                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAY 16 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DONNIE LEE BASS,                                 No. 15-35287

              Plaintiff - Appellant,             D.C. No. 2:13-cv-02025-RSL

 v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,

              Defendant - Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                 Robert S. Lasnik, Senior District Judge, Presiding

                             Submitted May 10, 2016**

Before: PREGERSON, LEAVY and OWENS, Circuit Judges.

      Donnie Bass appeals pro se from the district court’s grant of summary

judgment in favor of the Commissioner of Social Security. The district court

affirmed the Commissioner’s decision requiring Bass to repay $8,845.19 in

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
overpaid disability insurance benefits under Title II of the Social Security Act. We

have jurisdiction under 28 U.S.C. § 1291, and we reverse in part and affirm in part.

      1. We reverse the district court’s determination that the ALJ did not err in

holding that Bass was not entitled to a waiver of overpayment. A claimant is

entitled to a waiver of overpayment if (1) a claimant is without fault in receiving

the overpayment and (2) recovery would defeat the purposes of the Act or be

contrary to equity and good conscience. 42 U.S.C. § 404(b).

      The two reasons the ALJ provided do not constitute substantial evidence for

its finding that Bass could have known he was being overpaid and was therefore at

fault in incurring the overpayments because they do not bear on what a person in

Bass’s circumstances would reasonably have known. See Harrison v. Heckler, 746

F.2d 480, 482 (9th Cir. 1984) (explaining that the fault determination is “highly

subjective”). First, that Bass was sent a routine booklet on reporting requirements

when he initially received his award cannot, on its own, be sufficient. This would

render a waiver of overpayment virtually unobtainable. Second, the routine notice

that Bass received in 1999 (which the government notes cannot be located in the

record) is likewise insufficient, as it was received well before the overpayments at

issue and thus has little bearing on Bass’s awareness at the time of the

overpayments.


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      Further, recovery of payment from Bass would have also defeated the

purposes of the Act and been contrary to equity and good conscience, as there is

evidence that Bass needed the income for ordinary living expenses. See 42 U.S.C.

§ 404(b).

      Accordingly, we hold that Bass was entitled to a waiver of overpayment.

      2. We affirm the district court’s determination that it lacked jurisdiction to

consider Bass’s claims for damages and medical expenses. See 42 U.S.C.

§§ 405(g),(h) (the Social Security Act allows only for judicial review of a final

decision of the Commissioner of Social Security and precludes any other action to

recover).

      REVERSED in part, AFFIRMED in part.

      Appellee shall bear costs on appeal.




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