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Social Security Overpayment Recovery- “Reopening”

By: WISCONSIN LAW JOURNAL STAFF//November 20, 2023//

Social Security Overpayment Recovery- “Reopening”

By: WISCONSIN LAW JOURNAL STAFF//November 20, 2023//

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7th Circuit Court of Appeals

Case Name: Gerald Fitschen v. Kilolo Kijakazi

Case No.: 20-3508

Officials: Sykes, Chief Judge, and Flaum and Kanne, Circuit Judges.

Focus: Social Security Overpayment Recovery- “Reopening”

Fitschen received a diagnosis of advanced cancer, prompting him to cease working. In 2000, the Social Security Administration (SSA) granted Fitschen eligibility for disability benefits. Although he returned to work in 2001, he continued to receive benefits during a nine-month “trial work period,” as stipulated by 42 U.S.C. 422(c)(4). Following this period, he could maintain both employment and benefits for an additional 36 months if his wages did not surpass the threshold indicating substantial work activity.

A 2003 SSA review found that Fitschen had indeed engaged in substantial work during 2002-2003, rendering him ineligible for benefits during that period. While notified of the overpayment liability, his benefits persisted as he once again ceased substantial work. Fitschen reentered the workforce in 2004 but failed to report this change. A 2007 SSA review resulted in the suspension of his benefits. The SSA has the authority to waive overpayment recovery if the recipient is deemed without fault.

In 2019, the Commissioner of Social Security determined Fitschen’s overpayment liability to be $50,289.70 and opted not to waive recovery. Both the district court and the Seventh Circuit affirmed this decision, dismissing the argument that the SSA was procedurally barred from recovering the overpayment due to non-compliance with its “reopening” regulation. It was established that the overpayment assessment did not “reopen” Fitschen’s initial eligibility determination or any subsequent determination regarding the continuation or recomputation of his benefits. Substantial evidence supported the finding that Fitschen was at fault in the matter.


Decided 11/14/23

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