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Byrd v. Colvin

United States District Court, S.D. Alabama, Southern Division

July 17, 2014

JOHNNY R. BYRD, etc., Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


WILLIAM E. CASSADY, Magistrate Judge.

This case is before the Magistrate Judge for entry of a report and recommendation, pursuant to 28 U.S.C. § 636(b), on the Commissioner's motion to dismiss plaintiff's complaint due to a lack of subject matter jurisdiction. Upon consideration of the motion to dismiss (Doc. 11), plaintiff's response (Doc. 13), and the comments of the parties at the July 8, 2014 proceeding before the undersigned, it is RECOMMENDED that the Court GRANT the defendant's motion to dismiss based on a lack of subject matter jurisdiction.


Plaintiff filed this pro se action in this Court on November 12, 2013, and while the face of the complaint alleges that "[t]he Commissioner's decision to deny the plaintiff's application was erroneous and was not supported by substantial evidence in the administrative record[]" (Doc. 1, at 2), the attached letter reveals that plaintiff is complaining about the Social Security Administration's recovery of an overpayment of benefits made to plaintiff and his then minor daughter Kayla ( see id. at 3).

I received disability payments from Social Security. When I was able to return to work I notified Social Security and was told I could continue to work as long as I did not exceed a certain income. I repeatedly notified Social Security of my return to work, my income and my increases in income. Each time I was repeatedly told by Social Security they would investigate, contact me and adjust benefits if needed. Social Security never contacted me. I then began to receive increases in disability benefits. I continued to contact them and received the same reply that they would get back to me. The only word from Social Security I ever got was paperwork announcing an increase in my benefits. Years later they announced I have been overpaid. I repeatedly contacted them by phone and in writing disagreeing and stating the same things. The amount of the overpayment from Social Security then began to fluctuate up and down. I never could get a final figure because each time I contacted them they said they were checking and would get back to me. I began to make payments to them in an effort to resolve things. They then began to withhold tax refunds. I continued to ask what was the final figure and it never stopped fluctuating up and down and Social Security continued to advise they were checking. Finally, I got an attorney but all efforts were rejected. Social Security has never taken into consideration the payments I made nor the tax refunds they withheld. Social Security has never given me an accounting of what they say I owe, what I paid into them and what they withheld in tax refunds and they have never given an accounting on how they arrived at the latest figure they say I owe. I have tried to obtain a waiver due to the negligence and fault of Social Security [] without success. I am now totally disabled again due to cancer. I applied for new benefits and was told I qualified but NO benefits would be paid until all money has been repaid. I am now unable to work, I am penniless and I have no source of income to live on. Some adjustment must be given to me and some benefits must be given to me so I can survive.[1]

( Id. at 3 (footnotes added).) Byrd attached to the complaint two notices sent to him from the Social Security Administration dated September 13, 2013. (Doc. 1, at 5-15.) Both of these notices, from the Appeals Council, informed him that his request for a hearing had been dismissed based on the doctrine of res judicata. ( See Doc. 1, at 9 & 15 ("[T]he Appeals Council hereby dismisses the request for hearing filed on July 14, 2011 under the doctrine of res judicata. The determination dated May 3, 2006 stands as the final decision of the Commissioner.").) These decisions were based off of a series of events and transactions dating back to 1992, according to Mr. Byrd's statements to the Court on July 8, 2014, when he was first granted and started receiving disability insurance benefits.

As aforesaid, Johnny Byrd received disability insurance benefits in 1992 and his daughter, Kayla, began receiving benefits a few years later based upon his entitlement to benefits. On November 15, 2005, the Social Security Administration determined that Johnny Byrd "no longer qualified for benefits as of February 1, 2001, " and that his daughter, Kayla, had received excess benefits of $20, 694.00. ( Compare Doc. 11, Exhibit 6, at 3 with id. at 8.) That same date, Byrd received notice that he had "received excess benefits beginning February 2001 of $41, 388.10." ( See Doc. 1, at 8.) Subsequently, the Social Security Administration revised their total excess payments on March 14, 2006, and informed Johnny that he had received excess benefits in the amount of $88, 639.40, and that Kayla had received excess benefits in the amount of $44, 341.00, through October of 2005. ( Compare id. with Doc. 11, Exhibit 6, at 3 & 11) On May 7, 2006, the Social Security Administration again revised the totals, and informed Johnny that he had received excess benefits in the amount of $90, 600.10, and that Kayla had received excess benefits still in the amount of $44, 341.00, still through October of 2005. ( Id. ) Plaintiff did not appeal any of these determinations. ( Compare Doc. 1, at 8 with id. at 14.)

On November 17, 2010, the Social Security Administration notified Byrd of its determination that his and Kayla's benefits should have been suspended for two additional months not previously referenced in a determination, that is, September and October of 2003, due to his substantial gainful activity. ( See Doc. 11, Exhibit 6, at 26 & 29.) The Social Security Administration advised Byrd that "Kayla was not entitled to benefits for September 2003 and October 2003; [and] [i]t had paid excess benefits to Kayla of $41, 153.21." (Doc. 1, at 13.) It also stated that Johnny received excess benefits of $1, 637.30 in those same months, and indicated that his adjusted overpayment balance was $80, 933.93. ( Id. at 7.) After receiving these notices, Byrd, by letter dated November 21, 2010, disagreed with the amount of the overpayment and requested waiver of recovery of the overpayment. ( See Doc. 11, Exhibit 6, at 3 & 24-25.) On March 22, 2011, the Social Security Administration issued reconsideration determinations finding its November 7, 2010 determination regarding Kayla's overpayment total was correct ( see id. at 4) and that Johnny's overpayment determination "was correct in part." (Doc. 11, Exhibit 2, at 1.)

Byrd, through counsel, made a request for a hearing before an Administrative Law Judge on July 13, 2011; the SSA received this request on July 14, 2011. ( See Doc. 11, Exhibit 3.) On August 5, 2011, the ALJ rejected Byrd's request on the basis that it was untimely. ( See id., Exhibit 4) Byrd's September 28, 2011 request for review of the hearing decision ( see id., Exhibit 5), was received by the SSA on October 3, 2011 ( see Doc. 1, at 6 & 12).

The Appeals Council determined in a decision dated April 29, 2013 that Byrd had good cause for missing the deadline to request a hearing and, therefore, vacated the ALJ's order of dismissal. ( See Doc. 11, Exhibit 6, at 4.)[2] Nevertheless, the Appeals Council further informed the claimant that it still intended to dismiss his request for a hearing pursuant to 20 C.F.R. § 404.957(c)(1) since " res judicata applies to the reconsidered determination dated March 22, 2011[.]" ( Id. at 5.)

Specifically, we plan to find that the Social Security Administration made a revised determination dated May 7, 2006 regarding the facts, issues, and your rights in connection with the overpayment of benefits through October 2005, and that revised determination is final and binding. Thus, in the absence of revision due to clerical error or error appearing on the face of the evidence that was considered when the determination was made, the regulations preclude the Social Security Administration from further revising the final determination dated May 7, 2006. The notice dated March 22, 2011 does not identify revision due to the presence of such clerical error and, as such, has no effect on the findings included in the final determination dated May 7, 2006 and does not convey a right to a hearing regarding those facts and issues.
This means that you did not receive an additional overpayment of $818.00 for September 2003 and October 2003 [in the case of Kayla, and $1, 637.30 with respect to Johnny], and a hearing regarding that issue would have no practical effect.
Thus, we plan to dismiss the request for hearing. The revised determination dated May [7], 2006 will stand as the final decision of the Commissioner.

( Id. ) In other words, the 2010 revisions of the totals owed were not binding upon Johnny and Kayla Byrd (that is, they were of no import or consequence), and, thus, the totals from May of 2006 were final and barred from further ...

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