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Johns v. Berryhill

United States District Court, D. North Dakota

December 18, 2019

Donald T. Johns, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.


          Clare R. Hochhalter, Magistrate Judge United States District Court.

         The 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.

         I. BACKGROUND

         Johns 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 (“VA”).

         Johns 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. (Id.).

         Johns' 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.

         On 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).

         On July 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.).

         Johns 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)

         On 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 income.
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).

         An 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).[1]

         On 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 ...

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