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Latoya R. v. Berryhill

United States District Court, S.D. Indiana, Indianapolis Division

September 14, 2018

LATOYA R., Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Social Security Administration, Defendant.

          LaToya R., Julie Lorraine Bentz SOCIAL SECURITY ADMINISTRATION, Daniel R. Janes SOCIAL SECURITY ADMINISTRATION, Kathryn E. Olivier UNITED STATES ATTORNEY'S OFFICE (Indianapolis)

          ENTRY ON JUDICIAL REVIEW

          TANYA WALTON PRATT, JUDGE

         Plaintiff LaToya R., [1] proceeding pro se, requests judicial review of the final decision of the Deputy Commissioner for Operations of the Social Security Administration (the “Deputy Commissioner”) that she was overpaid $8, 388.00 in benefits certified to her as representative payee for her then-minor son (“TR”) and is liable for the overpayment. For the following reasons, the Court AFFIRMS the decision of the Deputy Commissioner.

         I. PROCEDURAL BACKGROUND

         On August 27, 2014, the Social Security Administration (“SSA”) sent notice to LaToya R. informing her that she was solely liable for repayment of an overpayment totaling $8, 388.00 that occurred when TR was not living with her during the months between February 2012 and January 2013, but continued to receive Supplemental Security Income (“SSI”) benefits while also getting Title 4E funds from the State of Indiana to assist in paying for his living expenses. (Filing No. 14-2 at 146-47.) On October 4, 2014, LaToya R. was informed that SSA intended to reduce her own SSI benefits by ten percent, beginning November 1, 2014, to get back the money she was overpaid. (Filing No. 14-2 at 152-55.) LaToya R. timely requested reconsideration, (Filing No. 14-2 at 156), which was denied on November 20, 2014 (Filing No. 14-2 at 160). On January 1, 2014, she requested a hearing concerning the matter. (Filing No. 14-2 at 163.) Administrative Law Judge Albert Velasquez (the “ALJ”) held a hearing on January 7, 2016, at which LaToya R., unrepresented by counsel, appeared and testified. (Filing No. 36-22 at 4-22.) The ALJ issued a decision on March 22, 2016, concluding that LaToya R. was liable for the overpayment. (Filing No. 14-2 at 13.) The Appeals Council denied review on July 25, 2017. (Filing No. 14-2 at 6.) On August 9, 2017, she timely filed this civil action, asking the Court pursuant to 42 U.S.C. § 405(g) to review the final decision of the Deputy Commissioner. (Filing No. 1.)

         II. STANDARD OF REVIEW

         Under the Social Security Act (the “Act”), the “findings of the [Deputy] Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . .” 42 U.S.C. § 405(g). Substantial evidence is “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 (1971). The standard of review applies to overpayment determinations. Banuelos v. Apfel, 165 F.3d 1166, 1169 (7th Cir. 1999) (overturned on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999)). The United States Supreme Court has recognized that judicial review of Social Security decisions is limited to matters for which the plaintiff has exhausted administrative review under the Act. Mathews v. Eldridge, 424 U.S. 319, 327 (1976) (citing 42 U.S.C. § 405(g)-(h)). “It is clear from [42 U.S.C. § 405(g)] that a district court may not consider evidence outside the certified record.” Papendick v. Sullivan, 969 F.2d 298, 302 (7th Cir. 1992) (overturned on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999)). Moreover, the Commissioner is responsible for weighing the evidence, resolving conflicts and making independent findings of fact, the court may not decide the facts anew, reweigh the evidence or substitute its own judgment. Powers v. Apfel, 207 F.3d 431, 434-35 (7th Cir. 2000).

         III. FACTUAL BACKGROUND

         On September 16, 1996, LaToya R. completed and signed a representative payee application/agreement (the “1996 agreement”) to become the payee for TR's SSI benefits.[2] (Filing No. 14-2 at 80.) As part of that agreement, LaToya R. endorsed, “I may be held personally liable for repayment if I misuse the payments or if I am at fault for any overpayment of benefits.” (Filing No. 35-2 at 3.) She further endorsed, “I agree to: [. . .] [n]otify the Social Security Administration when the claimant dies, leaves my custody or otherwise changes his/her living arrangements or when I no longer have responsibility for his/her care and welfare.” (Filing No. 35-2 at 4.)

         On January 26, 2012, the Marion Superior Court, Juvenile Division, issued an Order Regarding Children in Need of Services, after a permanency hearing, which included the appearance of LaToya R. (Filing No. 14-2 at 60.) The order concerning TR described that he had been temporarily placed at Damar Services, Inc., (“Damar”), but was spending weekends with LaToya R., and that neither LaToya R. nor the Department of Child Services (“DCS”) wished to change the plan. (Filing No. 14-2 at 61; see Damar, https://www.damar.org/children/residential (last visited August 27, 2018) (Damar is an organization funded by the State of Indiana that provides residential care services for children with developmental and behavioral disabilities).) The hearing resulted in a permanency plan whereby the court ordered continued current placement at Damar and the “responsibility for placement and care is granted to the Department of Child Services.” (Filing No. 14-2 at 62-63.) On January 17, 2013, an order of the court following a periodic review hearing indicated that TR was still placed at Damar. (Filing No. 14-2 at 104.) DCS retained custody of TR until he was released to ResCare, an adult services provider, on May 23, 2013. (Filing No. 14-2 at 107.)

         In the interim on November 23, 2012, LaToya R. completed a representative payee report, under penalty of perjury, reporting that TR had lived with her from August 1, 2011 through July 31, 2012. (Filing No. 14-2 at 65-66.)

         On January 11, 2013, LaToya R., again under penalty of perjury, completed a redetermination summary for the purpose of determining continuing eligibility for TR's SSI payments. (Filing No. 14-2 at 67-70.) LaToya R. endorsed that TR “has not spent a calendar month in a hospital, nursing home, correctional facility, or any type of institution since March 1, 2012.” (Filing No. 14-2 at 68.) LaToya R. was asked to describe TR's living arrangements as of May 27, 2011, March 2, 2012, and April 2, 2012, and provided only her own address for each requested date. Id. She endorsed that as of April 2, 2012, TR “does not get help or money from any person not living with him or any agency to pay for food, rent, mortgage payments, property insurance, property taxes, heating fuel, gas, electricity, garbage removal, water or sewerage.” Id. She further endorsed, “There have not been any other changes in his living arrangements.” Id.

         However, on January 15, 2013, SSA contacted DCS stating that, “One of our claims reps did a redetermination interview with this child's mom yesterday, and she reported the child has been at Damar since 2/04/12. She says DCS pays for his stay there.” (Filing No. 14-2 at 110.) DCS responded that TR had been at Damar since January 26, 2012 and had received Title 4E funds from the State of Indiana against placement costs up until he had become an adult. Id.

         After the hearing, the ALJ issued a written decision explaining his findings of fact and conclusions of law. The ALJ found that LaToya R. was the sole representative payee for TR from at least February 2012 through January 2013. (Filing No. 14-2 at 17.) The ALJ noted that LaToya R. had agreed to notify SSA in the 1996 agreement if TR “leaves her custody or otherwise changes his living arrangements or when she no longer has responsibility to [sic] his care and welfare.” Id. The ALJ further summarized the custody and living arrangement changes during the relevant period, including that DCS “was granted responsibility for the placement and care of” TR on January 26, 2012. Id. The ALJ noted that despite TR's removal, LaToya R. had failed to report his change of living arrangement and in fact continued to report to SSA, as noted above, that TR “lived with her and was under her care.” Id. The ALJ found that LaToya R. “should not have received benefits as the representative payee for [TR] during this period because DCS was responsible for the care and placement of [TR] during this period. As a result, the claimant was overpaid supplemental security income benefits as a representative payee of $8, 338.00 from February 2012 to January 2013.” Id. The ALJ further found that LaToya R. was liable for paying back the “misused” benefits she received as a representative payee. (Filing No. 14-2 at 18 (citing 20 C.F.R. §§ 416.635, 416.640, and 416.641(a)).)

         IV. DISCUSSION

         LaToya R. has made various claims on her own behalf. When she requested reconsideration she simply stated, “this is not my overpayment.” (Filing No. 14-2 at 156.) When she requested a hearing, she stated, “I do not owe [an] overpayment, ” and “everyone in this office ...


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