Jones v. Social Security Administration ( 2005 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-1055
SAMUEL JONES,
Plaintiff, Appellant,
v.
SOCIAL SECURITY ADMINISTRATION, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Selya, Lynch and Howard,
Circuit Judge.
Samuel Jones on brief pro se.
Michael J. Sullivan, United States Attorney, and Anita
Johnson, Assistant U.S. Attorney, on brief for appellee.
September 15, 2005
Per Curiam. This is an appeal from the district
court's decision affirming a decision by an administrative law
judge ("ALJ") in a disability insurance benefits case. The ALJ
denied this pro se appellant's request for a waiver of recovery
of an overpayment of benefits. He also concluded that the
Commissioner of Social Security had properly recouped the
overpayment by reducing a subsequent award of retroactive
benefits. We evaluate whether there is substantial evidence to
support the ALJ's fact findings and whether appropriate legal
standards were employed. Nguyen v. Chater, 172 F.3d 31, 35 (1st
Cir. 1999).
After careful review of the record, we conclude that
substantial evidence supports the ALJ's finding that Jones was
not entitled to a waiver of recovery of the overpayment because
he was not "without fault" regarding the overpayment. At a
hearing, Jones admitted that, during the pertinent time period,
he knew that the agency was erroneously paying him disability
benefits that were no longer due. Thus, he was not "without
fault," and the denial of his waiver request was proper. 20 CFR
§ 404.507 (indicating that an overpaid individual is at fault if
he accepts "a payment which he either knew or could have been
expected to know was incorrect"); see 42 U.S.C. § 404(b) (only
barring any "adjustment" in payments to, or "recovery" from,
persons "without fault").
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Regarding the offset, Jones does not object to the
ALJ's determination that the agency properly used its netting
regulation, 20 CFR § 404.504, as explained in Sullivan v.
Everhart, 494 U.S. 83, 87, 93-94 (1990). Hence, we need not
consider that question. Instead, he challenges the offset on the
ground that the agency waived its right to recover the
overpayment, citing language in a November 1992 notice it sent
him. He also asserts that he was denied a pre-recoupment
"personal conference." See Califano v. Yamasaki, 442 U.S. 682,
697 (1979).
The waiver claim is meritless because the agency's
November 1992 notice contained no explicit or actual waiver of
rights. The agency stated only that "no action will be taken to
recover the overpayment" until Jones' request for a waiver of
recovery had been decided. As it turned out, the agency recouped
the overpayment by offsetting it against the award of retroactive
benefits before it denied Jones' waiver request. Its failure to
hold off on recovery, as it advised Jones it would, was seemingly
inadvertent, as it apparently had lost track of his waiver
request until he mentioned it after the offset was made. The
record does not support a finding of any intentional waiver of
rights.
It is true that Jones did not get a hearing before the
agency recouped the overpayment. But a hearing was due only if
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the recoupment was an "adjustment" under 42 U.S.C. §
404(a)(1)(A), a question that Jones does not address. Even if an
adjustment occurred here (and not netting, as to which no hearing
is required), the inadvertent error was entirely harmless and
would not affect the outcome on appeal. Kerner v. Celebrezze,
340 F.2d 736, 740 (2d Cir. 1965) (declining to reverse denial of
disability benefits where the challenged procedural irregularity
was harmless error). We explain briefly.
The record shows that Jones received an entirely
adequate post-recoupment hearing at which he testified. His own
admissions at the hearing confirmed that he did not qualify for
a waiver of the recovery. Substantively, therefore, his waiver
request was meritless (and a pre-recoupment hearing, had one been
held, would have established the same point). The agency was
plainly entitled to recoup the overpayment, and there is no basis
for the remedial action Jones now seeks (return of the withheld
retroactive benefits). See Mercer v. Birchman, 700 F.2d 828,
832-33 (2d Cir. 1983) (rejecting a challenge to the agency's
failure to follow its customary procedures where the deviation
was aberrant and the agency had corrected the problem during
subsequent administrative proceedings); Crites v. Weinberger, 364
F. Supp. 956, 958 (N.D. Tex. 1973) (concluding that it would be
"ludicrous" to reinstate terminated benefits just so the agency
could hold a pre-termination hearing as required by new
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regulations where the plaintiff had already received an adequate
post-termination hearing).
Jones' remaining appellate claims are unavailing and
require no further discussion.
Affirmed.
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