Paul Miskey v. KILOLO KIJAKAZI , Acting Commissioner of Social Security

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL M ISKEY,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI , Acting
Commissioner of Social Security,
Defendant-Appellee.
No. 20-16597
D.C. No.
2:19-cv-00027-
JCM-VCF
OPINION
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted November 15, 2021
San Francisco, California
Filed May 3, 2022
Before: Richard A. Paez and Michelle T. Friedland, Circuit
Judges, and Edward R. Korman,* District Judge.
Opinion by Judge Friedland
* The Honorable Edward R. Korman, United States District Judge
for the Eastern District of New York, sitting by designation.

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2 M ISKEY V . KIJAKAZI
SUMMARY**
Social Security
The panel affirmed in part and reversed in part the
district court’s decision remanding plaintiff’s case to the
Social Security Administration for further proceedings on
plaintiff’s claim that he was entitled to receive Social
Security spousal benefits not reduced by the Government
Pension Offset.
Under Social Security Administration (“SSA”)
regulations, if someone receives a government pension
based on “noncovered employment”—that is, employment
with compensation that was not subject to Social Security
taxes—SSA will apply the Government Pension Offset
(“GPO”) to reduce any spousal benefits that the person also
receives. SSA will not apply the GPO to an individual’s
spousal benefits, however, if that person receives a
government pension based on “covered employment”—that
is, employment with compensation that was subject to Social
Security taxes. Plaintiff, who receives two government
pensions, one from noncovered employment and one from
covered employment, alleged that the GPO should not apply
to his benefits because he had been covered by Social
Security taxes for approximately the last nineteen and one
half years of his career.
The panel held that the GPO applied to plaintiff’s
spousal benefits, but that a remand to the agency was needed
to determine whether SSA was entitled to recoupment for
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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M ISKEY V . KIJAKAZI 3
overpayment of benefits paid without the offset. The panel
held that under both the old and new version of Social
Security regulation 20 C.F.R. § 404.408a, the existence of
plaintiff’s pension earned through noncovered employment
triggered the GPO’s application to his spousal benefits
notwithstanding his later covered employment in a job with
a different pension plan. The panel therefore reversed the
district court’s decision with respect to the application of the
GPO and held that the ALJ correctly determined that the
GPO applied to plaintiff’s spousal benefits.
The panel held that the ALJ’s finding of plaintiff’s fault
for the overpayment was not supported by substantial
evidence and that the district court did not abuse its
discretion by remanding the case to the agency for further
proceedings. On remand, the agency could consider whether
any evidence in the record beyond that relied on by the ALJ
supported the proposition that plaintiff was at fault for the
overpayment and, if so, whether recoupment “would be
against equity and good conscience.” 42 U.S.C. § 404(b)(1).
COUNSEL
Richard E. Donaldson (argued), Las Vegas, Nevada, for
Plaintiff-Appellant.
Elizabeth Firer (argued), Special Assistant United States
Attorney; Deborah Lee Stachel, Chief Counsel, Region IX;
Christopher Chiou, Acting United States Attorney; Office of
General Counsel, Social Security Administration, San
Francisco, California; for Defendant-Appellee.

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4 M ISKEY V . KIJAKAZI
OPINION
FRIEDLAND, Circuit Judge:
Under certain circumstances, the Government Pension
Offset (“GPO”) reduces the amount of Social Security
spousal benefits paid to an individual who is also receiving
a government pension. See 20 C.F.R. § 404.408a(a). Paul
Miskey contends that he is entitled to receive spousal
benefits that are not reduced by the GPO. For a period
during Miskey’s administrative proceedings, the Social
Security Administration (“SSA” or the “agency”) agreed
with Miskey and paid him spousal benefits without applying
any offset. Ultimately, though, the agency decided that the
GPO should apply. The agency then temporarily withheld
Miskey’s spousal benefits to recoup approximately $15,000
in overpayments to Miskey, and it reduced Miskey’s spousal
benefits going forward.
On appeal, the parties dispute whether the GPO applies
to Miskey’s spousal benefits and, if it does apply, whether
the agency was entitled to recoup the overpayment. We hold
that the GPO applies to Miskey’s spousal benefits but that a
remand to the agency is necessary to determine whether SSA
was entitled to recoupment.
I.
Under SSA regulations, if someone receives a
government pension based on “noncovered employment”—
that is, employment with compensation that was not subject
to Social Security taxes—SSA will apply the GPO to reduce
any spousal benefits that the person also receives by two-
thirds of the amount of the pension. 20 C.F.R.
§§ 404.408a(a)(1)(ii), 404.408a(a)(2), 404.408a(d)(1)(i).
SSA will not apply the GPO to an individual’s spousal

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M ISKEY V . KIJAKAZI 5
benefits, however, if that person receives a government
pension based on “covered employment”—that is,
employment with compensation that was subject to Social
Security taxes. See id. § 404.408a(a)(2).
Miskey currently receives two government pensions, one
from noncovered employment and one from covered
employment. His first pension, administered by the Public
Employees’ Retirement System of Nevada (“Nevada
PERS”), is from his noncovered employment with the
Nevada Department of Transportation (“Nevada DOT”)
from 1979 to 1994 and pays approximately $1,000 per
month. Miskey’s second pension, which is not administered
by Nevada PERS, is from his covered employment with the
Las Vegas Valley Water District from 1994 to 2013 and pays
approximately $4,100 per month.
In August 2013, four years after the death of his wife,
Miskey applied for Social Security spousal benefits. At that
point, he was receiving only the pension from his
noncovered employment with the Nevada DOT. In his
application interview, Miskey accurately reported that he
was receiving a monthly government pension from
noncovered employment. Shortly after his application
interview, SSA informed Miskey that he would soon begin
receiving $373 per month in spousal benefits, an amount that
reflected the GPO reduction.
Around this time, Miskey retired from his job at the
Water District and began receiving his second government
pension as well—the one from covered employment.
Miskey then submitted a request for reconsideration by SSA
of his spousal benefit amount. He argued that the GPO
should not apply to his benefits because he had been covered
by Social Security taxes “for approximately the last nineteen
and one half (19.5) years” of his career. Miskey pointed to

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6 M ISKEY V . KIJAKAZI
a provision of the Social Security Program Operating
Manual System (“POMS”),1 which—according to his
reading—provided that the GPO does not apply to an
individual who was covered by Social Security throughout
the last sixty months of government employment. See Soc.
Sec. Admin., POMS § GN 02608.107. He attached pay
stubs from the Water District to prove that he had worked in
covered employment for at least sixty months. He did not
attach any documentation regarding his pension from his
earlier, noncovered employment with the Nevada DOT.
Based on the information Miskey provided in his request
for reconsideration, SSA decided that the GPO did not apply
to Miskey’s spousal benefits. In February 2014, SSA sent
Miskey a Notice of Change in Benefits, which said that he
would begin receiving full spousal benefits of $1,067 per
month and would receive a lump-sum payment to
compensate him for the prior months during which the GPO
had been applied to his benefits. In explaining the agency’s
reasoning for the change, the notice said that “[u]pon review,
we found that you made a mistake when you filled out the
[August 2013] application,” and noted that Miskey had
answered “yes” when asked if he received a government
pension based on noncovered employment.
For reasons that are unclear in the record, in the summer
of 2015, SSA took another look at Miskey’s spousal
benefits. Upon realizing that he was receiving a government
pension based on noncovered employment, the agency
changed course again and decided the GPO did apply to
1 According to SSA, “[t]he POMS is a primary source of
information used by Social Security employees to process claims for
Social Security benefits.” Soc. Sec. Admin., POMS Home,
https://secure.ssa.gov/apps10/.

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M ISKEY V . KIJAKAZI 7
Miskey’s spousal benefits. SSA reduced Miskey’s monthly
benefits to $407 per month and calculated that it had
overpaid Miskey by just over $15,000 during the months
when Miskey had been receiving full benefits.
Miskey challenged the SSA’s decision to re-apply the
GPO to his spousal benefits. After an August 2015 meeting
with SSA personnel to discuss the GPO and the asserted
overpayment, Miskey submitted a formal request to the
agency for reconsideration. In January 2016, SSA wrote to
Miskey, explaining that it stood by its decision to apply the
GPO but that it could “see where [Miskey’s] confusion came
from.” SSA asserted in that communication that Miskey had
been overpaid $15,200 and was obligated to repay it. In
February 2016, Miskey requested a waiver of the
overpayment recoupment, but his request was denied.
Miskey then requested a hearing before an ALJ. In the
meantime, the agency began recouping the overpayment by
withholding Miskey’s spousal benefits.2
Miskey appeared at his ALJ hearing in 2017. In a
memorandum submitted in advance of that hearing, he
argued that the GPO did not apply to his benefits. Even if it
did, Miskey argued, recoupment of the overpayment should
be waived because he was not at fault for the overpayment
and recoupment would be “against equity and good
conscience.” 42 U.S.C. § 404(b)(1).
The ALJ ruled against Miskey. She decided that the
GPO did apply to his benefits and that he was at fault for the
overpayment because, among other reasons, he had
“misrepresented to the agency that his PERS pension and
2 At oral argument, the parties informed us that SSA recouped the
entire asserted overpayment.

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8 M ISKEY V . KIJAKAZI
Las Vegas Water District pensions stemmed from the same
entity.” The ALJ decided that the agency was therefore
entitled to recoup the overpayment. Miskey appealed the
ALJ’s decision, and the Social Security Appeals Council
issued a pro forma denial of that appeal. The ALJ’s decision
thus constituted the agency’s final decision in Miskey’s case.
Miskey sought review of the agency’s decision in the
United States District Court for the District of Nevada. See
42 U.S.C. § 405(g). The district court adopted the
recommendation of a magistrate judge to remand the case to
SSA. In doing so, the court entered a judgment reversing
SSA’s final decision and sent the case back to the agency for
further proceedings. Miskey asked the court to reconsider
its order remanding to the agency for further proceedings,
but the court declined.
Miskey timely appealed the district court’s judgment.
He argues that the district court should have ordered
payment of Miskey’s full spousal benefits. Miskey
maintains that the GPO does not apply to his benefits and
that, even if it does, he should not have had to return the
overpayment because he was not at fault and equitable
considerations weigh against recoupment.
II.
A “district court’s decision to affirm, reverse or modify
a determination of the Social Security Administration is
reviewed de novo on appeal.” Harman v. Apfel, 211 F.3d
1172, 1174 (9th Cir. 2000). “Our review of the [agency]’s
decision is ‘essentially the same as that undertaken by the
district court.’” Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.
1998) (quoting Stone v. Heckler, 761 F.2d 530, 532 (9th Cir.
1985)). We must “affirm the ALJ’s findings of fact if they
are supported by substantial evidence and if the ALJ’s

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M ISKEY V . KIJAKAZI 9
decision was free of legal error.” Shaibi v. Berryhill,
883 F.3d 1102, 1108 (9th Cir. 2017); see also 42 U.S.C.
§ 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence,
shall be conclusive.”).
When the district court has decided to reverse an ALJ’s
denial of benefits and has remanded the case to the agency,
the district court’s “decision whether such a remand is for
further proceedings or for an immediate payment of benefits
is reviewable for abuse of discretion rather than de novo.”
Harman, 211 F.3d at 1173. “Normally, the decision of a trial
court is reversed under the abuse of discretion standard only
when the appellate court is convinced firmly that the
reviewed decision lies beyond the pale of reasonable
justification under the circumstances.” Id. at 1175.
III.
Miskey and SSA dispute whether the GPO applies to his
spousal benefits, and if it does, whether the agency was
entitled to recoup the overpayment that it made to Miskey
during the period when it believed the GPO did not apply.
We hold that the GPO applies to Miskey’s spousal benefits,
but that a remand to the agency is needed to determine
whether SSA was entitled to recoupment.3
3 Miskey argues that the district court remanded this case without
engaging in a thorough analysis of the merits and therefore deprived him
of an opportunity for “meaningful judicial review.” He appears to frame
his argument as a challenge to the district court’s remand authority, but
there is no question that the district court had statutory authority to
remand the case after entering a final judgment on the merits that
reversed the agency’s decision. See 42 U.S.C. § 405(g); Melkonyan v.
Sullivan, 501 U.S. 89, 101 (1991) (explaining that the sole statutory

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A.
Whether the GPO applies to Miskey’s spousal benefits
involves undisputed facts and a straightforward application
of an agency regulation. The ALJ did not make any legal
errors in applying that regulation, and the district court
therefore erred by not affirming the ALJ on that issue.
Only a few facts are relevant to the application of the
GPO. Miskey receives a government pension based on his
noncovered employment with the Nevada DOT from 1979
to 1994. Miskey also receives a different government
pension, through a different pension plan, based on his
covered employment with the Las Vegas Valley Water
District from 1994 until his retirement in 2013. The sole
point of contention is a legal one: whether, in light of these
undisputed facts, Miskey’s spousal benefits are subject to the
GPO.
The rules regarding the GPO are in 20 C.F.R.
§ 404.408a, which was amended during the life of this case.
In August 2013, when Miskey first applied for spousal
benefits, the regulation read, in relevant part: “Your monthly
Social Security benefit as a spouse will always be reduced
because of your [noncovered] Government pension even if
you afterwards return to work for a government agency and
that work is covered by Social Security.” Id. § 404.408a(a)
(effective before July 15, 2015) (emphasis added). The
regulation was amended in 2015, before Miskey requested
his ALJ hearing. The amendment removed the regulatory
requirement of a so-called sentence-four remand is that it must
“accompany a final judgment affirming, modifying, or reversing the
administrative decision”). At bottom, then, Miskey’s argument is that
the district court’s merits analysis was flawed. We review the merits
issues de novo in the analysis that follows.

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M ISKEY V . KIJAKAZI 11
language quoted above from subsection (a) and inserted an
analogous provision in what became subsection (b)(6).
Under that new subsection, an individual’s spousal benefits
will not be reduced by the GPO “[i]f you are receiving a
government pension and the last 60 months of your
government employment were covered by both Social
Security and the pension plan that provides your government
pension.” Id. § 404.408a(b)(6). But, crucially, the
subsection goes on to clarify that:
We will always reduce your monthly spouse’s
benefit if you receive a government pension
based on noncovered employment and you
later go back to work for a Federal, State, or
local government, unless: (A) Your final
60 months of Federal, State, or local
government employment were covered by
Social Security; and (B) Both your earlier
and later Federal, State, or local government
employment were under the same pension
plan.
Id. § 404.408a(b)(6)(ii) (emphasis added).
The parties do not address which version of § 404.408a
applies in this case, or whether both versions are relevant
given that Miskey started receiving benefits while the old
version was in effect and has continued receiving benefits
while the new version has been in effect. But we need not
decide the import of the regulation’s amendment because,
under either version, it is equally clear that the GPO applies
to Miskey’s spousal benefits.
The old version of the regulation provided that an
individual in Miskey’s position—with a pension based on
noncovered employment and another pension based on later,

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12 M ISKEY V . KIJAKAZI
covered employment—“will always” have his benefits
reduced by the GPO. Id. § 404.408a(a) (effective before
July 15, 2015). And the new version of the regulation
implements an exception to the GPO for individuals with a
noncovered pension who end their careers in government
service with sixty months of covered employment—but only
if the “earlier and later Federal, State, or local government
employment were under the same pension plan.” Id.
§ 404.408a(b)(6)(ii)(B). It is undisputed that Miskey’s two
government jobs were not under the same pension plan. The
existence of Miskey’s Nevada PERS pension, which he
earned through noncovered employment with the Nevada
DOT, therefore triggers the GPO’s application to his spousal
benefits notwithstanding his later covered employment with
the Las Vegas Valley Water District.4
Although both versions of the governing regulation are
unambiguous, SSA has published various documents about
the GPO that are less clear. Over the course of this litigation,
Miskey has pointed to at least four SSA documents, which
he argues provide that the GPO does not apply to his
benefits.5 In summarizing the GPO’s rules, these documents
4 To the extent that Miskey argues that § 404.408a is inconsistent
with section 418 of the Social Security Protection Act of 2004, we reject
that argument. Section 418 increased from one day to sixty months the
amount of time an individual has to work in covered employment at the
end of his career in order for a pension earned from that employment to
not trigger the GPO. See Social Security Protection Act of 2004, Pub. L.
No. 108-203, § 418, 118 Stat. 493, 531 (codified as amended at
42 U.S.C. § 402(k)). But the statute does not say that ending a career
with sixty months of covered employment means that a different pension
earned from noncovered employment cannot still trigger the GPO.
5 Miskey cites: (1) a provision of the Social Security POMS, see
Soc. Sec. Admin., POMS § GN 02608.107 (2021); (2) a provision of the
Social Security Handbook, see Soc. Sec. Admin., Social Security

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M ISKEY V . KIJAKAZI 13
fail to adequately explain what should happen when a
beneficiary has multiple government pensions. For
example, the relevant provision of the Social Security POMS
provides that the “GPO does not apply if an individual was
covered by both the government retirement system and
Social Security throughout his/her last 60 months of Federal,
State, and local government service.” Soc. Sec. Admin.,
POMS § GN 02608.107 (2021). The other documents
contain similar language.
These documents do not entitle Miskey to spousal
benefits free of the GPO. Because § 404.408a is
unambiguous and clearly provides that the GPO applies to
Miskey’s spousal benefits, and because Miskey has not
meaningfully challenged the regulation, which appears
reasonable and otherwise valid,6 the regulation controls
here. We need not decide whether, in the absence of an
unambiguous regulation, the SSA documents Miskey has
cited could be entitled to Auer deference. See Kisor v.
Wilkie, 139 S. Ct. 2400, 2414 (2019) (holding that “the
possibility of deference” under Auer v. Robbins, 519 U.S.
452 (1997), to an agency’s interpretation of its own
Handbook § 1836.4 (2016); (3) a two-page summary of the GPO, see
Soc. Sec. Admin., SSA Pub. No. 05-10007, Government Pension Offset
1–2 (2012) (“GPO Factsheet”); and (4) an SSA training curriculum for
claims specialists, see Soc. Sec. Admin., SSA Pub. No. 25-1266, Title II
Claims Specialist Basic Training Curriculum: Unit 2 Modules 12–15,
at 89 (2018).
6 We reject Miskey’s only argument that implicates the validity of
the regulation, which is that the GPO is unconstitutionally vague. As we
have explained, the governing regulation unambiguously directs that the
GPO applies to Miskey’s spousal benefits. Even assuming that the void-
for-vagueness doctrine could apply to a regulation about the provision of
government benefits, neither this regulation nor the GPO more generally
is vague in any sense relevant here.

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regulation “can arise only if a regulation is genuinely
ambiguous” (emphasis added)).7 The district court should
have affirmed the ALJ’s decision that the GPO applies to
Miskey’s spousal benefits. That said, the ambiguous nature
of the SSA documents Miskey has cited could have confused
Miskey and thus could be a factor in whether he was at fault
for the overpayment.
B.
We next consider whether the SSA was entitled to
recoup the overpayment. The agency’s recoupment was
proper unless both of the following are true: (1) Miskey was
“without fault” for the overpayment, and (2) recoupment
“would defeat the purpose of [Title II] or would be against
equity and good conscience.” 42 U.S.C. § 404(b)(1). The
ALJ had determined that Miskey was at fault for the
overpayment and therefore did not reach the second prong
of this analysis. We agree with the district court that the case
7 Nor need we consider whether the documents could be entitled to
deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944). Even if
these documents were entitled to deference, the documents do not
resolve whether the GPO applies to Miskey’s spousal benefits. For
instance, the GPO Factsheet says that its summary of the rules applies
“generally,” but not that it will apply in every case. And all four
documents implicitly assume that a beneficiary will have only one
government pension. The GPO Factsheet and the Handbook contain the
phrases “whose government pension” or “whose pension” (singular), and
the POMS and the training curriculum both refer to “the government
retirement system” (singular). The documents simply do not address
whether an individual with both a noncovered pension and a covered
pension will have his spousal benefits reduced by the GPO.

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M ISKEY V . KIJAKAZI 15
should be remanded for further analysis of the recoupment
issue.8
The agency concedes on appeal that the ALJ’s
determination regarding Miskey’s fault for the overpayment
was “problematic.” We agree and hold that the ALJ’s
finding of Miskey’s fault was not supported by substantial
evidence. An individual is at fault for an overpayment if it
resulted from:
(a) An incorrect statement made by the
individual which he knew or should have
known to be incorrect; or
(b) Failure to furnish information which he
knew or should have known to be
material; or
(c) With respect to the overpaid individual
only, acceptance of a payment which he
either knew or could have been expected
to know was incorrect.
20 C.F.R. § 404.507. The evidence cited by the ALJ does
not support a finding of fault based on any of those criteria.
8 Miskey argues that the agency violated his right to due process by
failing to provide adequate notice that it would reduce his spousal
benefits and recoup the overpayment. Because Miskey has not explained
what redress he seeks for any inadequate notice, let alone explained what
he would have done differently if he had received better notice, we
cannot grant any relief on this claim. See Greenwood v. FAA, 28 F.3d
971, 977 (9th Cir. 1994) (“We will not manufacture arguments for an
appellant, and a bare assertion does not preserve a claim.”).

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First, the ALJ found that Miskey “misrepresented to the
agency that his PERS pension and Las Vegas Water District
pensions stemmed from the same entity.” But the ALJ’s
citations for that proposition consist of a letter from
December 2015, regarding Miskey’s Nevada PERS pension,
and Miskey’s March 2016 request for a hearing about the
overpayment. Those documents cannot support the
proposition that Miskey made a misrepresentation that
caused the overpayment, because they are dated after August
2015, by which time the agency had already concluded that
there had been an overpayment and decided to re-apply the
GPO to Miskey’s benefits.
Second, the ALJ wrote that “[n]otes from the agency
indicate that the pension amount was changed because
[Miskey] provided misleading information indicating that
his work with the water district . . . was [for] the same
employer as [his work for] the Nevada State Department of
Transportation.” There is indeed a note from an SSA
employee to that effect in Miskey’s file, which says that “the
offset was erroneously removed based on the
misinformation provided.” But the source of that
misinformation, according to the note, was the request for
reconsideration that SSA received from Miskey on
December 20, 2013. In that request Miskey never falsely
said (1) that his Nevada DOT employment was with the
same employer as his Water District employment, or (2) that
his Nevada DOT employment was covered by Social
Security. To the contrary, he explicitly told SSA that he had
been an “employee of the State of Nevada and paid into the
NVPERS system” for fifteen years, and that “in or about
March 1994 . . . [he] went to work for the Las Vegas Valley
Water District.” He also wrote that the Water District “is a
local governmental unit governed by Clark County,
Nevada.” It was not reasonable to conclude from that

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M ISKEY V . KIJAKAZI 17
document that Miskey intentionally misled SSA into
believing that his work for the State of Nevada and for the
Las Vegas Valley Water District (“a local governmental
unit”) were for the same employer or were covered by the
same pension plan. Although Miskey did not explicitly state
in his request for reconsideration that his compensation for
his Nevada DOT employment had been exempt from Social
Security taxes, he wrote that he left his employment with the
Nevada DOT in 1994. He also said that he has worked in
covered employment “since 1994.” The implication of those
statements is that his employment before 1994—at the
Nevada DOT—was not covered.
Third, the ALJ said that Miskey failed “to provide the
correct information to the agency, upon his receipt of express
notification of the underlying reason for” SSA’s decision to
remove the GPO in February 2014. The ALJ also wrote that
“[t]he record lucidly illustrates that when the claimant’s
benefits were erroneously increased to $1,067 . . . it was
because the agency had been provided Water District pay
stubs, suggesting that his pension was a covered one”
(emphasis removed). But the record is far from lucid on this
point. In a notice dated February 8, 2014, the agency
explained in a single paragraph why the GPO had initially
been applied to Miskey’s spousal benefits and subsequently
removed. The notice said:
We received your request to reconsider your
government pension offset. Upon review, we
found that you made a mistake when you
filled out the application. You answered
“yes” to the question “QUALIFY FOR US
FED/STATE/LOCAL GOVT PENSION
BASED ON ANY WORK YOU

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18 M ISKEY V . KIJAKAZI
PERFORMED WHICH WAS NOT
COVERED UNDER SS (Y/N): Y”.
This paragraph does not provide substantial evidence for the
proposition that Miskey “[f]ail[ed] to furnish information
which he knew or should have known to be material.”
20 C.F.R. § 404.507. The implication from the ALJ’s
reasoning is that Miskey should have corrected SSA’s
apparent misapprehension that Miskey had never received a
government pension based on noncovered employment. But
Miskey had already told the government that he was
receiving such a pension—which is why, in 2013, the GPO
had been applied to his benefits to begin with. And Miskey
apparently was under the impression that the only thing that
mattered to determine whether the GPO applied to his
spousal benefits was that he had sixty months of covered
employment at the end of his government career. The
quoted paragraph from SSA’s notice is not sufficiently clear
to explain to someone in Miskey’s position that he would
receive benefits to which he was not entitled if he did not
inform the agency about his pension from his employment
with Nevada DOT—information that he had already
provided to SSA with his initial application. Indeed, the
record suggests that Miskey had a good faith—though
mistaken—belief that the GPO did not apply to his spousal
benefits in light of his covered employment with the Water
District.
Because the ALJ has pointed to no evidence that “a
reasonable mind might accept as adequate” to support the
conclusion that Miskey was at fault for the overpayment, we
hold that the ALJ’s finding that Miskey was at fault is
unsupported by substantial evidence. Orn v. Astrue,
495 F.3d 625, 630 (9th Cir. 2007) (quoting Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)).

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M ISKEY V . KIJAKAZI 19
When a reviewing court “reverses an administrative
agency determination, ‘the proper course, except in rare
circumstances, is to remand to the agency for additional
investigation or explanation.’” Moisa v. Barnhart, 367 F.3d
882, 886 (9th Cir. 2004) (quoting INS v. Ventura, 537 U.S.
12, 16 (2002) (per curiam)). A district court’s decision to
remand for further proceedings, instead of for an immediate
award of benefits, is reviewed for abuse of discretion.
Harman, 211 F.3d at 1173.
The district court did not abuse its discretion by applying
the default rule and remanding Miskey’s case to the agency
for further proceedings, instead of for immediate payment of
benefits. On remand, the agency may consider whether any
evidence in the record beyond that relied on by the ALJ
supports the proposition that Miskey was at fault for the
overpayment. And, if Miskey is determined not to have been
at fault, the agency must decide in the first instance whether
recoupment of Miskey’s repayment “would defeat the
purpose of [Title II] or would be against equity and good
conscience.” 42 U.S.C. § 404(b)(1). A remand for further
proceedings is indeed “required to allow [the] agency to
consider in the first instance an issue that it had not
previously addressed.” Benecke v. Barnhart, 379 F.3d 587,
595 (9th Cir. 2004) (emphasis added). SSA has never made
a determination whether recoupment of Miskey’s
overpayment would frustrate the purpose of Title II or be
against equity and good conscience—a determination that is
necessary for Miskey to prevail on his claim.
IV.
For the reasons above, we reverse the district court’s
decision with respect to the application of the GPO, and we
hold that the ALJ correctly determined that the GPO applies
to Miskey’s spousal benefits. We affirm the district court’s

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20 M ISKEY V . KIJAKAZI
decision to remand for the agency to determine whether it
was entitled to recoup the overpayment.
AFFIRMED in part and REVERSED in part.

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