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Austin v. Shalala

decided as corrected: July 13, 1993.

MILDRED AUSTIN, PLAINTIFF-APPELLANT,
v.
DONNA SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Texas. D.C. DOCKET NUMBER 2:90-CV-64. JUDGE Mary Lou Robinson

Before Smith, Duhe, and Wiener, Circuit Judges.

Author: Smith

JERRY E. SMITH, Circuit Judge:

I.

A.

Mildred Austin's husband died on October 6, 1968. On August 3, 1977, she married Sam Chancler, but kept the Austin name. When Austin turned sixty on June 6, 1980, she had separated from Chancler and moved to Tyler, Texas. At that time, she apparently intended to obtain a divorce from Chancler.

Austin applied for widow's benefits on September 5, 1980, at the Tyler social security office.*fn1 She told the claims officer that she had remarried but was separated and intended to seek a divorce. Austin testified that the claims officer filled out the application form and then had her sign it. Austin's form states that she was not married. Although she acknowledges that she signed the form, she maintains that she never read it and that the claims officer did not tell her she could lose her benefits if she remained married.*fn2 Five months later, Austin reconciled with Chancler and never divorced.

At age sixty-two, Austin applied for survivor's benefits at the Amarillo social security office. The claims officer advised her that survivor's benefits would be about the same as the widow's benefits and it would not be worth the trouble to make the change. When Austin reached age sixty-five, she applied for retirement benefits on her own account. At this point, the Social Security Administration ("SSA") discovered that she had been married and sent her a letter on July 21, 1987, that demanded repayment of $27,489. The SSA later reduced this demand to $25,124.80.

B.

Austin requested a waiver of recovery, and the SSA denied that request on August 23, 1988. Austin then requested a hearing before an administrative law Judge ("ALJ"). At the hearing on July 20, 1989, Austin was represented by counsel, presented her testimony, and asked for a waiver. The ALJ concluded that Austin had failed to provide material information to the SSA and had received payments that she knew or should have known to be incorrect. On October 2, 1989, the ALJ issued a decision holding that Austin was "not without fault" in creating the overpayment. The appeals council denied her request for review.

Austin filed a timely complaint in the district court on March 26, 1990. Both parties moved for summary judgment, and Austin moved for a jury trial. On March 27, 1992, the magistrate Judge recommended that the Secretary's motion for summary judgment be granted and the request for jury trial be denied. Over Austin's objections, the district court adopted the magistrate Judge's findings and entered judgment in favor of the Secretary.

II.

Austin claims she was entitled to a waiver of repayment pursuant to 42 U.S.C. § 404(b), which provides in part that

... there shall be no adjustment of payments to, or recovery from, any person who is without fault if such adjustment or recovery would defeat the purpose of this subchapter ...


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