United States District Court, S.D. Indiana, Indianapolis Division
REPORT AND RECOMMENDATION ON APPROPRIATE DISPOSITION
OF THE ACTION
Matthew P. Brookman, United States Magistrate Judge
matter was referred to the Magistrate Judge under 28 U.S.C.
§ 636(b)(1)(B) and Fed.R.Civ.P. 72(b) for a Report and
Recommendation as to its appropriate disposition. (Docket No.
12). Plaintiff Kurt D. seeks judicial review under 42 U.S.C.
§ 405(g) of a final decision of Defendant Commissioner
of the Social Security Administration (“SSA”)
denying his request for waiver of overpayment of $34, 687.00
in social security benefits. See42 U.S.C. §
404(a). After an Administrative Law Judge (“ALJ”)
denied the request for waiver, Kurt D. filed a timely request
for review of the ALJ's decision with the Appeals
Council. The Appeals Council denied review, and plaintiff
sought review in federal court. Plaintiff contends that the
ALJ erred in denying his request because he was not at fault
for causing the overpayment and requiring payment would
defeat the purposes of the Social Security Act. This matter
is fully briefed. (Docket No. 19, Docket No. 24, Docket No.
27). It is recommended that the District Judge
REMAND the decision of the Commissioner of
the Social Security Administration.
is legally blind. (Docket No. 9 at ECF p. 25). He initially
applied for and began receiving disability insurance benefits
(“DIB”) in December 2007. (Docket No. 9 at ECF p.
24). In March 2008 Kurt D. returned to work for Berends
Hendricks Stuit Insurance (“BHS Insurance”).
(Docket No. 9 at ECF p. 28; Docket No. 9-2 at ECF p. 19). He
continued to work at BHS Insurance for longer than nine
months-until February 2009-earning income at levels at or
above substantial gainful employment. (Docket No. 9 at ECF p.
28; Docket No. 9-1 at ECF pp. 64-65; Docket No. 19 at ECF p.
in June of 2009, Kurt D. was self-employed as a licensed
insurance agent. (Docket No. 9-2 at ECF p. 28). He remained
in this position through July 2010. (Id.). In July
2010, Kurt D. remained self-employed, but under a new entity
as an insurance consultant for his own business, where he
acted as an independent contractor for groups of clients.
(Id.). He remained in this role, but also began
employment as a Manager for the Rehabilitation Center for
Bosma Enterprises on July 8, 2013. (Id.). As of the
time of the hearing, Kurt D. was still employed at Bosma
Enterprises. (Id.). Kurt D. asserts that he informed
the Employment Services Department at Bosma Enterprises that
he was receiving disability payments from the SSA and that he
wanted Bosma to take over his Ticket to Work. Kurt D. indicates
that Bosma made copies of each of his pay stubs and submitted
them to the SSA. (Docket No. 19 at ECF p. 4).
2014, Debbie Thompson from the SSA contacted Kurt D.
regarding specific income amounts. (Docket No. 9-2 at ECF p.
30). On June 24, 2014, Kurt D. received a letter from the SSA
stating that the SSA had overpaid Kurt D. in the amount of
$34, 687.40. (Docket No. 9-1 at ECF pp. 66-68). On July 21,
2014, Kurt D. submitted a request for a waiver of repayment.
(Docket No. 9-1 at ECF pp. 63-65). A hearing was held on
February 4, 2016, after the waiver request was denied
initially and on reconsideration. (Docket No. 9-3 at ECF pp.
35- 49). Following the hearing, the ALJ denied Kurt D.'s
request for a waiver of overpayment on June 15, 2016. (Docket
No. 9 at ECF pp. 24-32). Kurt D. timely filed his appeal,
which was denied on November 30, 2017. (Docket No. 9 at ECF
pp. 3-6). This litigation followed. (Docket No. 1).
Standard of Review
Court reviews the Commissioner's waiver decision under
the same standards ordinarily applied in the denial of
benefits context, affirming the Commissioner's decision
as long as it is supported by substantial evidence and is not
contrary to law. See Banuelos v. Apfel, 165
F.3d 1166, 1169 (7th Cir. 1999), overruled in part on
other grounds by Johnson v. Apfel, 189 F.3d
561, 562-63 (7th Cir. 1999). For the purpose of judicial
review, “[s]ubstantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Barnett v. Barnhart,
381 F.3d 664, 668 (7th Cir. 2004) (quotation omitted). The
reviewing court must consider all evidence on the record;
however, it may not decide the facts anew, reweigh the
evidence, or substitute its judgment for that of the
Commissioner. Shideler v. Astrue, 688 F.3d 306, 310
(7th Cir. 2012).
The ALJ's Findings
determined that Kurt D.'s trial work period
(“TWP”) began March 2008 and ended November 2008.
(Docket No. 9 at ECF p. 28). Kurt D.'s re-entitlement
period began December 2008, the month following the
completion of his TWP. The ALJ then found that Kurt D.'s
disability ceased due to substantial gainful activity
(“SGA”) effective December 2008 and benefits were
not payable due to SGA for March 2009, June 2010, September
2011 through October 2011, and July 2013 onward. (Docket
No. 9 at ECF p. 29). Specifically, the ALJ found Kurt
D.'s re-entitlement period ended December 2011; thus,
when he performed SGA in July 2013-that became his
termination month. (Id.). The ALJ found that work
provisions and earnings information used for the work reviews
were provided to the claimant, and he did not appeal the work
review determinations. (Id.). The ALJ concluded that
benefits were payable for the month the re-entitlement period
began and the two succeeding months pursuant to 20 C.F.R.
§ 404.1592a(a)(2)(i). (Id.).
indicated that the self-employment income used for the work
review was his net self-employment as reported to his
earnings record from the IRS (Docket No. 9 at ECF p. 30). He
noted that Kurt D. did not provide tax returns to suggest
that his earnings record was incorrect or that he had filed
amended tax returns. (Id.). The ALJ also responded
to Kurt D.'s argument that he was allowed more than one
TWP and that he was never informed of his work provisions by
stating that the work review accurately applied the TWP and
re-entitlement period provisions in accordance with pertinent
laws and regulations. (Docket No. 9 at ECF p. 31). The ALJ
indicated numerous ways Kurt D. could have had these
provisions explained to him and that they were
explained by the field office when he inquired about
his TWP. (Id.). The ALJ also held that a summary of
work provisions is typically provided to a claimant if work
is reported or when work reviews are conducted.
determined Kurt D. was overpaid benefits in the amount of
$34, 687.00 during the period of March 2009 to June 2014, and
that he was at fault in causing the overpayment for failure
to proactively notify the administration of his work activity
as required by his reporting responsibilities, which were
provided in his application for Social Security benefits.
(Docket No. 9 at ECF p. 32). The ALJ reasoned that the record
does not contain any work reports, or paystubs, or
documentation that the claimant proactively notified the
administration of his work activity as required by his
reporting responsibilities. (Id.). Thus, he
concluded that Kurt D. was at fault for causing the
overpayment. (Id.). Finally, the ALJ found that
recovery of the overpayment was not waived. (Id.).
Review of Plaintiff's Assertions of Error
The Social Security Administration (“the
Administration”) did not waive its right to ...