Harris v. Social Security Administration

Filing 18

MEMORANDUM;... Because the ALJ failed to consider plaintiff's testimony that she reported her return to work in October 2000, his conclusion that plaintiff is not without fault in accepting the overpayment is not supported by substantial eviden ce. Therefore, the Commissioner's decision will be reversed and remanded under sentence 4 of 42 U.S.C. § 405(g). Upon remand, the Commissioner should consider plaintiff's testimony and evaluate whether plaintiff is at fault under 42 U.S.C. § 404(b). An order remanding this case will accompany this Memorandum. Signed by Honorable Carol E. Jackson on 09/27/2011; (DJO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LINDA HARRIS ,
Plaintiff,
vs.
MICHAEL ASTRUE ,
Commissioner of Social Security
Defendant.

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Case No. 4:10-CV-1396 (CEJ)

MEMORANDUM
This matter is before the Court for review of an adverse ruling by the Social
Security Administration.
I. Procedural History
On August 31, 2000, plaintiff Linda Harris filed an application for disability
insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq.
(Tr. 41-2). On October 27, 2000, plaintiff’s application was approved. (Tr. 100-3).
On November 24, 2003, plaintiff’s application was reopened due to evidence that
she continued to work after she was awarded disability. (Tr. 136-137). On February
2, 2004, after reviewing evidence regarding plaintiff’s employment, the Commissioner
determined that the previous disability determination was erroneous and denied
plaintiff’s claim. At plaintiff’s request, an Administrative Law Judge (ALJ) conducted
a hearing . The ALJ determined that plaintiff had been disabled since March 11, 2003.
(Tr. 25-30).1

At the hearing, plaintiff amended the onset date of her disability to March
11, 2003.
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On August 23, 2006, the Social Security Administration (SSA) notified plaintiff
of an overpayment of disability insurance benefits. (Tr. 51). On September 15, plaintiff
requested a waiver of overpayment recovery or change in repayment rate. (Tr. 5866). Her request was denied. (Tr. 51-57) On June 7, 2007, a hearing was held before
an ALJ. (Tr. 658). On January 22, 2008, the ALJ issued a decision denying plaintiff’s
request for a waiver of overpayment. (Tr. 10-16). On July 2, 2010, the Appeals
Council of the Social Security Administration denied plaintiff’s request for review. (Tr.
4-7). Accordingly, the ALJ’s decision stands as the Commissioner’s final decision. See
42 § U.S.C. 405(g).
II. Evidence Before the ALJ
Plaintiff was the sole witness at the hearing before the ALJ. (Tr. 660). At that
time, she lived in a house owned by her parents. (Tr. 672).
Plaintiff testified that she received disability insurance benefits from December
2000 to August 2003. (Tr. 662). Plaintiff stated that she began receiving benefits
because she was diagnosed with cardiomyopathy, chronic obstructive pulmonary
disease, and congestive heart failure. (Tr. 665). Although plaintiff’s doctor told her
that she would probably never be able to work again, plaintiff wanted “to try to go back
to work.” (Tr. 665).
In October 2000, plaintiff called the SSA to report that she was planning to
return to work in the second week of October. (Tr. 667). According to plaintiff, a
representative from the SSA responded by saying “ok” and that the SSA would keep
in contact with her. (Tr. 666). Plaintiff interpreted the representative’s statement to
mean that the SSA would contact her if it wanted any further information about her
work status. (Tr. 679).

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Plaintiff worked from October 2000 until January 2001 when she became sick
and had to stop. (Tr. 666). Plaintiff testified that from February 2001 until 2003, she
only able to work “on and off” due to her health problems (Tr. 666-667). Plaintiff last
worked in 2003, but she received benefits under the Family and Medical Leave Act
(FMLA) for some period of time after that.
Plaintiff testified that she received disability benefit checks while she was
employed, and that she cashed them because she was not working on a full-time basis
and because she had to pay medical expenses. (Tr. 667, 669-670). Plaintiff also
testified that she did not contact the SSA after her phone call in October 2000. (Tr.
670). Plaintiff assumed the agency knew she was working because she listed her
benefits income and her work earnings on her tax return. (Tr. 671).

In 2004, the

SSA sent plaintiff a letter stating that they were stopping her benefits because it no
longer considered her disabled. (Tr. 667).
Plaintiff testified that she pays rent and utilities and she also pays for her
groceries and prescriptions. Plaintiff testified that she is unable to do her own laundry
or grocery shopping, so she pays someone else to do these tasks for her. (Tr. 672674). Based on her expenses, plaintiff testified that should would not be able to repay
$25,000 to the SSA. (Tr. 677).
III. Documentary Evidence
On October 27, 2000, the Social Security Administration sent plaintiff a letter
stating that she was eligible for monthly disability benefits based on an onset date of
June 28, 2000. (Tr. 100). The letter told plaintiff to let the SSA know if her health
improved or if she returned to work. (Tr. 100).

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On July 15, 2003, the SSA sent letters to plaintiff’s employer requesting
information regarding the amount of wages plaintiff received from 2000-2003. (Tr.
202). Plaintiff’s employer stated that she received $28,513 in 2000, $15,528.07 in
2001, $14,163.76 in 2002, and $4,200 in 2003. (Tr. 202-203).
In a letter dated November 24, 2003, the SSA informed plaintiff that, based on
evidence of substantial gainful activity, she did not become eligible for benefits until
March 11, 2003, the date she stopped working, and that the SSA would conduct a
review of plaintiff’s claim to determine whether she was still disabled under its rules.
(Tr. 136). The letter also informed plaintiff that she could submit statements or other
information for consideration by the SSA in making its determination. (Tr. 136).
Plaintiff was notified that she had received an overpayment of benefits from
December 2000 through August 2003 in the amount of $25, 155.60. (Tr. 25). On
September 15, 2005, plaintiff requested a waiver of overpayment recovery. (Tr. 59).
In the request, plaintiff stated that she believed the SSA was aware of her return to
work because she had contacted the agency in October 2000. (Tr. 61). The SSA
denied plaintiff’s request on August 23, 2006.

(Tr. 51).

In her request for an

administrative hearing, plaintiff stated that she reported her work activity to the SSA.
(Tr. 181).
IV. The ALJ’s Decision
The ALJ made the following findings:
1. The claimant was overpaid the benefits paid to her in the amount if
$25,155.60 for the months from December 2000 through August 2003.
2. The claimant was not “without fault” in causing or accepting the
overpayment because she knew or should have known that she needed
to perform diligence in reporting her work activity and that she was
receiving payments that she was not eligible to receive 20 CFR §
404.507.

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3. Recovery of the overpayment would not be against equity and good
conscience 20 CFR § 404.509.
4. Recovery of the overpayment is not waived 20 CFR § 404.506.
V. Discussion
The Court must affirm the Commissioner’s decision, “if the decision is not based
on legal error and if there is substantial evidence in the record as a whole to support
the conclusion that the claimant was not disabled.” Long v. Chater, 108 F.3d 185, 187
(8th Cir. 1997). “Substantial evidence is less than a preponderance, but enough so
that a reasonable mind might find it adequate to support the conclusion.” Estes v.
Barnhart, 275 F.3d 722, 724 (8th Cir. 2002) (quoting Johnson v. Apfel, 240 F.3d 1145,
1147 (8th Cir. 2001)). The Court may not reverse merely because the evidence could
support a contrary outcome. Estes, 275 F.3d at 724. The Court must consider any
evidence that detracts from the Commissioner’s decision. Warburton v. Apfel, 188
F.3d 1047, 1050 (8th Cir. 1999).

However, when the Commissioner’s findings

represent one of two inconsistent conclusions that may reasonably be drawn from the
evidence, those findings are deemed to be supported by substantial evidence.
Pearsall, 274 F.3d at 1217 (citing Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.
2000)).
A. Overpayment
An overpayment occurs when "an individual receives more . . .than the correct
payment due under title II of the Act." 20 C.F.R.§ 404.501. The Social Security Act
generally requires the Commissioner to recover an overpayment. 42 U.S.C. §
404(a)(1)(A). However, the statute explains that "there shall be no . . .recovery . .
. from, any person who is without fault if such . . .recovery would defeat the purpose

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of this [Act] or would be against equity and good conscience." 42 U.S.C. § 404(b). The
overpaid claimant has the burden of proving entitlement to a waiver of overpayment.
Coulston v. Apfel, 224 F.3d 897, 900 (8th Cir. 2000). Fault by the SSA does not
relieve the overpaid claimant from proving that she is without fault. 20 C.F.R. §
404.507.
To determine whether a claimant is at fault, "the SSA will consider all pertinent
circumstances, including the individual's age and intelligence, and any physical, mental,
educational, or linguistic limitations . . . the individual has." 20 C.F.R. §404.507. The
claimant is at fault when:
(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 expected to
know was incorrect

Id.
To "[d]efeat the purposes of title II . . . means [to] defeat the purpose of the
benefits under this title, i.e., to deprive a person of income required for ordinary and
necessary living expenses." 20 C.F.R. § 404.508.2. An overpaid claimant's ordinary
and necessary living expenses include:
(1) Fixed living expenses, such as food and clothing, rent, mortgage
payments, utilities, maintenance, insurance (e.g., life, accident, and
health insurance including premiums for supplementary medical insurance
benefits under title XVIII),taxes, installment payments, etc.;
(2) Medical, hospitalization, and other similar expenses;
(3) Expenses for the support of others for whom the individual is legally
responsible; and

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(4) Other miscellaneous expenses which may reasonably be considered
as part of the individual's standard of living.
Id.
B. Plaintiff’s Allegations of Error
Plaintiff does not dispute the fact that she received an overpayment of disability
insurance benefits. Rather, plaintiff asserts that the ALJ erred in finding that she was
not without fault in causing the overpayment. Plaintiff contends that the ALJ’s decision
is not supported by substantial evidence on the record as a whole.
Plaintiff first argues that she is not at fault because she listed her benefit awards
and earnings on her annual tax return forms. During the hearing, plaintiff testified that
she believed that the SSA knew she was working because she listed her earnings on
her tax return forms. The ALJ determined that filing tax return forms did not constitute
sufficient notice. (Tr. 15). Rather, plaintiff should have taken further steps to clarify
to the agency that she was employed between December 2000 through August 2003.
(Tr. 15).
The record supports the ALJ’s finding. On October 27, 2000, the SSA sent a
letter to plaintiff stating that she should inform the SSA if she returned to work. (Tr.
100). The letter provided a toll-free phone number and address for contacting the
SSA. It also included a pamphlet that explained how plaintiff should report a return
to work or an improvement of her health to the SSA. (Tr. 101-103). The letter did not
suggest that reporting work status to the IRS or filing tax return forms would be
sufficient. (Tr. 101-103).
Plaintiff testified that she telephoned the SSA in October 2000 and told a
representative that she would be returning to work later that month. Plaintiff asserts

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that this establishes that she was without fault. The record does not contain any
evidence that contradicts plaintiff’s testimony. Moreover, the ALJ did not discuss this
testimony in determining whether plaintiff furnished material information to the SSA.
(Tr. 15). Generally, in a waiver of overpayment-recovery case, “if an ALJ chooses not
to believe a claimant, it is necessary that the fact finder articulate any reasons for
questioning the claimant’s credibility.” Lang v. Astrue, 2009 WL 3711545 (D. Minn.
November 3, 2009); see also Coulston v. Apfel, 224 F.3d 897,900 (8th Cir. 2000);
Viehman v. Schweiker, 679 F.2d 223, 228 (11th Cir. 1982). Here, the ALJ had the
opportunity to address and discredit plaintiff’s testimony, but did not do so.

The

Court, therefore, is unable to determine whether the ALJ based his findings on the
scope of plaintiff’s evidence or chose to disbelieve the plaintiff.

Because the ALJ did

not address or discredit plaintiff’s testimony, his determination that plaintiff is not
without fault is not supported by substantial evidence.
VI. Conclusion
Because the ALJ failed to consider plaintiff’s testimony that she reported her
return to work in October 2000, his conclusion that plaintiff is not without fault in
accepting the overpayment is not supported by substantial evidence. Therefore, the
Commissioner’s decision will be reversed and remanded under sentence 4 of 42 U.S.C.
§ 405(g). Upon remand, the Commissioner should consider plaintiff’s testimony and
evaluate whether plaintiff is at fault under 42 U.S.C. § 404(b).
An order remanding this case will accompany this Memorandum.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 27th day of September, 2011.

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