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MINUARD v. SULLIVAN

August 10, 1992

ESTHER MINUARD, Plaintiff,
v.
LOUIS SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: CAROL E. HECKMAN

REPORT AND RECOMMENDATION

 This matter was referred to the undersigned by the Hon. Richard J. Arcara, to hear and report, in accordance with 28 U.S.C. ยง 636(b). For the reasons set forth below, I recommend that the District Court deny the Secretary's motion for judgment on the pleadings and reverse his determination that Plaintiff is not entitled to a waiver of recovery of overpayment of Supplemental Security Income ("SSI") benefits.

 FACTS

 This case presents a blatant illustration of misapplication of rules designed to protect SSI recipients. The Plaintiff has an IQ of 71, which places her in the lower end of the borderline mentally retarded range of intellectual ability. Although she has a fourth grade education, her math, spelling and reading are on the second grade level.

 On November 9, 1988, after reviewing the medical evidence in the record and presented at the hearing before him, Administrative Law Judge ("ALJ") Grenville W. Harrop, Jr. found that Plaintiff was disabled within the meaning of the Social Security Act (the "Act") with a "severe" combination of mental and physical impairments preventing her from performing her past relevant work or engaging in any other form of substantial gainful activity (T. 32-36). *fn1"

 As a result of this determination, Plaintiff received retroactive SSI benefits from March 11, 1987 through December, 1988 in the amount of $ 9,097.16, and began receiving monthly payments of $ 454.00 in January, 1989 (T. 378). However, in or about May, 1989, Plaintiff was advised that she had been overpaid by the amount of $ 1,125.80, because of nominal earnings she had received between January 1988 and March 1989 while working at the local United Cerebral Palsy Association in a "sheltered workshop" setting (T. 411). Plaintiff's request to waive recovery of the overpayments was denied, as was Plaintiff's request for reconsideration (T. 387-90; 420-22).

 Plaintiff requested a hearing to review the denial of her waiver request (T. 26). The hearing was held on July 2, 1990, before ALJ Simon J. Nash. Plaintiff appeared and testified at the hearing (T. 48-71) accompanied by a paralegal from Niagara County Legal Aid Society.

 On July 25, 1990, ALJ Nash issued a decision finding that Plaintiff was overpaid by $ 1,155.31, and denying Plaintiff's waiver request (T. 12-16). The ALJ found no evidence in the administrative record to substantiate Plaintiff's claim that she had informed the Social Security Administration ("SSA") that she was employed at the workshop at the time she filed her application for SSI benefits (T. 15). In direct contradiction to the findings of ALJ Harrop, ALJ Nash found that Plaintiff's mental impairment was only "slight," and that she was at fault in failing to report this "employment."

 Based on these findings, ALJ Nash upheld SSA's denial of Plaintiff's request for waiver (id.). This decision became the final decision of the Secretary when the Appeals Council denied review on March 18, 1991 (T. 6-7). Plaintiff filed the instant action on May 23, 1991 seeking review of the Secretary's final decision. Item 1. The Secretary has moved for summary judgment.

 DISCUSSION

 The Act provides for recovery or adjustment by the Secretary of overpayments of benefits, as follows:

 
Whenever the Secretary finds that more . . . than the correct amount of benefits has been paid with respect to any individual, proper adjustment or recovery shall . . . be made by appropriate adjustments in future payments to such individual or by recovery from such individual . . ..
 
* * *
 
The Secretary . . . shall make such provision as he finds appropriate in the case of payment of more than the correct amount of benefits with respect to an individual with a view to avoid penalizing such individual . . . who was without fault in connection with the overpayment, if adjustment or recovery on account of such overpayment in such case would defeat the purposes of this subchapter, or be against equity and good conscience, or ...

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