The opinion of the court was delivered by: BODY
This action is brought under Section 205(g) of the Social Security Act, as amended, 42 U.S.C.A. § 405(g), for judicial review of a final decision of the Secretary of Health, Education and Welfare, imposing deductions against old-age insurance benefits awarded to plaintiff. Both parties have moved for summary judgment and the complete record of the previous proceedings is now before this Court.
Plaintiff filed an application for old-age insurance benefits on August 7, 1956 and the same was approved by the appropriate division of the then Bureau of Old-Age and Survivors Insurance (now included in the Social Security Administration) by awarding plaintiff old-age insurance benefits in the amount of $ 79.50 monthly (subsequently increased to $ 85.00).
In January 1958, at age sixty-seven, plaintiff was employed by the Quaker City Pharmacal Company as a traveling salesman and a medical service representative for the territory of Pennsylvania, Delaware, New Jersey, Maryland and, subsequently, West Virginia. Plaintiff was partially reimbursed, in the form of traveling expenses, for the use of his automobile while soliciting sales throughout the aforestated areas.
Upon reconsideration the Bureau affirmed its original determination, and on February 20, 1962 plaintiff requested and was granted a hearing before the Hearing Examiner of the Social Security Administration and appeared there with a certified public accountant who acted both as a witness and as plaintiff's personal representative.
The Hearing Examiner rendered his decision on January 11, 1963, affirming the prior administrative determination after hearing testimony and inspecting the various documents in the record. Plaintiff requested a review of the Hearing Examiner's decision on March 8, 1963 and the same was denied on April 30, 1963.
The regulations and practices of the Social Security Administration provide that after a denial by the Appeals Council of a request for review, the Hearing Examiner's decision is the final decision of the Secretary of Health, Education and Welfare, within the meaning of and subject to judicial review pursuant to provisions of Section 205(g) of the Act (42 U.S.C.A. § 405(g)).
The Court must now determine whether there is sufficient evidence in the record to support the findings of the Hearing Examiner as to whether plaintiff has been overpaid the sum of $ 2,739.00, and whether this sum should be repaid by the plaintiff. After a careful and detailed review of the entire record, the Court is unable to make any final determination because the record, as it now appears, is insufficient and inadequate.
The evidence introduced at the hearing included a letter dated July 10, 1959 written to the plaintiff from the Quaker City Pharmacal Company, signed by its president, confirming plaintiff's employment agreement. The letter states in part (Tr. 97):
'You will be compensated on a commission based on sales and will be paid partial traveling expenses to help cover some of the expense in connection with the use of your automobile, etc. 'The sum of $ 123.28 reimbursed to you for traveling expenses as shown on Form W-2 (Withholding Tax Statement -- 1958) we realize was not sufficient to fully cover your expenses. The fact that we are a new Company and a great deal of promotion work is required has held down your sales and therefore your income also.'
Plaintiff was paid on a weekly basis by a single check which indicated on its face the total amount of commission earned, the deduction for withholding tax, the deduction for social security tax, and the amount allocated to travel. It appears that the Hearing Examiner itemized all the checks submitted for the years 1958, 1959 and 1960 and determined that the plaintiff was overpaid in the sum of $ 2,739.00. However, there does not appear in the record a month to month accounting as to the precise method and mathematical calculations used by the Hearing Commission in reaching the final determination for the aforestated years. It is essential for this Court, as well as any appellate court, that these detailed calculations be included in the record to make it complete.
Section 204(b) of the Social Security Act provides:
'There shall be no adjustment or recovery by the United States in any case where incorrect payment has been made to an individual who is without fault (including payments made prior to January 1, 1940), and where adjustment or recovery would defeat the purpose of this ...