Donnie Bass v. Carolyn Colvin , 650 F. App'x 336 ( 2016 )

FILED
NOT FOR PUBLICATION
MAY 16 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONNIE LEE BASS, No. 15-35287
Plaintiff - Appellant, D.C. No. 2:13-cv-02025-RSL
v.
MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, Senior District Judge, Presiding
Submitted May 10, 2016**
Before: PREGERSON, LEAVY and OWENS, Circuit Judges.
Donnie Bass appeals pro se from the district court’s grant of summary
judgment in favor of the Commissioner of Social Security. The district court
affirmed the Commissioner’s decision requiring Bass to repay $8,845.19 in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
overpaid disability insurance benefits under Title II of the Social Security Act. We
have jurisdiction under 28 U.S.C. § 1291, and we reverse in part and affirm in part.
1. We reverse the district court’s determination that the ALJ did not err in
holding that Bass was not entitled to a waiver of overpayment. A claimant is
entitled to a waiver of overpayment if (1) a claimant is without fault in receiving
the overpayment and (2) recovery would defeat the purposes of the Act or be
contrary to equity and good conscience. 42 U.S.C. § 404(b).
The two reasons the ALJ provided do not constitute substantial evidence for
its finding that Bass could have known he was being overpaid and was therefore at
fault in incurring the overpayments because they do not bear on what a person in
Bass’s circumstances would reasonably have known. See Harrison v. Heckler, 746
F.2d 480, 482 (9th Cir. 1984) (explaining that the fault determination is “highly
subjective”). First, that Bass was sent a routine booklet on reporting requirements
when he initially received his award cannot, on its own, be sufficient. This would
render a waiver of overpayment virtually unobtainable. Second, the routine notice
that Bass received in 1999 (which the government notes cannot be located in the
record) is likewise insufficient, as it was received well before the overpayments at
issue and thus has little bearing on Bass’s awareness at the time of the
overpayments.
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Further, recovery of payment from Bass would have also defeated the
purposes of the Act and been contrary to equity and good conscience, as there is
evidence that Bass needed the income for ordinary living expenses. See 42 U.S.C.
§ 404(b).
Accordingly, we hold that Bass was entitled to a waiver of overpayment.
2. We affirm the district court’s determination that it lacked jurisdiction to
consider Bass’s claims for damages and medical expenses. See 42 U.S.C.
§§ 405(g),(h) (the Social Security Act allows only for judicial review of a final
decision of the Commissioner of Social Security and precludes any other action to
recover).
REVERSED in part, AFFIRMED in part.
Appellee shall bear costs on appeal.
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