Opinion
06 Civ. 2583.
May 1, 2007
Plaintiff Pro Se, VLADIMIR BORODKIN, City Island, New York.
Attorney for Defendant, LESLIE A. RAMIREZ-FISHER, Assistant United States Attorney, New York, New York.
OPINION
Defendant, the Commissioner of Social Security ("the Commissioner"), has moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, seeking an affirmance of her final decision that recovery of an overpayment of the disability insurance benefits ("DIB") of plaintiff pro se Vladimir Borodkin ("Borodkin" or the "Plaintiff") may not be waived under the Social Security Act, 42 U.S.C. § 404.
For the reasons set forth below, the Commissioner's motion is granted, and judgment will be entered dismissing the complaint with prejudice.
Prior Proceeding
Based on an application for DIB filed on January 14, 1998, the Social Security Administration ("SSA") found that Borodkin was disabled as of December 10, 1997.
Subsequently, in November 1998, Borodkin returned to work, but he continued to collect disability benefits through June 2001. As a result, SSA determined that he had been overpaid $10,343.50 from November 1999 through June 2001.
On January 31, 2003, SSA sent a request for information to Borodkin, asking him to complete SSA Form 632-BK (Request for Waiver of Overpayment Recovery or Change in Overpayment) so that a determination could be made regarding whether recovery of the overpayment could be waived.
On February 14, 2003, Borodkin filed the request for waiver of recovery of the overpayment. SSA denied Borodkin's request for waiver initially. The denial notice advised the Plaintiff that he had the right to request a reconsideration of this decision and that a lawyer could help with his appeal, and provided him with information on obtaining a lawyer, if he so desired.
Borodkin then requested a personal conference, which was held on May 6, 2003. After the personal conference, on May 28, 2003, SSA again denied his request for a waiver of recovery of his overpayment.
The Plaintiff then requested a hearing by an administrative law judge ("ALJ"). SSA advised him that a hearing was scheduled for May 13, 2005. The notice informed Borodkin that he had the right to be represented at the hearing and provided a list of legal referral and service organizations. Other attachments also discussed his right to counsel. The Plaintiff did not appear at the scheduled hearing. The ALJ sent a notice of a second hearing date. This notice again advised the Plaintiff that he had the right to representation.
On August 2, 2005, Borodkin appeared and testified before ALJ Jay L. Cohen. At the hearing, after being informed of his right to have an attorney present to represent him at the hearing, Borodkin decided to proceed pro se. The ALJ considered the evidence de novo, and on September 21, 2005, he found that recovery of Plaintiff's overpayment could not be waived. The Appeals Council denied Borodkin's request for review on December 16, 2005.
This action commenced on April 3, 2006, seeking a review of the ALJ's decision, a modification of the ALJ's decision, or a remand to the Commissioner. The Administrative Record was filed, and the instant motion was marked fully submitted on January 10, 2007.
The Facts
The facts are set forth in the Administrative Record and in a submission by Borodkin.
Borodkin was born January 17, 1957, in Russia. He has a university-level education and speaks English.
In his application for DIB, filed on January 14, 1998, Borodkin agreed to notify SSA if he went to work. The application informed him that his return to work could affect his eligibility for DIB.
Borodkin testified that shortly before he started working at the MTA, he visited an SSA office to tell them he was starting work. According to Borodkin, SSA advised him that he could work for a short period and that after that period, SSA would stop his benefits.
Borodkin began working at the New York City Transit Authority ("MTA") in November 1998. He earned the following wages from the MTA: $4,914.79 in 1998; $47,377.81 in 1999, $48,068.67 in 2000, $51,512.27 in 2001, $54,547.11 in 2002, and $55,925.00 in 2003.
Borodkin does not dispute that, while working, he received DIB. (Tr. 169-71 (Plaintiff's testimony that he did not believe that the disability payments he continued to receive while working were in error).) Borodkin stated that he thought he was entitled to work and to receive DIB because he contacted SSA regularly and told them that he was working and because SSA did not terminate his benefits.
In February 2003, in his request for waiver of recovery of the overpayment, Borodkin stated that he thought he was due the overpayment and that he was not at fault in causing the overpayment because SSA workers did not do their jobs and kept SSA's rules and regulations "in secret." (Tr. 81. But see Tr. 168-69 (Plaintiff's testimony that SSA told him he could work for a short period and that after the period, SSA would stop his benefits).) Borodkin asserted that he had provided all information SSA had required and refused to complete the portion of the form requesting information on his assets, stating it was "personal" and "has nothing to do with your money." (Tr. 830-84.) Borodkin did, however, provide information about his monthly household expenses. (Tr. 85.) In a remarks space, Borodkin stated he had not heard from SSA on how they had "punished" an employee for "trick[ing]" him with his life insurance four years earlier. (Tr. 887.)
"Tr." refers to a page number in the administrative record that was filed as part of the Commissioner's answer.
When asked by the ALJ whether there were any documents concerning the overpayment that were not in the file, Borodkin responded that all the documents he had sent to SSA were "missing." (Tr. 162-63.) He stated he had kept copies of the paperwork he had sent SSA but was not sure where they were located. The ALJ asked Borodkin to submit copies of the documents and stated he would hold the record open for thirty days to allow the Plaintiff to do so. He instructed Borodkin on how to contact him if he needed additional time to locate the documents. The ALJ also stated he would attempt to locate any documents submitted by Borodkin.
Borodkin's January 8, 2007 letter in opposition has challenged the representation made to him by the SSA in the fall of 1998 and maintains that at the SSA Benefit Office, he was advised that he had the right to work for some time after which the SSA would determine whether benefits would continue. Borodkin has also submitted that he remains disabled because of his health and has been placed on restricted duty. Additionally, Borodkin has submitted evidence that he received dialysis treatment from June 1999 to April 2006.
The Plaintiff has maintained that he supplied W-2 forms to the SSA which were not provided to the ALJ. Borodkin noted that he received increases in payments and that he was advised he would have a 36 month eligibility period.
According to Borodkin:
"I relied on the information that was provided to me by people that I thought were doing their job. The mistake made by the SS[A] should have been caught by their superiors. I am not responsible for the function of the agency."
Discussion 1. Statutory Standard and Standard of Review
The Commissioner is authorized to recoup an overpayment of benefits unless the overpaid individual was without fault and recovery of such overpayment would either defeat the purpose of the Social Security Act (the "Act") or be against equity and good conscience. 42 U.S.C. §§ 404(a)(1), 404(b); 20 C.F.R. § 404.506(a); accord Chlieb v. Heckler, 777 F.2d 842, 846 (2d Cir. 1985).
If the Commissioner's decision that a claimant was not without fault is supported by substantial evidence in the record as a whole, it must be upheld because such a determination is a factual determination. Valente v. Sec'y of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984) (citations omitted). The Supreme Court has defined the term substantial evidence in the context of a Social Security case as "`more than a mere scintilla'" and as that evidence which "`a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).
Further, the issue of whether repayment would defeat the purposes of the Act or be against equity or good conscience is an exercise of informed judgment, and the Commissioner has considerable discretion in making these determinations. Valente, 733 F.2d at 1041 (citations omitted). Factual determinations by the Commissioner in relation to these issues must be upheld if supported by substantial evidence. Id. (citations omitted). The Court may not substitute its own judgment for that of the Commissioner, even if it might justifiably have reached a different result on de novo review. Id. (citations omitted).
Fault applies only to the individual. 20 C.F.R. § 404.507. Although SSA may have been at fault in making the overpayment, that does not relieve the overpaid individual from liability for repayment if such individual is not without fault. Id.; Center v. Schweiker, 704 F.2d 678, 680 (2d Cir. 1983) (citations omitted). Fault will be found if the individual: (a) makes a statement which he knows or should have known to be incorrect; (b) fails to furnish information which he knows or should have known to be material; or (c) accepts a payment which he knew or could have been expected to know was incorrect. Center, 704 F.2d at 680. "No showing of bad faith is required; rather, an honest mistake may be sufficient to constitute fault." Id. (citation omitted).
Recovery would defeat the purpose of Title II of the Act in situations where the person from whom recovery is sought needs substantially all of his current income (including social security monthly benefits) to meet current ordinary and necessary living expenses, 20 C.F.R. § 404.508(b). Recovery of an overpayment would be against equity and good conscience if, inter alia, an individual changed his or her position for the worse or relinquished a valuable right because of reliance upon a notice that a payment would be made or because of the overpayment itself. Id. § 404.509(a)(1).
2. Borodkin Was Not Without Fault
Borodkin has not disputed that he was working while continuing to receive disability checks from November 1999 through June 2001. As his defense, he blames SSA, stating that because he informed SSA about his activity, he believed he was entitled to the benefits.
However, an individual who is eligible for disability benefits is responsible for promptly reporting to the SSA if he returns to work. Id. § 404.1588(b). Borodkin has acknowledged his obligation in this regard. However, he has not produced any evidence that he informed SSA of his work activity as he contends in his letter.
Even assuming that Borodkin did inform SSA about his activity, the fact that SSA may have been at fault in making the overpayment does not relieve plaintiff of his liability for repayment. Id. § 404.507. This is because Borodkin was not without fault, in that he accepted payments which he knew or could have been expected to know were incorrect. Id. § 404.507(c). Indeed, from the time he first applied for benefits, Borodkin was aware that his return to work would affect his eligibility for DIB. (Tr. 49.) Further, he acknowledged that SSA personnel advised him that he could work for a short period and that after that period, SSA would stop his benefits. (Tr. 168-69.) Notwithstanding, Borodkin continued to collect benefits for over two and one-half years after returning to work in November 1998.
As the ALJ noted, Borodkin did not appear to have any pronounced intellectual deficits, he was college-educated, and he earned over $45,000 per year in 1999, 2000, and 2001. Further, he did not allege any difficulty reading or speaking English. Inasmuch as Borodkin could have been expected to know that he was not entitled to those payments, he was not without fault in connection with the overpayment of benefits. See 20 C.F.R. § 404.507. The decision is supported by substantial evidence, requiring affirmance of the Commissioner's decision.
3. Recovery Would Neither Defeat the Purpose of the Act Nor Be Against Equity and Good Conscience
Further, the ALJ analyzed whether, even if the Plaintiff had been without fault in accepting the overpayment, recovery would defeat the purpose of Title II of the Act or be against equity and good conscience. Id. §§ 404.508 — 404.509. The ALJ concluded that recovery would neither defeat the purpose of Title II of the Act nor be against equity and good conscience, and that waiver of the Plaintiff's duty to repay the overpayment would still be inappropriate.
Borodkin bears the burden of proving that repayment would either be inequitable or would defeat the purpose of the Act.Valente, 733 F.2d at 1042 (citations omitted). He did not show, however, how he needed substantially all of his current income (including social security monthly benefits) to meet current ordinary and necessary living expenses. 20 C.F.R. § 404.508(b). Not including any income from DIB, Borodkin earned a substantial income in all relevant years, as found above. Moreover, Borodkin refused to provide information about his assets. Thus, the ALJ properly concluded that Borodkin could afford to repay the money in monthly installments. Recovery would therefore not defeat the purpose of the Act. Id. § 404.508.
Regarding whether recovery of the overpayment would be against equity and good conscience, Borodkin did not submit evidence that he changed his position for the worse or relinquished a valuable right because of reliance upon a notice that a payment would be made or because of the overpayment itself. Id. § 404.509.
Therefore, substantial evidence supported the ALJ's conclusion that recovery of Plaintiff's $10,343.50 overpayment should not be waived.
Conclusion
For the reasons discussed above, the Commissioner's decision is supported by substantial evidence and is affirmed.
It is so ordered.