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Nordvik v. Berryhill

United States District Court, E.D. Virginia, Alexandria Division

May 15, 2019

ATLE B. NORDVIK, Plaintiff,
v.
NANCY A. BERRYHILL, Defendant.

          MEMORANDUM OPINION

          THERESA CARROLL BUCHANAN, UNITED STATES MAGISTRATE JUDGE.

         Pursuant to the Social Security Act § 205(g), 42 U.S.C. § 405(g), Atle Nordvik ("Plaintiff) seeks judicial review of the final decision of Nancy A. Berryhill ("Defendant"), the former Acting Commissioner of Social Security, [1] denying his request for waiver of overpayment. On February 19, 2019, the certified Administrative Record ("R.") was filed under seal. By April 1, 2019, both parties filed motions for summary judgment with briefs in support, which are now ripe for resolution.[2] For the reasons set forth below, the undersigned U.S. Magistrate Judge, pursuant to 28 U.S.C. § 636(c)(1), will vacate the final decision of the Defendant and remand this matter for further proceedings.

         I. PROCEDURAL AND FACTUAL BACKGROUND

         On July 10, 2009, Plaintiff applied for retirement insurance benefits under Title II of the Act. (R. at 136-42.) In the application, Plaintiff noted he expected to receive "a pension or annuity based in whole or in part on work after 1956 not covered by Social Security." (R. at 136.) Plaintiffs anticipated non-covered pension stemmed from work completed in Norway prior to moving to the United States in 1991 ("Norway Pension"). (R. at 129-30.) The application informed Plaintiff of his responsibility to report to the Social Security Administration ("SSA") when he became entitled to a pension or annuity not covered by Social Security and that failure to timely report could result in "overpayments that must be repaid." (R. at 140.)

         On July 17, 2009, the SSA issued a Notice of Award, finding that Plaintiff was entitled to receive monthly retirement benefits beginning in August 2009. (R. at 133.) The notice included information regarding resources Plaintiff could use in case any questions about his benefits arose. (R. at 135.) Specifically, the notice provided both a toll-free number and the number of Plaintiff s local Social Security office. (R. at 135.) This section of the notice informed Plaintiff that the SSA "could answer most questions over the phone." (R. at 135.) The Notice of Award also informed Plaintiff of his continuing duty to immediately report changes to the SSA. (R. at 131, 134.)

         In the years following the SSA's award of retirement benefits, Plaintiff received several letters from the SSA requesting information related to receipt of pensions not covered by Social Security. (R. at 43-44, 158-59.) The first three letters were sent on or around February 25, 2010, September 17, 2011, and November 29, 2012. (R. at 44.) Upon receipt of the November 29, 2012 letter, Plaintiff provided a written reply on December 3, 2012. (R. at 44.) Additionally, Plaintiff contacted the SSA at the toll free number. (R. at 44.) Plaintiff spoke with a Social Security representative who, after consulting with a supervisor, informed Plaintiff that his future receipt of the Norway Pension would not affect his Social Security retirement benefits. (R. at 44.) The representative also communicated to Plaintiff that he could anticipate no longer receiving letters requesting additional information regarding non-covered pension income. (R. at 44.)

         In January 2014, Plaintiff began receiving his Norway Pension. (R. at 23.) Plaintiff did not immediately report this additional income to the SSA. (R. at 23.)

         On August 5, 2014, more than a year-and-a-half after his call with the SSA representative, Plaintiff again received a letter from the SSA requesting information pertaining to non-covered pension income. (R. at 44.) Believing the SSA committed a mistake, Plaintiff, this time, contacted his local Social Security office in Fairfax. (R. at 44.) The representative there again conveyed that Plaintiffs Norway Pension would not impact his retirement benefits. (R. at 44.) The representative did, however, suggest Plaintiff inform the SSA about his receipt of the Norway Pension. (R. at 44.) On September 11, 2014, Plaintiff completed and returned a Modified Benefit Formula Questionnaire in which he listed his Norway Pension. (R. at 129-30.)

         On November 12, 2014, the SSA sent another letter to Plaintiff. (R. at 125-28.) The letter stated the SSA reduced Plaintiffs benefits by nearly $400 due to earnings not covered by Social Security. (R. at 44, 125-28.) The SSA determined January 1, 2014 should serve as the effective date for the reduction. (R. at 125-28.) As a result of the reduction, the SSA overpaid Plaintiff in the amount of $3, 640, for payments made from January 2014 through August 2014. (R. at 125-28.) Approximately two months later, Plaintiff filed a request for reconsideration of the reduction in his benefits and to waive the overpayment. (R. at 117-120.)

         On July 21, 2015, the SSA advised Plaintiff that upon reconsideration it would uphold its prior decision to reduce Plaintiffs benefits. (R. at 57-64.) The SSA also advised Plaintiff that he could still request a waiver of his overpayment from his local Social Security office. (R. at 64.)

         On September 18, 2015, Plaintiff met with Myriam Cederstrom, a representative at the local Social Security office in Fairfax. (R. at 47.) Plaintiff met with Ms. Cederstrom, in part, to discuss the process of requesting a waiver of overpayment. (R. at 47.) Ms. Cederstrom told Plaintiff that, due to the fact the SSA already made its decision, the local office could no longer take any additional action. (R. at 47.) Instead, the representative advised Plaintiff to request a hearing with an Administrative Law Judge ("ALJ") to seek a waiver of the overpayment and for reconsideration of the reduction. (R. at 47.) On that same day, Plaintiff requested a hearing with an ALJ. (R. at 103.)

         On June 6, 2017, ALJ F.H. Ayer held a hearing, at which Plaintiff appeared and testified. (R. at 143-64.) At the hearing, the ALJ confirmed he received Plaintiffs written submissions outlining Plaintiffs argument for reconsideration and waiver. (R. at 146.) During his testimony, Plaintiff recounted the steps he took in late 2012 to ascertain whether the Norway Pension would affect his Social Security retirement benefits, including calling the SSA at the toll free number. (R. at 158-59.)

         Approximately six weeks later, the ALJ issued a decision, finding that the SSA appropriately reduced Plaintiffs benefits and that Plaintiff was "not without fault" in causing the overpayments. (R. at 21-26.) As part of his fault discussion, the ALJ focused on the fact the SSA informed Plaintiff of his reporting responsibilities on several occasions. (R. at 25-26.) Accordingly, the ALJ determined that recovery of the overpayment was not waived and, thus, Plaintiff was liable for repayment of $3, 640. (R. at 26.)

         Plaintiff then requested review of the ALJ's decision to the Appeals Council for the Office of Disability and Adjudication and Review ("Appeals Council"). (R. at 10-12.) The Appeals Council denied Plaintiffs request for review on June 19, 2018 making ...


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