1

 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

HARRY L. BIERLEY, )

Plaintiff, ) Civil Action No. 05-07

) District Judge McLaughlin

v. ) Magistrate Judge Baxter

)

JOANNE BARNHART, )

Commissioner of Social Security, )

Defendant. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is recommended that Plaintiff’s motion for summary judgment [Document # 13] be

denied and Defendant’s motion for summary judgment [Document # 17] be granted.

II REPORT

A. Relevant Background

Plaintiff Harry Bierley, acting pro se, brings this action alleging various theories of

recovery. Among other things, Plaintiff requests review of his Social Security case, in that he 

claims that he does not owe any overpayment to the Social Security Administration. Plaintiff

also claims that his constitutional rights under the First, Fourth, Fifth, Sixth, Seventh, and

Fourteenth Amendments have been violated by Defendant Commissioner Barnhart in the

context of the agency’s decision-making process “... in that review was not predicated on proper

criteria relating to whether or not the claimant was qualified for Social Security benefits during

the time period for which overpayment is claimed.” Document # 1, ¶ 9. 

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 Defendant has filed a partial motion to dismiss requesting dismissal of Plaintiff’s civil

rights claims. A separate Report and Recommendation is issued as to that motion to dismiss. 

2

 Despite an interlocutory appeal, this Court will forge ahead with the pending motions

in this case. See Mondrow v. Fountain House, 867 F.2d 798 (3d Cir. 1989); Sheet Metal

Workers International v. Herre Brothers, Inc., 198 F.3d 391, 394 (3d Cir. 1999).

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 The regulations implementing the Act set forth the administrative process governing a

request for waiver of an overpayment recovery. 20 C.F.R. § 404.506 (2004). The regulations

provide that when a request for waiver cannot be approved after an initial review, the individual

is afforded an opportunity for a file review and a personal conference. 20 C.F.R. § 404.506(c) -

(f). Following the personal conference, the Agency issues a written decision to the individual

specifying the findings of fact and conclusions in support of the decision to approve or deny the

waiver, and advising of the individual’s’s right to appeal the decision. 20 C.F.R. § 404.506(g). 

After an initial determination denying a waiver of recovery of an overpayment, an individual

may request a hearing before an administrative law judge pursuant to 20 C.F.R. § 404.930(a)(6). 

4

 On April 26, 2001, the Appeals Council remanded his case for reconsideration

regarding the facts and the amount of overpayment and decided to forward Plaintiff’s request for

hearing regarding the waiver issue. R. 65-66. On September 10, 2002, the Agency determined

that its prior decision regarding the amount of overpayment was correct. R. 70-71.

2

 Plaintiff and Defendant have filed cross motions for summary judgment1 and this matter

is ripe for disposition by this Court.2

B. Relevant Procedural History

On August 27, 1997, Plaintiff was notified by the Social Security Commission that he

had been overpaid disability benefits from August 1993 through August 1994. R. 72. Plaintiff

requested that recovery of the overpayment be waived.3 Following a personal conference, the

Agency determined that Plaintiff was not entitled to a waiver of the recovery of overpayment. 

R. 33. 

Plaintiff requested a hearing on the waiver determination.4 The ALJ held a hearing on

November 4, 2003, at the Plaintiff’s request. Plaintiff represented himself at the hearing and

testified on his own behalf. R. 91-101. On December 18, 2003, the ALJ issued a decision

denying Plaintiff’s request for waiver of the recovery of overpayment. R. 23-25. Plaintiff filed

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 The regulations define fault as “whether the facts show that the incorrect payment to

the individual ... resulted from: (c) acceptance of a payment which he either knew or could have

been expected to know was incorrect.” 20 C.F.R. § 404.507.

6

 If the Commissioner determines that a claimant is at fault under the first prong, there is

no need to make a determination on the second prong. Garnett v. Sullivan, 905 F.2d 778, 782

(4th Cir. 1990). 

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an appeal to the Appeal’s Council which denied his request for further review of the matter.

Thereafter, Plaintiff, acting pro se, filed the instant action. 

C. Review

The Social Security Act provides limited judicial review of a final decision of the

Commissioner (effectively that of the ALJ where, as in this case, the Appeals Council has

denied the applicant’s request for review). In reviewing the Commissioner’s decision, this

Court may not decide facts anew, reweigh the evidence, or substitute this Court’s judgment for

that of the Commissioner or, by extension, the ALJ. See Herron v. Shalala, 913 F.3d 329, 333

(7th Cir. 1994). Rather, this Court must affirm a decision if it is supported by substantial

evidence and the ALJ has made no error of law. 42 U.S.C. § 405(g); Hartranft v. Apfel, 181

F.3d 358, 360 (3d Cir. 1999); Price v. Barnhart, 129 Fed.Appx. 699 (3d Cir. April 29, 2005)

(applying substantial evidence standard to waiver of overpayment determinations by the

Commissioner). Substantial evidence is “ ‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’ ” Pierce v. Underwood, 487 U.S. 552, 564-65

(1988) quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938). See also Jones v.

Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). 

The Commissioner is required by the law to recover overpayments from Social Security

beneficiaries who are not without fault in causing the overpayments. 42 U.S.C. §§ 401(c),

404(a). In order to obtain a waiver of the recovery of overpayment, it is a plaintiff’s burden to 

demonstrate: 1) that he was without fault5, and 2) that recovery of the overpayment would defeat

the purpose of title II or would be against equity and good conscience.6 42 U.S.C. § 404 (b).

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In rejecting Plaintiff’s request for waiver, the ALJ decided:

At the hearing on November 4, 2003, the claimant testified that he was confined

to the State Correctional Institution at Mercer, Pennsylvania from August 23,

1990 until August 1994, and that he was transferred from that prison to Warren

State Hospital until his final release on December 2, 1994. He thus did not

contest the Social Security Administration’s findings regarding his confinement,

but he repeated his assertion that he was wrongly imprisoned and therefore

should be entitled to Social Security benefits for the period of his incarceration.

Under state law, a person convicted of a crime can seek relief through direct

appeal and via collateral attack under the Post-Conviction Relief Act, 42 Pa.

Cons. Stat. 9541 et seq. Nothing in the record before the Administrative Law

Judge shows whether the claimant took action to initiate either a direct or a

collateral attack on his conviction, but whether he did or not is irrelevant to

determination of the matter before the Administrative Law Judge. The fact is that

the claimant was confined to a correctional facility pursuant to conviction for an

act that is defined under State law as a felony. The claimant has not proffered

evidence to show that an appellate Court of competent jurisdiction reversed his

conviction. Social Security Administration records confirm that payment was

made for months from August 1993 to August 1994 despite the claimant’s

incarceration. Under 20 C.F.R. 404.468, the clamant was not entitled to be paid. 

Therefore, the issue of whether the clamant was overpaid is conclusively

determined, and the Administrative Law Judge upholds the determinations below

on that point.

Turning to the issue of waiver, the Administrative Law Judge notes first that

issues of ability to repay and of equity and good conscience do not arise unless

and until the claimant demonstrates that he was without fault in causing and

accepting the overpayment. In the instant case, the overpayment was caused by

administrative error, as evidence concerning the claimant’s incarceration was in

possession of the Social Security Administration. The claimant, however, had an

affirmative duty to see to it that any payment he received was actually due. The

Social Security Administration’s notices told him of the nonpayment provisions,

and told him as well that no payment should be made for periods of

imprisonment. The claimant did not question the resulting payment, even though

it was erroneous on its face. The claimant therefore did not exercise due care and

the Administrative Law Judge finds that he was at fault in accepting the payments

at issue. Therefore, I do not reach issues of financial resources or equity because

the claimant has not met the threshold showing of absence of fault. Waiver is

denied and the clamant is responsible for repaying the overpayment.

After careful consideration of the entire record, I make the following findings:

1. The claimant was not entitled to disability insurance benefits for

the period of his incarceration on a felony conviction (20 C.F.R.

404.468).

2. The claimant was overpaid disability insurance benefits.

3. The claimant was not without fault in causing and accepting the

overpayment.

4. Waiver is denied.

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R. 24.

 The record before the ALJ, including Plaintiff’s own testimony, does not support any

claim that Plaintiff was entitled to a waiver of the overpayment. The record shows that Plaintiff

was incarcerated for a felony and he continued to received benefits and did not question the

payments. It was Plaintiff’s burden before the ALJ to demonstrate that he was entitled to the

waiver and he did not meet this burden. This Court concludes that the ALJ’s decision is

supported by substantial evidence. 

Accordingly, summary judgment should be granted in favor of Defendants and should be

denied as to Plaintiff. 

III. CONCLUSION

For the foregoing reasons, this Court recommends that Plaintiff’s motion for summary

judgment [Document # 13] be denied and Defendant’s motion for summary judgment

[Document # 17] be granted.

In accordance with the Magistrates Act, 28 U.S.C. Section 636(b)(1)(B) and (C), and

Local Rule 72.1.4 B, the parties are allowed ten (10) days from the date of service to file written

objections to this report. Any party opposing the objections shall have seven (7) days from the

date of service of objections to respond thereto. Failure to timely file objections may constitute

a waiver of any appellate rights.

S/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

CHIEFUNITED STATES MAGISTRATE JUDGE

Dated: November 14, 2005

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