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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14391
Non-Argument Calendar
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D.C. Docket No. 0:14-cv-61098-RNS
FAZEELA MCCABE,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 12, 2016)
Before TJOFLAT, MARTIN and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Fazeela McCabe, a recipient of disability benefits, appeals the district
court’s order affirming the Social Security Administration’s (“SSA”) denial of her
request for a repayment waiver under 42 U.S.C. § 404(b). The SSA found that
McCabe was overpaid disability benefits during a period when she engaged in
substantial work without notifying the agency, and for that reason it sought
repayment of the benefits from McCabe. On appeal, McCabe argues that she was
without fault in causing the benefit overpayment because she did report her work
to the SSA, and thus repayment of the benefits should be waived. McCabe also
claims that her due process rights were violated at the hearing before the
Administrative Law Judge (“ALJ”). After careful consideration, we affirm.
I.
Our review is limited in social security cases. See 42 U.S.C. § 405(g). “We
review the Commissioner’s decision to determine if it is supported by substantial
evidence and based on proper legal standards.” Crawford v. Comm’r of Soc. Sec.,
363 F.3d 1155, 1158 (11th Cir. 2004) (per curiam) (quotation omitted).
“Substantial evidence is more than a scintilla and is such relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Id.
(quotation omitted). We may not reweigh the evidence or decide facts for
ourselves—the Commissioner’s decision deserves deference “even if the proof
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preponderates against it.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)
(per curiam) (quotation omitted).
II.
A. Fault
To qualify for disability benefits, a claimant cannot be engaged in
“substantial gainful activity”—regardless of her medical condition, age, education,
or work experience. 20 C.F.R. § 404.1520(b). Substantial gainful activity is work
that involves performing “significant physical or mental activities” for pay, even if
the work is only on a part-time basis. Id. § 404.1572. Every year, the SSA
announces a new threshold for substantial gainful activity. See Social Security
Administration, Substantial Gainful Activity, available at
https://www.ssa.gov/oact/cola/sga.html. The parties do not dispute that McCabe
engaged in substantial gainful activity during the relevant period.
The Commissioner shall recover overpayments of benefits whenever more
than the correct amount has been paid. 42 U.S.C. § 1383(b)(1)(A). However,
recovery of an overpayment may be waived if: (1) the claimant is “without fault”;
and (2) recovery would “defeat the purpose of this subchapter or would be against
equity and good conscience.” Id. § 404(b)(1). The claimant bears the burden of
proving that she was without fault in the overpayment of benefits. Viehman v.
Schweiker, 679 F.2d 223, 227 (11th Cir. 1982). Even if the SSA was partially at
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fault for the overpayment, that fact does not shield the claimant from liability for
repayment if she is not without fault. 20 C.F.R. § 404.507. Fault can be shown,
for example, where the overpayment of benefits results from the claimant’s failure
to provide information she knew or should have known was material. Id. §
404.507(b). The determination of whether a claimant is without fault is highly
subjective, as it depends on the claimant’s state of mind and individual
circumstances. See Jefferson v. Bowen, 794 F.2d 631, 633 (11th Cir. 1986).
Substantial evidence supports the ALJ’s determination that McCabe knew of
her obligations and responsibilities in receiving benefits, particularly her duty to
inform the SSA of her work activity. First, the ALJ properly applied the subjective
standard by noting that McCabe had spoken clearly, appeared quite intelligent, and
seemed able to understand how disability benefits were administered. See id.; 42
U.S.C. § 404(b)(2). Second, the administrative record shows that McCabe was on
notice of her duty to report her work to the SSA, as she filed two forms in 1999
and 2000 that advised her of this duty and warned her of the potential
consequences of failing to comply. Other correspondence between McCabe and
the SSA also reminded her of her duty to report. Finally, McCabe appears to have
actually reported some of her work to the SSA.
Substantial evidence also supports the Appeals Council’s determination that
McCabe was not without fault in causing the overpayment because she did not
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report her work to the SSA between June 2008 and December 2010. McCabe
argued to the Appeals Council that she did report her work during this period by
phone, through a program called AAA Takecharge, which assists recipients of
disability benefits in returning to work. However, McCabe did not identify any
record evidence showing that she reported her work during the relevant period, and
the Appeals Council found that the record did not contain any such evidence. We
conclude that the Appeals Council’s determination was proper. Unlike other times
when McCabe reported her work to the SSA, the record contains no confirmations
of work reporting during the relevant period. Also, McCabe’s own timeline of
events, in which she thoroughly documented her interactions with the SSA, does
not contain any reference to her reporting work to the SSA during the relevant
period. Thus, the Appeals Council’s implicit rejection of McCabe’s claim that she
did report her work during the relevant period is not due to be overturned on
appeal. 1 See Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir. 1983) (per
curiam) (“[T]his circuit does not require an explicit finding as to credibility . . .
[but] the implication must be obvious to the reviewing court.”). Substantial
evidence supports the finding that McCabe failed to carry her burden of proving
she was without fault in causing the overpayment.
1
On appeal, McCabe argues that her work reporting at other times should be viewed as
competing evidence of her credibility. However, “[t]he substantial evidence standard limits the
reviewing court from deciding the facts anew, making credibility determinations, or re-weighing
the evidence.” Stone & Webster Constr., Inc. v. U.S. Dep’t of Labor, 684 F.3d 1127, 1133 (11th
Cir. 2012) (quotation omitted).
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B. Due Process
“The fundamental requirement of due process is the opportunity to be heard
at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S.
319, 333, 96 S. Ct. 893, 902 (1976) (quotation omitted). There must be a showing
of prejudice before we will determine that a social security claimant’s due process
rights have been violated to such a degree that the case must be remanded to the
Commissioner for development of the record. Brown v. Shalala, 44 F.3d 931, 935
(11th Cir. 1995) (per curiam). Even where a hearing “was less than totally
satisfactory,” prejudice is not shown unless the ALJ did not have all the relevant
evidence before him or did not consider the evidence in reaching his decision.
Kelley v. Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985) (per curiam). A claimant
cannot show prejudice by speculating that she would have benefitted from a more
comprehensive hearing. See id.
McCabe argues that her due process rights were violated because: (1) she
did not receive an opportunity to examine the record before her hearing, which
violated the SSA’s Hearings, Appeals, and Litigation Law Manual (“HALLEX”); 2
(2) there were omissions in the record; and (3) the hearing was short. We conclude
that although the ALJ’s hearing may have been less than completely satisfactory,
its shortcomings did not prejudice McCabe so as to require a remand. See id.
2
See Social Security Administration, HALLEX: Hearings, Appeals, and Litigation Law
Manual, available at https://www.ssa.gov/OP_Home/hallex/hallex.html.
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First, McCabe claims that the ALJ violated HALLEX by not giving her an
opportunity to review the record before the hearing. HALLEX states that the
claimant has the right to examine all material in her claims file. HALLEX § I-2-1-
35, 1993 WL 642972. This Court has not decided whether HALLEX carries the
force of law. Cf. George v. Astrue, 338 F. App’x 803, 805 (11th Cir. 2009) (per
curiam) (unpublished) (calling the assumption that HALLEX carries the force of
law “a very big assumption”). Even assuming (without deciding) that HALLEX
carries the force of law and the agency failed to comply with it, McCabe has not
shown that she was prejudiced by this failure. McCabe speculates that she would
have benefitted from reviewing the record because she would have been “better
prepared to respond to the allegations that she had not reported work.” However,
McCabe knew the agency’s position regarding her failure to report work long
before the hearing, and she had already sent and received a great deal of
correspondence about the matter. In fact, McCabe prepared a detailed letter and
chronology in anticipation of the hearing, describing the dispute as well as citing
specific dates and documents. McCabe’s assertion that she would have benefited
from being provided the record in accord with HALLEX is “pure speculation.”
Kelley, 761 F.2d at 1540.
Second, McCabe claims there were omissions in the record. These
omissions do not seem to have been material to the issue presented. For example,
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McCabe notes that a fax was missing the transmittal page. But a fax transmittal
page does not contain any material information. See HALLEX § I-2-1-15(A),
1993 WL 642954 (stating that hearing office staff will not propose as exhibits
“transmittal forms or route slips”). McCabe lists other exhibits that were allegedly
omitted from the administrative record. Several of these alleged omissions
actually appear in the administrative record. The remaining alleged omissions are
irrelevant to the issue here: for instance, letters from the SSA informing McCabe
of routine benefit increases, papers related to McCabe’s son or deceased husband,
and work reports that are duplicative of information in the administrative record.
The ALJ had the relevant evidence before him, so any alleged omissions did not
rise to the level of prejudicing McCabe. See Kelley, 761 F.2d at 1540.
Finally, McCabe argues that the hearing before the ALJ was short, and the
ALJ stopped her from reading a letter she had prepared. The hearing lasted 11
minutes, and the ALJ interrupted McCabe’s reading of the letter because he
already had a copy of a similar letter from McCabe. The ALJ did, however, accept
the new letter into evidence along with other documents that McCabe presented at
the hearing. As in Kelley, we observe that the hearing may have been “less than
totally satisfactory.” 761 F.2d at 1540. But that fact alone is not enough—the
claimant must also show prejudice. See id. at 1540–41. McCabe does not say how
a longer hearing would have benefitted her, nor does it appear that the ALJ failed
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to consider McCabe’s letter. For these reasons, we do not find that McCabe was
prejudiced, and therefore remand is unnecessary. See Brown, 44 F.3d at 935.
AFFIRMED.
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