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September 22, 1986


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


The Plaintiff, Robin Adams, has filed suit seeking review of a final decision by the Secretary of the United States Department of Health and Human Services finding that she had received an overpayment of child's benefits to her daughter, Melissa Hibser, in the amount of $2,223.60 and denying waiver of that amount. The benefits had been paid pursuant to 42 U.S.C. § 402(d), 405, 416, and 1302. Judicial review is permitted and defined by 42 U.S.C. § 405(g).

In order to qualify for a waiver of reimbursement under the Social Security Act, a person must be "without fault" and there must be a showing that the requirement to return the overpayment would defeat the purpose of the Act or be against equity and good conscience.

The burden of proof is on Plaintiff to establish the absence of fault and the injury to the purposes of the Act or equity or good conscience.

Judicial review of an Administrative Law Judge's (ALJ) findings pursuant to these standards is limited to scrutiny of the record in its entirety and a determination of whether each essential element of the administrative findings is supported by substantial evidence. 42 U.S.C. § 405(g); Lechelt v. Cohen, 428 F.2d 214 (7th Cir. 1970); Strickland v. Harris, 615 F.2d 1103 (5th Cir. 1980). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). In making this determination, the Court must be extremely cautious to avoid substituting its judgment for that of the ALJ, Strickland v. Harris, supra) but may also not relieve itself of the problem of considering and resolving complex issues by "uncritical rubberstamping of the administrative action." Stark v. Weinberger, 497 F.2d 1092 (7th Cir. 1974).

If there is a conflict in the evidence, the burden is upon the claimant to prove that he or she meets the requirements of eligibility. Johnson v. Weinberger, 525 F.2d 403, 407 (7th Cir. 1975). In addition, an Administrative Law Judge's credibility determination regarding subjective evidence should be given considerable weight by the court. Bibbs v. Secretary of Health, Education & Welfare, 626 F.2d 526, 528 (7th Cir. 1980); Zblewski v. Schweiker, 732 F.2d 75 (7th Cir. 1984); Zalewski v. Heckler, 760 F.2d 160 (7th Cir. 1985).

Since the formulation of the local procedure for handling Social Security appeals, the Court's attention has been directed to the case of Garcia v. Califano, 463 F. Supp. 1098 (N.D.Ill. 1979). In that action, the Court held that motions for summary judgment are "procedural improper vehicles for a decision on the merits" in Social Security disability cases. The Court believes this to be a proper interpretation and will, accordingly, treat the pleadings in the present case as Plaintiff's motion to reverse and Secretary's motion to affirm.

Robin Adams is the mother of Melissa L. Hibser (who was ten years old on March 7 of this year) and the divorced wife of Roy Hibser. The Social Security Administration had determined that Mr. Hibser was disabled and entitled to receive benefits and, on August 1, 1978, Plaintiff signed an application prepared by Roy Hibser for benefits for Melissa as permitted by 42 U.S.C. § 402(d). Payments on the child's behalf began in January, 1979 and continued until June of 1982 when they were discontinued by the Administration.

Apparently, during that period of time, Roy Hibser had been performing substantial, gainful work while continuing to collect his disability benefits. The Social Security Administration learned of his deception and, in February of 1982, advised Plaintiff that there appeared to have been an overpayment of benefits to Melissa and that she had ten days to present additional evidence for consideration. She was told that she would be advised when a formal determination was made. There was no further communication between the Administration and Plaintiff and all payments were discontinued effective the end of June, 1982.

On November 12, 1983, Plaintiff received a letter which informed her that the original overpayment was $10,806.10 but that, because she had not been notified until February 1982 of any problem, that $8,582.50 would be excused. The Officer of Disability Operations told her that the Administration would not, however, relieve her of the obligation to repay the balance of $2,223.60 for the period February 1982 through June 1982. Ms. Adams sought and was granted a meeting with claims representatives of the Administration and, on January 4, 1984, the revised overpayment was confirmed and waiver was denied. She was informed of this decision by letter dated March 9, 1984.

On that same day she requested a hearing on the overpayment; that hearing was held on July 12, 1984 before an Administrative Law Judge. On July 30, 1984, the ALJ issued his decision affirming the earlier denial of waiver by the Administration. Thereafter, on October 11, 1984, Plaintiff sought review of the matter by the Appeals Council and on April 25, 1985, the Council upheld the ALJ's decision. That action became the final decision of the Secretary.

The only issue before the Court in this action is whether the final decision of the Secretary is supported by substantial evidence in the record.


Plaintiff has no quarrel with the decision of the Social Security Administration that there was an overpayment because of Roy Hibser's apparent duplicity or that, as a result of his activity, her daughter Melissa became ineligible for continued payment of child's insurance benefits. Plaintiff only objects to being held responsible for reimbursing the Social Security Administration for the overpayment to Melissa.

Overpayments and underpayments of benefits are covered under 42 U.S.C. ยง 404 which is ...

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