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DOHERTY v. HECKLER

July 25, 1984

Elizabeth DOHERTY, Plaintiff,
v.
Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: WEXLER

MEMORANDUM AND ORDER

WEXLER, District Judge.

 This is an action brought pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. Section 405(g), (Act) to review a final determination of the Secretary of Health and Human Services (Secretary) denying plaintiff's request to waive recovery of an overpayment of $5,264.85 in Supplemental Social Security Income (SSI) benefits. Plaintiff and defendant crossmove for judgment on the pleadings pursuant to Rule 12(c), Fed.R.Civ.P.

 I.

 Plaintiff, Elizabeth Doherty, currently a sixty-seven year old widow, applied for SSI and widow's benefits on March 6, 1974. She began receiving SSI benefits in October 1974 and widow's benefits in January 1975. From these dates through February 1976, Mrs. Doherty received, at various times, duplicate checks and incorrect retroactive drafts. All checks were made out in her name, however, many were issured using similar looking but incorrect, social security numbers. Generally, the numbers were off by a digit.

 In late 1975, plaintiff's daughter Lorraine contacted the Social Security Administration (SSA) to inquire about these checks. According to her affidavit, Lorraine was advised by an unidentified source that "they would take care of it." In January 1976, Elizabeth Doherty visited the SSA offices to fill out a routine questionnaire about her benefits. No mention was made of these checks. In April 1976 plaintiff was told by the SSA that she had been overpayed in the amount of $5,448.30. This figure was later adjusted to $5,264.85, the amount now in question. At this point, plaintiff began proceedings to have repayment waived. She contacted the Legal Aid Society and was briefly represented by Joan Beranbaum of that office.

 After an initial review of the case on February 28, 1977, an Administrative Law Judge (ALJ) remanded it for administrative reconsideration, clarification or dismissal. On May 26, 1977, the Appeals Council vacated that decision and remanded the case for a new hearing. No new action appears to have been taken until March 8, 1982, when Mrs. Doherty appointed Michael Gelfan, a paralegal assistant at the Legal Aid Society of New York, to handle her case. Several hearings were then scheduled and postponed because Mrs. Doherty was adjudged by doctors to be too ill to attend. On July 15, 1982, Mr. Gelfan was alerted by HHS staff attorney Arthur Klein that ALJ Spielman wished to resolve this matter by August 1982 and suggested that Mr. Gelfan forward all papers to ALJ Spielman. Accordingly, Mr. Gelfan obtained affidavits, albeit brief and unhelpful ones, from plaintiff, her daughter Lorraine and Mrs. Beranbaum. On September 17, 1982, Mr. Gelfan waived the right to have Mrs. Doherty appear at any further hearing and requested that the ALJ base his decision solely on the record, including the papers submitted by Mr. Gelfan (Tr. 102). On November 16, 1982, the ALJ determined that plaintiff was "not without fault", the applicable standard in overpayment actions and so denied waiver of repayment.

 If substantial evidence exists on the record in support of the ALJ's conclusion that plaintiff was, indeed, "not without fault", this Court must affirm the Secretary's decision. However, because of the total inadequacy of the record before us, the reliance on certain unsupported assumptions and conclusions made by the ALJ, and the failure of the ALJ to take into account plaintiff's mental and physical condition in determining plaintiff to be "not without fault", the Court remands this matter for further evidentiary proceedings.

 II.

 The Secretary's decision that plaintiff is "not without fault" is conclusive if supported by substantial evidence on the record. Substantial evidence has been defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971).

 In order for overpayment to be waived, the individual must be deemed "without fault," as defined by 20 C.F.R. Sections 416.552, 416.553. Only actions by the individual are considered, any action by the SSA in causing the overpayment is irrelevant. In addition, all the individuals need not be judged equally; the SSA or the ALJ can consider the individual's comprehension of the reporting requirements, and her ability to comply with these requirements. After all circumstances of the particular case are considered, an individual is without fault only when none of the following are true:

 1. the individual fails to furnish information regarding such overpayment which she knew or should have known was material.

 2. the individual makes an incorrect statement regarding such overpayment which she knew or should ...


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