Bracken v. Kijakazi

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ROBERT DAVID BRACKEN, Plaintiff, v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER, DR. KILOLO KIJAKAZI; Defendant.

Civil Action No. 6:23-CV-00022-JCB

United States District Court, E.D. Texas, Tyler Division

September 5, 2023

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

JOHN D. LOVE, UNITED STATES MAGISTRATE JUDGE

Before the court is Defendant Commissioner of Social Security's motion to dismiss. (Doc. No. 9.) Plaintiff Robert David Bracken has filed a response (Doc. No. 11), to which Defendant has filed a reply (Doc. No. 15), and Plaintiff has filed a sur-reply (Doc. No. 22). For the reasons stated herein, the court RECOMMENDS that Defendant's motion (Doc. No. 9), converted to a motion for summary judgment, be DENIED.

BACKGROUND

This case has a long and complex procedural history. On October 9 2012, Plaintiff protectively filed an application for Title II benefits with the Social Security Administration (“SSA”). (Doc. No. 9-1, at 16.) The SSA granted a fully favorable decision on October 22, 2014. Id. at 5-16. On April 28, 2015, in response to a routine agency request, Plaintiff provided the SSA with information regarding his worker's compensation benefits. Id. at 17-19.

On March 9, 2016, the SSA issued a Notice of Change in Benefits. Id. at 27-32. The notice stated: “We paid you $697.40 for October 2011 through February 2016. Since we should have paid you $26,450.40 for October 2011 through February 2016, we paid you $74,247.00 less than you were due.” Id. at 27. The SSA then determined that it had overpaid Plaintiff $50,963.00 and demanded that he repay the money within 30 days. Id. On April 5, 2016 Plaintiff filed a request for reconsideration, and on September 6, 2016, the SSA issued a second Notice of Change in Benefits. Id. at 33-41. The second notice stated that the SSA had overpaid Plaintiff $2,005.00 in benefits and again demanded that he repay the money within 30 days. Id. at 37. On September 14, 2016, Plaintiff filed another request for reconsideration. Id. at 42-46. On December 14, 2016, the SSA issued a response to Plaintiff's April 5, 2016 request for reconsideration in an untitled document from the Mid-Atlantic Program Service Center. Id. at 47-52. The document provided a comprehensive breakdown of the calculation that would be necessary to compute the overpayment, but stated, “a separate letter will be sent to you shortly regarding the overpayment amount and your appeal rights.” Id. The document also acknowledged the SSA's previous miscalculations and typos and stated that Plaintiff had the right to request a hearing before an Administrative Law Judge (“ALJ”). Id.

On January 3, 2017, the SSA issued a third Notice of Change in Benefits. Id. at 53-56. This notice stated the overpayment total was $19,135.00, apparently pursuant to the December 14, 2016 document. Id. at 53. There was no statement as to the time period in which the overpayment occurred, and there was no explanation of how the overpayment was calculated. Id. The document stated that Plaintiff had the right to request a reconsideration determination but did not state that he had the right to request a hearing before an ALJ. Id. at 55. On January 13, 2017, Plaintiff simultaneously filed a request for reconsideration of the January 3, 2017 overpayment decision at his local field office in Longview, Texas, and a written request for an ALJ hearing. Id. at 57-60.

On April 15, 2019, ALJ Mark J. Mendola requested that the SSA clarify the amount of the overpayment, when it occurred, and how it was calculated, but the field office did not respond in a timely manner. Id. at 64-65. The ALJ then requested assistance from the regional SSA office in obtaining proper documentation of the overpayment amount and the underlying calculation, however, he was still unable to receive clarification. Id. at 65.

On August 28, 2019, the Mid-Atlantic Program Service Center, in a document titled “Important Information,” stated that Plaintiff had been overpaid $21,140.00 through December 2016 with no documentation as to how this overpayment amount was calculated. Id. This document was not in response to the ALJ's request for clarification on April 15, 2019. Id.

On September 12, 2019, ALJ Mendola issued an Order of Dismissal and Remand to Field Office. Id. at 64-65. After reviewing the procedural history of the case, the ALJ found that he lacked jurisdiction to rule on the merits because the January 3, 2017 Notice of Change in Benefits stated that Plaintiff had the right to request a reconsideration determination, not that he had the right to request an administrative hearing. Id. at 65. Because Plaintiff did not have the right to request a hearing, the ALJ found that he did not have jurisdiction. Id. Thus, the ALJ dismissed the request for a hearing pursuant to 20 C.F.R § 404.957(c)(2) and the SSA's Hearings, Appeals and Litigation Law Manual Chapter I-2-4-30 and remanded the case to “the appropriate Social Security Field Office for a technically correct reconsideration determination, based on [Plaintiff's] request for reconsideration dated April [5], 2016, and for full and explicit documentation as to how overpayment was calculated and the time periods at issue.” Id. Although he remanded the case due to lack of jurisdiction, the ALJ stressed that “any reconsideration-level determination finding an overpayment should contain specific, non-conclusory documentation explaining the amounts overpaid to the claimant” because the record at the time was inadequate for him to issue a cogent decision even if he had jurisdiction. Id.

Plaintiff filed requests for review of the ALJ's dismissal on October 16 and November 4, 2019. Id. at 100-09. On January 28, 2020, the Appeals Council denied these requests, and sent the case back to the Mid-Atlantic Program Service Center for a reconsideration determination on overpayment as directed by the ALJ's order of dismissal. Id. at 136-37.

On March 25, 2020, Plaintiff filed a civil action in this court challenging the overpayment calculation. Bracken v. Commissioner, SSA, No. 6:20-cv-00148, 2021 WL 8441756, at *1 (E.D. Tex. July 22, 2021). On July 22, 2021, the court dismissed Plaintiff's claims without prejudice for failure to exhaust administrative remedies. Id. On December 8, 2022, the Mid-Atlantic Program Service Center, in an untitled document, dismissed Plaintiff's April 5 and September 14, 2016 requests for reconsideration after finding that Plaintiff was actually requesting an explanation of the overpayment calculation, not reconsideration of the overpayment calculation, and forwarded his request for an explanation to another component for processing. (Doc. No. 9-1, at 138.)

On January 12, 2023, Plaintiff filed the present action challenging the overpayment calculation. (Doc. No. 1.) On June 5, 2023, Defendant filed a motion to dismiss for failure to exhaust administrative remedies. (Doc. No. 9.) Plaintiff filed a response on June 20, 2023, arguing that SSA POMS GN 03102.100(C)(5) says that a dismissed request for reconsideration is a non-appealable order making it a final decision for purposes of judicial review under Section 405(g). (Doc. No. 11.) On June 27, 2023, seven days after Plaintiff filed his response, the Mid-Atlantic Program Service Center issued a reconsideration determination of Plaintiff's overpayment calculation and informed him of his right to appeal the decision to an ALJ. (Doc. No. 15-2.) The reconsideration determination affirmed the September 6, 2016 Notice of Change in Benefits finding a $2,005.00 overpayment and the January 3, 2017 Notice of Change in Benefits finding a $19,135.00 overpayment, concluding that Plaintiff was overpaid $21,140.00 in total, with $14,212.00 remaining to be paid. Id. at 8. On July 31, 2023, Defendant filed a reply, arguing that Plaintiff has failed to exhaust his administrative remedies because he has not appealed the June 27, 2023 reconsideration determination to an ALJ. (Doc. No. 15.) On August 30, 2023, Plaintiff filed a sur-reply. (Doc. No. 22.)

LEGAL STANDARD

I. Summary Judgment

Defendant filed the instant motion pursuant to Federal Rule of Civil Procedure 12(b)(6), however, because both parties submitted matters outside of the pleadings, the motion will be treated as a motion for summary judgment. Fed.R.Civ.P. 12(d). (Doc. Nos. 9, 11, 15.) A motion for summary judgment should be granted if the record, taken as a whole, “together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). The Supreme Court has interpreted the plain language of Rule 56 as mandating “the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

The party moving for summary judgment “must ‘demonstrate the absence of a genuine issue of material fact,' but need not negate the elements of the nonmovant's case.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (quoting Celotex, 477 U.S. at 323-25). A fact is material if it might affect the outcome of the suit under the governing law. Merritt-Campbell, Inc. v. RxP Prods., Inc., 164 F.3d 957, 961 (5th Cir. 1999). Issues of material fact are “genuine” only if they require resolution by a trier of fact and if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty...