United States District Court, M.D. Tennessee, Nashville Division
SUSAN K. UNICE, Plaintiff,
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
A. TRAUGER UNITED STATES DISTRICT JUDGE.
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.
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
STANDARD OF REVIEW
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..
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.
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.
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
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) 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,
(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)
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 ...