Daniel Ray Erickson v. Commr. of Social Security

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 20, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-15061
Non-Argument Calendar
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D. C. Docket No. 03-00859-CV-T-17-TBM
DANIEL RAY ERICKSON,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 20, 2011)
Before TJOFLAT, CARNES and ANDERSON, Circuit Judges.
PER CURIAM:
Daniel Ray Erickson, proceeding pro se, appeals the ruling of the court

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below. Erickson asserts that the magistrate judge made several errors in affirming
the Commissioner of Social Security’s denial of his request for a waiver of an
overpayment charge in connection with his Social Security disability benefits.
First, he alleges that the Commissioner violated his due process rights when the
Commissioner failed to correct the miscalculation of his benefits caused by a
computer error in 1972, resulting in an underpayment of $150,000. Second,
Erickson argues that his due process rights were violated when funds were
deducted for overpayment without determining whether he was at fault and that
there was not substantial evidence to support the decision that there was an
overpayment. Third, Erickson argues that his due process rights were violated
when the Commissioner held open the 1984 through 1985 suspension of his
disability insurance benefits (“DIB”) but later determined that the suspension of
benefits issue was time barred. Fourth, Erickson argues that the Commissioner,
acting as an agent for Medicare, failed to repay the amount deducted for insurance
premiums, violating his due process rights. Fifth, Erickson contends that the
magistrate judge did not have jurisdiction to rule on the objections he filed to the
magistrate judge’s order and applied the incorrect standard of review. Lastly,
Erickson argues that as to the 1995 through 1996 overpayment issue, the
Commissioner was barred by res judicata from revisiting the final decision and
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acted vindictively in overturning the favorable 2000 decision of the
Administrative Law Judge (“ALJ”).
We find that the first four claims are time-barred. There is no evidence in
the record to support Erickson’s fifth claim that the magistrate judge used an
arbitrary standard of review. We reject Erickson’s sixth contention because
Erickson’s own decision to appeal the partially favorable ruling contributed to the
adverse result and substantial evidence supported the ALJ’s ruling.
I.
We review de novo a district court’s dismissal of a claim as barred by the
statute of limitations. Jackson v. Astrue, 506 F.3d 1349, 1352 (11th Cir. 2007).
Chapter 42 U.S.C. § 405(g) provides the exclusive jurisdictional basis for cases
arising under the Social Security Act. 42 U.S.C. § 405(g). Section 405(g) states
in relevant part:
Any individual, after any final decision of the Commissioner of Social
Security made after a hearing to which he was a party, irrespective of the
amount in controversy, may obtain a review of such decision by a civil
action commenced within sixty days after the mailing to him of notice
of such decision or within such further time as the Commissioner of
Social Security may allow.
42 U.S.C. § 405(g) (emphasis added). Section 405(g) limits judicial review to
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final decisions of the Commissioner made after a hearing. Califano v. Sanders,
430 U.S. 99, 108, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977). “Congress’
determination so to limit judicial review to the original decision denying benefits
is a policy choice obviously designed to forestall repetitive or belated litigation of
stale eligibility claims. Our duty, of course, is to respect that choice.” Id. As the
regulations proscribe, where a claimant seeks review of a determination, he must
seek reconsideration within 60 days.
Erickson’s claim that his benefits were miscalculated in 1972 resulting in an
underpayment of $150,000 is time-barred. In reviewing the record, there is no
evidence suggesting that Erickson requested review of his initial benefit
calculation made in 1973 until 1998. Erickson failed to challenge the calculation
of his benefits within 60 days so his claim is untimely and must be dismissed. 42
U.S.C. § 405(g). Likewise, Erickson’s second and third claims are untimely. He
again did not challenge the withholding of benefits in the 1980s until 1998, failing
to meet the 60 day statute of limitations.
Erickson’s fourth claim is that he should not have been charged with
Medicare premiums during his incarceration. This claim is also time-barred. A
1986 letter stated that the amount of $156.40 would be deducted from Erickson’s
benefits within 30 days unless he requested relief from the payment or arranged an
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alternative method of payment. As Erickson did neither, his attempt to renew any
right of review by demanding reconsideration in 1998 was untimely.
As to Erickson’s fifth claim, there is no evidence in the magistrate judge’s
order to suggest that an incorrect standard of review was applied. Erickson
specifically relies on the phrase “I guess” as the arbitrary standard applied,
however, this phrase does not appear in the magistrate judge’s order. Pursuant to
Federal Rule of Civil Procedure 59(e), a court is afforded broad discretion to
reconsider an order which it has entered. Am. Home Assurance Co. v. Glenn
Estess & Assocs., Inc., 763 F.2d 1237, 1238–39 (11th Cir. 1985). Erickson cites
to no evidence that the magistrate judge was incorrect in construing the
supplemented objections as a motion to reconsider. Consequently, we find no
error.
II.
When reviewing the ALJ’s decision, we ask whether it was supported by
substantial evidence. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005)
(per curiam). “Substantial evidence is less than a preponderance, but rather such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Id. This Court may not decide facts anew, reweigh the evidence, or
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substitute its own judgment for that of the Commissioner. Dyer v. Barnhart, 395
F.3d 1206, 1210 (11th Cir. 2005) (per curiam).
Whenever the Commissioner finds that more than the correct amount of
payment has been made to any person under Title II of the Social Security Act,
proper adjustment or recovery must be made. 42 U.S.C. § 404(a)(1). An
overpayment prompting such an adjustment or recovery includes a payment
resulting from the failure to terminate benefits. Id. The Act provides that there
shall not be recovery from any person who is without fault if recovery would
defeat the purpose of Title II. 42 U.S.C. § 404(b). Under the regulations, the term
“defeat the purpose of Title II” is defined to mean, “to deprive a person of income
required for ordinary and necessary living expenses.” 20 C.F.R. § 404.508(a).
The ALJ’s decision that the denial of a waiver of the overpayment would
not defeat the purpose of Title II was supported by substantial evidence. The
record demonstrates that Erickson could afford the amount of repayment without
depriving him of income required for necessary living expenses. Erickson
testified that his mother died in April 2006, leaving him approximately $50,000 in
stocks, bonds, and cash. He also received a half interest in his mother’s house,
which was worth approximately $100,000. Erickson testified that he was
“financially okay now,” that he did not have any debt, and that “everything’s taken
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care of.”
The Appeals Council’s decision to reverse the 2000 decision was not
vindictive because Erickson himself appealed the ALJ decision, despite the
partially favorable outcome. In undertaking this appeal, Erickson risked losing the
waiver he had been awarded by the ALJ. The Appeals Council acted within its
authority in remanding the case for further consideration of whether the whole of
the overpayment should be waived rather than just the net balance. But for the
change in Erickson’s financial circumstances resulting from his inheritance, the
findings of the ALJ in 2007 indicate that Erickson likely would have prevailed as
to the entire overpayment sum because he was found to be without fault in causing
the overpayments. Thus, the decision to reverse the favorable outcome of the
2000 decision was not vindictive. Because substantial evidence was presented1
that Erickson is financially capable of repaying the overpayment, the ALJ did not
err in denying the waiver. Accordingly, we affirm.
AFFIRMED.
Erickson’s contention that res judicata applies to the 2000 decision is meritless.1
The 2000 decision was vacated by the Appeals Council and no longer had any preclusive effect.
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