___________

No. 96-1509

___________

Debra Hutchison, for *

Donald Hutchison, *

*

Appellant, * Appeal from the United States

* District Court for the

v. * Southern District of Iowa.

*

Shirley S. Chater, Commissioner *

of the Social Security *

Administration, *

*

Appellee. *

___________

 Submitted: September 11, 1996

 Filed: November 5, 1996

___________

Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit

Judge, and WOLLMAN, Circuit Judge.

___________

WOLLMAN, Circuit Judge.

Debra Hutchinson, on behalf of her son Donald Hutchinson, appeals

from the district court's judgment affirming the final decision of the

Commissioner of the Social Security Administration (Commissioner), that

Donald Hutchinson is liable for an overpayment of Supplemental Security

Income (SSI) benefits. We affirm in part, reverse in part, and remand.

I.

Donald Hutchinson is a nine-year-old boy who suffers from autism,

microcephaly, poor growth, and developmental delays. Debra Hutchinson

applied for benefits on Donald's behalf on April 19, 1989, which the Social

Security Administration (SSA) awarded on May 18, 1989, with Ms. Hutchinson

becoming Donald's representative payee.
-2-

Initially, Ms. Hutchinson reported that the household's only income

was her husband's wages of $5.50 per hour, forty-one hours per week. In

October of 1989, when the SSA conducted a review of Donald's SSI

eligibility, Ms. Hutchinson reported that her husband's wage had increased

to $6.00 per hour and that he was averaging forty-five hours per week. The

SSA did not initiate another review of Donald's eligibility until May of

1991. Ms. Hutchinson testified that she was aware of her continuing duty

to report changes in income to the SSA. Between October of 1989 and May

of 1991, however, other than mentioning that her husband occasionally

performed odd jobs, Ms. Hutchinson never reported a change in household

income even though her husband's wages increased. Ms. Hutchinson did

report in August of 1990 that one of her children had left the household.

The SSA based its calculation of Donald's benefits on the information

supplied by Ms. Hutchinson. It calculated Donald's benefits using incomedeeming rules that we later invalidated in Tyrrell v. Sullivan, 972 F.2d

252 (8th Cir. 1992), as exceeding the Commissioner's authority.

Eventually, the SSA determined that Donald had received an overpayment of

$4,450.00 for the period July 1990 through September 1991 because of

unreported changes in Mr. Hutchinson's wages. 

Ms. Hutchinson requested a waiver of the overpayment recovery,

contending that she was not at fault in connection with the overpayment.

The SSA rejected this assertion, finding that because Ms. Hutchinson failed

to report the changes in her husband's income between October of 1989 and

August of 1991, but had reported previous changes, she was aware of and

failed in her duty to report. 

A hearing was held before an Administrative Law Judge (ALJ) on

December 1, 1993. The ALJ approved the application of the regulations we

struck down in Tyrrell, affirmed the existence of an
-3-

overpayment, and denied a waiver, finding that Ms. Hutchinson was not

without fault. The Appeals Council denied review, stating that Tyrrell was

inapplicable to Donald's case. The ALJ's decision, therefore, stands as

the Commissioner's final decision. 

Having exhausted her administrative remedies, Ms. Hutchinson sought

review of the Commissioner's decision in the district court, which affirmed

the Commissioner's decision. Ms. Hutchinson appeals, arguing that the ALJ

should have applied the post-Tyrrell regulations in determining Donald's

benefits and should have waived the recoupment of any overpayment.

II.

We agree with Ms. Hutchinson's contention that the ALJ should have

determined Donald's benefits using an income-deeming formula consistent

with Tyrrell. 

In denying Ms. Hutchinson's request for review, the Appeals Council

stated that Tyrrell was not applicable to Donald's case because the

Commissioner had not issued an "Acquiescence Ruling." Regardless of

whether the Commissioner formally announces her acquiescence, however, she

is still bound by the law of this Circuit and does not have the discretion

to decide whether to adhere to it. "`[T]he regulations of [SSA] are not

the supreme law of the land. "It is, emphatically, the province and duty

of the judicial department, to say what the law is," Marbury v. Madison,

1 Cranch 137 (1803), and the [Commissioner] will ignore that principle at

[her] peril.'" Hillhouse v. Harris, 715 F.2d 428, 430 (8th Cir. 1983) (per

curiam) (quoting Hillhouse v. Harris, 547 F. Supp. 88, 93 (W.D. Ark.

1982)). Tyrrell is, and was at the time of the ALJ's decision, the law of

this Circuit, and the Commissioner
 We note that the Assistant United States Attorney

1

representing the Commissioner conceded (wisely, we believe) at oral

argument that Tyrrell applies to Donald's case and agreed that we

should remand for a calculation of benefits consistent with that

ruling. He also agreed that it would not be unfair or inequitable

for any recoupment to be paid in installments rather than in a lump

sum.

-4-

must abide by it.1

III.

Ms. Hutchinson next argues that the ALJ erred in finding that Donald

was at fault in connection with the overpayment. Ms. Hutchinson misreads

the ALJ's decision, however, for the ALJ found that it was Ms. Hutchinson

who was at fault.

The fault of a representative payee in connection with an overpayment

supports a denial of waiver of that overpayment. Evelyn v. Schweiker, 685

F.2d 351, 352 (9th Cir. 1982); see also Cannuni v. Schweiker, 740 F.2d 260,

263 (3d Cir. 1984) (waiver provisions of regulations apply to

representative payees). We find that the ALJ's determination of Ms.

Hutchinson's fault is supported by substantial evidence.

That portion of the judgment holding Ms. Hutchinson to be liable for

overpayment of benefits is affirmed. That portion of the judgment

affirming the Commissioner's calculation of the amount of overpayment is

reversed, and the case is remanded to the district court with instructions

to remand to the Commissioner for recalculation of the amount of

overpayment under the post-Tyrrell regulations.
-5-

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.