GLOSEMEYER v. COLVIN
Filing
18
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE L. PATRICK AULD signed on 10/13/2015, RECOMMENDED that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 11 ) be denied and that the Commissioner's Motion for Judgment on the Pleadings (Docket Entry 16 ) be granted. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LEO F. GLOSEMEYER,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.
1:14-CV-00414
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Leo F. Glosemeyer brought this action pursuant to
the Social Security Act (the “Act”) to obtain judicial review of a
final
decision
of
the
Commissioner
of
Social
Security
(the
“Commissioner”), requiring him to repay social security benefits
that
he
received
beginning in 1989.
as
the
result
of
(Docket Entry 1.)
a
series
of
overpayments
The parties filed cross-
motions for judgment on the pleadings (Docket Entries 11, 16) as
directed (Docket Entry 9).
Along with the parties’ motions, the
Court has before it the certified administrative record (cited
herein as “Tr. ___”).
(Docket Entry 8.)
For the reasons that
follow, the Court should enter judgment for the Commissioner.
I. BACKGROUND
In January 1989, Plaintiff filed an application for spouse’s
insurance benefits on his wife’s record.
(Tr. 20, 27.)1
In that
application, “[Plaintiff] disclosed that he received a government
pension based on earnings not subject to FICA taxation” (the “noncovered pension”).
(Tr. 20; see also Tr. 24-25, 27.)
Based on
that application, the Social Security Administration (the “SSA”)
found Plaintiff eligible to receive spouse’s benefits effective
January 1989.
(Tr. 20, 27.)
Pursuant to 20 C.F.R. § 404.408a, however, the SSA should have
applied
the
government
pension
offset
(the
“GPO”)
to
reduce
Plaintiff’s spouse’s benefit amount to zero (Tr. 20) because
Plaintiff was entitled “to a pension that was not covered under
Social Security and two-thirds of the amount of [his non-covered]
pension exceed[ed] the full amount of [the] monthly Social Security
[spouse’s] benefit” (Tr. 27; see Tr. 20; 20 C.F.R. § 404.408a(b)(d).)
To obtain an exemption from the GPO, a male claimant must
have been eligible for a government pension before December 1982
and must have received at least one-half support from his spouse at
the
time
he
404.408a(b)(2).
applied
for
spouse’s
benefits.
20
C.F.R.
§
Although Plaintiff met the first criteria, he did
not meet the second criteria because his wife did not provide at
1
“Spouse’s benefits are Social Security benefits [an
applicant] receive[s] as a wife, husband, [or] widow(er) . . . .”
20 C.F.R. § 404.408a(a)(1)(iii).
2
least
one-half
benefits.
When
of
his
support
when
he
applied
for
spouse’s
(Tr. 27.)
his wife
passed
away
in
2008, Plaintiff
filed
for
benefits on his own record and began receiving monthly widower’s
benefits.
(Tr. 20, 135.)
Plaintiff later applied for retirement
insurance benefits, and “during the course of adjudication of that
claim,” the SSA discovered its earlier mistake of not reducing
Plaintiff’s spouse’s benefits under the GPO provision.
(Tr. 20,
24-25.) From 2009 through 2011, Plaintiff received varying notices
about the amount of benefits for which he qualified under his own
record and the amount of overpayment he received on his wife’s
record. (Compare Tr. 133-34 (May 3, 2009 letter advising Plaintiff
that he might qualify for more benefits on his own retirement
record), and Tr. 127-28 (November 6, 2009 letter advising Plaintiff
of his entitlement to more benefits based on earnings the SSA had
not considered), with Tr. 120-23 (December 19, 2009 letter advising
Plaintiff that he owed $3,424.00 due to overpayment on his social
security number), and Tr. 87-90 (March 26, 2011 letter advising
Plaintiff that he owed $18,511.50 due to overpayment of benefits on
his wife’s record).)
Ultimately, the SSA determined that Plaintiff should not have
received benefits on his wife’s record.
(Tr. 27-30.)
The SSA
further determined that it could not correct the January 1989
benefit award because that award occurred more than four years
3
before the SSA discovered the error.
(Tr. 24-25, 27.)
In December
1989, however, Plaintiff received a cost of living adjustment
(“COLA”) to his non-covered pension, which was not reported to the
SSA.
(Tr. 20.)
Pursuant to the SSA’s Program Operations Manual
System (“POMS”), “the COLA was unreported new information that
changed
the
factual
situation”
regarding
that
award,
which
permitted “a reopened and revised initial determination effective
December 1989.”
(Tr. 20, 24-25 (citing POMS GN 04030.090).)2
Consequently, the SSA corrected the record as of December 1989,
determining that the GPO applied and disentitled Plaintiff to
spouse’s
benefits,
$18,511.50.
such
that
he
received
an
overpayment
of
(Tr. 27-28.)
On March 26, 2011, the SSA notified Plaintiff by letter of its
determination.
(Tr. 27-30.)
Plaintiff requested reconsideration
of the SSA’s decision to recover the overpayment, but the SSA
upheld its decision on June 20, 2011.
(Tr. 34-37.)
Plaintiff
appealed the SSA’s decision to an Administrative Law Judge (the
“ALJ”).
(Tr. 19-23.)
The ALJ held a hearing on April 19, 2012, at
which Plaintiff appeared with counsel.
(Tr. 19, 138.)
On April
26, 2012, the ALJ issued a decision finding that Plaintiff did not
mislead the SSA and that “there is no question that [Plaintiff] is
2
The SSA uses POMS in processing benefit claims. See Wilson
v. Apfel, 81 F. Supp. 2d 649, 653 (W.D. Va. 2000) (“The POMS
guidelines represent the Commissioner’s interpretation of the
governing statutes and regulations, and so are entitled to some
deference.”).
4
without
fault
in
regard
to
the
overpayment.”
(Tr.
21.)
Nevertheless, the ALJ concluded that the SSA had assessed an
overpayment for the period from 1989 through 2010 in the amount of
$18,511.50, and no grounds for waiver of repayment existed.
(Tr.
21-22.)
Plaintiff appealed the ALJ’s decision to the Appeals Council
(Tr. 8-15), which rendered a decision on March 25, 2014, denying
Plaintiff’s request for review (Tr. 3-6).
As a result, the ALJ’s
decision became the Commissioner’s final decision.
See Wilkins v.
Sec’y of D.H.H.S., 953 F.2d 93, 96 (4th Cir. 1991).
Plaintiff
thereafter
filed
the
current
judicial review of the Commissioner’s decision.
action
to
obtain
(Docket Entry 1.)
The Court ordered the matter heard on cross-motions for judgment on
the pleadings in accordance with Federal Rule of Civil Procedure
12(c).
(Docket Entry 9.)
Plaintiff filed his Motion for Judgment
on the Pleadings (Docket Entry 11), and the Commissioner filed its
Motion for Judgment on the Pleadings (Docket Entry 16).
II. DISCUSSION
Federal law authorizes judicial review of the Social Security
Commissioner’s
final
decisions.
42
U.S.C.
§
405(g).
When
reviewing the Commissioner’s decision to deny a request for waiver
of repayment of overpaid social security benefits, “[t]he [C]ourt
must affirm the denial of [the] request for waiver of repayment if
substantial evidence supports the decision and the Commissioner has
5
committed no error of law.”
Banuelos v. Chater, 974 F. Supp. 652,
656 (N.D. Ill. 1997). Plaintiff has not established entitlement to
relief under that standard.
A. Standard of Review
“Substantial evidence means ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’”
Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting
Richardson v. Perales, 402 U.S. 389, 390 (1971)).
“It consists of
more than a mere scintilla of evidence but may be somewhat less
than a preponderance.”
Mastro v. Apfel, 270 F.3d 171, 176 (4th
Cir. 2001) (alteration and internal quotation marks omitted). “The
findings of the Commissioner [] as to any fact, if supported by
substantial evidence, shall be conclusive.”
“Concerning
questions
[Commissioner’s]
of
law,
interpretation
deference
of
governing the program it administers.”
42 U.S.C. § 405(g).
is
statutes
given
and
to
the
regulations
Broeckert v. Sullivan, 751
F. Supp. 1361, 1362 (W.D. Wis. 1990) (citing Rosado v. Wyman, 397
U.S. 397, 415 (1970)); see also Elshinnawy v. Comm’r of Soc. Sec.
Admin., 244 F. App’x 459, 461-62 (3d Cir. 2007) (“Because Congress
has delegated to the Commissioner the responsibility to administer
complex
benefits
programs,
we
defer
to
the
Commissioner’s
interpretation of Social Security legislation, as long as it is
reasonable and not arbitrary and capricious.” (citing Sanfilippo v.
Barnhart, 325 F.3d 391, 393 (3d Cir. 2003))).
6
“The reviewing court may not substitute its own judgment for
that of the [Commissioner] or reweigh the evidence; nor may the
court
simply
rubber-stamp
Banuelos, 974 F. Supp. at 656.
entire
record
to
determine
the
[Commissioner]’s
decision.”
Instead, the Court must review the
whether
evidence
supports
Commissioner’s decision to deny waiver of repayment.
the
See id.
“[W]here reasonable minds could differ in construing the evidence,
the [C]ourt must defer to the Commissioner’s decision.”
Id.
B. Analysis
Plaintiff asserts three bases for reversing the Commissioner’s
decision and waiving recovery of the overpaid social security
benefits:
(1) pursuant to 20 C.F.R. §§ 404.510a and 404.512(a),
Plaintiff’s lack of fault and reliance upon erroneous information
from the SSA precludes recovery (Docket Entry 12 at 3-8); (2) the
application of the GPO violates the Constitution (id. at 8-9); and
(3)
“[s]ubstantial
evidence
in
the
record
supports
the
determination that recovery of [the overpayment] is against equity
and good conscience” (id. at 10-12).
1. Application of 20 C.F.R. §§ 404.510a and 404.512(a)
The parties do not dispute, that under the SSA’s regulations,
Plaintiff received an overpayment of $18,511.50 in benefits from
December 1989 through February 2010.
see also Tr. 27-30.)
(See Docket Entries 12, 17;
Similarly, the parties agree that Plaintiff
was “without fault” in receiving the overpaid benefits.
7
(Docket
Entry 12 at 3; Docket Entry 17 at 8.)
Plaintiff, however, contends
that the Commissioner failed to apply the analysis required under
20 C.F.R. §§ 404.510a and 404.512(a) to determine whether the
overpayment is deemed waived.
(Docket Entry 12 at 3-8.)
In
response, the Commissioner argues that those regulations do not
apply here because Plaintiff did not rely on information from the
SSA in accepting any overpayment.
(Docket Entry 17 at 11.)
The Act permits waiver of overpayment “from[] any person who
is without fault if such adjustment or recovery would defeat the
purpose of [title II of the Act] or would be against equity and
good
conscience.”
42
U.S.C.
§
404(b);
accord
20
C.F.R.
§
404.506(a); see also Thomas v. Sullivan, Civ. Action No. 90-2058,
1991
WL
4642,
at
*1
(4th
Cir.
Jan.
23,
1991)
(unpublished)
(affirming district court’s denial of waiver finding claimant at
fault).
“Where an individual . . . accepts [an] overpayment
because of reliance on erroneous information from
an
official
source within the [SSA] . . . with respect to the interpretation
of a pertinent provision of the [] Act or regulations pertaining
thereto, . . . such individual, in accepting such overpayment, will
be
deemed
to
be
without
fault,”
20
C.F.R.
§
404.510a,
and
“adjustment or recovery will be waived since it will be deemed such
adjustment or recovery is against equity and good conscience,” 20
C.F.R.
§
404.512.
“Thus,
someone
who
relies
on
erroneous
information from an official source [within the SSA] meets both
8
requirements for waiver set forth in 42 U.S.C. § 404(b):
he or she
is without fault, and recovery would be against equity and good
conscience.”
Gladden v. Callahan, 139 F.3d 1219, 1223 (8th Cir.
1998) (emphasis in original).
“Such reliance necessarily involves some affirmative action by
the over-paid claimant, some change in the claimant’s position, as
a result of the erroneous information.”
Beaudry v. Sec’y of
H.H.S., Civ. Action No. 90-30093-F, 1991 WL 319161, at *7 (D. Mass.
Sept. 24, 1991) (unpublished) (footnote omitted).
Some “[c]ourts
are quite liberal in finding the requisite level of reliance,”
concluding that “even mere receipt and exhaustion, for ordinary
living expenses, of the overpaid monies may prove sufficient.” Id.
To support his position, Plaintiff heavily relies on Gladden
(Docket Entry 12 at 7-8), a case in which the claimant altered his
social life and maintained his work schedule in reliance on the
ALJ’s interpretation of “substantial gainful activity.”
Gladden,
139 F.3d at 1221-22. Specifically, the ALJ incorrectly advised the
claimant that “he would be all right, so to speak, as long as he
did not work 40 hours a week.”
Id. at 1222.
Under those
circumstances, the court deemed recovery of the claimant’s overpaid
social security benefits waived under 20 C.F.R. §§ 404.510a and
404.512(a), concluding that the claimant had relied on the ALJ’s
guidance for years in attempting to comply with the agency’s
regulations and the record lacked any “evidence of when (if ever)
9
[the claimant] began working 40 hours a week, enough to qualify him
as not disabled under the definition he had been given [by the
ALJ].”
See id. at 1223; see also Wiles v. Colvin, 13 F. Supp. 3d
1007, 1014-15 (D. Neb. 2014) (finding waiver where mother accepted
overpayments on her children’s behalf in reliance on repeated
misinformation from official SSA sources and used that money to pay
expenses she would not have incurred had she known that she would
have to repay the money).
Here, Plaintiff generally contends that the SSA’s “confusing
and
conflicting
language
contained
in
the
two
years
of
correspondence [from 2009 though 2011] alone constitutes erroneous
information regarding provisions of the Act,” and that he “relied
on [those] repeated communications . . . regarding [his] benefits.”
(Docket Entry 12 at 8.) Assuming, arguendo, that the SSA’s notices
constitute
“erroneous
information
from
an
official
source,”
Plaintiff does not specify which, if any, of the communications he
relied upon in accepting an overpayment that would qualify him for
waiver under 20 C.F.R. §§ 404.510a and 404.512(a).3
3
To qualify as having received information from an official
source, “a claimant must make actual inquiry with respect to either
the law or an entitlement to benefits under the law.” Beaudry,
1991 WL 319161, at *8. Supplemental letters outlining a claimant’s
entitlement to benefits and a benefit increase which make no
explicit or specific interpretation of a pertinent provision of the
Act do not constitute information from an official source within
the SSA. Valley v. Comm’r of Soc. Sec., 427 F.3d 388, 393 (6th
Cir. 2005) (“[B]enefit notices sent with benefit checks do not
constitute interpretations of the Act or regulations . . . .”).
10
Rather, the overpayments began in December 1989 and lasted
until February 2010.
(Tr. 28.)
Plaintiff did not receive a
confusing or conflicting notice about his entitlement to spouse’s
benefits until 2009, (see Docket Entry 12 at 4-5), and did not
“contact[] the [SSA] to discuss his . . . government pension
information” and spouse’s benefits until August 2009 (id. at 4; Tr.
24-26).
The SSA, therefore, sent its notices after Plaintiff
received
spouse’s
benefits
for
nearly
20
years,
undercutting
Plaintiff’s contention that he relied on the SSA’s confusing and
conflicting notices to accept the overpayments.
See Fout v.
Astrue, No. 5:10-CV-132, 2011 WL 7989958, at *7 (N.D.W. Va. Oct. 6,
2011)
(unpublished)
(“Even
assuming
that
either
ALJ
provided
erroneous information about what type of income is considered [in
determining eligibility for the benefits], [the plaintiff] did not
rely on these statements in accepting the overpayments because
these statements would have been made after the period at issue
during which [the plaintiff] continued to receive [benefits].”
(emphasis in original)).
When examining this point, the ALJ
considered that the overpayment arose entirely through
administrative error, . . . [and] the confusing and
conflicting notices that [Plaintiff] received from the [SSA]
. . ., as well as the length of the overpayment period and the
fact that although the overpayment period begins in December
1989, the period was not established until more than 20 years
later.
Nevertheless, [the ALJ found] no indication that
[Plaintiff] changed his financial position for the worse in
reliance on the overpaid benefits, that he gave up any
valuable financial consideration in reliance on the overpaid
11
benefits, that he used the benefits in question to purchase
goods or services that he would not otherwise have purchased,
or that his lifestyle was appreciably different having
received the benefits in question as compared to what it would
have been had he not received them.
(Tr. 22. (emphasis added).)
In addition, when questioned by the
ALJ, Plaintiff initially denied having been misled by the SSA (Tr.
144), and his attorney stated “for the record that it’s not so much
that [Plaintiff] felt the [SSA] actively misled him as that” making
the initial determination in 2011 for a benefit begun in 1989 is
“just purely unfair.”
(Tr. 147.)
In sum, the record establishes
that Plaintiff did not rely upon any erroneous information from an
official source in accepting the overpayments.4
Accordingly, the
ALJ committed no error by refraining from applying 20 C.F.R. §§
404.510a and 404.512(a) in this case.
2. Constitutional Challenge
Plaintiff next challenges the constitutionality of the “onehalf support test” under 20 C.F.R. § 404.408a(b), asserting that
applying the gender-based exception to recover overpayments he
received through no fault of his own violates the constitutional
standard recognized in Heckler v. Mathews, 465 U.S. 728 (1984).
(Docket Entry 12 at 9.)
In that decision, the Supreme Court
4
Plaintiff also does not argue that he altered his position,
vis-à-vis the $18,511.50, in reliance on any of the SSA’s 2009-2011
letters. (See Tr. 144-45.) Notably, Plaintiff did not receive
overpayments after February 2010 (Tr. 88) and he did not
communicate or receive notices from the SSA about the overpayment
issue until late 2009 (see Tr. 24-26, 124-26).
12
explained that, “[p]rior to December 1977, [spouse’s] benefits were
only payable to those husbands or widowers who could demonstrate
dependency on their wage-earning wives for one-half of their
support.
Wives and widows, on the other hand, were entitled to
spous[e’s] benefits without any such showing of dependency on their
husbands.”
Court
Heckler, 465 U.S. at 731.
invalidated
that
In March 1977, the Supreme
gender-based
distinction,
Califano
v.
Goldfarb, 430 U.S. 199 (1977), because it violated the equal
protection
component
of
the
Due
Process
Amendment, Heckler, 465 U.S. at 730-31.
Clause
of
the
Fifth
To avert feared resulting
fiscal problems for the Social Security trust fund, Congress
enacted
the
GPO
provision,
which
generally
reduces
spouse’s
benefits by the amount of any government pensions the applicant
receives.
Id. at 732.
Congress, however, also recognized that some individuals,
mostly women but also dependent men, “had retired or were about to
retire and [] had planned their retirements in reliance on their
entitlement, under pre-1977 law, to spous[e’s] benefits unreduced
by government pension benefits.”
Id. at 733.
To protect the
reliance interests of this group, Congress included an exception to
the GPO that “provides a five-year grace period for all women who
retire within five years of the enactment, and for men” who could
demonstrate dependency on their wage-earning wives for one-half of
their support.
Id. at 736 (internal quotation marks omitted).
13
Although
this
exception
temporarily
revived
the
gender-based
classification invalidated in Goldfarb, the Heckler Court upheld
the classification as “directly and substantially related to the
important governmental interest of
protecting individuals who
planned their retirements in reasonable reliance on the law in
effect prior to [the Goldfarb] decision.”
Here,
Plaintiff
retired
in
government pension prior to 1982.
1980
Id. at 750-51.
and
could
collect
his
(Docket Entry 12 at 8-9; Tr. 24-
25, 27.) Therefore, Plaintiff could have qualified for the genderbased exception to the GPO if he received one-half support from his
wife.
See 20 C.F.R. § 404.408a(b)-(c).
Plaintiff does not dispute that he failed the one-half support
test when he initially applied for spouse’s benefits, such that he
lacked
entitlement
miscalculation.
to
spouse’s
benefits,
(See Docket Entry 12.)
but
for
the
SSA’s
In short, the pension
offset exception never applied to Plaintiff’s case, because he did
not receive one-half support from his wife.
(Tr. 27.)
When
Plaintiff first applied for spouse’s benefits in 1989, Heckler
already had upheld this gender-based exception.
at 750-51.
See id. 465 U.S.
Moreover, Heckler held that Congress acted pursuant to
legitimate goals (of protecting the reliance interests of people
retiring or planning their retirements based on pre-1977 law) that
outweighed a gender-based equal protection challenge.
Id.
Those
considerations have not changed since the decision in Heckler.
14
Clark v. Shalala, Civ. Action No. C-2-93-640, 1994 WL 160123, at
*3-4 (S.D. Ohio Jan. 25, 1994) (unpublished) (rejecting similar
constitutional challenge).
Because Heckler controls, the Court
should not find the one-half support test unconstitutional.
See
id.
3. Equity and Good Conscience
Plaintiff next seeks waiver of recovery of the overpayments by
applying the ordinary, contemporary, and common meaning of the
phrase “against equity and good conscience.”
(Docket Entry 12 at
11.) In response, the Commissioner maintains that the Court should
apply the specific regulatory definition of that phrase and that,
under the regulatory definition, substantial evidence supports the
ALJ’s finding that recovery of the overpayment is not “against
equity and good conscience.”
(Docket Entry 17 at 10.)
The Act waives recovery of overpayment for an individual
without fault in causing an overpayment, if recovery would be
against equity and good conscience.
§ 404.506(a).
42 U.S.C. § 404(b); 20 C.F.R.
The regulations further define such recovery as
situations in which 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
individual’s change of position suffices, “as long as it involves
an expenditure which would not have been made but for the incorrect
15
benefit payment.”
Cucuzzella v. Weinberger, 395 F. Supp. 1288,
1298 (D. Del. 1975) (citing 20 C.F.R. § 404.509, example 4).
Where
benefits “are merged with common funds, but other money is spent in
a way in which it would not have been but for the receipt of the
benefits,
the
satisfied.”
reliance
Id.
standard
Moreover,
of
the
“[t]he
regulation
individual’s
will
be
financial
circumstances are not material to a finding of against equity and
good conscience.”
20 C.F.R. § 404.509(b).
Plaintiff contends that, as applied here, “against equity and
good conscience” should reach beyond the regulatory definition to
encompass “the spirit and habit of fairness and justness and the
sense of right or wrong together with a feeling of obligation to do
or be that which is recognized as good.”
(Docket Entry 12 at 11
(citing Groseclose v. Brown, 809 F.2d 502, 505 (8th Cir. 1987)).)
Without Fourth Circuit authority applying this understanding in SSA
matters, the Court should not stray from the regulatory definition
of the phrase.
See Seigler v. Sec’y of H.H.S., Civ. Action No.
3:85-2965-14(H), 1986 WL 83453, at *3 (D.S.C. Nov. 28, 1986)
(applying regulatory definition of equity and good conscience and
finding no evidence in the record to show “that the plaintiff
incurred debts or made substantial purchases she would not have
made except for the overpaid benefits, nor that she forfeited a
valuable right by relying upon the benefits”); but cf. Quinlivan v.
Sullivan, 916 F.2d 524, 526–27 (9th Cir. 1990) (applying broader
16
concept of fairness and ordinary meaning of statutory language to
take into account facts and circumstances of each case); Stolzfus
v. Astrue, Civ. Action No. 11-6056, 2013 WL 1842237, at *5 (E.D.
Pa.
May
1,
2013)
(unpublished)
(following
plain
language
of
statute, which allows courts discretion to determine when to waive
overpayment).
In the only case Plaintiff cites on point (see Docket Entry 12
at 11), the claimant was ordered to repay insurance benefits for
his daughter who did not live with him.
503.
Groseclose, 809 F.2d at
The claimant’s daughter became ineligible for benefits
because she did not maintain full-time enrollment at an educational
institution.
enrollment
Id.
status
The claimant neither knew of his daughter’s
or
receipt
overpayments in question.
of
benefits,
Id. at 506.
nor
received
the
Under those facts, the
Eighth Circuit utilized the common, ordinary meaning of “against
equity and good conscience,” because it found the regulatory
definition too narrow.
Shortly
after
the
Id.
decision
in
Groseclose,
however,
the
regulations were amended to provide for the “Groseclose” fact
pattern.
Rules and Regulations, Dep’t of H.H.S., 53 FR 25481-02
(Jul. 7, 1988); see 20 C.F.R. § 404.509(a)(2) (“Recovery of an
overpayment is against equity and good conscience . . . if an
individual — (2) Was living in a separate household from the
overpaid person at the time of the overpayment and did not receive
17
the overpayment.”). When amending the regulatory definition of the
phrase, the agency declined to adopt its common, ordinary meaning
as applied in Groseclose.
In deference to the Commissioner’s
interpretation, the Court should therefore apply the regulatory
definition of “against equity and good conscience” here.
See
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
837, 844 (1984) (“[A] court may not substitute its own construction
of a statutory provision for a reasonable interpretation made by
the administrator of an agency.”).
As the ALJ acknowledged, “this is a difficult case, both from
the standpoint of the technical issues involved, the length of the
overpayment period, and the late date of the establishment of the
overpayment.”
(Tr. 20.)
Nevertheless, based on the complete
record, the Court should find that recovery of the overpayments is
not
against
equity
404.509(a)(1).
Of
and
good
particular
conscience.
note,
when
See
the
20
ALJ
C.F.R.
§
questioned
Plaintiff on whether recovery would be “against equity and good
conscience,” the following dialogue ensued:
Q With respect to the . . . $18,511 [overpayment], . . . what
did you do with the money?
. . .
A -- some went to savings and others for normal living
expenses.
. . .
Q So, what would you not have bought if you had not had this
money? . . .
A Oh, I would have lived the same way without the money as I
did.
. . .
Q There wasn’t anything that you could say that you wouldn’t
18
have bought if you didn’t have the money?
A No, that’s right.
Q Okay.
So, it really just went into your general living
arrangements?
A Correct.
Q And you didn’t buy anything special with this money that you
wouldn’t have otherwise bought?
A That’s right, sir.
(Tr. 143-44.)
Given Plaintiff’s repeated insistence that he did not change
his position for the worse and the absence of evidence that
Plaintiff released a valuable right in reliance on the overpayment,
the record supports the finding that recovery of the overpayment is
not against equity and good conscience. Moreover, the ALJ properly
considered all relevant regulatory factors and adequately explained
the reasons for his determinations. For these reasons, Plaintiff’s
instant assignment of error must fail.
III. CONCLUSION
Plaintiff has not established entitlement to relief.
IT
IS
THEREFORE
RECOMMENDED
that
Plaintiff’s
Motion
for
Judgment on the Pleadings (Docket Entry 11) be denied and that the
Commissioner’s Motion for Judgment on the Pleadings (Docket Entry
16) be granted.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 13, 2015
19
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