            Case: 15-14391    Date Filed: 09/12/2016   Page: 1 of 9


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-14391
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:14-cv-61098-RNS



FAZEELA MCCABE,

                                                             Plaintiff-Appellant,

                                    versus

COMMISSIONER OF SOCIAL SECURITY,

                                                            Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (September 12, 2016)

Before TJOFLAT, MARTIN and JILL PRYOR, Circuit Judges.

PER CURIAM:
              Case: 15-14391     Date Filed: 09/12/2016   Page: 2 of 9


      Fazeela McCabe, a recipient of disability benefits, appeals the district

court’s order affirming the Social Security Administration’s (“SSA”) denial of her

request for a repayment waiver under 42 U.S.C. § 404(b). The SSA found that

McCabe was overpaid disability benefits during a period when she engaged in

substantial work without notifying the agency, and for that reason it sought

repayment of the benefits from McCabe. On appeal, McCabe argues that she was

without fault in causing the benefit overpayment because she did report her work

to the SSA, and thus repayment of the benefits should be waived. McCabe also

claims that her due process rights were violated at the hearing before the

Administrative Law Judge (“ALJ”). After careful consideration, we affirm.

                                         I.

      Our review is limited in social security cases. See 42 U.S.C. § 405(g). “We

review the Commissioner’s decision to determine if it is supported by substantial

evidence and based on proper legal standards.” Crawford v. Comm’r of Soc. Sec.,

363 F.3d 1155, 1158 (11th Cir. 2004) (per curiam) (quotation omitted).

“Substantial evidence is more than a scintilla and is such relevant evidence as a

reasonable person would accept as adequate to support a conclusion.” Id.

(quotation omitted). We may not reweigh the evidence or decide facts for

ourselves—the Commissioner’s decision deserves deference “even if the proof




                                          2
              Case: 15-14391     Date Filed: 09/12/2016   Page: 3 of 9


preponderates against it.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)

(per curiam) (quotation omitted).

                                         II.

A.    Fault

      To qualify for disability benefits, a claimant cannot be engaged in

“substantial gainful activity”—regardless of her medical condition, age, education,

or work experience. 20 C.F.R. § 404.1520(b). Substantial gainful activity is work

that involves performing “significant physical or mental activities” for pay, even if

the work is only on a part-time basis. Id. § 404.1572. Every year, the SSA

announces a new threshold for substantial gainful activity. See Social Security

Administration, Substantial Gainful Activity, available at

https://www.ssa.gov/oact/cola/sga.html. The parties do not dispute that McCabe

engaged in substantial gainful activity during the relevant period.

      The Commissioner shall recover overpayments of benefits whenever more

than the correct amount has been paid. 42 U.S.C. § 1383(b)(1)(A). However,

recovery of an overpayment may be waived if: (1) the claimant is “without fault”;

and (2) recovery would “defeat the purpose of this subchapter or would be against

equity and good conscience.” Id. § 404(b)(1). The claimant bears the burden of

proving that she was without fault in the overpayment of benefits. Viehman v.

Schweiker, 679 F.2d 223, 227 (11th Cir. 1982). Even if the SSA was partially at

                                          3
              Case: 15-14391      Date Filed: 09/12/2016   Page: 4 of 9


fault for the overpayment, that fact does not shield the claimant from liability for

repayment if she is not without fault. 20 C.F.R. § 404.507. Fault can be shown,

for example, where the overpayment of benefits results from the claimant’s failure

to provide information she knew or should have known was material. Id. §

404.507(b). The determination of whether a claimant is without fault is highly

subjective, as it depends on the claimant’s state of mind and individual

circumstances. See Jefferson v. Bowen, 794 F.2d 631, 633 (11th Cir. 1986).

      Substantial evidence supports the ALJ’s determination that McCabe knew of

her obligations and responsibilities in receiving benefits, particularly her duty to

inform the SSA of her work activity. First, the ALJ properly applied the subjective

standard by noting that McCabe had spoken clearly, appeared quite intelligent, and

seemed able to understand how disability benefits were administered. See id.; 42

U.S.C. § 404(b)(2). Second, the administrative record shows that McCabe was on

notice of her duty to report her work to the SSA, as she filed two forms in 1999

and 2000 that advised her of this duty and warned her of the potential

consequences of failing to comply. Other correspondence between McCabe and

the SSA also reminded her of her duty to report. Finally, McCabe appears to have

actually reported some of her work to the SSA.

      Substantial evidence also supports the Appeals Council’s determination that

McCabe was not without fault in causing the overpayment because she did not

                                           4
                Case: 15-14391       Date Filed: 09/12/2016      Page: 5 of 9


report her work to the SSA between June 2008 and December 2010. McCabe

argued to the Appeals Council that she did report her work during this period by

phone, through a program called AAA Takecharge, which assists recipients of

disability benefits in returning to work. However, McCabe did not identify any

record evidence showing that she reported her work during the relevant period, and

the Appeals Council found that the record did not contain any such evidence. We

conclude that the Appeals Council’s determination was proper. Unlike other times

when McCabe reported her work to the SSA, the record contains no confirmations

of work reporting during the relevant period. Also, McCabe’s own timeline of

events, in which she thoroughly documented her interactions with the SSA, does

not contain any reference to her reporting work to the SSA during the relevant

period. Thus, the Appeals Council’s implicit rejection of McCabe’s claim that she

did report her work during the relevant period is not due to be overturned on

appeal. 1 See Tieniber v. Heckler, 720 F.2d 1251, 1255 (11th Cir. 1983) (per

curiam) (“[T]his circuit does not require an explicit finding as to credibility . . .

[but] the implication must be obvious to the reviewing court.”). Substantial

evidence supports the finding that McCabe failed to carry her burden of proving

she was without fault in causing the overpayment.
       1
         On appeal, McCabe argues that her work reporting at other times should be viewed as
competing evidence of her credibility. However, “[t]he substantial evidence standard limits the
reviewing court from deciding the facts anew, making credibility determinations, or re-weighing
the evidence.” Stone & Webster Constr., Inc. v. U.S. Dep’t of Labor, 684 F.3d 1127, 1133 (11th
Cir. 2012) (quotation omitted).
                                               5
               Case: 15-14391      Date Filed: 09/12/2016     Page: 6 of 9


B.    Due Process

      “The fundamental requirement of due process is the opportunity to be heard

at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S.

319, 333, 96 S. Ct. 893, 902 (1976) (quotation omitted). There must be a showing

of prejudice before we will determine that a social security claimant’s due process

rights have been violated to such a degree that the case must be remanded to the

Commissioner for development of the record. Brown v. Shalala, 44 F.3d 931, 935

(11th Cir. 1995) (per curiam). Even where a hearing “was less than totally

satisfactory,” prejudice is not shown unless the ALJ did not have all the relevant

evidence before him or did not consider the evidence in reaching his decision.

Kelley v. Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985) (per curiam). A claimant

cannot show prejudice by speculating that she would have benefitted from a more

comprehensive hearing. See id.

      McCabe argues that her due process rights were violated because: (1) she

did not receive an opportunity to examine the record before her hearing, which

violated the SSA’s Hearings, Appeals, and Litigation Law Manual (“HALLEX”); 2

(2) there were omissions in the record; and (3) the hearing was short. We conclude

that although the ALJ’s hearing may have been less than completely satisfactory,

its shortcomings did not prejudice McCabe so as to require a remand. See id.

      2
        See Social Security Administration, HALLEX: Hearings, Appeals, and Litigation Law
Manual, available at https://www.ssa.gov/OP_Home/hallex/hallex.html.
                                            6
              Case: 15-14391     Date Filed: 09/12/2016   Page: 7 of 9


      First, McCabe claims that the ALJ violated HALLEX by not giving her an

opportunity to review the record before the hearing. HALLEX states that the

claimant has the right to examine all material in her claims file. HALLEX § I-2-1-

35, 1993 WL 642972. This Court has not decided whether HALLEX carries the

force of law. Cf. George v. Astrue, 338 F. App’x 803, 805 (11th Cir. 2009) (per

curiam) (unpublished) (calling the assumption that HALLEX carries the force of

law “a very big assumption”). Even assuming (without deciding) that HALLEX

carries the force of law and the agency failed to comply with it, McCabe has not

shown that she was prejudiced by this failure. McCabe speculates that she would

have benefitted from reviewing the record because she would have been “better

prepared to respond to the allegations that she had not reported work.” However,

McCabe knew the agency’s position regarding her failure to report work long

before the hearing, and she had already sent and received a great deal of

correspondence about the matter. In fact, McCabe prepared a detailed letter and

chronology in anticipation of the hearing, describing the dispute as well as citing

specific dates and documents. McCabe’s assertion that she would have benefited

from being provided the record in accord with HALLEX is “pure speculation.”

Kelley, 761 F.2d at 1540.

      Second, McCabe claims there were omissions in the record. These

omissions do not seem to have been material to the issue presented. For example,

                                          7
              Case: 15-14391     Date Filed: 09/12/2016   Page: 8 of 9


McCabe notes that a fax was missing the transmittal page. But a fax transmittal

page does not contain any material information. See HALLEX § I-2-1-15(A),

1993 WL 642954 (stating that hearing office staff will not propose as exhibits

“transmittal forms or route slips”). McCabe lists other exhibits that were allegedly

omitted from the administrative record. Several of these alleged omissions

actually appear in the administrative record. The remaining alleged omissions are

irrelevant to the issue here: for instance, letters from the SSA informing McCabe

of routine benefit increases, papers related to McCabe’s son or deceased husband,

and work reports that are duplicative of information in the administrative record.

The ALJ had the relevant evidence before him, so any alleged omissions did not

rise to the level of prejudicing McCabe. See Kelley, 761 F.2d at 1540.

      Finally, McCabe argues that the hearing before the ALJ was short, and the

ALJ stopped her from reading a letter she had prepared. The hearing lasted 11

minutes, and the ALJ interrupted McCabe’s reading of the letter because he

already had a copy of a similar letter from McCabe. The ALJ did, however, accept

the new letter into evidence along with other documents that McCabe presented at

the hearing. As in Kelley, we observe that the hearing may have been “less than

totally satisfactory.” 761 F.2d at 1540. But that fact alone is not enough—the

claimant must also show prejudice. See id. at 1540–41. McCabe does not say how

a longer hearing would have benefitted her, nor does it appear that the ALJ failed

                                         8
             Case: 15-14391    Date Filed: 09/12/2016   Page: 9 of 9


to consider McCabe’s letter. For these reasons, we do not find that McCabe was

prejudiced, and therefore remand is unnecessary. See Brown, 44 F.3d at 935.

      AFFIRMED.




                                       9
