    16-3896-cv
    Skrodzki v. Commissioner


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 5th day of July, two thousand seventeen.

    PRESENT:
                DENNIS JACOBS,
                PIERRE N. LEVAL,
                REENA RAGGI,
                      Circuit Judges.
    _____________________________________

    Andrzej Skrodzki,

                               Plaintiff-Appellant,

                     v.                                                          16-3896

    Commissioner of the Social Security
    Administration,

                               Defendant-Appellee.

    _____________________________________


    FOR PLAINTIFF -APPELLANT:                         Andrzej Skrodzki, pro se, Jackson Heights, NY.

    FOR DEFENDANT -APPELLEE:                          Kathleen Ann Mahoney, Varuni Nelson, Arthur
                                                      Swerdloff, Assistant United States Attorneys, for
                                                      Bridget M. Rohde, Acting United States Attorney
                                                      for the Eastern District of New York, Brooklyn,
                                                      NY.
       Appeal from a judgment of the United States District Court for the Eastern District of New
York (Brodie, J.).
    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.

        Appellant Andrzej Skrodzki, pro se, challenges the district court’s judgment vacating a
final decision of the Commissioner of Social Security (“Commissioner”) and remanding his case
to the Social Security Administration (“SSA”) for further proceedings. The district court
reasoned that the administrative law judge (“ALJ”) failed to consider all the categories of
“ordinary and necessary expenses” described in 20 C.F.R. § 404.508(a) and Skrodzki’s individual
standard of living. On appeal, Skrodzki primarily argues that the district court should instead
have ordered the Commissioner to repay withheld benefits with interest. We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

        The fourth sentence of § 405(g) of the Social Security Act permits a district court to affirm,
reverse, or modify a decision of the Commissioner “with or without remanding the cause for a
rehearing.” 42 U.S.C. § 405(g). We review remands pursuant to the fourth sentence of § 405(g)
for abuse of discretion. Butts v. Barnhart, 388 F.3d 377, 384-85 (2d Cir. 2004). A remand for a
rehearing is proper “when ‘further findings would so plainly help to assure the proper disposition
of [the] claim . . . .’” Id. at 385 (quoting Rosa v. Callahan, 168 F.3d 72, 83 (2d Cir. 1999)). A
reversal with remand for the calculation of benefits is appropriate when the record is so clear as to
compel a conclusion. See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998) (explaining that
outright reversal is only appropriate when “application of the correct legal standard could lead to
only one conclusion,” but not when the outcome is still uncertain).

        The SSA determined that it overpaid disability insurance benefits (“DIB”) to Skrodzki, and
recouped those funds by withholding benefit payments for several months. When an individual is
overpaid DIB, the Commissioner must seek repayment. 42 U.S.C. § 404(a)(1)(A). An
over-payment is one that is in excess of what the individual is entitled to receive. 20 C.F.R.
§ 404.501(a). The Commissioner may obtain repayment by deducting “any payment under this
subchapter to which such overpaid person is entitled.” 42 U.S.C. § 404(a)(1)(A). An individual
can seek a waiver of repayment. 20 C.F.R. § 404.506. Waiver is granted to “any person who is
without fault if such adjustment or recovery would defeat the purpose of [Title II] or would be
against equity and good conscience.” 42 U.S.C. § 404(b)(1). Recovery defeats the purpose of
Title II when it would “deprive a person of income required for ordinary and necessary living
expenses.” 20 C.F.R. § 404.508(a). Ordinary and necessary expenses include:

       (1) Fixed living expenses, such as food and clothing, rent, mortgage payments,
       utilities, maintenance, insurance (e.g., life, accident, and health insurance including
       premiums for supplementary medical insurance benefits under title XVIII), taxes,
       installment payments, etc.;

       (2) Medical, hospitalization, and other similar expenses;

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       (3) Expenses for the support of others for whom the individual is legally
       responsible; and

       (4) Other miscellaneous expenses which may reasonably be considered as part of
       the individual’s standard of living.

20 C.F.R. § 404.508(a)(1)-(4).

        The district court had the discretion to remand on the grounds that the ALJ failed to apply
the categories in 20 C.F.R. § 404.508 to Skrodzki’s submitted expenses. The ALJ considered
Skrodzki’s average income and his credit card statements from the withholding period (June
through November 2009), which reflected several cash advances. Skrodzki alleged that he spent
this money on living expenses. The ALJ concluded that it was unclear if Skrodzki spent the
money on food, and that many of the other charges listed on Skrodzki’s credit card statements
were not “necessary” expenses. But as the district court noted, the charges covered public
transportation, computer parts, and airline tickets to Poland for medical treatment in September
and October 2009. The ALJ did not account for all the categories listed in § 404.508, which
include expenses “which may reasonably be considered as part of the individual’s standard of
living.” 20 C.F.R. § 404.508(a)(4).

        The district court was within its discretion to find that the record did not support an outright
reversal. Skrodzki denied knowing about multiple cash deposits of over $200 into his checking
account during the withholding period. Nor did Skrodzki explain how he used the funds he
withdrew from a retirement account in 2008. Because “further findings would so plainly help to
assure the proper disposition of [the] claim” by determining if Skrodzki needed DIB to pay
“ordinary and necessary” expenses during the withholding period, the district court had the
discretion to remand. Butts, 388 F.3d at 385 (internal citation omitted); Schaal, 134 F.3d at 504.

       We have considered all of Skrodzki’s remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the judgment of the district court.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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