Overpayment Case Remanded

March 1, 2009

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

Ann Biddle, Esq., Paul M. Ryther, Esq.

District Court judges generally do not consider overpayment cases as frequently as they review disability claims.  As a result, advocates may have to “instruct” them on some of the basics of overpayment laws and regulations, as well as how benefits are calculated.  That tactic paid off for Kate Callery of the Empire Justice Center in Rochester, on behalf of a pro se claimant who had been represented by a lay advocate at the hearing level in his overpayment case.
 
The case involved an overpayment incurred by a minor child because of earnings of his representative payee parents.  According to the Social Security Administration (SSA), the $5,000 plus overpayment could not be waived because the father/representative payee was not without fault in causing and/or keeping the overpayment.  SSA failed, however, to meet its initial burden of demonstrating the very existence of the overpayment.  In fact, the record included copies of the various notices that had been sent to the claimant, showing the overpayment - or combination of overpayments and underpayments - as different amounts without ever explaining the discrepancies or how they were calculated.  To add insult to injury, there were undocumented allegations in the record that the claimant had had numerous similar overpayments in the past, but there was no evidence of when they were or what had caused them. At the hearing, the claimant had testified that the prior overpayment of which he was aware involved a lump sum payment of veterans’ benefits and had nothing to do with earned income.
 
Judge Charles Siragusa of the Western District of New York agreed that SSA’s decision was not based on substantial evidence, noting the unexplained differences in the amounts owed and the mere conclusion about the cause of the overpayment.  According to the Court, “[t]his is a far cry from the detailed explanation provided as the basis for the decision” in Chileb v. Heckler, 777 F.2d 842, 844, 847 (2d Cir. 1985), where a benefits authorizer explained the basis of the overpayment at the hearing.
 
The Court was also convinced by the claimant’s argument that it would be virtually impossible to know whether or not the payments he received were correct.  The decision quotes at length the SSI regulations on deeming as “an example of the quagmire involved in determining whether a non-eligible parent’s income will disqualify an applicant from receiving SSI payments.”
 
Finally, Judge Siragusa agreed that the ALJ had failed to assess the representative payee’s credibility, citing Valente v. Secretary of Health & Human Svcs. 733 F.2d 1036, 1045 (2d Cir. 1984).  Additionally, the ALJ failed to take into account, pursuant to 20 C.F.R. §416.552, “any physical, mental, educational, or linguistic limitations…the individual may have.”  In this case, the claimant’s father had alleged that he had adult ADHD, which in combination with the chaos in his household caused by his son’s very extreme disabilities, may have affected the timeliness of his wage reporting.
 
Judge Siragusa’s decision in Ritter ex rel. C.R. v. Astrue is available as 2009 WL 529522 (W.D.N.Y., March 2, 2009).  The plaintiff will be ably represented on remand by Ellen Heidrick of the Southern Tier Legal Services office of LAWNY.  We look forward to hearing how the claimant fares in his “second bite at the apple.”