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Unice v. Berryhill

United States District Court, M.D. Tennessee, Nashville Division

September 12, 2017

SUSAN K. UNICE, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          BROWN JUDGE.

          MEMORANDUM

          ALETA A. TRAUGER UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Plaintiff Susan Unice brought this action in the district court pursuant to 42 U.S.C. § 405(g) and 1383(c) seeking judicial review of the decision of the Social Security Administration (SSA) through its Commissioner (the Commissioner) that plaintiff and her daughter were overpaid disability benefits under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 416(I) and 423(d), and that recovery of the overpayment would not be waived.

         Presently before the court are plaintiff's objections (Doc. 30) to the Magistrate Judge's July 12, 2017 Report and Recommendation (R&R) (Doc. 29) that recommended plaintiff's motion for judgment on the administrative record (Doc. 18) be GRANTED IN PART and DENIED IN PART, the Commissioner's decision be AFFIRMED IN PART and REVERSED IN PART, and this action be REMANDED for further consideration and explanation regarding the overpayment of benefits to plaintiff and her daughter. The commissioner did not reply to plaintiff's objections.

         II. STANDARD OF REVIEW

         When a magistrate judge enters a R&R regarding a dispositive matter, the district court must review de novo any portion, proposed findings, or recommendations in the R&R to which a proper objection is made. 28 U.S.C. § 636(b)(1); Rule 72(b)(3), Fed. R. Civ. P.. In conducting its review, the district court may accept, reject, modify the recommended disposition in whole or in part, receive further evidence, or return the matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1); Rule 72(b)(3), Fed. R. Civ. P..

         The district court's review of the Commissioner's final decision in a Social Security case is limited to determining whether the Commissioner's decision is supported by substantial evidence in the record, and whether the decision was made pursuant to proper legal standards. 42 U.S.C. §§ 405(g) and 1381(c); Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 374 (6th Cir. 2014). Substantial evidence is less than a preponderance but more than a scintilla; it refers to relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); see Gentry v. Comm'r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2003). The Commissioner's decision must stand if substantial evidence supports the conclusion reached, even if the evidence supports a different conclusion. Gayheart, 710 F.3d at 374.

         III. PROCEDURAL HISTORY

         The procedural history set forth in the R&R (Doc. 29, pp. 1-2) has been reviewed, deemed factually correct, and is incorporated herein by reference.

         IV. FACTUAL BACKGROUND

         Plaintiff asks the court “to carefully review all of the facts and testimony contained in the record and to minimally rely on [the Magistrate Judge's] recitation of the facts in the R&R” (Doc. 30, p. 4) because, according to plaintiff, the Magistrate Judge misrepresented the facts, including portions of plaintiff's testimony at the February 20, 2014 hearing (the hearing) before Administrative Law Judge (ALJ) Joan Knight (Doc. 16, pp. 405-44). (Doc. 30, pp. 2-4) Plaintiff's claims of misrepresentation are addressed below.

         Plaintiff asserts first that the Magistrate Judge “misquoted” “the phrase ‘everything that's done' out of context” (Doc. 30, p. 2) in her testimony at the hearing when he wrote:

During the Administrative hearing, Plaintiff testified as to her involvement in the company. From 2008 to 2012, Plaintiff oversaw the expenses and startup of the business and otherwise oversaw ‘[e]verything that's done.' (Id. at 420-421)[1] Asked if she materially participated in the day-to-day operations of the company, Plaintiff said she did to the extent of overseeing the financial and sometimes the legal end of things. (Id. at 436-37) Between 2008 and 2011, Plaintiff stated she spent between 8 to 12 hours a week doing business-related activities, later clarifying she spent more time when the company was founded. (Id. at 424-425, 434)

(Doc. 29, p. 3)(bold and underline added) Plaintiff maintains that the text in bold above “overstates [plaintiff's] efforts and abilities” because she also testified that she “just overs[aw] the expenses.” (Doc. 30, p. 2)(bold omitted)

         Plaintiff's testimony at the hearing that is relevant to the portion of the R&R quoted above is as follows:

Q Okay. Can you tell me, 2008 through 2012, on a weekly basis, what . . . were your activities in the business?
A Mostly overseeing the expenses, the startup of the business. . . .
. . .
Q . . . . I just oversee the expenses. Every thing that's done, I oversee. There is somebody else that does my payroll. I have an accountant do my monthly expenses, my taxes.
. . . . I have people that do the banking . . . . I have people that hire, fire - again, I mean, I'm overseeing it, but I'm not really instrumental in the day-to-day activity that goes on.
. . .
Q So did you sit in on the interviews ...

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