Adams v. Commissioner of Social Security

Filing 20

ORDER granting 13 Motion for Judgment on the Pleadings. For the reasons set forth in the attached Memorandum and Order, the Court grants defendant judgment on the pleadings and affirms the decision of the ALJ. Plaintiff's cross-motion for judgment on the pleadings is denied. The Clerk of the Court shall enter judgment accordingly and close the case. The Court has mailed a copy of the decision to the plaintiff. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/9/2012. (Weber, Rebecca)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________

No 11-CV-00289 (JFB)
_____________________

PATRICK R. ADAMS,
Plaintiff,
VERSUS

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY
Defendant.
___________________
MEMORANDUM AND ORDER
March 9, 2012
___________________

JOSEPH F. BIANCO, District Judge:
Pro se plaintiff, Patrick R. Adams,
(hereinafter “plaintiff”) brings this action,
pursuant to 42 U.S.C. § 405(g) of the Social
Security Act (the “Act”), seeking review of
the decision of the Commissioner of Social
Security, dated February 26, 2009, denying
plaintiff’s request for waiver of an alleged
overpayment of disability insurance benefits
under Title II of the Act. Specifically, the
Commissioner found that plaintiff had
received an overpayment of disability
insurance benefits totaling $4,977.60 and that
the recovery of the overpayment should not
be waived.
Presently before the Court are the parties’
cross-motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of

Civil Procedure. 1 For the reasons set forth
below, the Court grants defendant’s motion
for judgment on the pleadings and affirms the
decision of the Administrative Law Judge
(“ALJ”). Plaintiff’s cross-motion is denied.
I.

BACKGROUND
A. Facts

The following summary of facts is based
upon the administrative record as developed
by the ALJ. A more exhaustive recitation of
the facts is contained in the parties’
submissions to the Court and is not repeated
herein.

1

Although plaintiff characterizes his filing as a
“Response to the Defendant’s Memorandum of Law,”
the Court liberally construes it as a cross-motion for
judgment on the pleadings.

thereafter. 3 (AR 132.) On May 7, 2005, the
SSA informed plaintiff that he would receive
$6,118 because of a rate increase. (AR 14,
136.)

Plaintiff was found to be disabled
beginning October 1, 1993, based on organic
mental disorder, depression, and a personality
disorder. (AR 2 128.) In December 1998, the
SSA found that plaintiff’s disability had
ceased. (AR 13, 128.) Later, plaintiff
requested reinstatement of benefits. (AR 13.)
The Social Security Administration (“SSA”)
informed plaintiff, by letter dated January 25,
2003, that plaintiff could be provisionally
paid up to six months of benefits pending
approval of his application for reinstatement.
(AR 13, 115-17.) The letter advised plaintiff
that if the SSA denied him benefits, he would
have to repay the benefits he received. (AR
14, 115-17.) The record does not reflect any
further communications with the plaintiff
until April 7, 2003, when the SSA informed
plaintiff that he had not been approved, but
that he was entitled to a personal conference
relating to whether or not an overpayment of
$11,035.50 could be waived. (AR 14, 11819.) On July 1, 2003, plaintiff was advised
that his provisional benefits had ceased, and
on December 1, 2003, the SSA provided
plaintiff with a repayment schedule. (AR 14,
120-22.) In a decision dated February 4, 2004,
ALJ Joseph R. Faraguna determined that
plaintiff was entitled to a waiver of the
overpayment because plaintiff was without
fault for the overpayment and because
recovery of the overpayment would defeat the
purpose of the Act. (AR 127-29.) ALJ
Faraguna’s February 4, 2004 decision is not
before the Court.

In a Notice of Planned Action dated
December 6, 2005, the SSA advised plaintiff
that it learned he had been imprisoned since
September 2005 after being convicted of a
crime. (AR 21-22.) Accordingly, the SSA
informed plaintiff that it should have stopped
his benefits beginning in September 2005.
(AR 21.) The notice stated that if plaintiff did
not respond to the SSA within ten days, the
SSA would assume that the information was
correct and stop his Social Security benefits.
(Id.) The SSA, after receiving no
communication from plaintiff, informed
plaintiff by notice dated December 28, 2005
that plaintiff was not entitled to benefits as of
September 2005 because he was “imprisoned
for the conviction of a crime.” (AR 138.)
Plaintiff had been overpaid $4,977.60 in
benefits for payment received from
September 2005 through December 2005.
(AR 138-41.) The notice informed plaintiff of
his right to appeal and ability to request
waiver of the overpayment. (AR 139.) On
February 15, 2006, the SSA informed plaintiff
that payment of the overpayment was due by
March 3, 2006. (AR 142-44.)
Plaintiff sent a letter, dated July 12, 2006,
to the SSA explaining that if there was any
overpayment, he was not at fault. (AR 24.) In
the letter, plaintiff stated that he was
incarcerated, indigent, and could not repay the
overpayment. (Id.) On July 31, 2006, plaintiff
completed a “Request for Waiver of
Overpayment Recovery or Change in
Repayment Rate” form. (AR 25-31.) Plaintiff
again stated that he was indigent and not at
fault for the overpayment. (Id.) He explained

On April 24, 2004, the SSA informed
plaintiff that his next check would be for
$1,330.00, representing the benefits due to
plaintiff through April 2004, and that he
would receive $1,330.00 each month

2

3

“AR” refers to the administrative record filed on
appeal.

The record does not reflect whether, or when, plaintiff
reapplied for benefits, or how the SSA determined that
he would receive these monthly sums.

2

denied plaintiff’s request for a waiver on
December 6, 2007. 4 (AR 57-59.)

that he did not believe he was at fault
because, “although [he] was incarcerated, [he]
was given to believe every reason by the court
that [he] would be released in a short period
of time, which obviously did not eventuate.”
(AR 26.) He explained that he did not tell the
SSA about his incarceration because he “had
no reasonable way to communicate” with the
SSA, and that the court did not lead him to
believe it was necessary to do so. (Id.)

On or about December 10, 2007, plaintiff
requested a hearing. (AR 60.) He appeared
before ALJ Seymour Rayner on January 15,
2009. (AR 156-78.) Plaintiff testified that he
was 56 years old and has a Master’s Degree in
Public Administration. (AR 163.) He said he
was incarcerated from September 2005 until
August 2007, and while he was in prison, he
did not receive any disability checks. (AR
164-66.) Although the checks were mailed to
his house, plaintiff alleged that no one he
knew cashed them. (AR 166.) As of May
2008, plaintiff had been working as a contract
administrator for Metro-North Railroad
earning approximately $800 per week. (AR
165-66.)

On August 10, 2007, plaintiff was
released from prison, and his benefits were
resumed effective September 2007. (AR 3233.) The SSA mailed the first check in
October 2007. (AR 33.) By notice dated
October 11, 2007, the SSA informed plaintiff
that the checks would contain a monthly
deduction of $100 as payment for the
$4,977.60 overpayment. (AR 39-40.) On
October 4, 18, and 23, 2007, plaintiff wrote to
the SSA and questioned why the deductions
were being taken from his benefit payments,
in light of the fact that plaintiff had submitted
a waiver request in August 2006 and had not
received a response to that request. (AR 36,
42, 46.)

The ALJ determined that plaintiff was not
without fault in accepting the overpayment of
$4,977.60 for the period of September to
November 2005, and that repayment of the
overpayment would not be against equity and
good conscience. (AR 10-17.) The Appeals
Council denied plaintiff’s request for review
on December 2, 2010, making the ALJ’s
February 26, 2009 decision final. (AR 5-8.) 5

By letter dated October 24, 2007, the SSA
informed plaintiff that it considered his
October 4, 2007 letter to be an informal
waiver request, and would therefore stop
recovery action until plaintiff submitted a
Request for Waiver Form SSA632. (AR 47.)
Plaintiff filed a request for reconsideration on
November 8, 2007. (AR 50-51.) On
December 5, 2007, plaintiff resubmitted his
Request for Waiver form, which he had
originally completed on July 31, 2006. (AR
62-69.) Plaintiff noted in the Remarks Space:
“I request the Social Security Administration
to process my original waiver request using
the information provided. I do not want to
update my financial information or any other
personal information.” (AR 69.) The SSA

4

The letter noted that the overpayment was for the
amount of $4,884.60. (AR 57.) The record does not
reflect why that figure differs from the $4,977.60
figure.

5

Plaintiff received a letter dated February 13, 2008
stating that plaintiff received $7,814.00 more in
benefits than he was due, and that refund of the
overpayment was due within 30 days. (AR 151.) On
February 26, 2009, ALJ Rayner found that there was
no supportive evidence in the file regarding how the
$7,814.00 overpayment was determined or the basis of
the overpayment. (AR 15.) Accordingly, the ALJ
referred the matter to the District Office for a detailed
explanation of how it was determined. (Id.) That
portion of the ALJ’s decision is not currently before the
Court.
Additionally, plaintiff filed a motion to introduce
new evidence on February 13, 2012. The Court has

3

B. Procedural History

support a conclusion.’” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)); see also Quinones v. Chater, 117
F.3d 29, 33 (2d Cir. 1997) (adopting the
Supreme Court’s definition in Richardson of
“substantial evidence”). Furthermore, “it is
up to the agency, and not th[e] court, to weigh
the conflicting evidence in the record.” Clark
v. Comm’r of Soc. Sec., 143 F.3d 115, 118 (2d
Cir. 1998). If the court finds that there is
substantial evidence to support the
Commissioner’s determination, the decision
must be upheld, even if there is substantial
evidence for the plaintiff’s position. See, e.g.,
Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir.
1998); Jones v. Sullivan, 949 F.2d 57, 59 (2d
Cir. 1991). “Where an administrative decision
rests on adequate findings sustained by
evidence having rational probative force, the
court should not substitute its judgment for
that of the Commissioner.” Yancey, 145 F.3d
at 111; see also Jones, 949 F.2d at 59 (“‘[T]he
court may not substitute its own judgment for
that of the Secretary, even if it might
justifiably have reached a different result
upon a de novo review.’” (quoting Valente v.
Sec’y of Health and Human Servs., 733 F.2d
1037, 1041 (2d Cir. 1984))).

Plaintiff filed this action on January 18,
2011. The parties bundled their motion
papers, which included defendant’s motion
for judgment on the pleadings and plaintiff’s
opposition, and filed them on July 11, 2011.
The Court has carefully considered the
parties’ arguments.
II. DISCUSSION
A.

Standard of Review

A district court may only set aside a
determination by an ALJ that is based upon
legal error or that is unsupported by
substantial evidence. Balsamo v. Chater, 142
F.3d 75, 79 (2d Cir. 1998) (citing Berry v.
Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)).
The Supreme Court has defined “substantial
evidence” in Social Security cases as “‘more
than a mere scintilla’” and that which “‘a
reasonable mind might accept as adequate to
reviewed the “evidence” submitted by plaintiff.
However, that evidence is irrelevant to the narrower
legal issue that is the subject of this decision. In
particular, plaintiff brought this action pursuant to 42
U.S.C. § 405(g) for review of the final decision of the
Commissioner finding that plaintiff was not without
fault in accepting an overpayment of Title II benefits in
the amount of $4,977.60 while incarcerated, and thus,
the overpayment could not be waived. Court review
under 42 U.S.C. § 405(g) is based upon the certified
copy of the transcript of the record including the
evidence upon which the findings and decision
complained of are based, which defendant filed as part
of his answer on April 18, 2011. The evidence
proffered by plaintiff with his motion is a notice dated
February 8, 2012, which has no bearing on the facts of
this case.

B. Legal Standard for Waiver of
Overpayments
Pursuant to 42 U.S.C. § 404(a)(1),
whenever the Commissioner finds that an
overpayment of benefits has been made to an
individual, the Commissioner must recover
the amount of the overpayment by decreasing
a payment due to such individual or requiring
a refund of the overpayment. See id.
However, the Commissioner must waive the
repayment of the overpaid benefits if (1) the
recipient of the overpayment was “without
fault,” and (2) recovery would defeat the
purpose of Title II of the Social Security Act

Similarly, the Court received a copy of a letter,
dated February 14, 2012, from plaintiff to the SSA,
challenging their decision, dated February 3, 2012,
ceasing disability payments due to ineligibility as of
February 2012. Plaintiff attaches that decision. Again,
that decision is not the subject of the instant lawsuit
and record before the Court. Any challenge to that
decision must be the subject of a separate action.

4

or be against equity and good conscience. See
id. § 404(b); 20 C.F.R. § 404.506(a).

The rationale for this rule was clearly
articulated by the Supreme Court in Califano:

Under the applicable regulations, an
individual will be found to be at fault in
connection with the overpayment if the
overpayment resulted from one of the
following: (a) “[a]n incorrect statement made
by the individual which he knew or should
have known to be incorrect”; or (b) “[f]ailure
to furnish information which he knew or
should have known to be material”; or (c)
“acceptance of a payment which he either
knew or could have been expected to know
was incorrect.” 20 C.F.R. § 404.507. In
determining whether an individual is at fault,
the SSA must “consider all pertinent
circumstances”
which
include
“the
individual’s age and intelligence, and any
physical, mental, educational, or linguistic
limitations (including any lack of facility with
the English language) the individual has.” Id.
The Second Circuit has made clear that it has
“interpreted this rule [i.e., 20 C.F.R. §
404.507] liberally, making it relatively easy
for the Secretary to recover an overpayment:
‘No showing of bad faith is required; rather,
an honest mistake [by the individual] may be
sufficient to constitute fault.’” Barone v.
Bowen, 869 F.2d 49, 51 (2d Cir. 1989)
(quoting Center v. Schweiker, 704 F.2d 678,
680 (2d Cir. 1983)).

As the Secretary’s regulations make
clear, “fault” depends on an
evaluation
of
“all
pertinent
circumstances”
including
the
recipient’s “intelligence . . . and
physical and mental condition” as
well as his good faith. We do not see
how these can be evaluated absent
personal contact between the
recipient and the person who decides
his case.
Evaluating fault, like
judging detrimental reliance, usually
requires an assessment of the
recipient’s credibility, and written
submissions are a particularly
inappropriate way to distinguish a
genuine hard luck story from a
fabricated tall tale.
Califano, 442 U.S. at 696-97 (citation
omitted); accord Schwingel v. Harris, 631
F.2d 192, 196 (2d Cir. 1980); see also
Jefferson v. Bowen, 794 F.2d 631, 633 (11th
Cir. 1986) (“‘The decision which must be
reached in a 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.’” (quoting
Harrison v. Heckler, 746 F.2d 480, 482 (9th
Cir. 1984))).

With respect to the proper procedure for
determining fault, the Second Circuit has
made clear, relying on Supreme Court
precedent, that “where a claimant’s ‘fault’ in
receiving overpayments is in issue,
recoupment must be preceded by a hearing,
since findings of ‘fault’ require credibility
evaluations which can only be properly
considered at an oral hearing.” Dorman v.
Harris, 633 F.2d 1035, 1038 n.2 (2d Cir.
1980) (internal citation omitted) (citing
Califano v. Yamasaki, 442 U.S. 682 (1979)).

Even if the recipient can demonstrate that
he is without fault, he is still responsible for
the overpayment unless he can also
demonstrate that the recovery by the
Commissioner would defeat the purpose of
Title II of the Act or would be against equity
and good conscience. 20 C.F.R. §§ 404.50809; accord Valente, 733 F.2d at 1042
(“Assuming that the recipient can show that
he is without fault, the statutory standard
places the burden on him to show also that
5

Recovery of an overpayment can be
“against equity and good conscience” where
an individual demonstrates that he “[c]hanged
his or her 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.” Id. § 404.509(a)(1). The applicable
regulation notes that “[t]he individual’s
financial circumstances are not material to a
finding of against equity or good conscience”
and gives examples of how this standard can
be satisfied. Id. § 404.509(b).

repayment would either be inequitable or
would defeat the purposes of the Act.”).
However, these additional factors need only
be considered if the first requirement is
satisfied – namely, that the recipient is
without fault. See Chlieb v. Heckler, 777
F.2d 842, 846 (2d Cir. 1985) (“we need not
consider
whether
recovery
of
the
overpayments would defeat the purpose of
Title II or would be against equity and good
conscience, since those factors come into play
only if the recipient is without fault”).
Recovery of an overpayment would defeat
the purpose of Title II of the Act if such
recovery would “deprive a person of income
required for ordinary and necessary living
expenses.” 20 C.F.R. § 404.508(a). The
analysis under this standard “depends upon
whether the person has an income or financial
resources sufficient for more than ordinary
and necessary needs, or is dependent upon all
of his current benefits for such needs.” Id.
Pursuant to the applicable regulation, ordinary
and necessary expenses include fixed living
expenses, such as food, clothing, rent,
mortgage payments, utilities, maintenance,
insurance, taxes and installment payments.
Id. § 404.508(a)(1). Other ordinary and
necessary expenses include medical bills,
hospitalizations, expenses for the support of
others for whom the individual is legally
responsible, and other miscellaneous expenses
which may reasonably be considered as part
of the individual’s standard of living. Id.
§ 404.508(a)(2)-(4).
The
applicable
regulation also makes clear that “[a]djustment
or recovery will defeat the purposes of title II
in (but is not limited to) situations where the
person from whom recovery is sought needs
substantially all of his current income
(including social security monthly benefits) to
meet current ordinary and necessary living
expenses.” Id. § 404.508(b).

Finally, the regulations specifically
provide that, where a claimant accepts an
overpayment because of or reliance on
erroneous information from an official source
within the SSA with respect to, among other
things, an interpretation of the Act or its
regulations, such an individual is deemed to
have accepted the overpayment “without
fault” and the recovery of such overpayment
is waived because it is also deemed, under
such circumstances, to be “against equity and
good conscience.” Id. §§ 404.510a and
404.512. 6
6

20 C.F.R. § 404.510a provides as follows: “A benefit
payment under title II or title XVIII of the Act to or on
behalf of an individual who fails to meet one or more
requirements for entitlement to such payment or a
benefit payment exceeding the amount to which he is
entitled, constitutes an entitlement overpayment.
Where an individual or other person on behalf of an
individual accepts such overpayment because of
reliance on erroneous information from an official
source within the Social Security Administration (or
other governmental agency which the individual had
reasonable cause to believe was connected with the
administration of benefits under title II or title XVIII of
the Act) with respect to the interpretation of a pertinent
provision of the Social Security Act or regulations
pertaining thereto, or where an individual or other
person on behalf of an individual is overpaid as a result
of the adjustment upward (under the family maximum
provision in section 203 of the Act) of the benefits of
such individual at the time of the proper termination of
one or more beneficiaries on the same social security
record and the subsequent reduction of the benefits of

6

The Second Circuit has explained how
district courts should review whether the
above-referenced factors for waiver of
overpayments have been satisfied in light of
the general legal framework for review of
decisions by the Commissioner:

even if it might justifiably have
reached a different result upon a de
novo review.
Valente, 733 F.2d at 1041 (citations omitted).
C.

The Secretary’s determination of
whether these factors have been
satisfied may not lightly be
overturned. First, the district court
must uphold a decision by the
Secretary that a claimant was not
without fault if it is supported by
substantial evidence in the record as
a whole, because that determination
is factual in nature. Further the
issues of whether repayment would
defeat the purposes of the Act or be
against equity or good conscience
implicate an exercise of informed
judgment, and the Secretary has
considerable discretion in making
these determinations.
Factual
determinations by the Secretary in
relation to these issues must be
upheld if supported by substantial
evidence, . . . and the Secretary’s
exercise of her judgment on the basis
of such factual determinations is
entitled to considerable deference.
The court may not substitute its own
judgment for that of the Secretary,

Application

As discussed in detail below, after
carefully reviewing the administrative record
in this case, the Court concludes that there is
substantial evidence to support the
determinations of the ALJ that (1) plaintiff
was not “without fault” in causing and
accepting the overpayment and (2) recovery
of the overpayment would not be against
equity and good conscience. 7 Accordingly,
judgment on the pleadings in favor of
defendant is warranted.
1. Substantial Evidence Supported the
Determination that Plaintiff Was At Fault
The reason provided by the ALJ to
support his determination that plaintiff was
not without fault in connection with the
overpayment – namely, that plaintiff “knew
he was in jail and kept the payments anyway”
– was supported by substantial evidence. (AR
15.)
The Act prohibits the payment of monthly
benefits to individuals incarcerated pursuant
to a conviction for a criminal offense. 8 The

such individual caused by the reentitlement of the
terminated beneficiary(ies) pursuant to a change in a
provision of the law, such individual, in accepting such
overpayment, will be deemed to be “without fault.”
For purposes of this section “governmental agency”
includes intermediaries and carriers under contract
pursuant to sections 1816 and 1842 of the Act.” Id.

7

As discussed infra n.9, the ALJ did not make any
findings as to whether recovery of the overpayment
would defeat the purpose of Title II. Nonetheless, the
Court finds that there is substantial evidence to support
a determination that recovery of the overpayment
would not defeat the purpose of Title II.

8

In addition, 20 C.F.R. § 404.512 provides, in
relevant part, as follows: “Adjustment or recovery
deemed ‘against equity and good conscience.’ In the
situations described in §§ 404.510(a), (b), and (c), and
404.510a, adjustment or recovery will be waived since
it will be deemed such adjustment or recovery is
against equity and good conscience.” Id.

The Social Security Act provides in relevant part:
(1)(A) Notwithstanding any other provision
of this title [42 U.S.C. §§ 401 et seq.], no
monthly benefits shall be paid under this
section or under section 223 [42 U.S.C. §
423] to any individual for any month ending

7

SSA erroneously sent plaintiff benefit checks
while he was incarcerated, and those checks
were cashed.

(AR 15.) The ALJ noted, for example, that in
all of plaintiff’s correspondence with the
payment center, including when he requested
the overpayment waiver, plaintiff never raised
the claim that he had not received the benefit
checks. (Id.) Moreover, the ALJ found
plaintiff’s testimony that he could not contact
the district office while he was in prison
incredible, since plaintiff had managed to
compose a letter to the SSA and complete a
waiver of overpayment form while he was in
jail. (AR 15, 24-31.)

The ALJ cited 20 C.F.R. § 404.507, which
provides that “[w]hat constitutes fault
. . . depends upon whether the facts show that
the incorrect payment to the individual . . .
resulted from:
(a) An incorrect statement made by
the individual which he knew or
should have known to be incorrect;
or

Substantial evidence supports the ALJ’s
decision that plaintiff was not without fault in
receiving the overpayment because he “knew
or should have known that he was not entitled
to receive benefits while incarcerated.” (AR
16.) Accordingly, the ALJ correctly found
that plaintiff’s overpayment could not be
waived.

(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.”

2. Substantial Evidence Supported the
Determination That Overpayment Would Not
be Against Equity and Good Conscience

Id. The ALJ held that the plaintiff “knew he
was in jail and kept the payments anyway.”
(AR 15.)

Although this Court need not review the
remaining requirement given that there is no
basis to disturb the Commissioner’s finding
regarding fault, the Court, in an abundance of
caution, has analyzed this requirement and
concludes that the determination that recovery
of the overpayment would not be against
equity and good conscience also is supported
by substantial evidence in the record. Plaintiff
contends that the recovery of the overpayment
would be against equity and good conscience
because the SSA “conveniently waited for a
year” until plaintiff’s release from prison to
inform him that they had not made a
determination on his request for a waiver and
that they were “unilaterally deducting” his
payments “without any due process
whatsoever.” (Plaintiff’s “Response to
Defendant’s Memorandum of Law” at 3
(emphasis in original).) Plaintiff argues that

Although plaintiff claimed that “nobody
that I know of . . . cashed any checks,” he did
not allege that the checks were returned to the
Department of the Treasury. (AR 166.) The
ALJ did not find the plaintiff’s statement that
he never received the money to be credible.
with or during or beginning with or during a
period of more than 30 days throughout all
of which such individual –
(i) is confined in a jail, prison, or other
penal institution or correctional facility
pursuant to his conviction of a criminal
offense
42 U.S.C. § 402(x); see 20 C.F.R. § 404.468 (“No
monthly benefits will be paid to any individual for any
month any part of which the individual is confined in a
jail, prison, or other penal institution or correctional
facility for conviction of a felony.”).

8

he met the criteria for a full waiver when he
initially submitted a Request for Waiver Form
on July 31, 2006, but, by the time the SSA
reviewed plaintiff’s Request for a Waiver in
December 2007, plaintiff was ineligible for a
waiver.

III.

CONCLUSION

For the foregoing reasons, this Court
grants defendant judgment on the pleadings
and affirms the decision of the ALJ.
Plaintiff’s cross-motion is denied. The Clerk
of the Court shall enter judgment accordingly
and close the case.

Plaintiff fails to provide an argument
under the applicable statute for why recovery
of the overpayment is against equity and good
conscience. Under 20 C.F.R. § 404.509(a)(1),
recovery of an overpayment can be “against
equity and good conscience” where an
individual demonstrates that he “changed his
or her 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.” Id. The
plaintiff has not alleged that he changed his
position or relinquished any valuable rights as
a consequence of the overpayment. Nor has
the plaintiff satisfied any of the criteria set
forth in 20 C.F.R. §§ 404.510(a), (b), and (c)
or 404.510a. See supra n.6.

SO ORDERED.

________________________
JOSEPH F. BIANCO
United States District Judge
Date: March 9, 2012
Central Islip, NY

insurance, taxes and installment payments. 20 C.F.R.
§ 404.508(a)(1). Other ordinary and necessary
expenses include medical bills, hospitalizations,
expenses for the support of others for whom the
individual is legally responsible, and other
miscellaneous expenses which may reasonably be
considered as part of the individual’s standard of
living. 20 C.F.R. § 404.508(a)(2)-(4). Plaintiff pays
$800 per month in rent to live in his mother’s house,
where he receives a room, meals, access to laundry
facilities, and utilities. (AR 170-71.) He does not have
a cell phone or a car. (AR 171.) Plaintiff’s medical
insurance, retirement benefits, and $15 per week for a
fitness club membership are withdrawn from his salary,
and thus his $800 take-home pay appears already to
exclude these expenses. (AR 171-72.) Plaintiff pays
approximately $4 per day for transportation. (AR 172.)

Accordingly, there is substantial evidence
to support the ALJ’s finding that plaintiff did
not demonstrate that adjustment or recovery
of the overpayment would be against equity
and good conscience. 9
9

Although the ALJ did not make any findings as to
whether recovery of the overpayment would defeat the
purpose of Title II by depriving plaintiff of
substantially all of his current income required for
“ordinary and necessary living expenses,” 20 C.F.R.
§ 404.508, the Court finds that there is substantial
evidence to support a determination that recovery of
the overpayment would not defeat the purpose of Title
II. Plaintiff testified that he has a Master’s Degree in
Public Administration. (AR 163.) He is employed by
the Metro North Railroad as a contract administrator,
where he earns $800 per week in “[t]ake home” pay.
(AR 165.) Plaintiff has approximately $10,000 in
savings, and does not own any certificates of deposits
or stocks. (AR 170, 172.)

On October 11, 2007, the SSA informed plaintiff
that it would withhold $100.00 from his monthly
benefits to recover the overpayment. (AR 39.)
Plaintiff’s monthly income is approximately $3,200,
and his expenses are approximately $920 per month,
leaving plaintiff with approximately $2,280 per month
in disposable income. Thus, requiring the plaintiff to
pay $100 per month to recover the overpayment would
certainly not defeat the purpose of Title II by depriving
plaintiff of substantially all of his current income
required for “ordinary and necessary living expenses.”
20 C.F.R. § 404.508. Indeed, it appears from the record
that plaintiff could afford to pay significantly more
than $100 per month to refund the overpayment.

As noted supra, ordinary and necessary expenses
include fixed living expenses, such as food, clothing,
rent, mortgage payments, utilities, maintenance,

9

***
Petitioner is pro se, Patrick R. Adams,
840 North William Street, Baldwin, NY
11510. The attorney for defendant is Loretta
E. Lynch, United States Attorney, Eastern
District of New York, by Arthur Swerdloff,
271 Cadman Plaza East, 7th Floor, Brooklyn,
NY 11201.

10