___________ 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, appeal s fromthe district court's judgment affirming the final decision of th e Commi ssioner of the Social Security Administration (Commissioner), tha t Donald Hutchinson is liable for an overpayment of Supplemental Securit y 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 , micr ocephaly, poor growth, and developmental delays. Debra Hutchinso n applied for benefits on Donald's behalf on April 19, 1989, which the Socia l 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 Oc tober of 1989, when the SSA conducted a review of Donald's SS I eligibility, Ms. Hutchinson reported that her hu sband's wage had increased to $6.00 per hour and that he was averaging forty-five hours per week. Th e SSAdid not initiate another review of Donald's eligibility until May of 1991. Ms. Hutchinsontestified that she was aware of her continuing duty to report changes in income to the SSA. Between October of 1989 and May of 199 1, however, other than mentioning that her husband occasionall y per formed odd jobs, Ms. Hutchinson never reported a change in househol d income even though her husband's wages increased. Ms. Hutchinson di d report in August of 1 990 that one of her children had left the household.

The SSA based its calculation of Donald's benefits on the infor mation supplied by Ms. Hutchinson. It calculated Donal d'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 d etermined that Donald had received an overpayment of $4,4 50.00 for the period July 1990 through September 1991 because o f unreported changes in Mr. Hutchinson's wages.

Ms. Hu tchinson 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 faile d 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 an d failed in her duty to report.

A hear ing was held before an Administrative Law Judge (ALJ) o n December 1, 1993. Th e ALJ approved the application of the regulations we struck down in Tyrrell , affirmed the existence of an

### -3-

overpay ment, and denied a waiver, finding that Ms. Hutchinson was no t without fault. The Appeals Council denied review, stating that Tyrrell wa s inapplicable to Donald's case. The ALJ's decision, therefore, stands as the Commissioner's final decision.
Having ex hausted her administrative remedies, Ms. Hutchinson sought review of the Commissioner's decision in the district court, which affirme d the Commissioner's decision. Ms. Hutchinson app eals, 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 hav e deter mined Donald's benefits using an income-deeming formula consisten t with Tyrrell
. In denyin g Ms. Hutchinson's request for review, the Appeals Council stated that Tyrrell was not applicable to Donald's case because th e Commis sioner had not issued an "Acquiescence Ruling." Regardless o f whether the Commissioner formally announces her acquiescence, however, she is still bound by the law of this Circuit and do es not have the discretion to decide whether to adhere to it. "`[T]he regulations of [SSA] are not the supreme law of th e 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) (pe r curi am) ( 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 Attorne y 1 

### representing the Commissioner conceded (wisely, we believe) at oral argument that Tyrrell applies to Donald's case and agreed that we sho uld remand for a calculation of benefits consistent with tha t ruling. He also agreed that i t would not be unfair or inequitable for any recoupment to be paid in installments rather than ina 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 conne ction with the overpayment. Ms. Hutchinson misreads the ALJ's decision, h owever, for the ALJ found that it was Ms. Hutchinson who was at fault. The fault of a representative payee in connection with an overp ayment 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 (3 d Cir. 1984) (waiver provisions of regulations apply t o repr esentative 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 overpaym ent of benefits is affirmed. That portion of the judgmen t affirming the Commissioner's calculation of the amount of overpayment is reversed, and the case is remanded to the distri ct court with instructions to remand to the Commissioner for recalculation of the amount o f overpayment under the post- Tyrrell regulations.

### -5- A true copy.

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