Frazier v. Commissioner of Social Security
Filing
18
DECISION AND ORDER denying 8 Plaintiff's Motion ; granting 14 Commissioner's Motion for Judgment on the Pleadings; and dismissing the complaint in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 6/6/17. Copy of Decision and Order sent by first class mail to Plaintiff. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROBERT D. FRAZIER,
Plaintiff,
-vs-
No. 6:14-CV-06261 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
I.
Introduction
Proceeding pro se, Robert D. Frazier (“plaintiff”) brings this
action pursuant to 42 U.S.C. § 1383(c)(3), seeking review of the
final
decision
of
the
Commissioner
of
Social
Security
(“the
Commissioner”) denying his request to waive an overpayment of
$12,644.66 in supplemental security income (“SSI”) benefits, which
payments plaintiff received over the time period from May 1, 1997
through July 1, 2002. The Court has jurisdiction over this matter
pursuant to 42 U.S.C. § 405(g). Presently before the Court are the
parties’ cross-motions for judgment on the pleadings1 pursuant to
Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons
discussed below, the Commissioner’s motion is granted.
II.
Factual Background and Procedural History
Plaintiff
was
initially
found
eligible
for
SSI
benefits
pursuant to Title XVI of the Social Security Act, 42 U.S.C. § 1601
et seq., and received SSI payments from May 1, 1997 through July 1,
1
Plaintiff’s “motion to dismiss unfavorable decision” (doc. 8)
construed as a motion for judgmenton the pleadings pursuant to Rule 12(c).
is
2002. This action concerns plaintiff’s overpayment for SSI benefits
during that time period. Ultimately, either while working and
receiving wages, or while unemployed and receiving unemployment
compensation,
plaintiff
continued
to
receive
SSI
overpayments
through July 2002. Plaintiff alleges that he reported his various
full-time jobs to the local SSA office by written correspondence,
but the record contains no record of such correspondence.
As early as June 14, 1999, the Commissioner sent a billing
statement to plaintiff for an overpayment of benefits in the amount
of $2,253.64, which the Commissioner demanded be repaid by July 1,
1999. On November 8, 1999, the Commissioner sent a letter to
plaintiff informing him of his options to contest the demand for
repayment of $7,499.90. The letter stated that the Commissioner had
“tried several times to collect this amount, but it has not been
repaid.” T. 209. Over the years that followed, plaintiff was
informed
on
multiple
occasions
of
his
growing
liability
for
overpayment of SSI benefits. See T. 150 (March 28, 2002 letter);
165 (August 14, 2002 letter); 187 (December 5, 2006 letter). As of
December 5, 2006, the SSA began withholding $138.00 per month from
plaintiff’s DIB benefits, which amount would be withheld until such
time as the full overpayment balance of $12,772.66 was repaid to
the SSA.
On January 18, 2007, plaintiff requested a waiver of the
overpayment. The SSA denied that request on June 8, 2007. On
2
August 13, 2007, plaintiff requested an administrative hearing to
resolve the overpayment issue. That hearing was held on February 4,
2009,
before
Administrative
Law
Judge
(“ALJ”)
James
Dombeck.
Plaintiff was represented by counsel at that hearing. On June 12,
2009,
ALJ
Dombeck
issued
an
unfavorable
decision
denying
plaintiff’s request for a waiver of the overpayments. Plaintiff
appealed on July 22, 2009, and on March 25, 2011, the Appeals
Council vacated the ALJ’s decision and remanded the case for
further proceedings, including a new hearing during which plaintiff
could “question the Administration’s Technical Expert.” T. 247–48.
The order directed that “the [ALJ] . . . offer the claimant an
opportunity for a hearing, take any further action needed to
complete the administrative record, and issue a new decision.”
T. 248.
A second hearing, at which plaintiff appeared pro se, was held
before
ALJ
testified
David
at
that
Lewandowski
hearing,
on
as
August
did
23,
Jennifer
2011.2
Plaintiff
Maston,
an
SSA
operations supervisor (“OS”) proficient in SSI. OS Maston testified
at length, in response to questions posed by ALJ Lewandowski and
plaintiff, regarding plaintiff’s SSI overpayments. At the close of
the hearing, the ALJ directed OS Maston to produce documentation
2
The Appeals Council originally assigned Chief ALJ Michael Devlin to
handle the hearing following remand, but due to a scheduling conflict, ALJ
Lewandowski presided over the second hearing.
3
regarding the time period up through July 2002 indicating what
benefits were actually paid and what should have been paid.
A supplemental hearing was held on January 19, 2012, before
ALJ Michael Devlin. Plaintiff testified again, as did OS Maston,
who was questioned by the ALJ and plaintiff. Following the hearing,
ALJ
Devlin
issued
an
unfavorable
decision
on
May
25,
2012.
Specifically, the ALJ found that plaintiff was not without fault
for causing the overpayment, noting that there was “no credible
evidence that [plaintiff] ever reported his actual earnings” during
the relevant time period. T. 23. The ALJ concluded that plaintiff’s
argument that “the overpayment was previously repaid by withholding
his underpayments . . . [was] at odds with [SSA] records.” Id.
Plaintiff
sought
review
of
ALJ
Devlin’s
decision,
which
the
Appeals Council denied on March 19, 2014. This timely action
followed.
III. Discussion
Recovery
of
overpayments
is
governed
by
42
U.S.C.
§ 1383(b)(1), which provides in pertinent part as follows:
The Commissioner of Social Security (i) shall make such
provision as the Commissioner finds appropriate in the
case of payment of more than the correct amount of
benefits with respect to an individual with a view to
avoiding penalizing such individual or his eligible
spouse who was without fault in connection with the
overpayment, if adjustment or recovery on ac-count of
such overpayment in such case would defeat the purposes
of this subchapter, or be against equity and good
conscience[.]
4
42 U.S.C. § 1383(b)(1)(B) (emphasis added). The regulations provide
that recovery
of
an overpayment
is
“against
equity
and good
conscience . . . if an individual . . . [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 . . .” 20 C.F.R. § 404.509(a)(1).
“The Secretary’s determination of whether these factors have
been satisfied may not lightly be overturned.” Valente v. Sec’y of
Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984). The
familiar “substantial evidence” standard of review applies to
actions brought pursuant to § 1383: “[T]he 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 . . . 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, even if it might justifiably have reached a
different result upon de novo review.” Id. Finally, “[t]he burden
of proof to show that waiver of overpayment should be applied falls
on the plaintiff.” Sero v. Comm’r of Soc. Sec., 2014 WL 6606582, *6
(N.D.N.Y. Nov. 19, 2014) (citing Hannon v. Barnhart, 134 F. App’x
485, 487 (2d Cir. 2005)).
Plaintiff contends that he while he collected unemployment
benefits, he was “unaware” of his entitlement to SSI benefits.
5
Doc. 1 at 1. He alleges that he received a back payment of DIB
benefits, totaling $3,495.00, in “early 2003.” Id. at 1-2. He
states that this amount “was considerably less than the original
amount due,” and he interpreted the payment as satisfaction of his
SSI overpayment. Id. at 2 (stating that upon receiving the payment
of $3,495, plaintiff “was relieved that the SSI payment was finally
satisfied.”). Plaintiff’s motion “question[s] the existence of an
overpayment[,] not whether it should be waived or not.” Doc. 8 at
4. The Commissioner responds that substantial evidence supports the
ALJ’s findings that (1) an overpayment existed; and (2) plaintiff
was not without fault in connection with the overpayments. For the
reasons that follow, the Court agrees.
First, the ALJ’s conclusion that an overpayment existed is
supported by substantial evidence in the record. As OS Mastin
noted,
plaintiff’s
failure
to
report
income
resulted
in
an
overpayment of benefits over several years. The SSA was made aware
of plaintiff’s wages during SSI recertification proceedings, not by
plaintiff’s timely informing the SSA of the earnings. At the
January
19,
2012
hearing
held
before
ALJ
Devlin,
OS
Maston
explained, with reference to the record, that the amount of the
overpayment
totaled
$12,644.66.
That
number
represented
the
original overpayment of $14,032.43, less $1,387.77, the amount the
SSA had already recovered. See T. 347, 350-51. The evidence does
not establish that the overpayment was paid and satisfied as of
6
early 2003 as plaintiff argues; to the contrary, as OS Maston
explained in her testimony, the SSA’s records fully support its
conclusion that plaintiff’s overpayment balance totaled $12,644.66.
Second, the ALJ’s decision that plaintiff was not without
fault in connection with the overpayment is likewise supported by
substantial evidence. The plaintiff’s failure to report wages to
the SSA effectively resulted in the overpayments. As the ALJ found,
there simply is no evidence in the record supporting plaintiff’s
contention that he kept the SSA informed of his earnings, nor is
there evidence in the record supporting plaintiff’s belief that his
overpayment was effectively settled as of early 2003. Thus, the ALJ
correctly concluded that plaintiff was not without fault. See,
e.g., Center v. Schweiker, 704 F.2d 678, 680 (2d Cir. 1983) (“No
showing of bad faith is required; rather, an honest mistake may be
sufficient to constitute fault[; moreover, t]he fact that the SSA
may have been at fault in making the overpayment does not relieve
the recipient from liability if the recipient was also at fault.”).
The Court notes petitioner’s argument that OS Maston was not
an “Administrative Technical Expert” and therefore her testimony
did not satisfy the Appeals Council’s March 25, 2011 order. As the
Commissioner points out, however, OS Mastin testified that she was
proficient in SSI matters, including overpayment issues, and that
she had researched the circumstances of plaintiff’s case in order
to testify as to the application of SSI procedure to the facts of
7
the matter. As such, OS Maston constituted an administrative
technical
expert
sufficient
to
satisfy
the
Appeals
Council’s
instructions on remand.
IV.
Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on
the pleadings (Doc. 8) is denied and the Commissioner’s motion
(Doc. 14) is granted. The ALJ’s finding that plaintiff was not
without fault in connection with SSI overpayment is supported by
substantial evidence, and accordingly, the Complaint is dismissed
in its entirety with prejudice.
The Clerk of the Court is directed
to close this case.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
June 6, 2017
Rochester, New York.
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