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BONNER v. CALIFANO

May 4, 1981

Charles E. BONNER
v.
Joseph CALIFANO, Secretary of Health, Education and Welfare



The opinion of the court was delivered by: GILES

MEMORANDUM AND ORDER

Plaintiff, Charles E. Bonner, seeks recovery of $ 2,017.40 in disability benefit overpayments which the Secretary of the Department of Health, Education and Welfare (renamed the Department of Health and Human Services) "recouped" without a prerecoupment oral hearing. Jurisdiction lies under 42 U.S.C. § 405(g) (1976). *fn1"

 On May 27, 1977, claimant reestablished entitlement to disability benefits. Tr. 94. *fn2" The Secretary determined that claimant had received $ 2,017.40 in overpayments from a previous disability. Tr. 9. From June 1977 February 1978, the Secretary recouped the sum through paying claimant $ 18.20 per month. On March 3, 1978, the Secretary wrote to claimant stating that claimant's January 1978 check for $ 18.20 represented the balance of monies due claimant for June 1977 through January 1978; and that claimant had sixty days from receiving the notice of benefit entitlement to request reconsideration. On May 9, 1978, claimant applied for reconsideration of the recoupment decision, stating that he was without fault. Tr. 97-98. The Secretary denied his request for reconsideration on September 15, 1978. Tr. 101.

 Over a year and half after the Secretary began recoupment and, over a year after the monies were completely recouped, the Administrative Law Judge held an oral hearing. Tr. 18.

 The ALJ concluded that claimant was not without fault in receiving the social security overpayments. Accordingly, the ALJ denied plaintiff's written request under § 204(b) of the Social Security Act, 42 U.S.C. § 404(b) (1976) for recovery of the recouped sum. Tr. 5-9. *fn3" The Appeals Council upheld the ALJ's decision on March 13, 1979. Tr. 2-3.

 Plaintiff brought this action on May 7, 1979. The parties have filed cross motions for summary judgment.

 I. Summary Judgment

 Under Fed.R.Civ.Pro. 56(c), summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. *fn4" The Supreme Court has stated that summary judgment is authorized only where "the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, that no genuine issue remains for trial and that the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try." Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S. Ct. 724, 728, 88 L. Ed. 967 (1944). Accord, Hurtado v. U. S., 410 U.S. 578, 587-588 n.8, 93 S. Ct. 1157, 1163 n.8, 35 L. Ed. 2d 508 (1973).

 II. Undisputed Facts

 Plaintiff was employed by the Philadelphia school system as a physical education instructor. On December 19, 1973, he suffered a heart attack and was hospitalized. He became entitled to social security disability insurance payments in June, 1974. (Complaint P 6).

 Plaintiff informed the social security administration that he was returning to work. He did resume work in September, 1974 and worked until May, 1977 (Complaint P 7). He received social security disability benefit payments until March, 1976 (Complaint P 9). The payments stopped because the Social Security Administration determined that claimant was only entitled to disability benefits for the June 1974 August 1975 period. (Complaint P 10).

 Plaintiff again became disabled due to his heart condition in May of 1977. Tr. 94. Effective June 1977, a new period of entitlement to disability insurance benefits was established for plaintiff. (Complaint P 11). When plaintiff reapplied for disability benefits, it was unilaterally determined that previously he had received overpayments. As a means of recouping these prior overpayments, the Social Security Administration decided to withhold a substantial part of plaintiff's monthly disability benefits check. (Complaint P 11).

 In summary, the parties do not dispute that from September 1975 March 1976 plaintiff received overpayments of $ 2,017.40; plaintiff reestablished entitlement to disability insurance payments to begin in June 1977; from June 1977 January 1978, the Secretary withheld a substantial part of the payments to which plaintiff was otherwise entitled by reason of the second disability period; *fn5" and plaintiff was not given an oral hearing prior to the Social Security Administration setting in motion its recoupment method.

 Plaintiff was afforded a post-recoupment hearing. Tr. 18-86. The ALJ affirmed the initial recoupment decision, held that claimant was not without fault and that recoupment would not defeat the purposes of the Act or be against equity and good conscience. Tr. 9. The ALJ did not address the threshold question of whether the Social Security Administration could summarily deprive claimant ...


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