is not necessarily binding on another department, an inconsistency in determinations by different governmental departments regulated by the same rules under identical circumstances must be carefully scrutinized by a court of review.
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 subchapter or would be against equity and good conscience.' (Emphasis supplied)
The general applicability of Section 204(b) is further defined in the Social Security Administration Regulations (20 CFR § 404.506 to § 404.509). In addition, 20 CFR § 404.511 provides:
'WHEN AN INDIVIDUAL IS AT 'FAULT' IN A DEDUCTION-OVERPAYMENT. '(a) Degree of care. An individual will not be 'without fault' if the Administration has evidence in its possession which shows either a lack of good faith or failure to exercise a high degree of care in determining whether circumstances which may cause deductions from his benefits should be brought to the attention of the Administration by an immediate report or by return of a benefit check. The high degree of care expected of an individual may vary with the complexity of the circumstances giving rise to the overpayment and the capacity of the particular payee to realize that he is being overpaid. Accordingly, variances in the personal circumstances and situations of individual payees are to be considered in determining whether the necessary degree of care has been exercised by an individual to warrant a finding that he was without fault in accepting a 'deduction overpayment.' '(b) Subsequent deduction-overpayments. An individual will not be without fault where, after having been exonerated for a 'deduction overpayment' and after having been advised of the correct interpretation of the deduction provision, he incurs another 'deduction overpayment' under the same circumstances as the first overpayment.'
Since plaintiff has the burden of showing that he was without fault and recoupment of any overpayment would be against equity and good conscience, plaintiff should have the opportunity to put on the record all facts pertaining to his personal financial condition. The record is silent as to plaintiff's present earnings. It is not clear to the Court, from a reading of the record, whether the Hearing Examiner considered the financial condition of both the plaintiff and his wife in reaching his determination in favor of recoupment. Also, the Hearing Examiner has failed to state with particularity whether the plaintiff failed to furnish the alleged material information for each year in question, and whether any consideration was given to the personal circumstances and situations of the plaintiff in reference to this information.
Accordingly, since a more complete record is essential, no adjudication will be made by the Court on the present record.
And now, this twenty-sixth day of March, 1965, it is ordered that the case of Lester W. Sturdevant v. Anthony J. Celebrezze, Secretary of Health, Education and Welfare, be remanded to the Secretary of Health, Education and Welfare for further proceedings consistent with this opinion.
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