Manincor v. Commissioner SSA
Filing
17
MEMORANDUM OPINION AND ORDER re 1 Complaint filed by Jeremiah Manincor. Pursuant to the foregoing, the decision of the Commissioner is REMANDED for further proceedings consistent with this opinion. Signed by Magistrate Judge Christine A. Nowak on 3/30/2016. (kls, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
JEREMIAH MANINCOR,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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§
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§
§
§ CIVIL ACTION NO. 4:14-CV-00654-CAN
§
§
§
§
MEMORANDUM OPINION AND ORDER
Plaintiff brings this appeal under 42 U.S.C. § 405(g) for judicial review of the final
decision of the Commissioner of Social Security (―Commissioner‖) denying his request for
waiver of repayment of an overpayment of social security benefits [Dkt 1; 9]. After reviewing
the Briefs submitted by the Parties, as well as the evidence contained in the Administrative
Record, the Court finds that the Commissioner‘s decision should be REMANDED.
BACKGROUND
I.
PROCEDURAL HISTORY OF THE CASE
On July 31, 2002, Jeremiah Michael Manincor (―Plaintiff‖) filed a Title II application for
disability benefits, which was granted on April 14, 2003 [TR at 53-56, 110-12]. Subsequently,
on November 19, 2010, the Social Security Administration (―SSA‖) issued a notice informing
Plaintiff that he had been overpaid disability benefits from July 1, 2007 to October 31, 2010.
Id. at 57-59. On December 22, 2010, Plaintiff filed for a waiver of the overpayment, which was
denied on February 10, 2011.
Id. at 60-69.
Plaintiff then filed a request for
reconsideration/request for personal conference, which was held on May 23, 2011. Id. at 70-77.
ORDER – Page 1
The request for reconsideration was later denied; after which Plaintiff filed a request for a
hearing. Id. The Administrative Law Judge (―ALJ‖) conducted a hearing on June 4, 2012
(―Hearing‖), and heard testimony from Plaintiff and Plaintiff‘s former teacher, Leslie Allen
(―Ms. Allen‖).
Id. at 22-52.
Plaintiff was represented by counsel at Hearing.
Id.
On
October 25, 2012, the ALJ issued his decision (―Determination‖) finding Plaintiff not without
fault and ordering repayment of the overpayment amount at the rate of $500.00 per month for
seventy-one months. Id. On July 9, 2012, by letter, Plaintiff filed a complaint with respect to his
treatment during the Hearing. Id. at 95-97. On December 17, 2012, Plaintiff filed a request for
review of Hearing decision with the Appeals Council. Id. at 38-39. Plaintiff requested the
Appeals Council review the ALJ‘s Determination; and, on August 23, 2014, the Appeals Council
denied Plaintiff‘s request for review, making the decision of the ALJ the final decision of the
Commissioner. Id. at 4-7.
On October 13, 2014, Plaintiff filed his Complaint with the Court [Dkt. 1]. Plaintiff filed
his Brief on February 13, 2015 [Dkt. 9], and the Commissioner filed her Brief in Support of the
Commissioner‘s Decision on April 10, 2015 [Dkt. 10]. On April 10, 2015, the Administrative
Record was received from the SSA [Dkt. 11]. On January 19, 2016, this case was assigned to the
undersigned by consent of all Parties for further proceedings and entry of judgment [Dkt. 15].
II.
STATEMENT OF RELEVANT FACTS
1.
Age, Education, and Substantial Gainful Activity
Plaintiff was born on February 20, 1984, making him twenty-eight years of age on the
date of the ALJ Hearing [TR at 294, 335]. Plaintiff completed the twelfth grade and was in the
special education program at Plano Senior High, Plano Regional Day School Program for the
Deaf. Id. at 98, 294, 353-54. Plaintiff‘s past work experience included work for Bee-Mart
ORDER – Page 2
Construction Services and Outback Pools. Id. at 209-220, 249-58. Plaintiff‗s onset of disability
date was December 1985. Id. at 277. On October 31, 2010, Plaintiff‘s benefits were terminated.
Id. at 68. At the time of the ALJ Hearing, Plaintiff was married, and his wife, Julia Manincor
(―Mrs. Manincor‖) was also noted to be deaf. Id. at 349, 357.
2.
Education and Financial Records
Plaintiff‘s education records generally reflect that he received special education services
while in high school due to his deafness [TR at 228-334]. Specifically, the record reflects an
Individual Education Plan (―IEP‖) for Plaintiff‘s senior year in high school. Id. The various
plan components reflect that Plaintiff attended several general education classes with an
American Sign Language (―ASL‖) interpreter for support, but received special education
instruction outside the general education classroom specifically for Reading and English.
Id. at 296, 303-08, 316-319, 322-24. Plaintiff received generally high grades, although many of
his grades were ―special education grades‖ based on IEP goal progress, rather than a general
education curriculum. Id. Relevant herein, Plaintiff‘s school records reflect that he received an
―86‖ in English during his twelfth year in school; this grade is a special education grade. Id.
Plaintiff‘s paystubs from Outback Pools for the time period December 29, 2011 to
June 12, 2012 reflect that he received $1,500.00 per pay period in gross pay, $1,324.62 in net
pay, and was paid twice per month. Id. at 209-20. Plaintiff‘s 2011 Tax Return indicates that
Plaintiff and his wife, Mrs. Manincor, collectively had $35,020.00 in adjusted gross income
during the 2011 tax year, and employed a tax preparer, Raymond H. Rebeck, to complete and file
the return. Id. at 198-208. At the time of the ALJ Hearing, Mrs. Manincor was finishing college
to become a teacher. Id. at 60-67, 221-27, 377-80.1 Plaintiff also submitted several bills,
1
The record reflects that Mrs. Manincor also has been ordered to repay a Social Security overpayment. Id. at 60-67,
221-27, 377-80.
ORDER – Page 3
including an overdue utility bill and a student loan bill, as well as a handwritten note reflecting
his household expenses.
Id. at 221-27.
In December 2010, Plaintiff submitted Form
SSA-632-BK to the SSA indicating that Plaintiff‘s current paycheck barely covered his
household expenses with help from his extended family, and that his wife‘s employment was at
best sporadic. Id. at 60-69.
3.
Hearing Testimony
a.
Plaintiff’s Testimony
At Hearing, Plaintiff testified that he applied for Social Security Disability benefits on
July 31, 2002, with the assistance of his mother, who is not deaf [TR at 110-12, 350-51, 361].
Plaintiff explained that no interpreter was present during the application process or during
subsequent meetings with the SSA. Id. at 350, 358-360. An interpreter was present at Hearing,
but was instructed only to interpret certain portions of the proceedings (discussed further infra).
Id at 337-402. Plaintiff verbally objected to such instruction, and advised the ALJ that ASL, not
English, is his first language. Id. at 350-353. During Hearing, Plaintiff was presented with his
2002 Social Security Application, and specifically asked if he recalled the document, to which he
responded: ―No, not at all… [m]y signature is on the back page…but I haven‘t seen this whole
document before.‖ Id. at 351-52.2
Plaintiff further testified that he lives in an apartment with his wife and child. Id. at 349,
368-374, 376. As to his financial status, Plaintiff testified that he has savings and checking
accounts jointly with his wife and has no retirement accounts, stocks, bonds, or similar
investments. Id. at 370-80. Plaintiff explained that he worked for a pool company performing
―cleaning and technology‖ services, and that his boss and many of his colleagues were deaf or
2
Plaintiff indicated that his counsel showed him a copy of the Social Security Application ―today, prior to the
hearing.‖ Id at 352.
ORDER – Page 4
hard of hearing. Id. at 363-64. Plaintiff testified that he makes approximately $36,000.00
per year. Id. Plaintiff testified that his salary must cover all of his household‘s bills, including
Mrs. Manincor‘s college expenses. Id. at 374. Plaintiff testified that his wife paid the utility and
phone bills either online or via check, and he and his wife generally discussed any disputed bills
and/or documentation that were confusing. Id. at 349, 368-74, 376. Plaintiff also testified that
he took and failed the Texas written drivers‘ education test but was subsequently able to
complete a drivers‘ education course and passed the test with the aid of an ASL interpreter.
Id. at 378-79.
b.
Ms. Allen’s Testimony
Ms. Allen, Plaintiff‘s former high school teacher, also testified at Hearing regarding
Plaintiff‘s reading abilities [TR at 384-99]. Ms. Allen testified that she taught Plaintiff at Plano
Regional Day School Program for the Deaf in ninth through twelfth grade, and is familiar with
his ability to read and write. Id. at 385-87. She stated that ASL, not English, is Plaintiff‘s first
language, and that Plaintiff reads at only a second to fourth grade level.
Id.
Ms. Allen further testified that, in her opinion, Plaintiff does not have the ability to read the
application for social security benefits. Id. Specifically, Ms. Allen was presented with page two
of Plaintiff‘s application for social security benefits containing certain social security disability
and insurance notices and asked if Plaintiff could understand the content.
Id. at 390-92.3
Ms. Allen answered that Plaintiff would not be able to understand the language without an ASL
interpreter. Id. She further testified regarding the Deaf Action Center, a resource for the deaf
that could have provided interpretation services for SSA notices to Plaintiff.
Id.
She
acknowledged that, while Plaintiff did not ask her for assistance with understanding the SSA
3
The ALJ and SSA referenced several different notices Plaintiff allegedly received from the SSA during 2004-2010,
including the notices included on page two of the application for social security benefits [TR at 390-95; Dkt. 10].
For simplicity, the Court will hereinafter refer to such notices as the ―SSA notices.‖
ORDER – Page 5
notices, in her opinion, it would be atypical for a deaf person to seek assistance with such notices
because, ―a lot of the times [deaf individuals] may think they understand things, and they may
not understand all the little pieces of it.‖ Id. at 392-402.
Subsequent to Hearing, Ms. Allen provided a follow up letter clarifying certain portions
of her testimony. Id. at 98. Ms. Allen advised that Plaintiff was in special education classes not
only ―because of his hearing impairment and speech impairments‖ but also because of his low
reading abilities. Id. Ms. Allen explained therein that Plaintiff reads and functions at a third or
fourth grade level, significantly below his peers. Id. Ms. Allen further reiterated that Plaintiff
cannot read or understand content information written above a third grade level, including
SSA notices. Id.
c.
Hearing Procedures
As previously noted, an ASL interpreter, Nancy Parrish (―Ms. Parrish‖) was present at
Hearing to translate for the benefit of Plaintiff [TR at 335-402]. Ms. Parrish was directed by the
ALJ to only translate questions and answers related to Plaintiff‘s testimony and Ms. Allen‘s
testimony. Id. at 338, 348, 350. As the transcript reflects, Ms. Parris was directed not to
translate any non-testimony portions (e.g. conversations between Plaintiff‘s counsel and the
ALJ). Id. Plaintiff objected to this instruction; specifically he stated, ―[e]xcuse me, I would like
to say something if I may. I need to hear all the words that‘s [sic] said. And please don‘t stop
my interpreter, please, sir, will you?‖ Id. at 350.4 In addition, Ms. Parrish asked at one point to
clarify an answer by Plaintiff to which the ALJ responded, ―[n]o, no, you can‘t clarify anything.
You have to only interpret what we say.‖ Id. at 360. The Hearing lasted ninety-four minutes.
Id. at 337, 402.
4
It is unclear from the Hearing transcript (which is only a record of the verbal testimony given) if Plaintiff also
objected to the lack of interpretation in ASL at more than one point during Hearing.
Id. at 335-402. Such objections, if they occurred, were not translated by the interpreter for the record. Id.
ORDER – Page 6
On July 9, 2012, Plaintiff submitted a complaint to the Office of Disability Adjudication
and Review regarding the procedures that took place at Hearing. Id. at 95-97. Plaintiff alleged
in his complaint that he was denied equal access to a hearing on account of his disability.
Id. at 95. The letter quoted the ―Rehab [sic] Act 504 Section 794.‖ Id. The complaint further
stated that, ―[Plaintiff] sat in the room for an hour with no access to the spoken information and
did not understand what was going on.‖ Id. at 96. Plaintiff also indicated that the interpreter was
―barred‖ from relaying the spoken information. Id. Plaintiff asked for a new hearing before a
different ALJ, and for the presiding ALJ to be provided with ―in-depth training on how to utilize
an interpreter in court.‖ Id. The complaint ended with the statement, ―[t]his complaint was
written based on information given to Julia Manincor by Jeremiah Manincor from visual
American Sign Language to written English.‖ Id. at 96-98.
III.
FINDINGS OF THE ALJ
As a preliminary issue, the ALJ addressed Plaintiff‘s request for a new hearing before a
different ALJ and that the presiding ALJ be provided with training on how to utilize an
ASL interpreter in Court [TR at 23-24]. The ALJ found that, ―[a]ll questions and testimony of
record was signed to the claimant as required by the HALLEX instructions. The claimant was
represented at the proceeding by counsel, who did not object to the procedures at the
hearing…[t]he only matters, which were not communicated to the claimant, were matters
regarding legal interpretation or requests to counsel for additional evidence.‖ Id.5 The ALJ,
therefore, found that, ―the hearing was conducted according to policy instructions and was fair
and impartial…[claimant‘s] motion for another hearing before a different Administrative Law
Judge is denied.‖ Id. The ALJ went on to find, after hearing testimony and conducting a review
5
The ALJ noted that Plaintiff‘s counsel did not object to the procedures used at Hearing. Id. at 23-24. Plaintiff
himself, however, did; the ALJ‘s opinion did not reference Plaintiff‘s express objection to Hearing procedures.
Id. at 95-97, 350.
ORDER – Page 7
of the facts, that Plaintiff had been overpaid benefits in the amount of $35,405.10 during the
period July 1, 2007 to October 31, 2010. Id. at 24-27. Under the waiver of overpayment
analysis, the ALJ found that Plaintiff was not without fault in causing the overpayment. Id. at
27-30. Based on this determination, the ALJ concluded Plaintiff was responsible for repaying
the overpayment amount at the rate of $500.00 dollars per month. Id.
STANDARD OF REVIEW
In an appeal under § 405(g), the Court must review the Commissioner‘s decision to
determine whether there is substantial evidence in the record to support the Commissioner‘s
factual findings and whether the Commissioner applied the proper legal standards in evaluating
the evidence. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); 42 U.S.C. § 405(g).
Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. Cook v. Heckler, 750 F.2d 391, 392 (5th Cir. 1985); Jones v. Heckler,
702 F.2d 616, 620 (5th Cir. 1983). The Court cannot reweigh the evidence, substitute its
judgment for that of the Commissioner, or retry issues de novo.
Bowling v. Shalala,
36 F.3d 431, 434 (5th Cir. 1995). Additionally, any conflicts in the evidence, including the
medical evidence, are resolved by the ALJ, not the reviewing court.
750 F.2d 479, 484 (5th Cir. 1985).
determinations
regarding
issues,
Carry v. Heckler,
To that end, the Commissioner is entrusted to make
including
weighing
inconsistent
evidence.
20 C.F.R. § 404.1527(c)(2). The Fifth Circuit has expressly held that the ALJ – as fact finder –
and not the Court has the sole responsibility for weighing the evidence. Muse v. Sullivan,
925 F.2d 785, 790 (5th Cir. 1991) (citing Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987).
ORDER – Page 8
The legal standard for determining waiver of an overpayment is whether an individual
was without fault; and enforcing the overpayment would defeat the purposes of Title II of the
Social Security Act (the ―Act‖) or be against equity and good conscious. 20 CFR § 404.506.
ANALYSIS
On appeal, Plaintiff presents two issues for consideration: (1) whether the ALJ erred in
finding Plaintiff was not without fault and therefore ineligible for a waiver of the overpayment;
and (2) whether Plaintiff was wrongfully deprived of the right to fully participate in the hearing
process [Dkt. 9]. Each of Plaintiff‘s issues is discussed in turn below.
I.
PLAINTIFF’S ELIGIBILITY FOR WAIVER OF THE OVERPAYMENT
When an individual receives more social security benefits than they are entitled to under
Title II, the Social Security Administration is entitled to, and may seek to recover, the
overpayment. 20 CFR § 404.504. Adjustment or recovery of a Social Security overpayment can
be waived only when two circumstances are present: (1) the claimant is without fault; and
(2) adjustment or recovery would defeat the purpose of the Social Security Act, or would be
against equity and good conscience. 20 CFR § 404.506(a). Plaintiff bears the burden of
showing such circumstances. Id. Notably, the SSA‘s fault (or lackthereof) is irrelevant to the
fault determination under 20 CFR § 404.506(a). Id. The Commissioner has the burden of
showing the amount of any overpayment. 20 C.F.R. § 404.504. There is no dispute herein
regarding the amount of the overpayment.6 Thus, the Court first considers Plaintiff‘s argument
that he was without fault.
6
The ALJ made detailed findings with respect to Plaintiff‘s receipt of an overpayment of Title II Benefits
[TR at 25-27; Dkts. 9 at 2; 10 at 1-5]. Additionally, the Parties agree that the amount of the overpayment at the
time of the ALJ Determination, was $35,405.10, and that Commissioner has met his burden to show an overpayment
occurred [TR at 25-37; Dkts. 9 at 2; 10 at 1-5]. The Court therefore finds that the amount of, and the fact of, the
overpayment are not in dispute.
ORDER – Page 9
(1)
Plaintiff was “without fault”
Plaintiff argues that the ALJ‘s finding that he is not without fault is not supported by
and/or conflicts with the substantial evidence in the record [Dkt. 9 at 3-12]. An individual will
be found to be not without fault if a ―lack of good faith or failure to exercise a high degree of
care‖ is shown. 20 CFR § 404.511. ―The high degree of care expected of an individual may
vary with the complexity of the circumstances giving rise to the overpayment and the capacity of
the particular payee to realize that he is being overpaid.‖ Id. All pertinent circumstances,
including plaintiff‘s age, intelligence, and physical, mental, educational, and linguistic
limitations may be taken into account. Id. ―The test is whether a reasonable recipient of benefits
with the same characteristics as the recipient who was overpaid would be at fault in receiving the
benefits.‖ Vosler v. Bowen, 685 F. Supp. 1206, 1209 (D. Wyo. 1988). An individual is not
―without fault‖ when the overpayment resulted from: (a) an incorrect statement made by plaintiff
which he knew or should have known to be incorrect; (b) plaintiff‘s failure to furnish
information that plaintiff knew or should have known to be material; or (c) acceptance of a
payment that plaintiff knew or should have known was incorrect. 20 C.F.R. § 404.507. The test
does not consider the capabilities, knowledge, or abilities of other individuals, only plaintiff.
Coulston v. Apfel, 224 F.3d 897, 899 (8th Cir. 2000) (rejecting the ALJ‘s imputation of
plaintiff‘s ―advisors‘‖ knowledge and abilities to consideration of plaintiff‘s fault, where
evidence indicated plaintiff had intellectual impairments, difficulty with reading and writing, and
had attended special education classes).
Moreover, a finding of no substantial evidence is appropriate only when no credible
evidentiary choices or medical findings exist to support the decision.
Hames v. Heckler,
707 F.2d 162, 164 (5th Cir. 1983). ―Substantial evidence is more than a scintilla, less than a
ORDER – Page 10
preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. It must do more than create a suspicion of the existence of the fact to be
established, but no substantial evidence will be found only where there is a ‗conspicuous absence
of credible choices‘ or ‗no contrary medical evidence.‘‖
Hames, 707 F.2d at 164 (citing
Hemphill v. Weinberger, 483 F.2d 1137 (5th Cir. 1973) and Payne v. Weinberger, 480 F.2d 1006
(5th Cir. 1973) (finding substantial evidence did not support the conclusion that plaintiff was not
disabled where all evidence on the records reflected that plaintiff was disabled and no evidence
on the record contradicted it)); see also Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988)
(finding that reports of four doctors that plaintiff was not disabled versus one report stating he
was disabled was substantial evidence); Williams v. Comm’r of Soc. Sec. Admin.,
No. 4:11-CV-00373 2013 WL 1282460, at *3 (E.D. Tex. Mar. 27, 2013).
The Court agrees that the ALJ‘s determination regarding Plaintiff‘s fault is not supported
by substantial evidence. Here, the ALJ did not fully develop the record and made certain factual
assumptions as to Plaintiff‘s reading capabilities and daily activities [TR at 28-29, 349-502]. As
a result, there is insufficient substantial evidence to support the conclusion that Plaintiff was not
―without fault.‖
To begin with, the ALJ improperly imputed the knowledge and capabilities of Plaintiff‘s
wife and other individuals to Plaintiff [TR at 28]. Coulston, 224 F.3d at 899 (finding that the
ALJ may not input knowledge or activities of third-parties to the plaintiff). Specifically, the ALJ
attributed capabilities, such as the ability to pay bills, sign and comply with a lease, write out a
narrative regarding and understand the Rehabilitation Act, and file tax returns to Plaintiff
[TR at 28]. The record reflects, however, that Mrs. Manincor, not Plaintiff, completed each of
these activities in whole (or substantial part) and/or that no testimony exists regarding Plaintiff‘s
ORDER – Page 11
ability to perform such tasks.
Id. at 368-78; Foreman v. Colvin, No. CIV.A. H-12-3148,
2013 WL 3805646, at *4-6 (S.D. Tex. July 19, 2013). The facts herein are akin to those in
Foreman, where the court found that the record was ―devoid of evidence to support the ALJ‘s
determination.‖ Foreman, 2013 WL 3805646, at *4-6. Therein, the court reversed the ALJ‘s
finding that plaintiff was not without fault because she knew or should have known she was
required to report her worker‘s compensation award to the SSA. Id. The court found that there
were no record documents between the SSA and plaintiff regarding her worker‘s compensation
income reporting prior to the overpayment statements, and there was a lack of evidence
regarding plaintiff‘s knowledge that she should report her workers compensation case outcome
to the SSA. Id. Those facts led the court to reverse the ―without fault‖ portion of the ALJ‘s
determination and remand the case for further consideration. Id.; see also Lang v. Astrue,
No. CIVA 08-5880 DWFJJK, 2009 WL 3711545, at *9-11 (D. Minn. Nov. 3, 2009) (finding no
support for the ALJ‘s determination that plaintiff was not credible where record reflects the
ALJ‘s assumption that the SSA could not have made an overpayment absent plaintiff fault and
no analysis was present showing how plaintiff‘s background and education made her familiar
with SSA‘s rules).
Here, similar to Foreman, there are no recent documents and/or there is a lack of
evidence supporting the ALJ‘s conclusion [TR at 28, 95-97, 355-80].
Foreman,
2013 WL 3805646, at *4-6. There is similarly no evidence that Plaintiff himself (and not
others) performed the activities cited as evidence of Plaintiff‘s ability to read and understand
SSA notices and/or the record reflects that a contrary conclusion must be reached. Id. For
example, Plaintiff testified that his wife — not Plaintiff — paid the apartment and utility bills,
and drafted a letter for Plaintiff‘s signature regarding violations of the Rehabilitation Act based
ORDER – Page 12
on her conversation with Plaintiff [TR at 28, 95-97, 355-80]. Indeed, the letter expressly states
―[t]his complaint was written based on information given to Julia Manincor by Jeremiah
Manincor from visual American Sign Language to written English‖ [TR at 28, 95-97]. See also
Rapley v. Schweiker, No. 1996-CIV-JE, 1983 WL 44302, at *1 (S.D. Fla. May 3, 1983) (finding
intellectually disabled plaintiff was ―without fault‖ where plaintiff could not manage his own
financial affairs and understand the SSA notices, and the ALJ improperly attributed plaintiff‘s
representative payee‘s fault and understanding to plaintiff). The ALJ also never inquired into the
details of the performance of the remaining activities listed in support of the ALJ‘s findings, such
as the filing of tax returns or signing of an apartment lease [TR at 335-402]. The ALJ did
nothing to ascertain the extent of any assistance from Plaintiff‘s wife or another third-party. Id.
There simply is not enough evidence on the record here to support the conclusions reached by
the ALJ, namely that Plaintiff himself performed these key activities, and thus had sufficient
capabilities
to
read,
write
and
understand
the
SSA
notices.
Id.;
Foreman,
2013 WL 3805646, at *4-6.
Furthermore, the ALJ found that ―claimant was competitively employed making
$2,200.00 per month and living independently. He continues to work full-time making in excess
of $28,000.00 per year‖ which indicated that Plaintiff had the ability to read and understand the
SSA notices provided to him [TR at 49]. However, nowhere in his Determination does the ALJ
specify Plaintiff‘s type of employment or any reading or writing skills required by such
employment. See generally id. at 43-52. The technical skills, including ability to read and write,
are different for a cleaner versus a receptionist or a lawyer, as is reflected by the skill level
definitions in the Dictionary of Occupational Titles (―DOT‖). 891.684-018 SWIMMING-POOL
SERVICER, DICOT 891.684-01820 (Language Level 2, write compound and complex
ORDER – Page 13
sentences, using cursive style, proper end punctuation, and employing adjectives and adverbs);
110.107-010 LAWYER, DICOT 110.107-010 (Language Level 6, write novels, plays, editorials,
journals, speeches, manuals, critiques, poetry, and songs); 237.367-038 RECEPTIONIST,
DICOT 237.367-038 (Language Level 3, write reports and essays with proper format,
punctuation,
spelling,
and
grammar,
using
all
parts
of
speech.);
see
also
Social Security Ruling 00-4p, 2000 WL 1898704, at *3 (Dec. 4, 2000) (adopting DOT
definitions and criteria for occupational analysis). Here, the ALJ did not make findings, nor
make a detailed inquiry into, the skills required of Plaintiff‘s current employment as a pool
cleaner, or past employment as a construction worker [TR at 48-51, 355, 377-400].7 The ALJ‘s
attribution of a particular level of reading and writing skill to such employment was in error.
Furthermore, the ALJ had the ability to test Plaintiff‘s reading level through, among other
options, an impromptu examination at Hearing or requesting additional testing regarding
Plaintiff‘s reading level [TR at 22-52].
Bucci v. Apfel, No. 98 CIV. 2372 (RWS),
1999 WL 553787, at *4-6 (S.D.N.Y. July 29, 1999) (finding that record regarding plaintiff‘s
reading capabilities as a deaf person had been fully developed where the ALJ expressly
questioned plaintiff about specific phrases in the SSA notices). No such steps were taken here
[TR at 22-52].8 Thus, the evidence in the record with respect to Plaintiff‘s reading level is
insufficient to support the ALJ‘s conclusions with respect to Plaintiff‘s fault or lackthereof.
7
The Court finds it instructive that the majority of Plaintiff‘s coworkers are also deaf or hard of hearing, and
therefore his workplace is also different than the typical or competitive employment position of the same type
[TR at 364].
8
The Court also notes that the ALJ did not inquire into Plaintiff‘s understanding of his Wife‘s overpayment case,
which would also be highly relevant to Plaintiff‘s understanding of his reporting requirements during the applicable
overpayment period [TR at 335-402]. Klostermann v. Bowen, No. 88-6236-DA, 1989 WL 281941, at *4
(D. Or. Mar. 17, 1989) (finding Plaintiff's knowledge of daughter‘s overpayment case was relevant to without fault
analysis). However, the ALJ also cannot conflate Mrs. Manincor‘s ―fault‖ and failure to secure of waiver of
overpayment with Plaintiff‘s fault or lackthereof [TR at 30 (noting ―[o]bviously, no argument has been successful in
obtaining waiver of [Mrs. Manincor‘s] overpayment‖ as an additional reason for the ALJ‘s decision)].
Coulston, 224 F.3d 897, 899 (8th Cir. 2000) (finding plaintiff‘s knowledge and fault, not his advisors‘, to be the
relevant waiver inquiry).
ORDER – Page 14
See Jefferson v. Bowen, 794 F.2d 631 (1986) (reversing and remanding where plaintiff‘s ability
to read SSA forms was limited, notices regarding reporting requirements were sparse, plaintiff
had only ―some ability to read,‖ and plaintiff received oral assurances from SSA that she should
be receiving benefits prior to overpayment notices).
The Fifth Circuit has held that ―when a claimant fails to read a benefits form and verify
that the information therein is correct, the claimant who signs the form may be held to be ―at
fault‖ if the information turns out to be incorrect.‖ Austin v. Shalala, 994 F.2d 1170, 1174
(5th Cir. 1993). However, the issue here, is not whether Plaintiff failed to read his application,
but whether Plaintiff was, in fact, able to read and understand it. Indeed, unlike Austin and other
Fifth Circuit precedents, Plaintiff asserts both that (1) he was not provided with a full copy of the
application to review; and (2) that he was unable to understand SSA notices after the date of
application and provide notice of employment [TR at 43-52; Dkt. 9]. Austin, 994 F.2d at 1174.
Additionally, even assuming that there is sufficient evidence on the record to make a
determination with respect to Plaintiff‘s reading level and daily activities, the ALJ‘s conclusion
that Plaintiff was ―only in special education because of his deafness,‖ and the need for ASL
interpreter support, is further contrary to the record [TR at 28].
During Plaintiff‘s initial
disability application, extensive evidence was presented regarding Plaintiff‘s special education
placement including the following: (1) a ―Services to be Provided‖ document reflecting:
(a) English and Reading courses would be provided to Plaintiff ―in a location other than General
Education Classroom,‖ (b) Plaintiff would receive a modified or significantly modified general
education curriculum in those courses, and (c) Plaintiff would receive a special education grade
in each course; (2) Plaintiff‘s exemption from state standardized testing; and (3) a ―School
Activity Report‖ dated August 30, 2002 from Plaintiff‘s teacher Carrie Lantos reflecting English
ORDER – Page 15
instruction during Plaintiff‘s twelfth year in high school at a third to fourth grade level.
Id. at 307, 310, 322. Ms. Allen‘s letter dated March 18, 2013, also expressly stated Plaintiff was
at a third to fourth grade reading level and that Plaintiff was in ―[r]esource English class,
meaning he functioned more than 2 years below his non-disabled peers.‖ Id. at 98. Ms. Allen
also expressly stated, ―I feel strongly that [Plaintiff] is not able to read and fully understand
content information about anything if it is written beyond a [third] grade level.‖ Id. at 98. She
further indicated that Plaintiff‘s grade of 86 in English reflected that he was working on his IEP
goals. Id. The ALJ‘s Determination states that Ms. Allen testified at Hearing that while Plaintiff
was not learning disabled, he could not read at the level necessary to read the SSA notices
presented to Ms. Allen . Id. at 28. The ALJ, in making this statement, failed to identify reasons
for disregarding record evidence that Plaintiff was in special education courses both because of
his deafness and deficits in English and Reading. Id. at 28, 307, 310, 322, 388.9 Furthermore,
the ALJ did not present reasons for finding Ms. Allen‘s testimony less credible and disregarding
her opinion in his Determination. Id.
Finally, the ALJ made an unsupported assumption that Plaintiff‘s high duty of care
requires that Plaintiff seek out an interpreter for SSA notices if he does not understand them or
cannot read them [TR at 28-29]. Lang, 2009 WL 3711545, at *9-11 (remanding where the ALJ
made and relied on a faulty assumption that SSA could not have made a mistaken overpayment
absent fault by plaintiff under the circumstances presented); Doyle v. Barnhart,
361 F.Supp.2d 1357, 1360-62 (M.D. FL 2003) (rejecting assertion that plaintiff has a duty to
research, after reporting income to SSA, the likelihood of benefits termination and not accept
9
The Court acknowledges the Commissioner‘s arguments that Plaintiff should have requested an interpreter
[see Dkt. 10]. Indeed, nowhere on the record does Plaintiff or Plaintiff‘s Counsel expressly state that Plaintiff
requested an interpreter during SSA proceedings, except perhaps after Plaintiff had hired counsel [TR at 361-62].
However, the Court acknowledges that it likely would have been evident, based on the type of disability (deafness),
that alternative means of communication may be needed.
ORDER – Page 16
social security checks if termination is likely based on research). The Fifth Circuit has not
directly addressed a deaf or non-English speaking person‘s duty of care in this regard; but the
Court cannot input knowledge and understanding regarding social security requirements to an
individual where no evidence has been presented that the individual was informed of his
responsibilities. Doyle, 361 F.Supp.2d at 1360-62 (stating that the ALJ improperly imputed
detailed understanding of the social security benefits system to plaintiff where such testimony
had not been developed). Therefore, because the evidence in the record is not sufficiently
developed and/or there is insufficient substantial evidence to support the ALJ‘s findings, the
ALJ‘s Determination is remanded for additional development of the record and a new
determination regarding whether Plaintiff was without fault.
(2)
Requiring Repayment Would Defeat the Purposes of Title II or be Against
Equity and Good Conscience?
Because the ALJ did not find Plaintiff to be without fault, he did not reach the second
element of the waiver analysis, nor make findings regarding the same [TR at 24-25, 27-31]. As
previously noted, the Court cannot substitute its judgment for the Commissioner‘s with respect to
this issue. See infra p. 8-9.
We therefore remand this element to the ALJ for further
determination consistent with this opinion. Foreman, 2013 WL 3805646, at *4-6 (remanding
element two where the ALJ initially found plaintiff was not without fault and did not reach
element two, and without fault determination was reversed by court).
II.
WHETHER PLAINTIFF WAS DEPRIVED OF A FULL AND FAIR HEARING
In addition to Plaintiff‘s argument that he was ―without fault,‖ Plaintiff raises two
procedural arguments on appeal: (1) whether he was deprived of a full and fair hearing; and
(2) whether the ALJ was biased, which resulted in prejudice to Plaintiff [Dkt.9]. We examine
each argument in turn.
ORDER – Page 17
(1)
Full and Fair Hearing
It is well settled that a basic obligation of the ALJ during a social security hearing is to
―develop a full and fair record.‖ Sun v. Colvin, 793 F.3d 502, 509 (5th Cir. 2015) (citing
Ware v. Schweiker, 651 F.2d 408, 414 (5th Cir. 1981)). The Fifth Circuit has explained that
social security hearings are non-adversarial and, consequently, ―[t]he hearing examiner has the
duty, accentuated in the absence of counsel, to develop the facts fully and fairly and to probe
conscientiously for all of the relevant information.‖ Ware, 651 F.2d at 414 (citation omitted).
Failure to fully and fairly develop the record results in a lack of substantial evidence upon which
the ALJ may render a determination. James v. Bowen, 793 F.2d 702, 704 (5th Cir. 1986).
Although the ALJ‘s duty to develop the record is heightened by the absence of counsel for a
claimant at hearing, the duty is still significant even in the presence of counsel. Carey v. Apfel,
230 F.3d 131, 142 (5th Cir. 2000) (noting the requirement to fully and fairly develop the record
even where plaintiff was represented by counsel at the ALJ hearing); Smith v. Secretary of
Health, Education and Welfare, 587 F.2d 857, 860 (7th Cir. 1978) (citing Gold v. Secretary of
Health, Education and Welfare, 463 F.2d 38, 43 (2d Cir. 1972)). A court may reverse the ALJ‘s
decision if plaintiff shows, ―(1) the ALJ failed to fulfill his duty to develop the record adequately
and (2) that failure prejudiced plaintiff.‖ Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012).
Procedural deficiencies, including problems and difficulty in hearing witnesses, may also be
grounds for remand for a further hearing. Suarez v. Colvin, No. 3:13-CV-1459-P,
2014 WL 3728606, at *5 (N.D. Tex. July 28, 2014) (remanding for a further hearing where
witness testimony via telephone was of poor quality and resulted in inaudible responses).
The ALJ limited ASL interpretation services to only Plaintiff‘s testimony and
Ms. Allen‘s testimony [TR at 337-402]. Consequently, Plaintiff argues he was not able to hear
ORDER – Page 18
and understand substantial portions of the Hearing [Dkt. 9 at 12-15]. Furthermore, the ALJ
expressly refused to allow the interpreter to interpret Plaintiff‘s objections to Hearing procedures
on the record [TR at 337, 339, 348-350, 360]. The ALJ further refused to allow the interpreter to
clarify a phrase of Plaintiff‘s for the record. See id. at 360. It is clear from the Hearing transcript
that the interpreter was prohibited by the ALJ from interpreting a substantial portion of the
dialogue at Hearing. Id. at 337-402. Although Plaintiff‘s counsel was present at Hearing, this
fact alone does not negate the fact that Plaintiff was unable to understand, and thus unable to
comment and communicate with his counsel on many factual statements and/or questions by the
ALJ during Hearing. Id. at 337. Additionally, the Court acknowledges that the ALJ made
unfavorable findings regarding Plaintiff‘s credibility and believed Plaintiff to have a hostile
demeanor [Dkt. 9 at 15; TR at 10-11, 23-24]. Plaintiff‘s counsel argues that his demeanor may
have, at least in part, been due to Plaintiff‘s frustration with Hearing procedures, and the ALJ‘s
misunderstanding or lack of familiarity with deaf communication which may include
exaggerated hand gestures and facial expressions [Dkt. 9 at 15; TR at 10-11, 23-24]. The Court
finds, on the record before it, that Plaintiff was not provided with a full and fair opportunity to be
present at his Hearing, and this matter should further be remanded to allow Plaintiff such
opportunity.10
(2)
Bias
Plaintiff also argues the ALJ was biased against him [Dkt. 9 at 12-15]. The showing
required to prove ALJ bias is a high burden.
Rollins v. Massanari, 261 F.3d 853, 857
(9th Cir. 2001); Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009).
Indeed, ALJ‘s are presumed to be unbiased.
10
Rollins, 261 F.3d at 857; Valentine,
The Court concurs with the Parties that HALLEX I-2-1-74 and I-2-6-12 do not address what portions of a hearing
should be interpreted for a deaf party [Dkts. 9 at 12-15; 10 at 10-12]. Hearings, Appeals, and Litigation Law
Manual (―HALLEX‖) I-2-1-74, I-2-6-12.
ORDER – Page 19
574 F.3d at 690. The unbiased presumption can be rebutted only by showing ―conflict of interest
or some other specific reason for disqualification.‖ Id. The United States Supreme Court has
stated regarding judicial bias that:
The judge who presides at a trial may, upon completion of the evidence, be
exceedingly ill disposed towards the defendant, who has been shown to be a
thoroughly reprehensible person. But the judge is not thereby recusable for bias or
prejudice, since his knowledge and the opinion it produced were properly and
necessarily acquired in the course of the proceedings, and are indeed sometimes
(as in a bench trial) necessary to completion of the judge's task. … Opinions
formed by the judge on the basis of facts introduced or events occurring in the
course of the current proceedings, or of prior proceedings, do not constitute a
basis for a bias or partiality motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible.
Liteky v. United States, 510 U.S. 540, 550-55 (1994) (finding expressions of impatience,
annoyance, or ordinary efforts at courtroom administration to not constitute bias); see also
Mims v. Astrue, 701 F. Supp. 2d 892, 911 (S.D. Tex. 2010) (finding misinterpretation of a
statement of the plaintiff, without further showing of antagonism or intentionality, was not bias).
The ALJ, at Hearing and within his findings, made statements including, ―it borders on
the absurd to insinuate that [Plaintiff] cannot understand basic reporting requirements but can
understand the meaning of technical language in the Rehab [sic] act‖ and ―[i]f the Claimant
cannot be frugal enough to repay the overpayment at $500.00 per month, he should never have
spent the overpayment to which he was not entitled. …this repayment period is generous given
that he should have never accepted the first payment…‖ [TR at 27-31, 335-402]. Plaintiff argues
that statements such as these may suggest that the ALJ had pre-conceived opinions regarding
Plaintiff‘s fault and ability to pay. Id. However, as the court in Sarchet noted, bias must rise to
the threshold of antagonism, making fair judgment impossible. Sarchet v. Chater, 78 F.3d 305,
309 (7th Cir. 1996) (finding the ALJ‘s tone, which suggested a commitment to denial of the
plaintiff‘s claim, to be grounds for a recommendation to assign the case to a new ALJ, but not
ORDER – Page 20
sufficient to show bias); see also Berger v. United States, 255 U.S. 22 (1921) (finding bias in the
extreme situation where judge made significant anti-German statements and sentenced
defendants to twenty years imprisonment in an espionage case against German American
defendants). The ALJ‘s conduct and statements herein do not rise to the extreme level necessary
to show bias.
CONCLUSION
The Court concludes that the ALJ and Appeals Council erred in finding Plaintiff was not
―without fault‖ on the record before it, and find that remand for further fact-finding with respect
to Plaintiff‘s fault is warranted. See infra p. 9-17. The Court suggests the SSA transfer or assign
this matter upon remand to a different ALJ. The Court is cognizant it cannot order such transfer
absent a clear showing of bias (which is not present here); however, believes such course of
action would be best for all involved. The Court orders that Plaintiff be provided with a full and
complete ASL interpretation of any ALJ hearing, including any conferences/communications
between counsel and the ALJ, so that he may fully understand and participate in any such
hearing.
Pursuant to the foregoing, the decision of the Commissioner is REMANDED for further
proceedings consistent with this opinion.
IT IS SO ORDERED.
Mar 30, 2016
ORDER – Page 21
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