ALJ, nor may we replace the Secretary's judgment concerning the weight and validity of the evidence with our own. Davis v. Heckler, 566 F. Supp. 1193, 1195 (D.D.C. 1983); Di Benedetto v. Secretary of the Department of Health and Human Services, 518 F. Supp. 786, 787 (D.D.C. 1981). We therefore find that the Appeals Council's decision that the ALJ had made an error of law is supported by substantial evidence.
Accordingly, we hold that the Secretary's determination that plaintiff received an overpayment for the period between 1980 and 1986 is supported by substantial evidence and further find that the Secretary's netting of plaintiff's overpayments and underpayments was entirely proper and within the netting period as defined in Everhart. In addition, we hold that the Appeals Council did not abuse its authority when it reviewed the entire case pursuant to 20 C.F.R. § 404.976. Finally, we find that the Secretary's decision that plaintiff was at fault in causing the overpayment is supported by substantial evidence. Consequently, we deny plaintiff's motion for judgment of reversal and grant defendant's motion for judgment of affirmance.
An order consistent with the foregoing has been entered this day.
July 13, 1978 Plaintiff applies for disability insurance benefits (Tr. 100-103).
September 28, 1978 Plaintiff's claim for benefits was granted. The onset of her disability is January 31, 1977.
May 10, 1979 The onset date is later revised to May 15, 1978 (Tr. 104-106).
February 1979 Plaintiff begins working at Group Counseling Service, Inc. She will continue to work there in every month through March 1984 (Tr. 134-139). She will not report this work activity to the Social Security Administration ("SSA"). Her trial work period of nine months begins in February 1979 and ends October 1980 (Tr. 110).
December 19, 1980 Notice to plaintiff reminding her to report her return to work or any other change in her work status (Tr. 109).
April 6, 1984 SSA notifies plaintiff that it appears that she regained the ability to perform substantial gainful activity in November 1979, and that as a result, her benefits should have been terminated in February 1980. This is not a formal determination; the notice gives plaintiff the opportunity to submit evidence before a formal initial determination is made (Tr. 110).
April 17, 1984 Plaintiff files another application for disability insurance benefits (Tr. 97, 111-114).
July 13, 1984 Plaintiff files an application for supplemental security income. This application was not available for inclusion in the record.
October 18, 1985 An Administrative Law Judge finds that plaintiff is disabled based on her April and July 1984 benefits applications (Tr. 309-316). The onset of her disability is April 14, 1984. The Administrative Law Judge notes that no formal determination of whether plaintiff regained the ability to do substantial gainful activity in November 1979 has yet issued (Tr. 309-316, see especially Tr. 312, 315).
January 13, 1986 SSA sends plaintiff an "award certificate" (Tr. 344-348). Plaintiff was notified of the decision that she had been overpaid and was further informed of her rights with respect to the overpayment and its recovery.
March 17, 1986 Revised notice sent to plaintiff informing her of the amount of benefits she will receive by reason of her being found disabled by the October 1985 Administrative Law Judge decision. It informs her that she was overpaid between March 1980 and March 1984. Finally, it informs her that benefits due her through December 1985 by reason of the October 1985 Administrative Law Judge's decision have been applied to reduce the amount of her overpayment. This notice is the formal initial determination regarding the fact and amount of plaintiff's overpayment and the amount of benefits she is to receive based on her 1984 claims for benefits. It apprises her that if she disagrees in any way with the determination, she may request reconsideration (Tr. 364).
March 19, 1986 Rather than requesting reconsideration of the determination that she was overpaid and the amount of benefits due her, plaintiff requests that recovery of the overpayment be waived by SSA (Tr. 365-368).
February 17, 1987 Appeals Council grants plaintiff's request for review of the Administrative Law Judge's decision. Appeals Council noted that overpayment began in March 1980 and ended in January 1986 (Tr. 438).
May 2, 1988 In the final reviewable decision of the Secretary in this matter, the Appeals Council determines that recovery of plaintiff's overpayment cannot be waived because plaintiff was at fault in causing that overpayment (Tr. 5-8).
Upon consideration of plaintiff's motion for judgment of reversal, defendant's motion for judgment of affirmance, the opposition thereto and the entire record herein, it is by the Court this 5th day of June, 1990
ORDERED that plaintiff's motion is denied; it is
ORDERED that defendant's motion is granted; and it is
FURTHER ORDERED that this action shall stand dismissed.