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Roberts v. Berryhill

United States District Court, E.D. Pennsylvania

April 25, 2018

GREGORY S. ROBERTS
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration

          MEMORANDUM OPINION

          Savage, J.

         This case demonstrates how a Social Security disability claimant, acting without the benefit of counsel, can easily be confused and unintentionally misled about his rights to pursue his remedies, implicating due process concerns. There is no question that the claimant did not seek judicial review of the Commissioner's decision resulting in the diminution of his benefits within the statutory sixty-day period. The issue is whether, under the circumstances of this case, the limitations period should be equitably tolled.

         Plaintiff Gregory S. Roberts, proceeding pro se, seeks judicial review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security reducing his benefits under the Social Security Disability Insurance Program.[1] The decision upheld previous determinations by the Social Security Administration (SSA) and an Administrative Law Judge (ALJ) that the SSA had overpaid Roberts $15, 863.00. The SSA has been deducting offsets for both workers' compensation and retirement pension benefits from his disability insurance benefits (DIB) over a period of almost nine years. Complaining that the SSA miscalculated the offsets, Roberts seeks to compel the Commissioner to properly calculate the overpayment and deduct only what he owes.

         Moving to dismiss the complaint, the Commissioner contends that the action is time-barred by the limitations period set forth in § 405(g):

Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow.

42 U.S.C. § 405(g). It is undisputed that Roberts did not file the complaint within sixty days of the decision. However, considering the unusual circumstances in this case and in the interest of justice, he is entitled to equitable tolling. Therefore, we shall deny the Commissioner's motion.

         Facts and Procedural History[2]

         Sometime in 1998, Roberts suffered a work-related injury. On May 4, 1999, Roberts filed an application for DIB. The SSA determined that Roberts was disabled as of September 12, 1998 and awarded him DIB. In March, 1999, he began receiving weekly workers' compensation (WC) benefits of $477.50.[3]

         In October, 2000, Roberts reported to the SSA that he had been awarded WC benefits. Pursuant to 42 U.S.C. § 434(a)(1)(A), the SSA offset his DIB payments by the WC benefits, effective January, 2001.[4]

         On September 30, 2002, the SSA informed Roberts that the agency had made a mistake in calculating the amount of the WC offset, resulting in an overpayment of DIB of $5, 354.00.[5] Roberts requested reconsideration.[6] The agency took no action to recover the overpayment from Roberts, pending a decision on his request for reconsideration.[7]

         Almost three years later, on June 6, 2005, the SSA informed Roberts that the initial computation of the WC offset was incorrect and “[h]is benefits will be corrected and his overpayment amount recalculated.”[8] The agency further determined that his pension benefit credit reduced his WC payments to zero for the time frame from November 17, 2001, through October 21, 2002, which impacted the calculation of his DIB payments.[9] WC payments resumed effective October 22, 2002.[10] The end result was that although the SSA determined that Roberts was entitled to “his full disability benefit for November, 2001, on, ” it advised that “[h]is benefits will be corrected and his overpayment amount recalculated, and he will receive a separate notice regarding that action.”[11]

         On June 19, 2005, the SSA informed Roberts that he had been overpaid DIB by $15, 863.00. It warned him that it would take action to recover the overpayment from him.[12] Specifically, the SSA stated: “We plan to recover the overpayment by withholding the payment you would normally receive [on or] about August 17, 2005. You will receive your monthly payment again [on or] about November 16, 2005.”[13]

         On December 8, 2006, after a hearing, an ALJ issued an unfavorable decision.[14]The ALJ found that Roberts was partially at fault in causing the overpayment and the SSA could not waive recovery of overpayment.[15]

         Roberts requested review by the Appeals Council.[16] The Appeals Council granted review because “there [was] an error of law” in the ALJ's decision.[17] The Appeals Council vacated the ALJ's findings that Roberts was partially at fault in causing the overpayment and that the SSA could not waive recovery of the overpayment. Nonetheless, it concluded that the SSA's determination that Roberts had been overpaid by $15, 863.00 was proper, accurate, and supported by the record.[18]

         By letter dated September 22, 2009, the Appeals Council informed Roberts of its decision. The letter clearly informed him that he “had 60 days to file a civil action (ask for court review).”[19] The letter also stated:

The 60 days start the day after you receive this letter. We assume you received this letter 5 days after the date on it unless you show us that you did not receive it within the 5-day period. . . . If you cannot file for court review within 60 days, you may ask the Appeals Council to extend your time to file. You must have a good reason for waiting more than 60 days to ask for court review. You must make the request in writing and give your reason(s) in the request.[20]

         Roberts did not ignore the letter. He went to his local SSA office twice for advice, first on September 28, 2009, and again on October 16, 2009. Notes made by SSA representatives on those dates in the SSA's case management files reflect that Roberts was seeking relief from what he considered to be the SSA's miscalculation.[21] The notes show that Roberts visited an SSA service center on those dates to get answers to his questions about the WC offset calculations and the overpayment. He made those visits within the sixty-day window for filing an appeal of the Appeals Council's decision of September 22, 2009, to the district court.

         The September 28 note states, in part, that Roberts gave the SSA representative a copy of the Appeals Council's “review.”[22] It also reports that “[w]e did discuss waiver since the AC dismissed the waiver denial.”[23]

         At the second meeting, as reflected in the notes, the SSA representative told Roberts that she disagreed with the Appeals Council about how to calculate the WC offset when pension benefits were involved. The representative also observed that the Appeals Council had ignored the evidence Roberts had submitted. The October 16, 2009 note states:

Mr. Roberts is questioning AC [Appeals Council's] decision - I disagree with their decision regarding the computation of the op [overpayment] and I had prepared an ssa 795 . . . for his appeals council request. [U]nfortunately, AC did not give that evidence any weight. Nor did they give any weight to the rpoc [retirement pension offset credit] I completed with his AC request regarding how wc offset is computed. I told [M]r. [R]oberts we would check with region to see if the orig[inal] decision could be reopened and to verify my interpretation of the wc offset comp PPC with region - steve farrell - he agrees with my determination, but the regional attorney will not ask AC to look at this again - how to compute wc offset when there is a pension involved is a matter of “interpretation” and the AC can interpret the law as they wish. . . . I sent Mr. Roberts a letter today stating that ssa position is that of the appeal council. [H]e can file a suit in civil court or request a waiver if he cannot afford to repay.[24]

         The notes suggest that the agency's internal controversy about the proper treatment of pension offsets was communicated to Roberts. Importantly, the October note reflects that the SSA representative advised Roberts that she would attempt to have the decision reopened.

         By letter dated March 8, 2010, the SSA informed Roberts that his case had been referred to the SSA's regional office for “technical advice on the computation” of the WC offset and the Appeals Council's decision.[25] It advised that “the decision of the Appeals Council remains and the amount of the overpayment is determined to be $15863.00.”[26]It offered no explanation of how it determined that amount. The letter further stated that “[y]our next level of appeal is to file a civil action regarding the amount of the overpayment” or request a waiver of the overpayment. Significantly, it did not advise him of any deadline for filing an action.[27]

         Roberts contends that he was not aware he had a time limit to file a civil action. In his undated letter to AUSA Lynch, Roberts stated, “[t]his Notice did not give a time limit to which I could appeal this matter in civil action.”[28] One could reasonably assume that the March 8, 2010 notice superseded the September 22, 2009 notice of the Appeals Council's decision.[29]

         On January 23, 2015, Roberts requested reopening the Appeals Council's decision and more time to file a civil action.[30] On April 10, 2015, before the Appeals Council ruled on that request, Roberts filed a written request to reconsider the decision and for more time to file a civil action.[31] He gave the following reasons for his request:

I received workers compensation from 1999 through 2000 but those payments were subsequently taken back when I began my retirement benefits through my employer, Dept. of State/Youth Development Center. Effective 11/17/2001, I received no workers compensation. I disagree with the amount of the overpayment and it must be reviewed. See attached documentation.[32]

         Both requests were made long after expiration of the statutory sixty-day period for filing an action. However, Roberts contends that the March 8, 2010 letter did not fix a period of time within which to seek judicial review.

         On May 29, 2015, the SSA denied the request to reopen the Appeals Council's September 22, 2009 decision and the request for more time to file a civil action.[33] His request for reopening was denied because the Appeals Council found no new evidence, clerical error, or error as to the “evidence considered in making the determination or decision.”[34] The letter also advised Roberts that his request for more time to file a civil action was denied because he had “not stated any reason for not filing on time.”[35] It advised Roberts that his request was “currently under consideration as a request for reconsideration as of April 10, 2015.”[36] On February 26, 2016, the SSA sent Roberts another letter informing him that his “reconsideration request dated April 10, 2015 is . . . dismissed.”[37]

         On October 13, 2016, Roberts commenced this civil action. He requests an order directing the Commissioner to recalculate the overpayment and his benefits.[38] The ...


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