Jones v. Social Security Administration

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals
For the First Circuit

No. 05-1055

SAMUEL JONES,

Plaintiff, Appellant,

v.

SOCIAL SECURITY ADMINISTRATION, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Selya, Lynch and Howard,
Circuit Judge.

Samuel Jones on brief pro se.
Michael J. Sullivan, United States Attorney, and Anita
Johnson, Assistant U.S. Attorney, on brief for appellee.

September 15, 2005
 Per Curiam. This is an appeal from the district

court's decision affirming a decision by an administrative law

judge ("ALJ") in a disability insurance benefits case. The ALJ

denied this pro se appellant's request for a waiver of recovery

of an overpayment of benefits. He also concluded that the

Commissioner of Social Security had properly recouped the

overpayment by reducing a subsequent award of retroactive

benefits. We evaluate whether there is substantial evidence to

support the ALJ's fact findings and whether appropriate legal

standards were employed. Nguyen v. Chater, 172 F.3d 31, 35 (1st

Cir. 1999).

After careful review of the record, we conclude that

substantial evidence supports the ALJ's finding that Jones was

not entitled to a waiver of recovery of the overpayment because

he was not "without fault" regarding the overpayment. At a

hearing, Jones admitted that, during the pertinent time period,

he knew that the agency was erroneously paying him disability

benefits that were no longer due. Thus, he was not "without

fault," and the denial of his waiver request was proper. 20 CFR

§ 404.507 (indicating that an overpaid individual is at fault if

he accepts "a payment which he either knew or could have been

expected to know was incorrect"); see 42 U.S.C. § 404(b) (only

barring any "adjustment" in payments to, or "recovery" from,

persons "without fault").

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 Regarding the offset, Jones does not object to the

ALJ's determination that the agency properly used its netting

regulation, 20 CFR § 404.504, as explained in Sullivan v.

Everhart, 494 U.S. 83, 87, 93-94 (1990). Hence, we need not

consider that question. Instead, he challenges the offset on the

ground that the agency waived its right to recover the

overpayment, citing language in a November 1992 notice it sent

him. He also asserts that he was denied a pre-recoupment

"personal conference." See Califano v. Yamasaki, 442 U.S. 682,

697 (1979).

The waiver claim is meritless because the agency's

November 1992 notice contained no explicit or actual waiver of

rights. The agency stated only that "no action will be taken to

recover the overpayment" until Jones' request for a waiver of

recovery had been decided. As it turned out, the agency recouped

the overpayment by offsetting it against the award of retroactive

benefits before it denied Jones' waiver request. Its failure to

hold off on recovery, as it advised Jones it would, was seemingly

inadvertent, as it apparently had lost track of his waiver

request until he mentioned it after the offset was made. The

record does not support a finding of any intentional waiver of

rights.

It is true that Jones did not get a hearing before the

agency recouped the overpayment. But a hearing was due only if

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the recoupment was an "adjustment" under 42 U.S.C. §

404(a)(1)(A), a question that Jones does not address. Even if an

adjustment occurred here (and not netting, as to which no hearing

is required), the inadvertent error was entirely harmless and

would not affect the outcome on appeal. Kerner v. Celebrezze,

340 F.2d 736, 740 (2d Cir. 1965) (declining to reverse denial of

disability benefits where the challenged procedural irregularity

was harmless error). We explain briefly.

The record shows that Jones received an entirely

adequate post-recoupment hearing at which he testified. His own

admissions at the hearing confirmed that he did not qualify for

a waiver of the recovery. Substantively, therefore, his waiver

request was meritless (and a pre-recoupment hearing, had one been

held, would have established the same point). The agency was

plainly entitled to recoup the overpayment, and there is no basis

for the remedial action Jones now seeks (return of the withheld

retroactive benefits). See Mercer v. Birchman, 700 F.2d 828,

832-33 (2d Cir. 1983) (rejecting a challenge to the agency's

failure to follow its customary procedures where the deviation

was aberrant and the agency had corrected the problem during

subsequent administrative proceedings); Crites v. Weinberger, 364

F. Supp. 956, 958 (N.D. Tex. 1973) (concluding that it would be

"ludicrous" to reinstate terminated benefits just so the agency

could hold a pre-termination hearing as required by new

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regulations where the plaintiff had already received an adequate

post-termination hearing).

Jones' remaining appellate claims are unavailing and

require no further discussion.

Affirmed.

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