17-1648-cv
Chen v. Comm’r of Soc. Sec.



### UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT



## SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Fole y Square, in the City of New York, on the

9 th day of November, two thousand eighteen.

PRESENT: REENA RAGGI, GERARD E. LYNCH, CHRISTOPHER F. DRONEY, Circuit Judges.

_____________________________________

LING CHEN,

Plaintiff-Appellant

,

v. 17-1648-cv

COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,

Defendant-Appellee

.

_____________________________________

FOR PLAINTIFF-APPELLANT: Ling Chen, pro se , Flushing, NY.

FOR DEFENDANT-APPELLEE: Varuni Nelson, Arthur Swerdloff, Kathleen A. Mahoney, Assistant United States Attorneys, for Richard P. Donoghue, United States Attorney,
Eastern District of New York, Brooklyn, NY.2 Appeal from a judgment of the United States District Court for the Eastern District of New York (Chen, J .).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED

.

Plaintiff-Appellant Ling Chen, proceeding pro se , brought this action seeking judicial review of a final determinati on by the Commissioner of Social Security (“Commissioner”) that Chen had received an overpayment of $11,029 in disability insurance benefits (“DIB”) for the peri od December 2008 thro ugh May 2012. An administrative law judge (“ALJ”) issued a dete rmination to that effe ct on March 11, 2014. Chen appealed the ALJ’s determination to th e Social Security Ad ministration’s Appeals Council, which affirmed the determination on January 30, 2015. Chen then brought this action in the district court on March 30, 2015 . She now appeals from the district court’s grant of judgment on the pleadi ngs in favor of the Commissi oner. Chen has also filed a
motion to docket additional evidence. We othe rwise assume the parties’ familiarity with the underlying facts, the procedural histor y of the case, and the issues on appeal.

We review de novo a district court’s grant of judgment on the pleadings. Zabala

v. Astrue , 595 F.3d 402, 408 (2d Cir. 2010). “[So cial Security Administration (“SSA”)] regulations provide that” when, as here, “the A ppeals Council grants review of a claim,
. . . the decision that the Council issues is the Commissioner's final decision.” Sims v. Apfel , 530 U.S. 103, 106–07 (2000). We conduct a de novo review of the administrative
record “to determine whether there is substantial evidence supporting the Commissioner’s decision and whether the Commissioner appl ied the correct legal standard.” Zabala , 595
F.3d at 408 (internal citation and quotation marks om itted). “The substantial evidence standard means that . . . we can reject th[e ] [Commissioner’s findings] only if a reasonable
factfinder would have to conclude otherwise .” Brault v. Soc. Sec. Admin. , 683 F.3d 443, 448 (2d Cir. 2012) (interna l quotation marks omitted) (emphasis in original).

As an initial matter, Chen has not raised on appeal th e central argument she made
in the district court: that the Commissioner had used an improperly low earnings amount for 2008 to compute her “average current earn ings” pursuant to 42 U.S.C. § 424a(a) and accompanying regulations. Chen contended that this purported mist ake resulted in the Commissioner determining an excessive over payment. Appellants, including those proceeding pro se , abandon an argument by failing to raise it in their appellate brief. LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995). Accordingly, that argument is deemed abandoned.

Chen raises several other issues on appeal. First, she contends that the Commissioner made a legal error 1 by applying an unspecified formula from the SSA’s

1 Chen frames that argument in terms of the substan tial evidence standard, but if the Commissioner used3 Programs Operations Manual System (“PO MS”) § 52150.00, a guideline that was promulgated only in 2012. POMS DI § 52150. 00. By this, we understand Chen to argue
that it would have been erroneous for the Commissioner to apply a 2012 guideline in determining whether she had been overpaid fo r the years before it was promulgated—here, 2008 through 2012. POMS “guidelines represent the Co mmissioner's interpretation of the [SSA’s] statutory mandate, they deserve subs tantial deference, and will not be disturbed as long as they are reasonable and consistent with the statute.” Bubnis v. Apfel , 150 F.3d 177, 181 (2d Cir. 1998). The Commissioner contends, in response, that § 52150.00 merely reiterates the longstanding requirements of 20 C. F.R. § 404.408(c). Chen does not dispute this, nor that it wa s appropriate for the Commissioner to use section 404.408(c) to determine her average current ea rnings. And so, even assuming, arguendo , that the Commissioner looked to section 52150.00 as pa rt of computing the overpayment to Chen, she has not shown any error.

Chen next contends that the Commissione r mailed her an updated determination in June 2016,—more than a year after the Appeals Council issued its final decision— notifying Chen that the overpayment amount was $3,923.20, and not $11,029. Chen argues that this shows the Commissioner’s dete rmination that she was overpaid by $11,029 was not supported by substantial evidence. In response, the Commissioner contends that
the June 2016 notice refers to the remaining overpa yment balance, which the Commissioner had been recouping by withholding a portion of the benefits that would otherwise have been paid to Chen.

The June 2016 letter suppo rts the Commissioner’s position. In a section entitled “Overpayment Informati on,” the letter states, inter alia , that the Commissioner “will

continue to withhold $138.00 from your monthly be nefits to recover this overpayment.” Dist. Ct. Dkt. 26-1 at 6 (emphasis added). This section also contains a table that shows periods in recent years in whic h Chen was paid less than “she should have been” in order to recoup the overpayment balance. Id . As such, the June 2 016 letter does not support
Chen’s contention that the Commissioner’s 2015 determination lacked substantial
evidence.

Chen next argues that the ALJ erred by finding that she was not disabled and had no extraordinary expenses. Th e Appeals Council, however, did not adopt those findings
in its final decision because Chen did not seek waiver of reco upment, and she has not raised the waiver issue on appeal. Th erefore, the ALJ’s statements were not pertinent to the Commissioner’s final overpayment determination, nor to the other issu es Chen raises on appeal.

an improper formula, this would be a misapplication of a legal standard.4 Chen also argues—for the first time in her reply brief—that she earned approximately $8,000 more in 2005 than the Commissioner st ated in computing Chen’s average current earnings pursuant to § 424a(a ). Chen contends that the earnings the Commissioner relied on were “incomplete, inco rrect and fake” and, as a result, the Commissioner’s overpayment determinatio n was excessive. Reply Br. at 12. In support, Chen points to 2005 W-2 forms, so me of which are the s ubject of her motion on appeal to introduce as evidence fo r the first time in this case.

We consider evidence outside the reco rd before us only under “extraordinary
circumstances.” Int’l Bus. Machs. Corp. v. Edelstein , 526 F.2d 37, 45 (2d Cir. 1975); accord Keepers, Inc. v. City of Milford , 807 F.3d 24, 29 n.14 (2d Cir. 2015), cert. denied

, 137 S. Ct. 277 (2016) . Chen has not explained why she failed to point out the Commissioner’s purported errors or to introdu ce the additional W-2 forms (which she has not suggested were unavailable to her) at an earlier stage. Moreover, she failed to raise the issue in her opening brief on appeal , and so the Commissioner has not had an opportunity to respond. Chen therefore has not shown that extraordinary circumstances exist in this case, and we accordingly decline to consider the new evidence.

Finally, Chen contends that the Commissioner has wrongfully withheld DIB in the amount of $12,083.90 from 2012 to 2016 and $1,644 in 2017. Chen states that this argument is the “the other side[] of the [sam e] coin,” App. Br. at 11, by which we understand Chen to challenge the Commissioner’s on going recoupment of overpayment on the basis that the overpayment was erroneous ly determined. She has not made that showing, for the reasons discussed above.

We have considered Chen’s remaining ar guments and conclude they are without
merit. 2 Accordingly, we AFFIRM the judgment of the district court and DENY Chen’s
motion to docket ad ditional evidence.

FOR THE COURT:
Catherine O = Hagan Wolfe, Clerk of Court

2 Chen also contends that the Appeals Council found that the ALJ’s March 2014 decision was erroneous and so this shows that the Appeals Council’s January 2015 final decision was also erroneous. Chen is incorrect. While the Appeals Council did not adopt a ll the ALJ’s findings, it did not find that the ALJ’s
determination was erroneous.