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HARZEWSKI v. CHATER

November 21, 1996

ALFRED J. HARZEWSKI, Plaintiff,
v.
SHIRLEY S. CHATER, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: 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. § 636(b). Plaintiff, acting pro se, brought this action pursuant to 42 U.S.C. § 405(g) to seek review of the final decision of the Commissioner of Social Security (the "Commissioner") that, as the former representative payee for his disabled brother Larry Harzewski, plaintiff is responsible for overpayments of Supplemental Security Income ("SSI" or "Title XVI" *fn1" ) benefits. Both parties have moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Plaintiff has also applied for appointment of counsel (Item 12).

 For the following reasons, plaintiff's motion for judgment on the pleadings should be granted, and defendant's motion should be denied. Plaintiff's application for appointment of counsel is denied without prejudice.

 BACKGROUND

 This case presents a graphic illustration of the difficulties of navigating the complex social security benefits rules, and the lack of communication within the Social Security Administration ("SSA") itself. Plaintiff is the brother and legal guardian of Larry Harzewski, a disabled adult by virtue of a mental impairment (T. 19). *fn2" Prior to December of 1990, Mrs. Charlotte Harzewski, plaintiff's and Larry's mother, was the representative payee for Larry's adult child's disability insurance (Title II *fn3" ) benefits paid on his deceased father's account. See 42 U.S.C. § 402(d). Mrs. Harzewski died in December of 1990 (T. 49).

 In approximately February of 1991, plaintiff notified the SSA of Mrs. Harzewski's death (T. 49, 132). In April of 1991, plaintiff was appointed representative payee for Larry's benefits (T. 120). Also in April of 1991, Larry became a resident at a group home run by the Cantalician Center for Learning, Inc. (T. 19, 126). *fn4"

 By letter dated August 24, 1991, the SSA notified plaintiff that it had overpaid Larry's SSI benefits from May, 1991 through August, 1991, in the amount of $ 1316.00 (T. 82-83). The notice stated that the overpayment occurred because Larry was paid SSI benefits for those months without figuring in the amount of his disability insurance benefit (T. 83). On a form dated October 25, 1991, plaintiff requested a waiver of overpayment (T. 107-14). This request was denied on March 25, 1992 (T. 88-90).

 Subsequently, by letter dated September 14, 1992, the SSA notified plaintiff that it had overpaid Larry's SSI benefits from May, 1991 through May, 1992 in the amount of $ 6,159.16 *fn5" (T. 91-97). According to the notice, the overpayment had occurred "because of . . . Social Security Benefits under two numbers" (T. 91). On a form dated November 2, 1992, plaintiff requested a formal conference for reconsideration of this determination (T. 98). The record indicates that a conference took place on March 12, 1993 (T. 100), and that plaintiff was also interviewed at a branch office of the SSA on April 23, 1993 (T. 100, 119).

 By letter dated May 23, 1993, plaintiff's request for reconsideration was denied (T. 100-102). The letter stated:

 
You should have reported receiving two Social Security checks especially once you were aware that the second check was causing a Social [sic] Security Income overpayment. You were in our office on April 23, 1992 regarding SSA [Title II] and SSI [Title XVI] overpayments and you did not tell the SSI interviewer that you were receiving two SSA checks for your brother. Therefore the overpayment must be refunded.
 
However we have also determined that since you are currently refunding the SSA overpayment at the rate of $ 100.00 a month we should not count that amount as income to Larry. We are already using that amount in calculating the SSI overpayment. Therefore while we cannot waive the SSI overpayment we will reduce the amount of SSA we count as income to Larry by $ 100.00 during the period you are refunding the SSA overpayment. We have done this retroactively to May 1992 the first month that you refunded on the SSA overpayment.

 (T. 100).

 On a form dated September 27, 1993, plaintiff requested a hearing to review this determination (T. 36). Meanwhile, in July of 1993, the Cantalician Center was appointed as Larry's representative payee (T. 104).

 In a decision dated August 11, 1994, ALJ Baker found that Larry was overpaid benefits totaling $ 6,159.16 from May through November, 1991, and January through May, 1992, and that plaintiff was not without fault in receiving and accepting the overpayment as the claimant's representative payee during those periods. The ALJ also found that plaintiff was solely responsible for recovery of the overpayment (T. 17-30).

 This decision became the final determination of the Commissioner when the Appeals Council denied plaintiff's request for review (T. 4-5). Plaintiff then filed this action on November 27, 1995 (Item 1).

 DISCUSSION

 I. Scope of Judicial Review.

 The Social Security Act states that, upon review of the Commissioner's decision by the district court, "the findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. § 405(g)(1991). Substantial evidence is defined as evidence which a "reasonable mind might accept as adequate to support a conclusion . . . ." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938), quoted in Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971); Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991). Under these standards, the scope of judicial review of the Commissioner's decision is limited, and the reviewing court may not try the case de novo or substitute its findings for those of the Commissioner. Richardson, supra, 402 U.S. at 401. The court's inquiry is "whether the record, read as a whole, yields such evidence as would allow a reasonable mind to accept the conclusions reached" by the Commissioner. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). The Commissioner's determination cannot be upheld, however, when it is based on an erroneous view of the law that improperly disregards highly probative evidence. Grey v. Heckler, 721 F.2d 41, 44 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).

 II. Recovery/Waiver of SSI Overpayment.

 Section 1631(b) of the Social Security Act provides the framework for recovery by the Commissioner of an overpayment of SSI benefits. That section ...


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