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Alford v. Commissioner of Social Security

United States District Court, M.D. Florida, Jacksonville Division

September 27, 2019

Michelle Alford, Plaintiff,
v.
Commissioner of Social Security, Defendant.

          ORDER

          Patricia D. Barksdale United States Magistrate Judge

         Michelle 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.[1] 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.

         A court 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.

         “[T]he 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).

         The 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 states:

(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) (emphasis added).

42 U.S.C. § 404(b)(1), (2).

         Pursuant to statutorily authorized power and authority, [2] 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).[3]

         An 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, ...


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