Perry v. Massanari

Full title: Betty PERRY, Plaintiff-Appellant, v. Larry G. MASSANARI, [*] Acting…

Court: United States Court of Appeals, Ninth Circuit

Date published: Nov 15, 2001

25 F. App'x 505 (9th Cir. 2001)

Opinion

25 Fed.Appx. 505 (9th Cir. 2001) Betty PERRY, Plaintiff-Appellant, v. Larry G. MASSANARI, ^* Acting Commissioner of Social Security Administration, Defendant-Appellee. No. 01-55817. D.C. No. CV-99-07809-LGB. United States Court of Appeals, Ninth Circuit. November 15, 2001

Submitted November 5, 2001 ^**.

** This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2). Accordingly, Perry's request for oral argument is denied.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Recipient of social security benefits sought judicial review of determination that she had been overpaid benefits. The United States District Court for the Central District of California, Lourdes G. Baird, J., granted summary judgment in favor of Commissioner of Social Security Administration. Recipient appealed. The Court of Appeals held that Commissioner's final decision was not supported by substantial evidence.

Reversed and remanded.

Page 506.

Appeal from the United States District Court for the Central District of California Lourdes G. Baird, District Judge, Presiding.

Before KLEINFELD, McKEOWN, and FISHER, Circuit Judges.

MEMORANDUM ^***

*** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

Betty Perry appeals the district court's summary judgment in favor of the Commissioner of the Social Security Administration in Perry's action challenging the Commissioner's finding that Perry had been overpaid Social Security benefits. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court's summary judgment upholding the Commissioner's final decision, Macri v. Chater, 93 F.3d 540, 543 (9th Cir.1996), and we review for substantial evidence the Commissioner's factual findings, Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995). We vacate and remand.

In our review for substantial evidence, we must consider the administrative record as a whole, see Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.1989), and because the record as a whole includes contradictory evidence provided by the Commissioner, substantial evidence does not support the Commissioner's final decision. The matter is remanded to the District Court with instructions to vacate the summary judgment previously entered and remand the matter to the Commissioner of the Social Security Administration for further proceedings to fully develop the record, which will include a proper accounting that reconciles the information provided to Perry in her SSA-1099's to the amount of benefits she was entitled to and paid.

REVERSED and REMANDED.