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
REPORT AND RECOMMENDATION
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