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GAVIN v. HECKLER

October 8, 1985

CHIQUITA GAVIN, ET AL., PLAINTIFFS,
v.
MARGARET HECKLER, SECRETARY, HEALTH AND HUMAN SERVICES, DEFENDANT.



The opinion of the court was delivered by: Moran, District Judge.

It is ordered and adjudged that this court having reviewed the report and recommendation of the magistrate, it is hereby adopted. Plaintiffs' motion for summary judgment is granted and defendant's motion is denied.

The magistrate's report and recommendation is attached as an appendix.

APPENDIX

REPORT AND RECOMMENDATION

September 24, 1985.

JAMES T. BALOG, United States Magistrate.

Before the court is an action for judicial review pursuant to 42 U.S.C. § 405(g) of a final decision of the Secretary of Health and Human Services, ("Secretary"). The parties have filed cross-motions for summary judgment.

The plaintiffs seek review of a final decision of the Secretary denying their request for waiver of the Secretary's right to recoupment of overpayments of Social Security benefits.

The controversy involves overpayments made to a son of the plaintiff's deceased husband, Walter Crite, Jr. Crite had three children. Plaintiff Anna Gavin is the mother of plaintiffs Chiquita and Oliver Gavin.

Chiquita and Oliver received Social Security benefits based upon the earnings record of their father. Crite had a third son, also named Walter Crite, who received benefits. Crite is not Anna Gavin's son and he does not live with Gavin or contact her.

On January 31, 1980, Crite was notified by the Social Security Office that he had been overpaid benefits because he had not informed the office that he had turned 18 and was not continuing further education. (R. 66). Crite owed $1,473.50. Id.

On December 11, 1981, plaintiffs were notified that they were contingently liable for the overpayment of benefits and that certain amounts would be withheld from plaintiff's benefits to repay the administration (R. 20). On July 2, 1982, plaintiffs filed a request for reconsideration (R. 26) and the prior decision was affirmed by the Social Security Administration on December 3, 1982. (R. 77). The plaintiffs sought and received a hearing de novo before an administrative law judge ("ALJ"). On June 10, 1983, the ALJ found that plaintiffs were contingently liable for the over-payment and that recovery could not be waived. (R. 17). The decision was approved by the Appeals Council of Nov. 2, 1983 (R. 2), thereby rendering it the final decision of the Secretary.

42 U.S.C. § 405(g), the statute conferring jurisdiction upon this Court, provides that "(t)he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." Thus, the limited function of the reviewing court is to determine whether the Secretary's findings of fact are supported by substantial evidence, i.e., "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984). While the court must examine the record as a whole in determining whether or not substantial evidence exists to support the findings of the Secretary, Garcia v. Califano, 463 F. Supp. 1098 (N.D.Ill. 1979), it should not engage in a de novo consideration of the evidence presented to the Secretary. Strunk v. ...


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