Robson v. Commissioner of Social Security Administration

Filing 36

ORDER re 31 REPORT AND RECOMMENDATIONS re 1 Complaint - Social Security, filed by Franklin E Robson. The Court declines to adopt the Magistrate Judge's Report and Recommendation. The Commissioner's decision is affirmed. Signed by Honorable Margaret B Seymour on 9/22/2011. (aswi)

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Franklin E. Robson,

)
)
Plaintiff,
)
)
vs.
)
)
Michael J. Astrue,
)
Commissioner of Social Security
)
Administration,
)
)
Defendant.
)
______________________________)

Civil Action No. 3:09-CV-2553-MBS

ORDER AND OPINION

On September 30, 2009, Plaintiff Franklin E. Robson filed the present action pursuant to 42
U.S.C. § 405(g) of the Social Security Act seeking judicial review of a final decision of Defendant
Commissioner of Social Security Administration (the “Commissioner”) denying Plaintiff’s request
for waiver of an overpayment of disability insurance benefits (“DIB”) in the amount of $30,782.90.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rules 73.02(B)(2)(a) and 83.VII.02 et seq.,
D.S.C., this matter was referred to United States Magistrate Judge Joseph R. McCrorey for pretrial
handling.
Plaintiff’s substantive brief is only one paragraph long, stating his intent to file a
“Supplemental Plaintiff’s Brief” in support of
an Amended Complaint alleging causes of action in that the Administrative Law
Judge abused his discretion, errors in the findings due to a lack of evidence, errors
of law arising therefrom, that a procedural issue is involved that may affect the
public interest, and omitted evidence from the transcript of this case that may alter
any findings by this Court arising therefrom.
ECF No. 19. Plaintiff filed no further substantive memoranda elaborating upon any of these
allegations, although in his “Motion to Enlarge Time” he did refer to his “difficulties in completing
research and drafting pleadings and continued mental illness.” ECF No. 22. Plaintiff’s complaint

reveals that he does not contest the Commissioner’s finding that he was overpaid or the calculated
amount of overpayment. See ECF No. 1 at 4-5. Plaintiff only challenges the denial of his request
for waiver of repayment. Id. Because Plaintiff is proceeding as a pro se litigant, the Court is bound
to construe his pleadings liberally. The Magistrate Judge construed Plaintiff’s filings as arguing that
“the ALJ’s decision is not supported by substantial evidence,” ECF No. 31 at 4. Plaintiff does not
object to the Magistrate Judge’s characterization.
On June 28, 2011, the Magistrate Judge issued a Report and Recommendation (“R&R”)
recommending that the Commissioner’s decision to deny Plaintiff’s request for waiver of
overpayment be reversed and remanded. ECF No. 31. On July 14, 2011, the Commissioner filed
a brief objecting to the R&R and requesting that the Court affirm the Commissioner’s decision. ECF
No. 35. Plaintiff did not file a reply.
The Magistrate Judge makes only a recommendation to this Court. The recommendation has
no presumptive weight. The responsibility for making a final determination remains with this Court.
Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court may accept, reject, or modify, in whole
or in part, the recommendation made by the Magistrate Judge or may recommit the matter to the
Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). The Court is obligated to conduct a de
novo review of every portion of the Magistrate Judge’s report to which objections have been filed.
Id. For the reasons set forth below, the Court rejects the Magistrate Judge’s recommendation and
affirms the decision of the Commissioner.
I. FACTS
A.

Background
Plaintiff first filed an application for DIB under the Social Security Act in September 1994,

2

alleging disability since August 31, 1992, due to major depression. R. 31. After an initial denial,
Plaintiff was found to be disabled by an ALJ in an August 29, 1996 opinion, with an onset date of
August 27, 1992. R. 31-36. Plaintiff received benefits on his own behalf and on behalf of his minor
children. R. 114-16. Plaintiff did not receive benefits for the period between May 5, 1994, and May
3, 1995, because he was incarcerated for a felony. R. 35.
Plaintiff began working as an instructor at Trident Technical College (“Trident”) on an
independent contractor basis in late 1996. R. 103. His contracts were for a single semester only
with no guarantee of future work, and were contingent upon successful completion of his classes for
the semester. Id. On June 15, 1999, Plaintiff was hired by Trident as a permanent employee with
an annual salary of $58,000.00 and a two-year probation period. R. 103-104.
On January 25, 2000, Plaintiff received a letter from the Social Security Administration
(“SSA”), apparently in response to his request, verifying that he was considered 100% disabled and
had been receiving DIB continuously since September 1993. R. 42. On February 21, 2000, Plaintiff
filed a “Report of New Information” with the SSA stating that he had returned to work on June 15,
1999 and had earned more than $700 per month since then. R. 175. On May 1, 2000, the SSA
informed Plaintiff that a Continuing Disability Work Review was being conducted. R. 43. On May
18, 2000, a Trident Human Resources Specialist wrote a letter to the SSA explaining that Plaintiff
had worked as an independent contractor from late 1996 until being hired as a permanent employee
and listing Plaintiff’s earnings during this period. R. 103. On May 30, 2000, Plaintiff completed
a “Work Activity Report” describing his work for Trident as an independent contractor between
October 1996 and June 1999. R. 105. In a letter dated December 7, 2000, the SSA advised Plaintiff
to stop cashing DIB checks if he was still working. R. 44.

3

In April 2003, the SSA determined that Plaintiff’s trial work period1 lasted from June 1996
until February 1997. R. 55. Accordingly, Plaintiff’s disability was found to have ceased in March
1997. Id. The SSA also determined that Plaintiff’s extended period of eligibility2 for DIB began
March 1997 and ended June 2001. Id. Because Plaintiff continued to work after his extended period
of eligibility ended, his entitlement to DIB terminated June 2001.

See 20 C.F.R. §

404.1592a(a)(3)(i). The SSA determined that Plaintiff was not entitled to the benefits he had
received from June 1997 to December 1997 and from June 1998 to June 1999, during his extended
period of eligibility, because he had worked during these months. R. 58. As a result, the SSA found
that Plaintiff had been overpaid. R. 60-65.
In a form dated February 11, 2004,3 Plaintiff requested a waiver of his overpayment,
checking a box on the form indicating “[t]he overpayment was not [his] fault and [he] cannot afford
to pay the money back and/or it is unfair for some other reasons.” R. 66-73. Plaintiff stated that he
“was never informed as to wages including contingent earnings” and that he “was told [he] was on
a three-year back to work plan.” R. 67. He noted that when he received notice to stop cashing his

1

A person receiving DIB may try out his or her ability to work while continuing to
receive full benefits. This trial work period ends after the ninth month (not necessarily
consecutive) within a sixty-month period in which the recipient has been working. 42 U.S.C.
§ 422(c).
2

The extended period of eligibility, or “reentitlement period,” is a thirty-six-month
period after the trial work period during which the DIB recipient’s benefits are not entirely
terminated by work. The recipient is not entitled to benefits for any month in which he or she
worked, but is entitled to receive benefits for any month he or she does not work. 42 U.S.C.
§ 423(e); 20 C.F.R. § 404.1592a.
3

It is unclear whether, or when, the form was actually submitted to SSA. There is no
record of any action being taken on it until Plaintiff resubmitted it on March 13, 2006. See R.
128-29. Notes kept by collection agents between 2004 and 2006 suggest that they were
unaware of Plaintiff’s having submitted a completed waiver form. See R. 130-36.
4

checks he complied, and stated that previously “Social Security District Office personnel Ms.
Soseby and Ms. Owen informed [him] on two occasions that [he] was to cash the checks because
[he] could not turn them in at the District Office.” Id. In response to the question “Did you tell us
about the change or event that made you overpaid?” Plaintiff stated that he “discussed it with Mr.
Blum on at least two occasions.” Id. In an attached “Summary of Dates and Events” Plaintiff noted
that on approximately January 15, 1998, he had met with “SSA Blum and reviewed contingent
contract arrangement with teaching part-time at Trident Technical College.” R. 76.
Some time before April 2006 Plaintiff’s request for waiver was denied. R. 130 Plaintiff
requested a hearing by an Administrative Law Judge (“ALJ”) on March 13, 2006. R. 79. The SSA
scheduled a hearing for November 7, 2006. R. 84.
B.

Hearing Testimony
Plaintiff appeared at the hearing before the ALJ on November 7, 2006, without

representation. The ALJ explained that after determining whether there had been an overpayment,
“the next question is . . . [w]ere you at fault, did you fail to disclose your income and things of that
nature?” R.189-90. Plaintiff responded that “[he] did disclose [his] income,” and that he had “acted
in good faith the whole way through this thing.” R. 190. The ALJ inquired whether Plaintiff had
“answered every year that [he was] making income, . . . reported it to the Social Security
Administration?” Id. Plaintiff answered “no,” stating that he “reported to the Internal Revenue
Service.” Id.
Plaintiff noted that he had gone from a contingent part-time contract with Trident to
permanent employment in June or July of 1999, and that he had worked under the prior contract for
“two or three years.” R. 191. He stated further that prior to entering permanent employment in 1999

5

he “met with Social Security personnel” and told them that he was “making some part time pay on
a . . . contingency basis with Tri[dent] Technical College” but did “not think this is what’s . . . called
wages by the Social Security Administration” and just “wanted to let [them] know what [he was]
doing.” Id. He stated that he was “particularly concerned at the point where [he was] permanently
hired . . . in July of 1999.” Id.
The ALJ asked Plaintiff whether he had known that “once you earn . . . actual wages or paid
for work that there’s a certain amount of money that once you go over that you’re considered no
longer disabled?” R. 192. Plaintiff responded that “Mr. Blume informed me of that around June
15, 1999,” explaining that “Mr. Blume is a Social Security employee.” Id. Plaintiff also stated that
“[n]obody ever wrote me any letters . . . or gave me any documents that stated . . . the different wage
considerations.” R. 194. He suggested that because he “was earning contingency contracts,” he was
“never paid any wages.” Id. The ALJ explained that “whether it’s wages they take Social Security
out of, or whether it’s a contract it’s still earned income.” Id. Plaintiff responded that “[w]hen [he]
took this over to Mr. Blume . . . back in January of 1998 and again in 1999, . . . he said don’t worry
about it. You have three years to work under a plan we have and . . . when you become a permanent
employee in July or June of 1999 then . . . I’ll prepare a form for you.” Id. In response to the ALJ’s
question, Plaintiff stated that he was being treated for mental health at the time [1996-1999] and was
still being treated, adding that “[s]ome mornings [he] can’t get out of bed.” R. 195.
C.

ALJ’s Decision
The ALJ reviewed Plaintiff’s testimony and relevant information from the documents

submitted by Plaintiff. The ALJ noted that Plaintiff claimed in his “Supplemental Submissions” that
“[o]n or about Jan. 15, 1998, he began to telephone and visit the district Social Security office for

6

purposes of informing the Agency about [his] changing work conditions.” R. 25. The ALJ further
noted that Plaintiff claimed “that he was working on a contingent basis as an instructor at Trident
Technical College” and that “Mr. Bloom informed him that he could receive benefits under a three
year provision of a back to work program.” Id. The ALJ analyzed as follows:
I find that [Plaintiff] was at fault in causing and accepting the overpayment.
[Plaintiff] is not credible in his representations regarding the circumstances
surrounding the acceptance of the overpayment. When [Plaintiff] applied for and
received benefits, he was informed of his duty to report earnings if he ever returned
to work. He knew or should have known that his work after the trial work period
terminated would affect his social security disability checks. He was aware of the
responsibilities of working and how it affected his benefits. He should have known
that his earnings exceeded the levels for [substantial gainful activity] and should
have returned any payments in question. Therefore, [Plaintiff] was at fault in causing
and accepting the overpayment.
R. 26.
The ALJ made the following findings in his decision denying benefits:
1.

The claimant was not entitled to benefits totaling $18,710.90.

2.

The claimant was overpaid benefits.

3.

The claimant was at fault in causing and accepting the overpayment.

4.

Ann R. Robson (C1) and Katherine B. Robson (C2) were not entitled to
benefits totaling $12,072.00.

5.

Ann R. Robson (C1) and Katherine B. Robson (C2) were overpaid
benefits.

6.

As the claimant was the payee for Ann R. Robson (C1) and Katherine B.
Robson (C2), he is at fault in causing and accepting these overpayments.

7.

Recovery of the overpayments cannot be waived.

R. 26–27.

7

II. STANDARD OF REVIEW
This Court’s review of the Commissioner’s final decision is limited to determining whether
the correct law was applied and whether the factual findings are supported by substantial evidence.
See Richardson v. Perales, 402 U.S. 389, 390 (1971); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th
Cir. 1990). “Substantial evidence” has often been defined as “evidence which a reasoning mind
would accept as sufficient to support a particular conclusion,” or “more than a mere scintilla but . . .
somewhat less than a preponderance.” Shivley v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984). The
role of this Court is not to review the evidence de novo or resolve conflicts in the evidence. Vitek
v. Finch, 438 F.2d 1157, 1157 (4th Cir. 1971). Rather, the Commissioner’s factual determinations
“must be upheld if [they are] supported by substantial evidence in the record as a whole.” Howard
v. Secretary of Health & Human Services, 741 F.2d 4, 8 (2d Cir. 1984). “However, the courts must
not abdicate their responsibility to give careful scrutiny to the whole record to assure that there is
a sound foundation for the [Commissioner’s] findings, and that his conclusion is rational.” Vitek,
438 F.2d at 1157-58.
III. THE APPLICABLE LAW AND REGULATIONS
The Social Security Act provides that “[w]henever the Commissioner . . . finds that more or
less than the correct amount of payment has been made to any person under this subchapter, proper
adjustment or recovery shall be made.” 42 U.S.C. § 404(a)(1). A person who is overpaid is
generally required to repay the excess amount, 42 U.S.C. § 404(a)(1)(A), except that “there shall be
no adjustment to payments to, or recovery by the United States from, any person who is without
fault if such adjustment or recovery would defeat the purpose of this subchapter or would be against
equity and good conscience.” 42 U.S.C. § 404(b). But even if “the Administration may have been

8

at fault in making the overpayment, that fact does not relieve the overpaid individual . . . from
liability for repayment if such individual is not without fault.” 20 C.F.R. § 404.507.
The overpaid individual has the burden of proving that he was without fault. Anderson v.
Sullivan, 914 F.2d 1121, 1122 (9th Cir. 1990). The individual is at fault if “the facts show that the
incorrect payment” resulted from:
(a) An incorrect statement made by the individual which he knew or should have known to
be incorrect; or
(b) Failure to furnish information which he knew or should have known to be material; or
(c) With respect to the overpaid individual only, acceptance of a payment which he either
knew or could have been expected to know was incorrect.
20 C.F.R. § 404.507. “In determining whether an individual is at fault, the [SSA] will consider all
pertinent circumstances, including the individual’s age and intelligence, and any physical, mental,
educational, or linguistic limitations (including any lack of facility with the English language) the
individual has.” Id.
IV. DISCUSSION
The Magistrate Judge determined that the Commissioner’s decision was not supported by
substantial evidence. ECF No. 31 at 6. The Magistrate Judge stated that “the ALJ failed to address
any of the factors outlined in 20 C.F.R. § 404.507 in determining that Plaintiff was not ‘without
fault.’” Id. According to the Magistrate Judge, the “ALJ did not discuss Plaintiff’s mental
limitations or the effect on whether he was ‘at fault’” despite the evidence presented by Plaintiff of
continuing mental health treatment and Plaintiff’s testimony that “some mornings he could not get
out of bed.” Id. The Magistrate Judge noted that Plaintiff had appeared at the hearing without
counsel, and that “in pro se cases, an ALJ has ‘a duty to assume a more active role in helping

9

claimants develop the record.’” Id. (quoting Sims v. Harris, 631 F.2d 26 (4th Cir. 1980)). The
Commissioner objected that because “Plaintiff had the burden to establish he was without fault . . .
and he presented no evidence that his age, intelligence, education or physical and mental conditions
interfered with his ability to understand his reporting requirements,” the “ALJ was not required to
make explicit findings regarding the impact of” these factors in his finding of fault. Id. at 3.
In adjudicating a request for waiver of overpayment, the ALJ is required to make findings
of fact concerning the three definitions of fault listed in 20 C.F.R. § 404.507, and must consider
“pertinent circumstances,” including those listed in the regulation. Anderson v. Sullivan, 914 F.2d
1121, 1123 (9th Cir. 1990). If a claimant makes a showing that these “pertinent circumstances” have
any relation to the overpayment, the ALJ must “make explicit fact findings regarding the
applicability of these circumstances.” Id. at 1123 n.2. In the absence of such a showing, “the ALJ
[is] not obliged to render a specific finding regarding” any of these circumstances. Id. at 1123.
Although Plaintiff submitted ample evidence of his treatment for depression over the course of many
years, Plaintiff made no showing or argument suggesting how his depression might have affected
his understanding of his reporting requirements. See, e.g., R. 141-183. Accordingly, the ALJ was
not required to make specific findings concerning Plaintiff’s mental limitations.
The Magistrate Judge is correct that the ALJ was required to “assume a more active role in
helping [Plaintiff] develop the record” because Plaintiff appeared pro se. However, the numerous
exhibits in this case demonstrate that Plaintiff, a former attorney who had been working as a college
instructor in recent years, was able to fully develop the record and support his arguments. Plaintiff
submitted a “Memorandum of Facts and Law,” a timeline of events, a supplemental statement
concerning the overpayment, correspondence with SSA officials, and many other documents for the

10

ALJ’s consideration. Plaintiff’s primary contention throughout was that he had properly informed
the SSA of his income, not that his depression prevented him from understanding his obligation to
do so. At the hearing the ALJ asked Plaintiff several questions attempting to elucidate whether
Plaintiff had for any reason not understood his reporting obligations. See R. 189-95. The ALJ also
kept the record open for an additional two weeks after the hearing so that Plaintiff could submit
additional documentary evidence. R. 193. The ALJ’s assistance to Plaintiff was sufficient under the
circumstances.
The Magistrate Judge also stated that the ALJ’s finding that Plaintiff was not “without fault”
was based on “the ALJ’s determination that Plaintiff was not credible,” and that the ALJ “merely
made [a] conclusory statement” regarding Plaintiff’s lack of credibility. ECF No. 31 at 6. The
Magistrate Judge stated that “[i]t is not sufficient for an adjudicator to make a single, conclusory
statement that ‘the individual’s allegations have been considered,’” and that the credibility
determination “must contain specific reasons for the finding on credibility, supported by the
evidence in the case record.” Id. at 6-7 (quoting SSR 96-7p). Accordingly, the Magistrate Judge
found that the ALJ’s credibility determination was not supported by substantial evidence.
The Commissioner objected that the ALJ’s credibility determination was supported by
substantial evidence in the record. The Commissioner stated that “[w]hile Plaintiff claims that he
did advise the Agency of his work activity, there is no actual documentation prior to January 2000
that Plaintiff did so,” and that “there is absolutely no evidence that Plaintiff received erroneous
information about a ‘three year back to work plan.’” Id. at 2. The Commissioner further stated that
“on February 21, 2000, [Plaintiff] misrepresented his work history and asserted that he began
working on June 15, 1999; completely failing to mention his work activity since 1996,” and “did not

11

admit to this earlier work until after the Agency received information about it from his employer on
May 18, 2000.” Id. Because Plaintiff claimed in his January 25, 2000, letter that he had reported
his earlier work activity in 1998, the Commissioner argues, Plaintiff “knew that he should have
reported his work activity in 1998.” Id. at 2-3.
The ALJ’s determination of Plaintiff’s credibility was sufficiently supported. The Magistrate
Judge cited Social Security Ruling 96-7p, “Evaluation of Symptoms in Disability Claims: Assessing
the Credibility of an Individual’s Statements,” for the proposition that “a single, conclusory
statement” regarding credibility is not sufficient. See ECF No. 31 at 6-7. Ruling 96-7p deals
specifically with the problem of evaluating a disability claimant’s statements concerning subjective
symptoms – in particular, pain – that frequently “cannot be [determined] on the basis of objective
medical evidence.” SSR 96-7p at *1. In such a scenario, “the adjudicator must carefully consider
the individual’s statements about symptoms with the rest of the relevant evidence in the case record
in reaching a conclusion about the credibility of the individual’s statements.” Id. However, Ruling
96-7p by its own terms does not apply to credibility determinations in the context of a waiver of
overpayment, where a claimant’s statements are more likely to be verifiable through objective
evidence.
In Anderson, an overpayment disability claimant applying for waiver challenged the ALJ’s
adverse credibility finding as inadequate. Anderson, 914 F.2d at 1123. The ALJ’s report stated only
that the claimant’s “testimony that he informed the [SSA] of the two social security numbers is not
credible.” Id. Because the Court reviewed the record and found the ALJ’s credibility finding to be
supported by substantial evidence, the Court affirmed the ALJ’s decision despite the lack of a more
expansive explanation. Id. at 1123-24.

12

In this case, although the ALJ did not explain the specific reasons for finding Plaintiff not
credible, the record demonstrates that the ALJ’s finding is supported by substantial evidence.
Plaintiff was overpaid because he continued to collect DIB from 1996 to 1999 while he was working
as a college instructor on an independent contractor basis and earning a significant income. Plaintiff
continued to receive DIB during this time because he did not report his work activity to the SSA
until 2000, after he had been hired as a permanent employee. Even then Plaintiff did not report the
earlier work, claiming that he had started working in 1999. Only after Plaintiff’s employer informed
the SSA about his earlier work did Plaintiff report it personally.
Plaintiff’s contention is that he informed the SSA of his work situation in early 1998 and was
told either that independent contractor income did not constitute “wages” that must be reported or
that he was exempt under a “three-year plan.” Although Plaintiff provided copies of multiple letters
he had sent to the SSA, he produced no documentary evidence of this contact. In any event, even
if Plaintiff had received this erroneous information in 1998, he still would have failed to report his
income in 1996 and 1997. In response to the ALJ’s direct questions at the hearing attempting to
determine whether Plaintiff had understood his obligation to report his income, Plaintiff gave
evasive and inconsistent answers.

It is apparent that the ALJ based his adverse credibility

determination on the fact that Plaintiff’s statements were contradicted by the evidence in the record.
The ALJ applied the correct law and found that Plaintiff was at fault because he failed to
furnish information that he knew or should have known to be material. Because the ALJ’s
determination that Plaintiff was at fault is supported by substantial evidence, it must be upheld.
V. CONCLUSION
After a thorough review of the Report and Recommendation and the record in this case, the

13

court hereby declines to adopt the Magistrate Judge’s Report and Recommendation.
Commissioner’s decision is, therefore, affirmed.
IT IS SO ORDERED.
s/ Margaret B. Seymour
Margaret B. Seymour
United States District Judge
September 22, 2011
Columbia, South Carolina

14

The