The opinion of the court was delivered by: YOUNGDAHL
This is an action to review a final decision of the Secretary of Health, Education and Welfare, requiring the repayment by the plaintiff of certain social security benefits which were improperly paid to the plaintiff. The Court has jurisdiction by virtue of 42 U.S.C. § 405(g), which gives the Court power 'to enter, upon the pleadings and transcript of the record (of proceedings before the Secretary), a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing.' The Secretary has moved to dismiss or in the alternative for a summary judgment, and the plaintiff has moved for summary judgment.
The facts are not in dispute, and no findings of fact by the Secretary are challenged by the plaintiff. Ultimate conclusions drawn from those facts, however are contested. The problem is thus a legal one, for the Court to decide. Kilby v. Folsom, 238 F.2d 699, 700 (3d Cir., 1956).
The facts are as follows: On June 27, 1956, plaintiff applied for Old-Age Insurance Benefits. She was residing in Canada at the time, as she had been since July, 1949. Plaintiff submitted a form, for beneficiaries living outside the United States, dated July 18, 1956. In answer to the question on this form asking
'During the last 13 months (counting the present month), did you work in employment or self-employment on 7 or more days in any one month?'
plaintiff answered 'Yes,' and then amplified this answer as follows:
'During the last 13 months and at present my employment only amounts to about 24 hours each month -- 6 hours each week -- 1 hour a day. This would not amount to '7 or more days' in any month.'
Nearly three years after this award was made, plaintiff was requested to file a form indicating the length of her employment in the years 1956, 1957, 1958, and 1959. On May 13, 1959, plaintiff answered that she had worked every month during those years. Plaintiff was then requested to submit a supplementary statement, which she did on November 3, 1959. She there stated that she worked for a doctor, and added: 'I work 6 hours each week -- 1 hour four evenings and 2 hours on Saturday.' She reported her earnings at $ 18.00 per week from 1956 on.
In February, 1960, plaintiff was informed that it had been determined that no benefits were payable to her from June, 1955, on, since she had worked on seven or more calendar days in each month thereafter, and that she had therefore been overpaid in the amount of $ 3,414.70. She was also told that since she was still working, her benefits had been suspended effective March, 1960. Plaintiff was requested to refund the $ 3,414.70 'immediately.'
Plaintiff asked for, and received, reconsideration of this decision, which was affirmed. She then sought relief from a Hearing Examiner, who held a full hearing at which plaintiff was present. The Hearing Examiner reached the following conclusion here relevant:
'* * * that while the claimant was 'without fault' in receiving the incorrect payments, recovery of the overpayments would not defeat the purpose of the Act or be against equity and good conscience.'
Plaintiff requested the Department's Appeals peals Council to review this decision. The Appeals Council denied review, adding: 'The Hearing Examiner's decision stands as the final administrative decision of this Department.' Plaintiff subsequently filed this action to review the final Departmental decision, which is conceded by both parties in this case to be equivalent to a 'final decision of the Secretary made after a hearing,' 42 U.S.C. § 405(g), thus giving the Court jurisdiction.
The determination that the plaintiff was overpaid is not challenged in these proceedings. The sole issue is whether plaintiff must refund the amount overpaid to her.
42 U.S.C. § 404(b) provides:
'There shall be no adjustment or recovery by the United States in any case where incorrect payment has been made to an individual who is without fault * * *, and where adjustment or recovery would defeat the purpose of this ...