Richard Stanford v. Kilolo Kijakazi

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 28, 2022
• Docket: 19-55389
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 28 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

RICHARD G. STANFORD, No. 19-55389

Plaintiff-Appellant, D.C. No. 8:17-cv-01781-AG-JEM v.

KILOLO KIJAKAZI, Acting Commissioner MEMORANDUM* of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Andrew J. Guilford, Senior District Judge, Presiding

Submitted February 28, 2022**

Before: D.W. NELSON, BRESS, and BUMATAY, Circuit Judges. Partial Concurrence and Partial Dissent by Judge BUMATAY.

Richard Stanford appeals pro se the district court’s decision upholding the

Commissioner of Social Security’s decision that he was overpaid and was

ineligible for a waiver of overpayments of supplemental security income (“SSI”)

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). benefits under Title XVI of the Social Security Act. We have jurisdiction under 28

U.S.C. § 1291. We review the district court’s grant of summary judgment de novo,

and we review the Commissioner’s factual findings for substantial evidence.

McCarthy v. Apfel, 221 F.3d 1119, 1122 (9th Cir. 2000). We affirm in part, vacate

in part, and remand.

Stanford’s request for a waiver of overpayment does not constitute an

admission of the amount of overpayment. Cf. id. at 1125.

Stanford argues that the overpayment amount should be $5,678.00 rather

than $6,919.60. The Social Security Administration’s two letters detailing its

reasoning, standing alone, do not constitute substantial evidence in support of the

full overpayment amount. See id. at 1126 (providing examples of reliable evidence

that the Commissioner could present to meet his burden of proving the amount of

overpayment). The Social Security Administration has not otherwise identified

evidence of the actual payments made to Stanford, and the ALJ did not cite any

evidence beyond the two letters. We therefore vacate in part and remand.1

1 In this case, our precedents do not require remand for the Commissioner to determine the overpayment amount. The claimant concedes that the minimum overpayment amount is $5,678.00, and the Commissioner would not be considering the claimant’s fault for the overpayment because we have resolved that issue. Cf. McCarthy, 775 F.3d at 1127. The Social Security Administration has also already had the opportunity to prove its requested amount and did not request remand if we disagreed with the amount it seeks to recover. Remanding to the Commissioner for further evaluation of the overpayment amount would be an inefficient use of judicial and agency resources. Treichler v. Commissioner of

2 Substantial evidence supports the administrative law judge’s finding that

Stanford failed to return SSI payments that he knew were incorrect, and he

therefore was ineligible for a waiver of the overpayments because he was not

without fault. See 20 C.F.R. § 416.552(c) (reasoning claimant will be at fault if he

does “not return a payment which he knew or could have been expected to know

was incorrect”).

AFFIRMED in part; VACATED in part; and REMANDED with instructions for the district court to remand to the Commissioner for correction of the overpayment amount to $5,678.00.

Social Security Administration, 775 F.3d 1090 (9th Cir. 2014), is not determinative because we are not ordering the payment of Social Security disability benefits.

3 FILED FEB 28 2022 Stanford v. Kijakazi, No. 19-55389 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS BUMATAY, Circuit Judge, Concurring in part and Dissenting in part:

I agree that we should affirm in part, vacate in part, and remand. But the

majority and I part ways on the remand instructions. We are a court of review, not

of first view. So we should not have decided the amount of overpayment in the first

instance.

Our job was simple here—to determine whether substantial evidence supports

the Commissioner’s ruling on the amount of overpayment. Based on our precedent,

I agree that was not the case. So we should have remanded and let the Commissioner

take the lead on assessing the correct amount of overpayment. Indeed, no party

asked us to calculate in the first instance the amount Stanford owes back to the

government.

It may be the case that Stanford should pay $5,678.00—as he claims. Or it

may be the case that the Commissioner is right, and the government can come up

with suitable evidence to show that Stanford owes $6,919.60. But that’s a matter we

should’ve left to be decided on remand—as we’ve done before. See McCarthy v.

Apfel, 221 F.3d 1119, 1126 (9th Cir. 2000) (“We simply hold that production of an

initial determination letter is not enough and that, on remand, the Commissioner

continues to bear the burden of establishing by substantial evidence the amount of

the overpayments[.]” (emphasis added)).

1 And this case simply doesn’t present the “rare circumstance[]” that would

justify departing from our ordinary rule to remand in Social Security cases.

Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1100 (9th Cir. 2014)

(explaining that “rare circumstances” may exist when the record has been

“thoroughly developed” and further proceedings would be of “no useful purpose”).

I thus concur in part and respectfully dissent from the remand instructions.