applies when an individual “work[s] for an employer who doesn’t
withhold Social Security taxes from [the individual’s] salary, such as a government agency or an
employer in another country,” reducing the individual’s Social Security benefits. WINDFALL
ELIMINATION PROVISION, SSA Publication No. 05-10045, available at
the Government Pension Offset (“GPO”) reduction. 3 Tr. at 18-19. The ALJ calculated the
overpayment at $9,924. Tr. at 20. The ALJ found Plaintiff at fault for the overpayment
because she failed to inform the SSA of her government pension, and failed to return the
overpayment even when she understood that she was not entitled to it. Tr. at 20.
The Appeals Council reviewed the ALJ decision at Plaintiff’s request. On
December 23, 2014, the Appeals Council notified Plaintiff that it “proposed to issue a
decision affirming the [ALJ’s] determination that [Plaintiff] received an overpayment of
$9,936” and that it “planned to reverse the [ALJ]’s conclusion that [Plaintiff] was at fault
in causing the overpayment.” Tr. at 7. The Appeals Council further notified Plaintiff that
the notice was intended “to give [Plaintiff] an opportunity to show recovery of this
overpayment from her may be waived.” Id. Plaintiff responded by letter but provided no
additional evidence for, nor expressed interest in, pursuing a waiver. See id.; Mem. in
Supp. of the Comm’r’s Decision.
On February 12, 2015, the Appeals Council held that Plaintiff had received an
overpayment of $9,936, an amount $12 higher than that found by the ALJ, which the
Appeals Council attributed to a rounding error in the ALJ calculations. Tr. at 9. Further,
the Appeals Council held that Plaintiff was not at fault for the overpayment, but that no
waiver of the repayment was applicable because Plaintiff had provided no evidence to
The GPO reduces an individual’s “Social Security spouses or widows or widowers benefits” if
the individual “receive[s] a pension from a federal, state, or local government based on work for
which [the individual] didn’t pay Social Security taxes.” GOVERNMENT PENSION OFFSET , SSA
Publication No. 05-10007, available at https://www.ssa.gov/pubs/EN-05-10007.pdf.
show that “recovery of the overpayment…would defeat the purpose of the Social
Security Act, or be against equity and good conscience.” Id.
Magistrate Judge’s Report and Recommendation
Plaintiff appealed the decision of the Appeals Council to this Court, and the case
was referred to the Magistrate Judge. The Magistrate Judge held a telephonic conference
with the parties on November 13, 2015. After that hearing and upon review of Plaintiff’s
motions and responses, the Magistrate Judge determined Plaintiff’s arguments to be that:
“(1) the $9,936 overpayment amount is not supported by substantial evidence, and (2) the
Appeals Council failed to take into account $6,796 that [Plaintiff had] since repaid.”
Report and Recommendation at 3. In his Report, issued February 1, 2016, the Magistrate
Judge concluded that the $9,936 overpayment finding was supported by substantial
evidence. Id. at 6. Specifically, the Magistrate Judge found that Plaintiff’s “retirement
benefits were properly…reduced by the WEP” while her “spousal benefits were properly
reduced by the GPO.” Report and Recommendation at 6. Further, the Magistrate Judge
found that repayment was appropriate because Plaintiff never sought a waiver. Id.
Finally, the Magistrate Judge determined that, while it is undisputed that Plaintiff has
repaid $6,796 of the overpayment, the decision of the Appeals Council addressed only
the amount of overpayment and did not address the process of repayment or whether any
repayment had been received. Accordingly, the Magistrate Judge found that Plaintiff’s
subsequent repayment was beyond the scope of the judicial review because it was not
part of the Appeals Council’s decision that is the subject of this appeal. Tr. at 7-8.
Plaintiff filed objections to the Report and raises additional arguments. See 28
U.S.C. § 636 (b)(1)(C). Upon careful review, we AFFIRM the Magistrate Judge’s Report.
Plaintiff’s Objections to Magistrate Judge’s Report
A. Plaintiff is not at fault for overpayment, but must repay the overpaid amount.
In her response to the Report, Plaintiff first appears to argue that she is not at fault
for the overpayment. 4 Plaintiff claims that after initially receiving the payments of $9,732
and $202, it was she, not the SSA, who initially inquired about the sum. See Pl.’s Resp. to
Report and Recommendation ¶ 1. The issue of fault is not in dispute here. Both the
Appeals Council and the Magistrate Judge’s Report conclude that Plaintiff was not at
fault for the overpayment, and the Commissioner has not challenged this finding. See Tr.
at 9 (“[t]he claimant was without fault in causing the $9,936 overpayment at issue”).
Accordingly, we interpret Plaintiff’s objection to be to the Magistrate Judge’s affirming
the Appeals Council’s finding that, despite not being at fault, Plaintiff must still repay the
overpayment in full.
When an individual receives an overpayment from the SSA, the SSA recovers the
value overpaid by either decreasing that individual’s monthly benefit payments or
requiring the individual to refund the overpayment in a lump sum. 42 U.S.C. §
Plaintiff does not explicitly state that she objects to a finding of fault; rather, she argues, “I
went to [SSA] to inquire, [sic] why I received $202.00 and $9,732.00. [SSA] did not come to me.
Does that make me look like, [sic] I am trying to keep the money. [sic]” Pl. Resp. to Report and
Recommendation at 1.
404(a)(1)(A). In the instant case, the SSA sought recovery of its overpayment by
decreasing Plaintiff’s monthly benefit payments. See Report and Recommendation at 7.
It is true that an individual who receives an overpayment may request a waiver to
avoid repayment. 42 U.S.C. § 404(b)(1). The waiver applies when (1) the individual is
not at fault; and (2) where adjustment or recovery “would either defeat the purpose of
[T]itle II of the Act or be against equity and good conscience.” 20 C.F.R. § 404.506(a). 5
Individuals who wish to apply for such waivers initiate the waiver process by providing
the SSA with information to support their qualifications for the waiver. 20 C.F.R. §
404.506(c). Here, however, Plaintiff has taken no steps to seek a waiver, despite the
Appeals Council expressly providing her an opportunity to do so. 6 Tr. at 9. Because
Plaintiff failed to pursue a waiver, recovery of the overpaid value by way of adjusting
Plaintiff’s monthly payments, as has occurred in this case, is appropriate. Report and
Recommendation at 7.Therefore, any objection to the Report on this basis is overruled.
B. The Report correctly identifies spousal and survivor’s benefits.
“Recovery of an overpayment defeats the purposes of Title II if it renders a claimant unable to
afford ordinary and necessary living expenses. Recovery of an overpayment is against equity and
good conscience if a claimant changed her position for the worse because she relied on the
overpayment, or if the claimant did not actually receive the overpayment.” Report and
Recommendation at 6-7 (citing 20 C.F.R. § 404.508 and 20 C.F.R. § 404.509).
6 “With notice of December 23, 2014, the Council provided the claimant with an opportunity to
pursue the waiver issue by submitting relevant evidence of her income, resources, and expenses,
including the portion of the overpaid funds in her possession at the time of the initial
overpayment notice on August 15, 2012. However, the claimant did not…provide the additional
waiver information as requested by the Council.” Tr. at 9.
Plaintiff next objects to the Magistrate Judge’s report on the grounds that it
calculated “spousal” benefits whereas she actually receives “widow’s,” or “survivor’s,”
benefits. Pl.’s Resp. to Report and Recommendation at 2. Plaintiff maintains that spousal
benefits are 50% of the spouse’s Social Security benefits, whereas widow’s benefits are
100% of the decedent’s Social Security benefits. Pl.’s Addendum to Resp. to Report and
Recommendation at 4. Plaintiff therefore contends that, because the Report incorrectly
calculated spousal rather than widow’s benefits, all subsequent calculations in the Report
are also incorrect. Id.
Plaintiff is correct that spousal benefits vary depending on whether the individual
receiving the spousal benefit is a husband or wife versus a widow or widower. As a
husband or wife of an individual who qualifies for Social Security, one is entitled to half
of the husband or wife’s primary insurance amount. 20 C.F.R. § 404.333. As a widow or
widower of an individual receiving Social Security, one is entitled the full amount of the
decedent’s primary insurance amount. 20 C.F.R. § 404.338.
However, Plaintiff is incorrect in her assertion that the Magistrate Judge
inaccurately confused these two calculations. Although the Magistrate Judge uses the
term “spousal” to describe the benefit Plaintiff receives, the underlying calculations rest
on the ALJ and Appeals Council’s values, which are based on 100% of the decedent’s
primary insurance amount and identify the benefit as a “widow’s” benefit. See Report and
Recommendation at 5; Tr. at 8-9; Tr. at 19. While the Magistrate Judge’s use of the term
“spousal” rather than “widow’s” may have been confusing, the calculations he used were
accurate and therefore, if anything, referring to them as “spousal” benefits was at most
harmless error. See Keys v. Barnhart, 347 F.3d 990, 994 (7th Cir. 2003) (explaining that
the doctrine of harmless error is applicable to judicial review of administrative decisions).
Plaintiff’s objection to the report’s reference to spousal benefits rather than
widow’s or survivor’s benefits is therefore overruled.
Plaintiff’s Additional Arguments
In addition to objecting to specific portions of the Magistrate Judge’s report,
Plaintiff also has raised several new issues in her response and the addendum to her
response. We address these additional arguments in turn below.
A. Plaintiff’s request to amend her original complaint is untimely and beyond
the scope of this review.
In her response to the Report, Plaintiff requests the opportunity to amend her
original complaint. This request is untimely. The Appeals Council’s notice sent to
Plaintiff in December of 2014 invited her to provide additional evidence and comments
for the Appeals Council’s decision. Tr. at 7. In addition, Plaintiff had the opportunity to
speak with the Magistrate Judge in a telephonic conference on November 13, 2015.
Report and Recommendation at 3. Plaintiff did not utilize either of these opportunities to
seek leave to amend her original complaint, making her request untimely. Furthermore,
because Plaintiff did not raise this request in her appeal to the Appeals Council holding,
her request is beyond the scope of this review. See Clifford, 227 F.3 at 869.
Even if Plaintiff were permitted to amend her complaint as she requests, her
proposed amendments would not alter the decisions in this case. For example, Plaintiff
requests that her SSA 1099 tax forms be accepted as evidence to show her monthly
payments. Pl. Resp. to Report and Recommendation at 3. However, this information is
already included in the Transcript. See Tr. at 70-71. Plaintiff also advances a new claim
about the WEP calculation that misconstrues the WEP as a benefit amount rather than a
reduction. See Pl. Resp. to Report and Recommendation at 3. Finally, Plaintiff alleges
that an SSA employee intentionally delayed Plaintiff’s request for hearing. Pl. Resp. to
Report and Recommendation at 3. While it is true that the request was delayed internally
for more than 60 days, the delay was not prejudicial to the outcome of Plaintiff’s request.
See Tr. at 74. Accordingly, the amendments Plaintiff seeks are futile and therefore are
B. Plaintiff’s request for remand is untimely and beyond the scope of this
In an addendum to her response to the Report, Plaintiff for the first time asserts
that she is currently receiving only her widow’s benefit, and is not receiving her Social
Security benefit. Pl.’s Addendum to Resp. to Report and Recommendation at 1. Plaintiff
requests that her case be remanded to SSA to evaluate this new argument. Similar to
Plaintiff’s request to amend her original complaint, this request for remand is untimely
and beyond the scope of this review, and therefore is subject to denial on this basis alone.
Even if Plaintiff were permitted to introduce a new issue at this late stage in the
proceedings, her argument is without merit. Plaintiff claims that she currently receives
$985 per month, which, she alleges, consists solely of her widow’s benefits. Id. The
Magistrate Judge’s report affirms the Appeals Council’s findings that Plaintiff’s widow’s
benefit after GPO reductions, plus her retirement benefits subject to WEP and GPO
reductions, results in a monthly payment of $985 from December 2011 to January 2012. 7
See Report and Recommendation at 3-4; Tr. at 8-9. For the reasons detailed in the
Magistrate Judge’s Report, we find this calculation to be supported by substantial
evidence. Accordingly, we hold that the $985 amount comprises the total monthly
payment to which Plaintiff is entitled for all of her benefits. 8
For these reasons, Plaintiff’s request for remand is denied.
As explained above, Plaintiff’s objections to the Magistrate Judge’s Report and
Recommendation are OVERRULED and we ADOPT the recommendations set forth in
the Magistrate Judge’s Report and Recommendation. Plaintiff’s Motion for Petition,
Motion for Audit, Motion to Remand, and Motion to Submit Addition[al] Information are
DENIED for the reasons set forth herein. Final judgment shall enter in favor of the
Defendant and against Plaintiff.
The calculations in Plaintiff’s Addendum cite $1,842.50 as the amount of her widow’s benefit
before the GPO reduction. This is incorrect. As noted in the ALJ opinion, the amount of her
widow’s benefit before the GPO reduction is $1,663.20. The $1,842.50 amount is the combined
value of her widow’s benefit before the GPO reduction and her Social Security, or retirement,
benefit. See Pl.’s Addendum to Resp. to Report and Recommendation at 4; Tr. at 19-20.
8 In addition to the filings already discussed, Plaintiff filed a Motion for Petition on July 20,
2015, seeking to compel production of records by the SSA and a Motion for Audit on July 28,
2015, seeking to compel production of information about the calculation of Plaintiff’s benefits;
and a Motion to Submit Addition[al] Information Pertinent to Complaint on July 12, 2016,
seeking to file additional documents in support of her claim. Because this case is an appeal
challenging the merits of an administrative decision, unless the case is remanded to the agency
for further proceedings, it must be decided only on the contents of the closed administrative
record. See Mathews v. Weber, 423 U.S. 261, 270 (1976) (recognizing that “under § 205(g) of
the Social Security Act, 42 U.S.C. § 405(g), neither party may put any additional evidence before
the district court); Little Co. of Mary Hosp. v. Sebelius, 587 F.3d 849, 855 (7th Cir. 2009) (“As a
general rule … review of an agency’s decision is confined to the administrative record.”).
Accordingly, Plaintiffs’ requests seeking discovery and to file additional documents are denied.
IT IS SO ORDERED.
CLARA Z. PACK
6033 Meadowlark Dr.
Indianapolis, IN 46226
Meredith D. Schacht
SOCIAL SECURITY ADMINISTRATION
Kathryn E. Olivier
UNITED STATES ATTORNEY'S OFFICE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?