United States District Court, M.D. Florida, Jacksonville Division
Patricia D. Barksdale United States Magistrate Judge
Alford brings this action under 42 U.S.C. § 405(g) to
review a final decision of the Commissioner of Social
Security denying her request for a waiver of overpayments.
Under review is a decision by the Appeals Council dated
August 22, 2017. Tr. 132–40. Alford contends the Appeals
Council erred in applying a regulation defining when waiver
is required and, alternatively, the regulation is entitled to
no deference. Docs. 13, 22.
reviews the Commissioner’s factual findings for
substantial evidence and the Commissioner’s legal
decisions de novo. Martin v. Soc. Sec. Admin.,
Comm’r, 903 F.3d 1154, 1159 (11th Cir. 2018). A
court reviews the Commissioner’s statutory
interpretation de novo, “albeit potentially subject to
the principles of deference [applied] to an agency’s
statutory interpretation.” Id.
burden of showing that an error is harmful normally falls
upon the party attacking the agency’s
determination.” Shinseki v. Sanders, 556 U.S.
396, 409 (2009). If “remand would be an idle and
useless formality, ” a reviewing court is not required
to “convert judicial review of agency action into a
ping-pong game.” N.L.R.B. v. Wyman-Gordon Co.,
394 U.S. 759, 766 n.6 (1969).
Social Security Act provides procedures for addressing
overpayments to beneficiaries. See 42 U.S.C. §
404. The Act states that whenever the Commissioner finds that
more “than the correct amount of payment has been
made” to a beneficiary, “recovery shall be
made” under “regulations prescribed by the
Commissioner.” 42 U.S.C. § 404(a)(1). Recognizing
that recovery may create an undue hardship, the Act further
(1) In any case in which more than the correct amount of
payment has been made, there shall be no adjustment of
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.
(2) In making for purposes of this subsection any
determination of whether any individual is without fault, the
Commissioner … shall specifically take into account
any physical, mental, educational, or linguistic limitation
such individual may have (including any lack of facility with
the English language).42 U.S.C. § 404(b)(1), (2)
42 U.S.C. § 404(b)(1), (2).
to statutorily authorized power and authority,  the Social
Security Administration (“SSA”) promulgated
regulations relating to overpayments, including this
regulation on “equity and good conscience”:
(a) Recovery of an overpayment is against equity and good
conscience … if an individual-
(1) Changed his or her position for the worse (Example 1) or
relinquished a valuable right (Example 2) because of reliance
upon a notice that a payment would be made or because of the
overpayment itself; or
(2) Was living in a separate household from the overpaid
person at the time of the overpayment and did not receive the
overpayment (Examples 3 and 4).
(b) The individual’s financial circumstances are not
material to a finding of against equity and good conscience.
20 C.F.R. § 404.509(a) & (b).
overpaid beneficiary must show entitlement to waiver.
Sipp v. Astrue, 641 F.3d 975, 981 (8th Cir. 2011);
Harrison v. Heckler, 746 F.2d 480, 481 (9th Cir.
1984); Valente v. Sec’y of HHS, 733 F.2d 1037,
1042 (2d Cir. 1984); Romero v. Harris, 675 F.2d
1100, 1104 (10th Cir. 1982); Sierakowski v.
Weinberger, 504 F.2d 831, 835 (6th Cir. 1974); cf.
Viehman v. Schweiker, ...