GLEN E. CONRAD, United States Magistrate Judge
Plaintiff has filed this action challenging the final decision of the Commissioner of Social Security denying plaintiff's Plan to Achieve Self Support ("PASS"). Jurisdiction of this court is pursuant to 42 U.S.C. § 405 (g) and 1383(c)(3). The case is before the undersigned United States Magistrate Judge pursuant to consent of the parties entered under the authority of 28 U.S.C. § 636 (c)(2).
This court's review is limited to a determination as to whether there is substantial evidence to support the Commissioner's denial of plaintiff's PASS. If such substantial evidence exists, the final decision of the Commissioner must be affirmed. Laws v. Celebrezze, 268 F.2d 640, 642 (4th Cir. 1966). Substantial evidence is such relevant evidence, considering the record as a whole, as might be found adequate to support a conclusion by a reasonable mind. Richardson v. Perales, 402 U.S. 389, 401 (1971).
Income level is a major factor in determining eligibility for SSI benefits or the level of SSI benefits received. 20 C.F.R. § 416.1100. An SSI benefits recipient's income that is not otherwise excluded by the social security regulations is deducted from the monthly benefits paid to the recipient. 20 C.F.R. § 416.410. In order to encourage SSI benefits recipients to reduce their reliance on the SSI program, Congress provided that income necessary for the fulfillment of a valid PASS will not be deducted from a recipient's monthly benefits. See 42 U.S.C. § 1382a(b)(4)(B)(iv); 20 C.F.R. § 416.1180. Thus, under a valid PASS, an SSI benefits recipient could save a portion of her wages towards a goal that would ultimately reduce her reliance on SSI without her monthly SSI benefits being reduced by the amount saved pursuant to the PASS.
Plaintiffs claim, seeking recoupment of the SSI benefits that would not have been subject to reduction under a valid PASS, was denied upon initial consideration and reconsideration. Plaintiff then requested and received a de novo hearing and review before an Administrative Law Judge. A hearing was held on July 30, 1997 and the Law Judge found in an opinion dated November 25, 1997 that plaintiff's PASS application was properly denied because the occupational goal of the PASS ("PASS goal") was not attainable. (TR 23.) The Commissioner adopted the Law Judge's opinion as his final decision on October 22, 1999. Having exhausted all available remedies, plaintiff has appealed to this court.
Plaintiff is a Supplemental Security Income ("SSI") benefits recipient. Plaintiff filed a PASS application signed September 28, 1994 "to have transportation to and from work in order to maintain employment." (TR 84.) Plaintiff's PASS application explained that she is dependant on a co-worker for transportation from work in the evening and on weekends when busses have stopped running. (TR 84.) Specifically, plaintiff proposed to deposit $301 per month into a savings account to pay for driving lessons, the purchase of an automobile, and insurance. (TR 84.) This goal would permit plaintiff to provide her own transportation on weekday evenings, to work on Sundays, and to work increased hours on Saturdays. (TR 84.) The proposed PASS was to begin on December 1, 1994 and plaintiff expected to meet her PASS goal on January 1, 1996. Gloria Lovelace, plaintiff's sister and "payee" under the proposed PASS, signed a PASS addendum on February 22, 1995 stating that plaintiff plans to deposit $301 monthly towards anticipated expenses to meet the PASS goal. (TR 84.) The addendum noted that plaintiff works only 24 hours per week, but that her PASS goal would "enable her to work 40 hours per week. This is her PASS goal — to be able to work 40 hours per week." (TR 81.) The addendum indicated that plaintiff wanted the PASS to begin in March. 1995 and to run for twelve months, through February, 1996. (TR 82.) The parties agree that plaintiff was advised when she executed the addendum that the PASS goal must be to work full time. (Plaintiffs Summary of Substantial Errors of Fact Contained in Administrative Law Judge's Decision, 12/11/00, p. 8-9; Defendant's Brief in Support of Motion for Summary Judgment, 10/27/00, p. 7.) Though the PASS addendum was signed by plaintiff's sister, testimony at the hearing before the Law Judge revealed that plaintiff was present when her sister signed the PASS addendum. (TR 39.)
A second PASS addendum, filed by plaintiff on May 4, 1996, indicated that she was unable to save $301 per month, that she had deposited $100 on March 6, 1995, and that she planned to save $50 every "pay day" thereafter, but that otherwise the PASS application was unchanged. (TR 79.) Also, the second PASS addendum noted that plaintiff had paid for three driving lessons in March, 1995. (TR 79.) A third, undated PASS addendum filed by plaintiff stated that she could pay only $40 every two weeks towards the PASS, and that she had not completed her driving instruction courses because she could not afford to pay for the entire course. (TR 77.)
Contact logs from the Social Security Administration ("SSA") note that plaintiff reported on October 24, 1995 that she failed her driving test and that she may lose her learner's permit, and that her employer informed her that she could not work 40 hours per week even if she secured reliable transportation. (TR 92.) On March 4, 1996, plaintiff contacted the SSA for a status check on her PASS application. (TR 91.) On March 16, 1996, plaintiff advised the SSA that she had been issued her driver's license. (TR 89, 92.)
On June 14, 1996, plaintiff was notified that her PASS application had not been approved, citing her multiple PASS amendments and insufficient savings as evidence that the PASS was not attainable. (TR 86.) The notification acknowledged that "our failure to give you a formal decision on your request in a timely manner could have had an affect on you savings plan, however, all aspects of the PASS were not in place at the time of your original proposal." (TR 86). The denial notification advised plaintiff that "[t]here is no limit to the number of PASS that you can file. Now that you have your driver's license part of your goal has been achieved. You might reconsider a more realistic savings goal in any future request." (TR 86). Apparently, plaintiff did not file another PASS application.
At the administrative hearing, Karen K. Curtis testified as a Claims Representative for the SSA. Curtis recounted the contacts between plaintiff and the SSA outlined above and the procedures employed by the SSA for reviewing PASS applications. Curtis stated that claimants seeking approval of a PASS can visit an SSA office personally, communicate with an SSA representative, and sometimes secure approval of the PASS during that visit. (TR 35-37.)
Curtis recalled that after speaking with plaintiff in person on October 24, 1995, she marked in her notes that "plaintiff's stated goal was not going to be attainable" and that "if it hadn't been approved — it shouldn't be approved because it wasn't an obtainable Pass." (TR 46.) Curtis elaborated that the PASS was not obtainable because plaintiff informed her that the goal of the PASS was to work full-time and that plaintiff's employer told plaintiff that she could not work full-time even if she obtained reliable transportation. (TR 47.) Curtis testified that PASS applications can be approved retroactively only if the PASS has been adhered to for the entire duration of the PASS. (TR 54.)
Curtis explained that the final decision whether to approve plaintiff's PASS application was delayed until June, 1996 because Curtis was instructed in December, 1995 that PASS application considerations were to be stayed until new regulations were promulgated. (TR 51.) Curtis related that she received the new regulations in June, 1996, at which time she was directed to train the employees in her office on the proper handling of PASS applications. (TR 52.)
On cross-examination, Curtis testified that Retroactive Monthly Adjustments are available to offset the amount to be saved under an approved PASS beginning on the month that the approved PASS is to take effect. (TR 56.) Curtis noted that plaintiff's original PASS stated that the goal was to "maintain" employment, and as such it could not be approved, because "[m]aintaining does not decrease or eliminate reliance upon SSI." (TR 59.)
Plaintiff's representative, Frances v. Koehler, a non-attorney, made a statement near the end of the hearing that plaintiff's original PASS did not have a stated goal of working full-time, and that plaintiff impliedly requested a Retroactive Monthly Adjustment "up front, indicating that she could not afford to comply with the PASS plan unless the 551 check was adjusted upward." (TR 71.) Koehler also stated that there was "enough information given to Teresa to indicate that she acted in good faith." (TR 71.) Koehler related that plaintiff has increased the number of hours she works per week from 24 at the time she filed the PASS application to "30 to 33 hours, on the average" at the time of the hearing. (TR 70, 73.)
The Law Judge found that plaintiff submitted a proposed PASS in February, 1995 and made subsequent modifications to the PASS. (TR 23.) The Law Judge determined that plaintiff's PASS application set goals for "savings toward obtaining transportation and working full time" and that the PASS application was not approved because plaintiff could not obtain the savings goals and because claimant would not be able to work 40 hours per week even if she secured transportation. (TR 23.) Accordingly, the Law Judge concluded that the PASS was properly denied as the goals were not attainable. (TR 23.)
Based on this record review, the court believes that the Commissioner's final decision is supported by substantial evidence. While the court notes that consideration of plaintiff's PASS application was delayed significantly, there is substantial evidence to support the Law Judge's finding that the PASS application was properly denied as not attainable.
A valid PASS must: (1) be designed especially for the recipient; (2) be in writing; (3) be approved by the Commissioner of Social Security; (4) be designed for an initial period of 18 months, though that period way be extended up to 48 months total; (5) show a specific occupational goal; (6) show what money the recipient has and will receive, how she will spend it, and how she will use it to attain the occupational goal; and (7) show how the money set aside under the plan will be segregated from other funds. 20 C.F.R. § 416.1182.
The PASS goal must be to reduce one's reliance on SSI. See 20 C.F.R. § 416.1180; Program Operations Manual System ("POMS") SI 00870.006(A)(1). Apparently, there is no express requirement in the federal statutes, the Code of Federal Regulation, or the POMS that a PASS goal must be to work 40 hours per week for the PASS application to be approved. However, such an interpretation is not an unreasonable one. See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-45 (1984) (an agency's interpretation of a statute that it has been entrusted to administer is afforded much deference). A 40 hour per week goal is especially appropriate as applied to an SSI benefits recipient who is working part-time, considering that the PASS goal must be to decrease one's reliance on SSI.
There is substantial evidence to support the Law Judge's finding that plaintiff's stated PASS goal was to work 40 hours. The first PASS addendum, signed by plaintiff's sister in the presence of plaintiff; explicitly states that "[t]his is her PASS goal — to be able to work 40 hours per week." (TR 81.) However, plaintiff informed the SSA that she would not be able to work 40 hours per week at her place of employment even if she obtained reliable transportation. (TR 23, 92.) Moreover, at the time of the hearing, plaintiff had obtained her driver's license and a vehicle and was working at the same place of employment only "30 to 33 hours . . . on the average" per week. (TR 73.) Accordingly, there is substantial evidence that plaintiff did not, and could not meet the PASS goal as stated in the first PASS amendment.
The court assumes that plaintiff had obtained and possessed a vehicle at the time of the hearing, as plaintiff's representative at the hearing stated that "[plaintiff] had to charge some of her car payments." (TR 72.)
Plaintiff alleges that she amended her original PASS goal to reflect a goal of working 40 hours per week only in response to an SSA employee's statement that plaintiff's goal must be to work 40 hours per week for the PASS application to be approved. Even if the information provided by the SSA employee was incorrect, and plaintiff's PASS goal did not need to reflect a goal of 40 hours per week to be approved, plaintiff is not entitled to rely on the SSA employee's statement to estop the govemment from concluding that plaintiff's PASS goal was to work 40 hours per week, as expressly provided in the first PASS addendum. Generally, a claimant cannot assert estoppel against the SSA without a showing of affirmative misconduct. See Schweiker v. Hansen, 450 U.S. 785, 788-89 (1981) (misrepresentation by SSA employee that fell short of affirmative misconduct did not estop the SSA from enforcing a procedural rule). This court has held that the SSA may be estopped from enforcing a rule where the claimant justifiably relied on the government's conduct, but only where "a procedural not a substantive requirement is involved" and "an internal procedure manual or guide or some other source of objective standards of conduct exists and supports an inference of misconduct by a Government employee." Coty v. Harris, 495 F. Supp. 452, 455 (W.D. Va. 1980). However, the instant case involves a substantive interpretation of the Act, rather than a procedural rule, and no objective standard has been presented to suggest affirmative misconduct on the part of the SSA
Having found substantial evidence to support the Law Judge's determination that plaintiff's PASS was properly denied, the court concludes that the Commissioner's final decision must be affirmed. In affirming the Commissioner's final decision, the court does not suggest that plaintiff was not prejudiced by the SSA's failure to approve or reject her PASS in a timely manner. Rather, the court recognizes that the unfortunate delay in plaintiffs PASS application denial may have prejudiced her. However, the court's only role in cases such as this is to determine whether the Commissioner's final decision is supported by substantial evidence. For the reasons stated, the court can only conclude that the Law Judge's decision was reasonable and consistent with the record. Thus, the court concludes that there is substantial evidence to support the Commission's denial of plaintiff's PASS application.
Generally, resolution of conflicts in the evidence is a matter within the province of the Commissioner even if the court might resolve the conflicts differently. See Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). For the reasons stated, the court finds the Commissioner's resolution of the pertinent conflicts in the record in this case to be supported by substantial evidence. Accordingly, the court concludes that the Commissioner's final decision must be affirmed. Laws v. Celebrezze, 268 F.2d 640 (4th Cir. 1966). An appropriate judgment and order will be entered this day.
The Clerk is directed to send certified copies of this Memorandum Opinion to all counsel of record.
FINAL JUDGMENT AND ORDER
For reasons stated in a Memorandum Opinion filed this day, summary judgment is hereby entered for the defendant and it is so:
ORDERED.
The Clerk is directed to send certified copies of this Judgment and Order to all counsel of record.