FILED
NOT FOR PUBLICATION
FEB 13 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD TRUMAN SUTTON, No. 15-35722
Plaintiff-Appellant, D.C. No. 2:14-cv-01734-JPD
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
James P. Donohue II, Magistrate Judge, Presiding
Submitted February 9, 2017**
Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.
Richard Sutton appeals the district court’s order affirming the Commissioner
of Social Security’s decision that he had been overpaid disability insurance
benefits (“DIB”) and was not entitled to a waiver of overpayment. Sutton
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
concedes that his DIB was properly offset by a state workers’ compensation benefit
for the period from January through April 2011 but challenges an offset for the
period from January through November 2010. We have jurisdiction under 28
U.S.C. § 1291. The Commissioner “bears the burden of proving the fact and
amount of overpayment.” McCarthy v. Apfel, 221 F.3d 1119, 1124 (9th Cir. 2000).
We review the Commissioner’s determination for substantial evidence. Id. at
1125. We reverse and remand.
Sutton’s lump-sum Washington state permanent partial disability award was
not a periodic benefit subject to offset. See 42 U.S.C. § 424a(a) (an individual’s
DIB must be offset by any “periodic benefits on account of his or her total or
partial disability (whether or not permanent) under a workmen’s compensation law
or plan of the United States or a State” if the total of the two benefits exceeds a
certain amount); see also id. § 424a(b) (a lump-sum benefit is excluded from this
requirement “except to the extent that it is a commutation of, or a substitute for,
period payments”). This court has held that where state law provided that a lump-
sum award was intended to compensate for the economic loss of earning capacity,
the award was a periodic benefit subject to offset. Hodge v. Shalala, 27 F.3d 430,
432-33 (9th Cir 1994). Under Washington law, however, an award of workers’
compensation benefits for permanent partial disability is not wage compensation
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intended to cover a claimant’s lost earning capacity. See Willoughby v. Dep’t of
Labor & Indus. of the State of Wash., 57 P.3d 611, 616-17 (Wash. 2002); McIndoe
v. Dep’t of Labor & Indus., 26 P.3d 903, 908 (Wash. 2001). We therefore reverse
the district court’s judgment and remand with instructions to remand to the
Commissioner for a recalculation and refund of any offset against Sutton’s DIB.
REVERSED and REMANDED.
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