United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
Plaintiff Randy Rogman brings this action to contest a final administrative decision by the Commissioner of the Social Security Administration (“Commissioner” or “SSA”) that he is not entitled to a waiver of recovery of $30, 928.90 in overpayments for Social Security benefits he received between May 2009 and March 2011. Rogman asserts that the SSA is not entitled to recover these overpayments because he accepted them in reliance on several representations made by SSA representatives, whom he allegedly repeatedly advised of his work circumstances and asked whether he was qualified to continue to receive benefits. For the reasons discussed below, the Commissioner’s decision will be affirmed.
A. Factual Background
After being diagnosed with terminal brain cancer, plaintiff Randy Rogman began receiving Title II benefits in December 2007. (Tr. 514.) Prior to receiving those benefits, the SSA advised Rogman that should he receive benefits, he had a duty to report his “return to work . . . regardless of the amount of earnings” and that he could do so by “Calling us TOLL FREE at 1-800-772-1213” or by “Calling, visiting or writing your local Social Security Office at the phone number and address above.” (Tr. 191.)
Despite his illness, Rogman returned to work from June 2008 until January 2009 for Cargill Meat Solutions Corporation, Pizza Hut, and Principal Life Insurance Company. (Tr. 13-15.) Rogman began working at Cargill in June 2008 on a reduced schedule of four hours per day upon his doctor’s advice that Rogman be sure he could work without having seizures from the brain tumor. Rogman claims that he informed the SSA by telephone when he started working at Cargill and again when he began working for Pizza Hut. (Tr. 921.) The SSA allegedly told him he “would be reviewed” in a year, and he would continue to receive benefits in the meantime. From July to September 2009, after Rogman had been working for a year, he claims he again contacted the SSA and advised them that he was making $2, 000 per month at Cargill and $300-$400 per month at Pizza Hut. (Tr. 922.) Rogman allegedly asked the SSA why he was still receiving checks, and the SSA informed him that his case “had been reviewed” and would “be reviewed” again at the end of the year. (Tr. 923.) In another year, Rogman claims he again called the SSA and questioned why he was still receiving benefit checks, and the SSA again told him that his case would be reviewed in a year. The benefit checks kept coming.
On May 3, 2011, the SSA issued a notice informing Rogman that “[t]he local Social Security office told [the SSA Office of Cental Operations] that you worked and earned too mucy [sic] money” and that it had overpaid him $32, 176.90 (later reduced to $30, 928.90 (Tr. 60-62)) in benefits from May 2009 through April 2011. The notice stated that Rogman should “refund this overpayment within 30 days.” The SSA also alerted Rogman that he could make partial payments, or he could file an appeal asking the SSA to waive collection of the overpayment if “[i]t was not [Rogman’s] fault that [he] got too much Social Security money” and returning the overpayment to the SSA “would mean [Rogman] cannot pay [his] bills for food, clothing, housing, medical care, or other necessary expenses, or it would be unfair for some other reason.” (Tr. 53-54, 514.)
While he did not contest the fact or amount of the overpayment, Rogman requested waiver of recovery of the overpayment on May 26, 2011, because he alleged he was not at fault. (Tr. 63-82, 514.)
B. The Administrative Hearing
The Administrative Law Judge (“ALJ”) held a hearing on Rogman’s request on May 29, 2012, at which Rogman was represented by an attorney. (Tr. 163-68, 514, 911-48.) At the hearing, Rogman testified about the monthly amounts he earned from February 2010 to March 2011 and stated that when he returned to work, he notified the SSA by telephone and made several subsequent telephone calls to alert the SSA regarding his work schedule and employers. Rogman testified that each time he made such a telephone call, the SSA told him that he would continue to receive disability benefits and that the SSA would review his case on a yearly basis. (Tr. 921-22.)
Rogman testified that during the time period in which he allegedly called the SSA several times to report his earnings and to ask why he was still receiving benefit checks, the SSA sent him “papers.” (Tr. 923). “[T]hey’d send me these papers, and I’d fill them out, and . . . sent them into them.” (Tr. 923.) When the ALJ asked Rogman whether he had copies of the papers he sent to the SSA, he replied, “I think I did have some of them in, in the big file boxes at [my attorney’s] office.” (Tr. 923.) The ALJ stated that it “would be useful if you had a copy of what you sent Social Security.” (Tr. 923.) Rogman’s attorney told the ALJ that “[Rogman] has such a large file, I didn’t bring everything here” and that “we’ll get in the requested information by the end of this week. He has a . . . voluminous file at my office, but we can sort through it today . . . .” (Tr. 924 & 928.) At the conclusion of the hearing, the ALJ stated, “We’ll look forward to getting that information.” (Tr. 928.) The hearing occurred on Tuesday, May 29, 2012, and the ALJ gave Rogman until Friday, June 1, 2012, to submit the information. (Tr. 921.) Rogman failed to do so.
C. The ALJ’s Opinion
The ALJ determined on June 15, 2012, (Tr. 511-19) that there was no basis for the SSA to waive the overpayment and that Rogman was liable for repayment of $30, 928.90 he received during the period from May 2009 through March 2011. (Tr. 518-19.) The ALJ found that after exhausting his “trial work period” and the subsequent “reentitlement period” in which a benefit recipient is allowed to continue receiving benefits despite working, Rogman engaged in substantial and gainful work activity such that he was not entitled to benefits during that period. (Tr. 515.) The ALJ noted that an overpayment in Rogman’s case “occurred because the claimant’s work activity was not discovered by the Administration until approximately August 2010, which resulted in an investigative review completed in March 2011.” (Tr. 516.)
Besides finding that Rogman was liable for $30, 928.90 in overpaid benefits, the ALJ also concluded that Rogman was “at fault in causing the overpayment.” (Tr. 517.) The ALJ acknowledged Rogman’s testimony that “he both called and mailed information to the Social Security Administration on a number of occasions specifically regarding his work activity”; “that he first reported to the [SSA] that he had returned to work in June 2008 when he called the ‘1-800’ number”; “that he called again in July or September 2009 and again sometime in 2010”; and that “in each instance, he called to report his full-time work and to ask why he ...