Evans v. Commissioner Social Security Administration
Filing
19
OPINION & ORDER: The Court Remands this case for further proceedings because the Commissioner's decision is based on legal error. Signed on 7/31/17 by Magistrate Judge Stacie F. Beckerman. (gm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DAVID GUY EVANS,
Case No. 6:16-cv-01692-SB
Plaintiff,
OPINION AND ORDER
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
BECKERMAN, Magistrate Judge.
David Evans (“Evans”) brings this appeal challenging the Commissioner of the Social
Security Administration’s (“Commissioner”) denial of his application for expedited
reinstatement of his disability insurance benefits. The Court has jurisdiction over this matter
pursuant to 42 U.S.C. § 405(g). For the reasons that follow, the Court remands this case for
further administrative proceedings because the Commissioner’s decision is based on a legal
error.
PAGE 1 – OPINION AND ORDER
BACKGROUND
In 1979, Evans was awarded child disability benefits because he met the statutory criteria
for blindness. (Tr. 22.) In September 1992, the Social Security Administration (“SSA”)
determined that Evans continued to meet the criteria for blindness, and therefore approved
Evans’ application for reinstatement of his disability insurance benefits under Title II of the
Social Security Act. (Tr. 160.)
In 1996, Evans earned a juris doctorate from the University of Oregon School of Law.
(Tr. 221.) In 2004, Evans earned roughly $43,000 while working as an attorney at the law firm of
Vincent, Victor, and Evans. (Tr. 162, 221-22.) During 2004, Evans claims that he reduced his
hours and took a reduction in pay “due to increasing health problems,” that he informed a
representative of the SSA about his deteriorating health and impaired ability to work, and that the
SSA representative told him “to continue with [his] benefits until the end of the year in case [he]
could not continue working.” (Tr. 222.) Evans stopped practicing law at the end of the year. (Tr.
222.)
In October 2013, Evans opened a medical marijuana dispensary in Eugene, Oregon,
called “Emerald City Medicinal” or “E.C. Meds.” (Tr. 200, 222.) Evans served as the sole
shareholder of the business and claims to have worked on a part-time basis for no pay. (Tr. 200,
222.) He employed an office manager and “bud tender,” paid independent contractors for
business recommendations, and accepted volunteer work. (Tr. 117.) Evans oversaw the business
operation and had the final say on personnel decisions and vendor selection. (Tr. 117-18.)
PAGE 2 – OPINION AND ORDER
Also in October 2013, the SSA determined that Evans’ eligibility for disability benefits
“ceased effective October 1, 2004, which was the first month in which [Evans] performed
substantial gainful activity . . . after the completion of his trial work period.”1 (Tr. 8.)
In February 2014, Evans applied for reinstatement of his disability benefits and informed
the SSA that he was no longer engaged in substantial gainful activity. (Tr. 8, 257.) In August
2014, the SSA issued a letter explaining why Evans was not entitled to reinstatement of his
disability benefits. (Tr. 144-47.) The letter provided, in relevant part:
One of the basic factors for disability is that your health
problems must keep you from performing any kind of substantial
gainful activity. You told us you own and operate Emerald City
Medicinal . . . . While you report no financial gain from your
business, if you were performing the same function for an
employer, you would receive a paycheck or salary for your work.
Thus, we must determine what your worth of work is. We evaluate
all relevant factors of your work activity, such as hours, skills,
output, efficiency, duties and responsibilities in determining your
work worth.
In your business, you report overseeing the overall
operation of the business, and the burden of any issues falls to you.
You report work activities in this business to include hiring, firing,
choosing the vendors (growers), counseling [customers], and
making financial decisions. Your position and duties indicate you
are making the management decisions for your business, as well as
performing other duties.
State of Oregon occupational guides for Lane County
indicate the average hourly pay for a General and Operations
Manager is $41.58, with an average annual salary of $86,494. You
also told us you worked 30 hours per week at the time you filed the
[February 2014] application for expedited reinstatement. During a
phone call on August 7, 2014, you told us you worked 20 to 25
hours per week. You reported that your conditions cause you
difficulty in getting to the office sometimes, but noted that it is
sometime[s] easier for you to work at home as you have
specialized computer equipment at home. It is reasonable that
1
A “trial work period” is designed to permit a claimant to test his “ability to work and
still be considered disabled.” 20 C.F.R. § 404.1592(a).
PAGE 3 – OPINION AND ORDER
based on your management responsibilities and other duties, your
work hours are closer [to] 30 hours per week. We calculate your
work worth based on $41.58 per hour at 30 hours per week. This
equals $5,405.40 per month. Income related work expenses we
deducted from the work value included $100 per month for your
guide dog. The resulting countable income is $5,305.40.
Substantial gainful activity for blind individuals in 2014 is $1,800
gross per month . . . .
(Tr. 144-45.) In March 2015, Evans executed an agreement to sell eighty percent of his interest
in E.C. Meds. (Tr. 200.)
On July 20, 2015, Evans appeared and testified at a hearing before an Administrative
Law Judge (“ALJ”). (Tr. 236-53.) During the hearing, the ALJ explained that he was concerned
only with whether it was appropriate to reinstate Evans’ disability benefits; that Evans’ benefits
appeared to have been terminated based, in part, on his ownership interest in, and work on behalf
of, E.C. Meds; and that the recent sale of E.C. Meds was “probably going to be sufficient” to
find Evans eligible for reinstatement. (Tr. 239-42.) In response, Evans provided the ALJ with a
copy of the sales agreement he executed in March 2015, and the ALJ made it part of the record.
(Tr. 239-40.) Evans also explained that he worked on a part-time basis for no pay at E.C. Meds,
and agreed to have his co-workers submit statements clarifying the nature of their roles. (Tr. 242,
251.)
On July 26, 2015, Sunshine Dulaney (“Dulaney”), the office manager at E.C. Meds, and
Laura Gibson (“Gibson”), a volunteer, submitted letters in support of Evans’ application for
reinstatement. (Tr. 217-19.) In her letter, Dulaney explained that she has experience caring for
individuals with disabilities, agreed to assist Evans with “functions that were beyond his physical
abilities,” and was “responsible for all day-to-day operations, functions, and decisions” as the
office manager. (Tr. 218.) Specifically, Dulaney stated that she handled cash transactions,
balanced the till, obtained “change as needed from the bank,” negotiated “consignment
PAGE 4 – OPINION AND ORDER
agreements with medicinal growers,” completed “all necessary paperwork for compliance with
the Oregon Health Authority regulations and Oregon Medical Marijuana Programs laws,”
assisted customers, served as the receptionist, ran errands, established “office procedures,” and
handled “inventory” and “loss control.” (Tr. 218-19.) Dulaney also confirmed that Evans worked
“one to three days per week.” (Tr. 218.)
Gibson explained that she had worked for eighteen months as a volunteer and spent “the
bulk” of her volunteer work serving as a bookkeeper, but also tracked the daily activity in the
dispensary to “ensure compliance with state laws and Oregon Health Authority regulations,”
tracked the “activity of individual grower[s] . . . [and] the amounts owed to them for their
cosigned products,” maintained a patient database, created a monthly newsletter, loaned money
to the dispensary, and procured furniture and supplies for the office. (Tr. 217.) Gibson estimated
that she performed approximately forty-two to forty-nine hours of computer work per week,
which was “was not something [Evans] could do.” (Tr. 217.) She added that Evans often times
left work early due to migraines, and at times “spent the majority of the day on the floor in the
back office in the dark because he could not leave [the officer manager] working . . . alone.” (Tr.
217.)
On August 21, 2015, the ALJ issued two decisions: (1) a decision addressing the SSA’s
decision that Evans was no longer disabled as of October 1, 2004 (hereinafter, “the disability
cessation decision”) (Tr. 20-23, 23A); and (2) a decision addressing Evans’ application for
reinstatement of his disability benefits (hereinafter, “the reinstatement decision”). (Tr. 257-59.)
In the disability cessation decision, the ALJ applied the eight-step sequential evaluation
process used for determining whether a claimant continues to be disabled. See 20 C.F.R. §
404.1594(f)(1)-(8). Under the first step of that process, the ALJ will find “disability to have
PAGE 5 – OPINION AND ORDER
ended” if the claimant has engaged in substantial gainful activity and “any applicable trial work
period has been completed.” 20 C.F.R. § 404.1594(f)(1). The ALJ determined that Evans’ trial
work period had been completed, and that his disability ended on October 1, 2004, “the first
month after the completion of the trial work period in which [Evans] engaged in substantial
gainful activity.” (Tr. 22-23.) As support for the latter finding, the ALJ observed that Evans’
earnings records cited self-employment income of $42,490 in 2004, which was “well above the
$16,200.00 threshold for substantial gainful activity for blind individuals in that year.” (Tr. 23.)
The ALJ also stated (in error) that Evans’ 2004 earnings were derived from his marijuana
business. (Tr. 23.)
In his reinstatement decision, the ALJ addressed whether Evans was engaging in
substantial gainful activity and whether Evans’ request for reinstatement was filed within five
years “from the month benefits stopped.” (Tr. 258.) The ALJ found that Evans was engaged in
substantial gainful activity on February 24, 2014, the day he filed a request for reinstatement of
his benefits; Evans executed an agreement to sell his medical marijuana business on March 24,
2015, and thus was no longer engaging in substantial gainful activity as of that date; and Evans’
request for reinstatement was brought within five years of the “agency’s [October 2013] decision
to stop benefits.” (Tr. 259.) Based on these findings, the ALJ determined that Evans became
eligible for reinstatement on March 24, 2015, the day he stopped engaging in substantial gainful
activity.
In letters dated October 14, 2015, Evans sought review of the ALJ’s disability cessation
and reinstatement decisions by the SSA’s Appeals Council. (Tr. 220-26.) On April 15, 2016, the
Appeals Council granted review of the ALJ’s reinstatement decision. (Tr. 227-30.)
PAGE 6 – OPINION AND ORDER
On July 12, 2016, the Appeals Council issued a decision declining to adopt the ALJ’s
reinstatement decision. The Appeals Council concluded that the ALJ erred in finding that Evans
was eligible for reinstatement as of March 24, 2015, because 20 C.F.R. § 404.1592d(d)(1)
provides that a request for reinstatement “must be filed within the consecutive [sixty]-month
period that begins with the month in which entitlement is terminated due to the performance of
[substantial gainful activity].” (Tr. 9.) The Appeals Council went on to explain that: (1) January
2010 was “the last month” in which Evans could have requested reinstatement under 20 C.F.R. §
404.1592d(d)(1), even though the SSA did not terminate his benefits until October 2013; (2)
Evans’ request was filed on February 24, 2014, several years after the January 2010 cut-off date;
(3) the ALJ should have used January 2010 instead of October 2013 as “the controlling date” for
assessing whether Evans’ request was filed within the sixty-month period; and (4) Evans was not
eligible for reinstatement in February 2014 because he was engaged in substantial activity at that
time (i.e., since Evans’ “countable worth of work operating his business was over the [substantial
gainful activity] threshold amounts”) and, therefore, good cause did not exist to excuse Evans’
untimely request for reinstatement of his disability benefits. (Tr. 8-9.)
On August 23, 2016, Evans filed suit in federal court challenging the Appeals Council’s
reversal of the ALJ’s reinstatement decision. (See Compl. ¶¶ 1-4, seeking reversal of the Appeals
Council’s July 12, 2016 decision, and not addressing any final decision on the disability
cessation decision.)
ANALYSIS
I.
STANDARD OF REVIEW
The district court may set aside a denial of benefits only if the Commissioner’s findings
are “‘not supported by substantial evidence or [are] based on legal error.’” Bray v. Comm’r Soc.
Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d
PAGE 7 – OPINION AND ORDER
880, 882 (9th Cir. 2006)). Substantial evidence is defined as “‘more than a mere scintilla [of
evidence] but less than a preponderance; it is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Id. (quoting Andrews v. Shalala, 53 F.3d 1035,
1039 (9th Cir. 1995)).
The district court “cannot affirm the Commissioner’s decision ‘simply by isolating a
specific quantum of supporting evidence.’” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir.
2001) (quoting Tackett, 180 F.3d at 1097). Instead, the district court must consider the entire
record, weighing the evidence that both supports and detracts from the Commissioner’s
conclusions. Id. If the evidence as a whole can support more than one rational interpretation, the
district court must uphold the ALJ’s decision; the district court may not substitute its judgment
for the judgment of the ALJ. Bray, 554 F.3d at 1222 (citing Massachi v. Astrue, 486 F.3d 1149,
1152 (9th Cir. 2007)).
II.
DISCUSSION
Evans argues that the Commissioner erred by finding that he did not demonstrate “good
cause” to excuse his delay in filing his reinstatement application. In support of his argument,
Evans notes that the SSA did not terminate his benefits until October 2013, yet the Appeals
Council found that Evans’ application for reinstatement of benefits was due by January 2010.
Evans correctly points out that it would have been “impossible for [him] to request reinstatement
in [January] 2010 because he was receiving benefits at that time.” (Pl.’s Opening Br. at 4.)
The Code of Federal Regulations lists the following nonexclusive “[e]xamples of
circumstances where good cause may exist”:
(1) You were seriously ill and were prevented from contacting us
in person, in writing, or through a friend, relative, or other person.
(2) There was a death or serious illness in your immediate family.
PAGE 8 – OPINION AND ORDER
(3) Important records were destroyed or damaged by fire or other
accidental cause.
(4) You were trying very hard to find necessary information to
support your claim but did not find the information within the
stated time periods.
(5) You asked us for additional information explaining our action
within the time limit, and within 60 days of receiving the
explanation you requested reconsideration or a hearing, or within
30 days of receiving the explanation you requested Appeal Council
review or filed a civil suit.
(6) We gave you incorrect or incomplete information about when
and how to request administrative review or to file a civil suit.
(7) You did not receive notice of the determination or decision.
(8) You sent the request to another Government agency in good
faith within the time limit and the request did not reach us until
after the time period had expired.
(9) Unusual or unavoidable circumstances exist, including the
circumstances described in paragraph (a)(4) of this section, which
show that you could not have known of the need to file timely, or
which prevented you from filing timely.
20 C.F.R. § 404.911(b) (emphasis added); see also 20 C.F.R. § 404.1592d(d)(1) (“If we receive
your request after the 60–month period we can grant you an extension if we determine you had
good cause under the standards explained in § 404.911 for not filing the request timely.”)
(emphasis added).
The SSA’s Program Operations Manual System (“POMS”), “an internal agency
document used by employees to process claims,” Carillo-Yeras v. Astrue, 671 F.3d 731, 735 (9th
Cir. 2011), also states that good cause can excuse an untimely request for reinstatement: “If the
reason(s) shows that the individual has good cause for missing the deadline, then an extension of
time for requesting [expedited reinstatement] can be given.” POMS DI 13050.010A.2, available
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at https://secure.ssa.gov/apps10/poms.nsf/lnx/0413050010 (emphasis added). The POMS cites
the following example:
An individual files for [expedited reinstatement] in July 2003. The
individual’s entitlement to [disability insurance benefits] should
have terminated in 1997 due to [the performance of substantial
gainful activity]. The [agency field office] makes this
determination in July 2003. The individual has not engaged in
[substantial gainful activity] since 2001. As the individual was not
notified that his or her benefits were terminated until July 2003, the
[agency] field office establishes good cause for the late filing and
processes the [expedited reinstatement] request with a filing date
of July 2003.
POMS DI 13050.010A.2.
The Commissioner acknowledges that she may excuse the untimely filing of an
application for reinstatement based on a finding of good cause. (Def.’s Br. at 4.) However, the
Commissioner argues that a finding of good cause is not mandatory based on the use of the
permissive terms “can” and “may” in the POMS and 20 C.F.R §§ 404.911(b) and
404.1592d(d)(1). (Def.’s Br. at 4-5.) The Commissioner also argues that: (1) Evans’ reliance on
the example provided in POMS DI 13050.010A.2 is unavailing because the POMS “does not
impose judicially enforceable duties on either this court or the ALJ,” Carillo-Years, 671 F.3d at
735 (citation omitted); (2) Evans “could have known that his benefits would cease at the end of
2004” because he was aware of his 2004 earnings and “bore an affirmative responsibility to
inform” the SSA of his earnings, but ultimately failed to do so;2 and (3) even assuming the
Commissioner erred in finding that Evans “was engaged in substantial gainful activity at the time
2
The evidence cited by the Commissioner in support of this assertion actually supports
that Evans informed the SSA of his earnings in 2004. (See Def.’s Br. at 6, citing Tr. 221-22,
“The Social Security Administration’s representative was informed of my income of
$3,000/month,” but advised Evans to “continue with [his] benefits until the end of the year,” in
light of his deteriorating health, reduced hours, and potential departure from the legal field.)
PAGE 10 – OPINION AND ORDER
he filed for expedited reinstatement,” any error was harmless because the Commissioner “was
not required to find good cause to extend Evans’ filing deadline.” (Def.’s Br. at 5-6.)
This appeal boils down to a single question: Is the Appeals Council’s July 12, 2016
determination that Evans lacked good cause for failing timely to file his request for reinstatement
based on legal error? In finding an absence of good cause, the Appeals Council relied on the fact
that Evans’ “countable worth of work operating his business was over the [substantial gainful
activity] threshold amounts.” (See Tr. 9, noting that a claimant is not eligible for reinstatement
unless he is “not able to do” substantial gainful activity “in the month of filing,” finding that
Evans was engaged in substantial gainful activity in the month of filing based on his countable
worth of work, and therefore finding that “good cause for the late filing of the application cannot
be found because [Evans] was not eligible for an expedited reinstatement of his benefits”).
The Code of Federal Regulations sets forth three tests to determine whether a selfemployed claimant has engaged in substantial gainful activity. The first test (“Test One”) asks
whether the claimant rendered “significant services” to, and received “substantial income” from,
the operation of a business. 20 C.F.R. § 404.1575(a)(2)(i). The second test (“Test Two” or the
“comparability” test) assesses whether the claimant’s “work activity, in terms of factors such as
hours, skills, energy output, efficiency, duties, and responsibilities, is comparable to that of
unimpaired individuals” in the claimant’s “community who are in the same or similar businesses
as their means of livelihood.” Id. § 404.1575(a)(2)(ii). The third test (“Test Three” or the “worth
of work” test) assesses the claimant’s “work activity” by, inter alia, comparing it “to the salary
that an owner would pay to an employee to do the work [the claimant is] doing.” Id. §
404.1575(a)(2)(iii).
PAGE 11 – OPINION AND ORDER
The Appeals Council relied on Test Three/the “worth of work” test in finding that Evans
was engaged in substantial gainful activity at the time he filed his request for reinstatement.
However, Social Security Ruling (“SSR”) 83-34, which “clarifie[s]” 20 C.F.R. § 404.1575,
Young v. Barnhart, 415 F. Supp. 2d 823, 827 (M.D. Tenn. 2006), states that “[t]he selfemployment activity of blind persons in 1978 or later . . . should not be evaluated in terms of the
tests of comparability and worth of work[.]” SSR 83–84, 1983 WL 31256, at *10; see also
Young, 415 F. Supp. 2d at 827 (noting that SSR 83-84 is referring to “Tests Two and Three from
§ 404.1575(a)”).
In his opening brief, Evans cited SSR 83-84 in support of his argument that “a blind
person’s ‘worth of work’ cannot, by law, be counted” as substantial gainful activity where the
claimant’s “earnings fall below the threshold” amount for blind individuals. (Pl.’s Opening Br. at
9.) The Commissioner does not dispute the merits of this assertion. Instead, the Commissioner
argues that the Appeals Council’s reliance on the worth of work test constituted harmless error
“because the agency was not required to find good cause to extend Evans’ filing deadline.”
(Def.’s Br. at 6 n.3.) In other words, the Commissioner argues that any error was harmless
because the Appeals Council would have reached the same result based on the use of the
permissive terms “can” and “may” in the POMS and 20 C.F.R §§ 404.911(b) and
404.1592d(d)(1).
The Court is not persuaded by the Commissioner’s argument. Nowhere in its decision did
the Appeals Council state that it was denying Evans’ request for reinstatement simply because it
could. That is significant because, in reviewing an agency action, this Court is constrained to
review only the reasons the agency gave for its decision, not the post hoc justifications advanced
on appeal. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (stating that a reviewing court
PAGE 12 – OPINION AND ORDER
may not affirm an agency ruling for reasons not articulated by the agency). Absent a more
persuasive argument to the contrary, the Court finds that the Commissioner committed legal
error in denying Evans’ request for reinstatement, because SSR 83-84 states that the selfemployment activity of a blind individual should not be evaluated under the worth of work test.
See also Holohan, 246 F.3d at 1202 n.1 (“SSRs do not have the force of law. However, because
they represent the Commissioner’s interpretation of the agency’s regulations, we give them some
deference.” (citing Bunnell v. Sullivan, 947 F.2d 341, 346 n.3 (9th Cir. 1991))).
Furthermore, although the Appeals Council is not required to find that good cause exists,
it must at least address facially legitimate reasons that may constitute good cause under its own
regulations. See Dexter v. Colvin, 731 F.3d 977, 981-82 (9th Cir. 2013) (“[I]f a claimant provides
a facially legitimate reason that constitutes ‘good cause’ under the Commissioner’s regulations,
see 20 C.F.R. § 404.911(b), then due process requires that the [agency] address it.”) (footnote
omitted). As a result of the error discussed above, the Appeals Council did not address Evans’
assertions that: (1) his untimely filing was due to bad advice from an SSA agent (see Tr. 221-22,
noting that Evans wanted to present evidence regarding his conversation with an agent of the
SSA, and arguing that he should not be penalized for his “detrimental reliance on the agent’s
advice, or any lack of action on his part” after being informed of Evans’ earnings); and (2) his
case is no different than the text book example of good cause set forth in SSA’s own guidance
(POMS DI 13050.010A.2). (Tr. 233.) On this record, these appear to be legitimate reasons that
should constitute good cause under SSA’s applicable regulations. See 20 C.F.R. § 404.911(b)
(setting forth a nonexclusive list of “[e]xamples of circumstances where good cause may exist,”
including when “[u]nusual or unavoidable circumstances exists . . . which prevented you from
filing timely”); POMS DI 13050.010A.2 (setting forth an example of good cause that appears
PAGE 13 – OPINION AND ORDER
directly applicable to Evans’ current situation); see also Ellis v. Apfel, 147 F.3d 139, 142 n.3 (2d
Cir. 1998) (“Although the POMS has no legal, binding effect, it is the authorized means for
issuing official SSA policy and operating instructions regarding the agency’s interpretation of
regulations.”).
Having determined that the Commissioner’s decision is based on legal error, the next
issue to address is whether the Court should remand this action for benefits or further
proceedings. “Although a court should generally remand to the agency for additional
investigation or explanation, a court has discretion to remand for immediate payment of
benefits.” Anderson v. Colvin, 223 F. Supp. 3d 1108, 1131 (D. Or. 2016) (citing Treichler v.
Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 2014)). “The issue turns on the
utility of further proceedings.” Id. As explained below, further proceedings are necessary here.
The Appeals Council denied Evans’ request for reinstatement based solely on the fact
that his worth of work amounted to substantial gainful activity in the month of filing and,
therefore, rendered Evans ineligible for reinstatement. The Appeals Council never addressed
Evans’ reasons why good cause exists to excuse his untimely request. This Court declines to
make its own independent findings on issues not addressed in a final agency determination. See
Cummings v. Colvin, No. 9:15-cv-00030, 2016 WL 1399665, at *9 (D.S.C. Mar. 8, 2016)
(explaining that a district court “cannot on appellate review make de novo findings of fact on
issues not addressed [in a final decision]” (citing, inter alia, Bray, 554 F.3d at 1225).
Accordingly, the Court finds that further administrative proceedings are necessary here, both to
PAGE 14 – OPINION AND ORDER
determine: (i) if good cause existed to excuse Evans’ untimely reinstatement application; and (ii)
if so, in what month Evans became eligible for reinstatement.3
The final issue to address is Evans’ request that this Court make “a judicial finding that
the record shows he has not earned over the [substantial gainful activity] threshold amounts since
2004, so that he may apply to the Commissioner for a waiver of his overpayment debt.” (Pl.’s
Opening Br. at 15.) The SSA makes “initial determinations,” which are then “subject to
administrative and judicial review.” 20 C.F.R § 404.902. Such determinations include whether
there has been an overpayment of benefits and whether the overpayment must be repaid to the
agency. Id. § 404.902(j)-(k). Before an initial determination is ripe for federal court review, a
claimant must complete an administrative review process. Id. § 404.900(a)(5). In this case, the
agency has not made an initial determination about whether there has been an overpayment or
whether it must be repaid. (See Def.’s Br. at 11, “The record does not show even an initial
determination of overpayment, let alone a final decision, nor does Evans claim to have one.”).
Accordingly, the Court declines Evans’ request to weigh-in on an issue that is not ripe for
review.
///
///
///
3
The Commissioner argues that further proceedings are also necessary because “[t]he
record shows [Evans] had not filed any tax returns for [his] business.” (Def.’s Br. at 6, citing Tr.
122.) The Commissioner claims that “[w]ithout this information and only [Evans’] bare
assertions to go on, the agency cannot ensure Evans met the requirements for expedited
reinstatement.” (Def.’s Br. at 6-7.) In response, Evans claims that the Commissioner has failed to
“point to any requirement that applicants must file tax returns, nor to any reason to believe his
tax returns would provide useful information given the record as it stands[.]” (Pl.’s Reply Br. at
8.) The Court concludes that it need not address this issue in light of the disposition set forth
above.
PAGE 15 – OPINION AND ORDER
CONCLUSION
For the reasons stated, the Court remands this case for further proceedings because the
Commissioner’s decision is based on legal error.
IT IS SO ORDERED.
DATED this 31st day of July, 2017.
STACIE F. BECKERMAN
United States Magistrate Judge
PAGE 16 – OPINION AND ORDER
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