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Digges v. Astrue

August 12, 2009


The opinion of the court was delivered by: Karen E. Schreier Chief Judge


Plaintiff, Darren Digges (Digges), moves the court to reverse the decision of the Commissioner of Social Security (Commissioner), which denied Digges's motion to waive recovery of overpayment of disability insurance benefits in the amount of $20,757.80. The Commissioner opposes the motion. The court reverses and remands the Commissioner's decision.


Digges is a wheelchair-bound quadriplegic who was awarded disability insurance benefits in November 1985, with an onset date of May 26, 1985. AR 259. Digges returned to work at Mileage Plus, Inc. in April 1993, where he continued working until at least July 2006. AR 259.

The SSA conducted a continuing disability review in November 1996. AR 50. The SSA determined that Digges's trial work period ran from April 1993 through December 1993, and his extended period of eligibility began January 1994. AR 50, 55. At the time of the review, the SSA determined that Digges was not engaged in substantial work. AR 50.

Mileage Plus raised Digges's hourly rate from $9.99 an hour to $14.50 an hour beginning May 19, 2002. AR 103-04. Digges began earning $14.94 an hour for the pay period ending February 22, 2003. AR 73.

On April 13, 2003, Digges completed a work activity report. AR 317-28. He indicated that he was working at Mileage Plus about 20 hours per week and earning $14.94 an hour. AR 318. Digges also reported that he worked irregular hours and took frequent rest periods, was given special transportation to and from work, was given a larger work area to accommodate his wheelchair, and was given special computer equipment to help him with his limited hand function. AR 319-20. Digges indicated that he used his earnings to pay for attendant care, a taxi-type service, and medication for an irregular heartbeat. AR 321, 328. Finally, Digges provided a list of his expenses for a personal attendant, work lunch, and para transit for January 2001 through December 2002. AR 325-26.

At the bottom of the penultimate page of the work activity report is a note signed by "Scott 342-0242 Ext. 216." AR 321. The note reads, "Mr. Digges, Please submit payslips for period 1/97 to present so I can verify your monthly wages. If not available, do I have your permission to verify your wages directly with MPI?" AR 321. The note is followed by two blank boxes, with "Yes" and "No" written next to them. AR 321.

On May 13, 2004, the SSA sent Digges a "Notice of Proposed Decision" informing him that based on the information available to the SSA, it appeared that his disability had ended and that he was no longer entitled to payments. AR 47. According to an SSA record, Digges spoke to an SSA representative about impairment related work expenses (IRWE) on May 21, 2004. AR 330-31. Digges informed the representative that he paid his father to provide attendant care services. AR 330. Digges also indicated that he paid $4 a day for wheelchair-accessible transit while regular mass transit cost $2 a day. AR 330. The representative informed Digges that the SSA required additional information to determine the amount of IRWE to be deducted from his gross earnings. AR 329. Digges was instructed to provide signed statements verifying that he paid for the services, his need for services, and that the expenses were not paid by any other source. AR 329. He was also instructed to provide a statement from his father relating to attendant care services. AR 329.

Digges completed another work activity report on July 7, 2004. AR 332-37. He indicated that he was paid $14.50 an hour at Mileage Plus. AR 333. Digges also reported that he paid $5,160 for a personal care aid in 2001, $792.22 for medical expenses in 2001, $4,740 for a personal care aid in 2002, $1,168.23 for medical expenses in 2002, and $1,320 for transportation for 2001 and 2002. AR 336. Digges also submitted a statement from his father indicating the amount Digges paid his father for personal care attendance in 2001 and 2002. AR 358-60.

On September 10, 2004, the SSA informed Digges that he no longer qualified for disability insurance benefits because he became able to do substantial and gainful work in May 2002. AR 43. The letter explained that the last check to which Digges was entitled was the check for July 2002. AR 43. Digges requested reconsideration of the SSA's decision on September 28, 2004, and in a letter dated October 14, 2004, the SSA affirmed its decision that Digges was not entitled to benefits beginning in August 2002. AR 55, 58. The SSA determined that the amount of the overpayment, which Digges was obligated to pay back, was $20,757.80. AR 274.

On April 6, 2005, Digges requested waiver of overpayment recovery. Ex. 1.*fn1 He indicated that he reported his wage increase to the SSA: "[i]n late 2002-probably November or December-Mr. Digges went to the SSA office at 605 Main in Rapid City and talked to a man named Scott, and told Scott about the raise." Ex. 1 at 2.

On June 21, 2005, the SSA determined that Digges was not without fault in the overpayment even though Digges said he reported the wage increase to Scott in the Rapid City office because Digges should have been aware that he was not due the benefits he continued to receive. Ex. 13. Thus, recovery of the overpayment should not be waived. Ex. 13. Digges was notified of the SSA's decision on September 30, 2005. Ex. 14 (September 30, 2005, letter).

Digges had a personal conference with an SSA representative on October 12, 2005. Ex. 15. On October 18, 2005, the SSA affirmed its previous decision that Digges was overpaid by $20,757.80 and was not entitled to waiver of overpayment recovery. Ex. 14 (October 18, 2005, letter). The SSA found Digges to be at fault in creating the overpayment as he knew or should have known that he was not entitled to the Social Security checks ...

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