United States District Court, D. North Dakota
Donald T. Johns, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
R. Hochhalter, Magistrate Judge United States District Court.
plaintiff, Donald T. Johns (“Johns”), seeks
judicial review of the Social Security Commissioner's
denial of his request for a waiver of overpayment of
Supplemental Security Income (“SSI”) pursuant to
42 U.S.C. § 205(b). For the reasons set forth below, the
decision of the ALJ is affirmed.
was honorably discharged from the United States Marine Corp
in 1976. (Tr. 99). Deemed to have a service-connected
disability of twenty percent, he was awarded a modest monthly
benefit by the United States Veterans Administration
filed an application for Title XVI SSI payments on July 15,
2010, alleging a disability onset date of January 2010.
(Id.). On his application he listed his VA benefits
and food stamps as his only sources of income.
application for SSI was granted and he began receiving
monthly SSI payments in 2010. The amount he received was
offset or reduced by the amount of his monthly VA benefits.
March 3, 2012, the Social Security Administration
(“SSA”) issued a notice advising Johns that,
because he showed “no income from February 2012 on,
” his monthly SSI payments would increase effective
April 2012. (Tr. 24-27).
12, 2013, the SSA issued a notice to Johns that, from April
2012 through June 2013, he received overpayments totaling $3,
481.00 due to a mistaken belief on its part that he no longer
had other sources of income. (Tr. 28-31). It further advised
that it would deduct $71 from his SSI payments every month to
offset the overpayment or, in the alternative, he could repay
the entire $3, 481.00 by check, money order, or credit card.
(Id.). Finally, it informed him of his right to
request a waiver of overpayment. (Id.).
had apparently spent the $3, 4181.00 on dental care and so he
could not simply return it to the SSA. On July 24, 2013, he
filed a request for a waiver of overpayment on the grounds
that he “was never told [his] payment was changing or
why it was changing[, ] [he was] not aware there was anything
wrong[, ] [and he] did not tell social security that [his] VA
benefits stopped.” (Tr. 36-38)
November 6, 2013, Johns reported to the SSA's office in
Bismarck, North Dakota, for a “personal
conference.” (Tr. 49). That same day the SSA denied
Johns' waiver request, opining:
NH was overpaid from 04/12-06/13 in the amount of 3471.00.
The overpayment was discovered during a redetermination. It
was found that VA income was not listed as a source of
NH submitted an SSA-635 Request for Waiver of Overpayment
Recovery on 7/24/2013. The waiver states that he was not at
fault in causing the overpayment because he was never told
that his payment was changing or why it was changing.
During the personal conference, we discussed his
responsibility to report all income. I asked him if he was
aware that payment had increased in April 2012. He stated
yes, but he thought the reason it increased, was due to a
phone call he made to the congressman's office. He
contacted the congressman because he disagreed with SSI
payments being reduced due to his VA income. He thought the
law changed. We reviewed the letter that was sent to him on
March 3, 2012. The letter clearly states that his SSI payment
was increasing because “he had not income from 02/12
on.” Since the NH was notified of the change in
payment, it was his responsibility to contact SSA to report
that he was receiving VA income. The NH was fully aware of
the effect his VA income had on his SSI payments and should
have known that the SSI payment was incorrect. Since he was
aware of this, we cannot find him without fault in causing
the overpayment. Therefore, the waiver is being denied.
(Doc. No. 503).
administrative law judge (“ALJ”) convened an
administrative hearing at Johns' request on March 21,
2014. (Tr. 55, 59-60, 69-73, 130-146). Johns testified at the
hearing that he suffers from schizophrenia, which sometimes
affects his judgment, and that the stress regarding the
overpayment had exacerbated his symptoms. (Tr. 135-137). He
also testified about his VA benefits, how he obtained them,
and how he had always taken issue with how the SSA had used
them when calculating his SSI payments. (Tr. 136-37). When
asked to explain what he meant by “issue, ” he
responded that he had “an issue with them taking
something like the veteran's benefits away from
[him].” (Tr. 137). When the topic of finances and his
ability to management them was broached, he testified that
while he lived on his own he would look to family for help
budgeting his money. (Tr. 138, 141).
April 15, 2014, the ALJ issued an order denying Johns'
waiver request. (Tr. 10-17, 107-114). The ALJ accepted the
SSA's determination that, from April 2012 until June
2013, Johns was overpaid SSI in the amount of $3, 481.00. The
ALJ further concluded that Johns was “not without fault
in causing the overpayment” as he should have
recognized that the SSA had erred when recalculating his SSI
benefits and reported it. Specifically, he opined:
After considering the claimant's testimony and reviewing
all of the documents in the record, the undersigned finds the
claimant was not without fault in causing or accepting the
overpayment. The claimant reported his VA benefits at the
time he applied for SSI on July 15, 2010 (Exhibit 1, page 2),
and he testified that he noticed the offset in his monthly
SSI payments. The claimant had knowledge that his VA benefits
counted as income for determining his SSI monthly payment, at
the time he received the notice from the Social Security
Administration dated March 3, 2012, informing him of the
increase in his monthly SSI payment (Exhibit 2). The claimant
testified that he complained about the VA offset to his
Senator. Thereafter, the claimant has asserted he believed
that his complaint led to a change in the law and stopped the
offset, causing the increase in his monthly SSI payment.
However, the claimant testified that he did not receive any
correspondence from the Social Security Administration
informing him of a change in the law, and he never inquired
whether the law had changed after he received the notice
dated March 3, 2012.
Even though the Social Security Administration may have been
at fault in making the overpayment, the regulation that
controls this issue does not relieve the claimant from
liability for repayment if he was not without fault in
accepting the overpayment (20 CFR 416.552). The claimant knew
or should have known his VA benefits would have impacted the
amount of his SSI payments, and there is no evidence that the
claimant was provided with incorrect information about a
change in the law requiring the offset of his VA benefits.
The undersigned has considered the claimant's testimony
that he is disabled due to a mental impairment,
schizophrenia, which affects his judgment (20 CFR 416.552).
The claimant has asserted that his interactions with the
Social Security Administration increased his schizophrenic
symptoms, but he has not submitted medical evidence to
support this allegation, which seems ...