Bond v. Azar

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Neil Rusty Bond, No. CV-19-04933-PHX-JAT

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 14 Defendant. 15 Pending before the Court is the Motion for Remand filed by Defendant 16 Commissioner of Social Security Administration (“Commissioner”). (Doc. 42). After 17 finding that Plaintiff Neil Rusty Bond asserts a colorable due process claim in the Amended 18 Complaint (Doc. 9), the Court denied the Commissioner’s motion to dismiss for lack of 19 subject matter jurisdiction (Doc. 24). (Doc. 41). Further, because the Social Security 20 Administration recognized that it never reconsidered the initial determination as to 21 Plaintiff’s overpayment amount despite Plaintiff’s alleged request for reconsideration, 22 (Doc. 36-1), the Court sought supplemental briefing as to whether a sentence six remand 23 under 42 U.S.C. § 405(g) was appropriate. (Doc. 41 at 14–15). 24 In response to the Court’s order (Doc. 41), the Commissioner asks the Court to 25 remand the case pursuant to sentence six and “issue an order directing the agency to modify 26 the amount of Plaintiff’s overpayment to be consistent with the amount of amended 27 restitution that he was ordered to pay in his criminal case, $30,929.16.” (Doc. 42 at 1–2). 28 1 But, the Commissioner also requests that the Court enter judgment in favor of Plaintiff. (Id. 2 at 2). Plaintiff agrees that remand and repayment are necessary.1 (Doc. 43 at 9–10). 3 The Court will grant the Motion (Doc. 42) in part. The Motion (Doc. 42) will be 4 granted as to the Commissioner’s request for judgment in favor of Plaintiff, and the Court 5 will order the Administration to modify Plaintiff’s overpayment amount to $30,929.16. 6 (Doc. 42 at 1–2). However, because the Commissioner requests judgment in favor of 7 Plaintiff, remand will be under sentence four of 42 U.S.C. § 405(g), not sentence six. See 8 Shalala v. Schaefer, 509 U.S. 292, 297 (1993). Accordingly, the Court will deny the request 9 to remand pursuant to sentence six, and instead remand under sentence four of 42 U.S.C. 10 § 405(g). 11 Based on the foregoing, 12 IT IS ORDERED that the Commissioner’s Motion for Remand Pursuant to 13 Sentence Six of 42 U.S.C. § 405(g) (Doc. 42) is GRANTED IN PART and DENIED IN 14 PART as articulated above. 15 IT IS FURTHER ORDERED that judgment shall be entered in favor of Plaintiff 16 and that this matter shall be REMANDED to Defendant Commissioner of Social Security 17 18 19 20 21

22 1 Plaintiff requests that the Court “remand this matter to the ALJ to revise the amount of overpayment to $20,622.78” as he claims he only received $20,622.78 in overpayments 23 while his ex-wife received overpayments totaling $10,306.38 for Plaintiff’s daughter. (Doc. 43 at 6, 9–10). Because Plaintiff alternatively asks that the Court remand for payment 24 of any amount in excess of $30,929.16, (Doc. 43 at 10), just as the Commissioner requests, (Doc. 42 at 1–2), the Court will not consider Plaintiff’s request to revise the amount of 25 overpayment to any other amount. Indeed, the Court cannot consider such a request as it asks the Court to make factual findings that have not yet been reviewed by the 26 Administration—the body that Congress entrusted with the responsibility of calculating overpayment amounts in the first instance. 42 U.S.C. § 404(a); see I.N.S. v. Ventura, 537 27 U.S. 12, 16 (2002); Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1098 (9th Cir. 2014). The Administration may have erred, but that error does not give the Court the right to run 28 roughshod over the congressional scheme. 1 || Administration to modify the amount of Plaintiff's overpayment to $30,929.16. The Clerk 2|| of Court shall enter judgment accordingly.” 3 Dated this 19th day of June, 2020. 4 5 ' ° James A. CO 7 Senior United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 To the extent mandate is required, the judgment shall serve as the mandate.

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