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August 20, 1974


VanArtsdalen, District Judge

The opinion of the court was delivered by: VANARTSDALEN

VanARTSDALEN, District Judge

 This is an appeal pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Disability benefits to Joyce P. Goldfin were terminated effective the end of January, 1971. The Secretary of the Department of Health, Education and Welfare (HEW) made a final determination that subsequent to the nine months trial work period, Miss Goldfin engaged in substantial gainful employment and was consequently, no longer entitled under the Act to receive disability benefits. The Secretary further determined that overpayments totaling $1752.40 were made from February 1, 1971 through February, 1972 and that since Miss Goldfin was not "without fault," the government was entitled to recover this sum. Procedurally the matter is properly before the court on the issues of (1) whether Miss Goldfin was entitled to disability benefits subsequent to January 1971 and (2) whether the overpayments were "without fault" on the part of Miss Goldfin. Both parties agree that the basic question is whether there is substantial evidence to support the final determinations of the Secretary of HEW. I find that there is substantial evidence and will, therefore, affirm the decision of the Secretary of HEW.

 The answer contained, as a part thereof, a certified copy of the transcript of the record as required, and both parties have moved for summary judgment upon the pleadings, transcript and briefs.

 The Secretary of HEW made a determination that the disability ceased in November, 1970, and therefore as provided by 42 U.S.C. § 416(i) (D) (ii) benefits terminated two months thereafter, viz., the end of January 1971. This determination was initially made and Miss Goldfin was so notified by letter dated May 8, 1972 at which time the overpayment of $1752.40 was noted and a refund claimed. (TR-57). She did not initially contest the termination of benefits but filed a "Without Fault" Questionnaire form in which she stated: (TR-92)

I was told I had a 9 month work period. I returned to work but did not work constantly. I thought SSA rules only applied if I worked constantly, therefore I thought I was entitled to benefits.

 Miss Goldfin was "disabled" as of October 1, 1965 because of mental illness diagnosed as "Schizophrenic reaction, paranoid type." (TR-50). She applied for disability benefits on December 19, 1968 (TR-49), showing that she last worked at the Philadelphia General Hospital between June and October of 1965 (TR-47).

 After starting to receive disability benefits, she obtained a job at Misericordia Hospital in Philadelphia in April, 1969 as a bacteriology technician (TR 40-41), earning $380 per month (TR 67). On December 15, 1969 she took a job at the Osteopathic Hospital in Philadelphia at $440 per month but worked there only until January of 1970 when she took a job at the Pennsylvania Hospital (TR-69) which she thought was a better opportunity (TR 69-70). However, she worked at this latter job only one week, and quit because she could not stand the strain of working with a complex machine. (TR 69). Thereafter her next job was from October 28, 1970 to February of 1971 as a dictaphone typist (TR 28, 72), earning about $1.80 per hour. Her employer was Olston's, Inc., a temporary office job service company. In February of 1971 she took a permanent job as secretary to Dr. England, an associate dean of the Osteopathic Medical College (TR 73). She worked continuously in such capacity until the end of October, 1971 when she was asked to resign because of her illness (TR 30). Her earnings during this period increased from $320 to $720 per month (TR 76). In March of 1972 she started to work three days a week with Johnson-Marsh, a marketing firm, and this job lasted until July of 1972. (TR 31-32). In September, 1972 she entered Temple University as a student, taking regular courses and studying in the dance department to become a teacher. (TR 33). As of the time of the hearing before the Administrative Law Judge on January 10, 1973, she had completed the first semester and was a student in good standing about to start the second semester. The earnings record data indicates that she earned $2963.27 in 1969; $1877.73 in 1970; $4240.80 in 1971; and $168.73 in 1972.

 It is crystal clear that during substantial portions of the time that Miss Goldfin was receiving disability benefits she was engaged in substantial gainful employment within the meaning of the act. 42 U.S.C. § 416(i); 42 U.S.C. § 423(d). By whatever methods one computes the allowable "period of trial work" (42 U.S.C. § 422(c)), the nine month period had expired prior to November 1970. It appears that she worked from April 1969 until sometime in January 1970, although at three different jobs, all of which paid substantial wages, and each successive job apparently a better paying job. She returned to work October 28, 1970 as an employee of Olston's, Inc. and continued until late October 1971. At the time that she started to work at Olston's, Inc., her trial work period had expired. Consequently, if such work constituted substantial gainful activity, her disability benefits were required to be terminated. Appellant argues in the brief that although her activities after November of 1970 may have been "gainful" they were not "substantial" because eventually she had to resign her job because of her illness. In view of the fact that since November 1970 until the time of hearing in January of 1973 she was either regularly employed or attending college in all but about five or six months, and that at the time of the hearing she was enrolled as a full-time student at Temple University and apparently satisfactorily attending classes, it is hard to see how any conclusion could be reached other than that she was capable of engaging in substantial gainful activity.

 A more difficult question is involved in determining whether there is substantial evidence to support the determination that:

5. The claimant was at fault for creating the overpayment in the amount of $1752.40. (TR 12)

 The Administrative Law Judge correctly notes that two conditions must be met to bar recovery by the government from a beneficiary who has been paid excessive benefits: (1) the recipient must have been "without fault" and (2) recovery would defeat the purpose of the statute or be against equity and good conscience. 42 U.S.C. § 404(b). The Administrative Law Judge concluded that although condition number (2) above would be satisfied, condition number (1) was not. In the "Hearing Decision," the Administrative Law Judge states:

there is no escaping the fact that the claimant was at fault and her fault caused or contributed to causing the overpayment. (TR 12-13).

 No explanation for this conclusion is stated. The entire record has been examined to determine if there is substantial ...

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