UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

GEORGIANA MONTGOMERYBROOKS, 

 Plaintiff - Appellant, 

v. 

COMMISSIONER OF SOCIAL 

SECURITY, 

 Defendant - Appellee. 

No. 14-1486 

(D.C. No. 1:11-CV-01081-WJM) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges. 

_________________________________ 

Georgiana Montgomery-Brooks appeals from an order denying her second 

motion seeking reconsideration of the district court’s judgment in favor of the 

Commissioner. In that judgment, the district court affirmed the Commissioner’s 

determinations that Ms. Montgomery-Brooks had received an overpayment of Social 

Security Disability benefits and that because she was not without fault the 

overpayment could not be waived. We affirm. 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

July 17, 2015

Elisabeth A. Shumaker 

Clerk of Court

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I.

 In 1992, the Social Security Administration (SSA) determined that 

Ms. Montgomery-Brooks had become disabled as of 1985. The SSA began paying 

her disability benefits. In October 2005 the SSA issued her a notice terminating her 

benefits as of December 2003 because she had engaged in substantial work. The 

notice further informed her that she had been overpaid because she continued to 

receive benefits after December 2003. 

Ms. Montgomery-Brooks sought and obtained reinstatement of her disability 

benefits. She also sought waiver of recovery of the alleged overpayment, see 

42 U.S.C. § 404(b) (waiving recovery from certain persons without fault); 20 C.F.R. 

§§ 404.506 to 404.509 (discussing waiver criteria), but the agency denied her request. 

She requested review of that denial from an administrative law judge (ALJ). 

 The ALJ held a hearing on the waiver issue. He issued a written decision in 

which he determined that: (1) Ms. Montgomery-Brooks had been overpaid benefits, 

“though the amount of the overpayment is unclear,” Admin. R. at 14; (2) she was not 

without fault in connection with the overpayment; and (3) she had not met the 

requirements for a waiver of recovery of the overpayment. The ALJ therefore denied 

her request for waiver of recovery. 

The ALJ also addressed Ms. Montgomery-Brooks’ arguments concerning 

proper calculation of the alleged overpayment, stating: 

Because the file contains inconsistent statements by the agency as to the 

dates [Ms. Montgomery-Brooks] was overpaid and the amount of the 

overpayment, the appropriate component [of the agency] should recompute 

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the amount of the overpayment and provide [her] with a detailed 

explanation taking into consideration [her] reinstatement to disability 

insurance benefits, the amount of past due benefits withheld to recover the 

overpayment, and adjustments against her monthly benefit. If dissatisfied 

with the explanation, [she] may then appeal that issue and ultimately 

request a hearing before an Administrative Law Judge on the amount of the 

overpayment.

Id. at 16 (emphasis added). 

 Ms. Montgomery-Brooks appealed the ALJ’s decision to the Appeals Council. 

The Council denied her request for review, reasoning that “[t]he only issue properly 

before the [ALJ] was whether recovery of the overpayment . . . could be waived.” Id. 

at 5. The Council found no basis for review, making the ALJ’s decision the final 

decision of the agency on the waiver issue. 

The Council further noted that Ms. Montgomery-Brooks had presented 

additional evidence to it concerning the amount of the alleged overpayment. The 

Council concluded that “[n]one of the material [she] submitted . . . establish[ed] that 

any change in the [ALJ’s findings] on the issues which were before him are 

warranted, i.e. that . . . [she was] overpaid for [the relevant] period and that recovery 

of the overpayment may not be waived.” Id. The Council stated it was returning the 

case to the agency “to implement . . . [the ALJ’s] directive to provide 

[Ms. Montgomery-Brooks] with a detailed accounting of the overpayment for the 

period which was before the [ALJ].” Id. It admonished Ms. Montgomery-Brooks 

that “if you disagree with the [calculation of] any subsequent overpayments or the 

accounting you received for these periods, you should contact your local Social 

Security office to file an appeal.” Id. at 5-6. 

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 Before a final accounting was provided, Ms. Montgomery-Brooks filed this 

action in district court.1

 She obtained counsel, who filed a brief on her behalf. In the 

brief, Ms. Montgomery-Brooks did not deny that she had been overpaid benefits for 

the adjudicated period. She presented the sole issue as “whether recovery of the 

overpayment can be waived.” R., Vol. 1 at 118. She argued that she met the 

statutory and regulatory criteria for waiver. 

 The district court entered an order affirming the ALJ’s decision. It agreed that 

“[t]he sole dispute in this case involves whether [Ms. Montgomery-Brooks] should be 

granted a waiver of recovery of the benefits that she was overpaid,” and that any 

dispute concerning the amount she was overpaid had not been decided by the ALJ 

and was not before the court. Id. at 136 & n.2. It then determined that the ALJ’s 

determination that Ms. Montgomery-Brooks was at fault for the overpayment was 

supported by substantial evidence. The district court entered judgment in favor of the 

Commissioner. 

Ms. Montgomery-Brooks filed a pro se motion under Fed. R. Civ. P. 60(b) 

seeking relief from the judgment. The district court denied her motion, which it 

characterized as presenting “an ongoing dispute with the Commissioner regarding the 

amount of overpayment,” and noted that question “was not at issue in the ALJ’s 

decision or the Court’s Order.” Id. at 194. Ms. Montgomery-Brooks did not appeal 

from the denial. 

 1

 It is uncontested in this appeal that the agency’s order denying waiver of the 

overpayment was itself a final order subject to judicial review. 

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Ms. Montgomery-Brooks then filed a second Rule 60(b) motion.2

 She again 

contended that questions remained whether any alleged overpayment was due. 

The district court denied the motion, noting that “because the amount of overpayment 

was not at issue in the ALJ’s decision, the Court does not have jurisdiction over the 

overpayment issue.” Id. at 277. 

II.

 In this appeal, we have jurisdiction only to review the district court’s order 

denying Ms. Montgomery-Brooks’ second Rule 60 motion, which was the only order 

designated in her notice of appeal. See Fed. R. App. P. 3(c)(1)(B). Our review of the 

denial of a Rule 60(b) motion is highly deferential: 

This Court reviews a district court’s denial of a Rule 60(b) motion for 

abuse of discretion. Rule 60(b) relief is extraordinary and may only be 

granted in exceptional circumstances. Parties seeking relief under Rule 

60(b) have a higher hurdle to overcome because such a motion is not a 

substitute for an appeal. Accordingly, our review is meaningfully narrower 

than review of the merits of a direct appeal. Given the lower court’s 

discretion, the district court’s ruling is only reviewed to determine if a 

definite, clear or unmistakable error occurred below. A reviewing court 

may reverse only if it finds a complete absence of a reasonable basis and is 

certain that the decision is wrong. However, a district court would 

necessarily abuse its discretion if it based its ruling on an erroneous view of 

the law or on a clearly erroneous assessment of the evidence. 

Zurich N. Am. v. Matrix Serv., Inc., 426 F.3d 1281, 1289 (10th Cir. 2005) (citations, 

brackets, ellipsis, and internal quotation marks omitted). 

 On appeal, Ms. Montgomery-Brooks occasionally asserts that she is “without 

fault,” but she does not develop an argument on this point based on the statutory 

 2

 She also founded her motion on Rule of Evidence 103, but that rule does not 

provide for relief from a judgment; it is an evidentiary rule. 

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waiver criteria. Her real argument is that she does not need a waiver, because there 

is no overpayment to waive. 

Ms. Montgomery-Brooks presents calculations based on sums allegedly 

recovered from her or underpaid to her that she claims were not properly applied to 

her balance. Aplt. Opening Br. at 3-4. But these arguments are not properly before 

us. Ms. Montgomery-Brooks fails to show that the Commissioner ever reached a 

final decision concerning the correct amount of the overpayment and of any 

adjustments or credits to which she may be entitled. Judicial review is limited to the 

Commissioner’s final decisions. See 42 U.S.C. § 405(g). The district court did not 

abuse its discretion in rejecting her attempts to raise issues involving calculation of 

the amount due in her second Rule 60(b) motion. 

Ms. Montgomery-Brooks also appears to argue that she never received any

overpayment for the time period considered by the ALJ and the Appeals Council, and 

was only assessed an overpayment because of miscalculations, misinterpretations of 

law, or fraud by the SSA. This might be viewed as a challenge to something the 

agency has determined: that there was an overpayment. See ALJ’s Decision, Admin. 

R. at 13 (“The claimant was overpaid disability insurance benefits.”). But even if 

this argument attacks a final decision by the Commissioner, we discern no abuse of 

discretion in the district court’s denial of Rule 60(b) relief, to the extent this issue 

was raised in her motion. 

In her district court merits brief, Ms. Montgomery-Brooks did not contest the 

fact that there had been an overpayment during the relevant time period. She only 

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argued that she was entitled to waiver of the overpayment. See R., Vol. 1 at 116-21.3

 

The case was presented to the district court on that basis. A Rule 60(b) motion is not 

the proper place to advance new arguments. See, e.g., Servants of the Paraclete v. 

Does, 204 F.3d 1005, 1012 (10th Cir. 2000). 

In sum, Ms. Montgomery-Brooks brought this appeal before a final 

determination of the amount owed had been reached. It appears she can obtain such a 

determination, and review if necessary, by following the further administrative 

procedures described and made available to her by the ALJ and the Appeals Council. 

At this point, however, neither we nor the district court may make a determination 

concerning the amount that was overpaid and what, if anything, remains due. Those 

issues must be resolved in the first instance by the Commissioner. 

III. 

 We grant Ms. Montgomery-Brooks’ motion to proceed in forma pauperis. The 

order of the district court is affirmed. 

Entered for the Court 

Gregory A. Phillips 

Circuit Judge 

 3

 The ALJ concluded that she “did not contest the determination that she has 

been overpaid disability benefits . . . though the amount of the overpayment is 

unclear.” ALJ decision, Admin. R. at 14. 

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