Richard Sutton v. Nancy Berryhill

MEMORANDUM ** Richard Sutton appeals the district court’s order affirming the Commissioner of Social Security’s decision that he had been overpaid disability insurance benefits (“DIB”) and was not entitled to a waiver of overpayment. Sutton concedes that his DIB was properly offset by a state workers’ compensation benefit for the period from January through April 2011 but challenges an offset for the period from January through November 2010. We have jurisdiction under 28 U.S.C. § 1291. The Commissioner “bears the burden of proving the fact and amount of overpayment.” McCarthy v. Apfel, 221 F.3d 1119, 1124 (9th Cir. 2000). We review the Commissioner’s determination for substantial evidence. Id. at 1125. We reverse and remand. Sutton’s lump-sum Washington state permanent partial disability award was not a periodic benefit subject to offset. See 42 U.S.C. § 424a(a) (an individual’s DIB must be offset by any “periodic benefits on account of his or her total or partial disability (whether or not permanent) under a workmen’s compensation law or plan of the United States or a State” if the total of the two benefits exceeds a certain amount); see also id. § 424a(b) (a lump-sum benefit is excluded from this requirement “except to the extent that it is a commutation of, or a substitute for,' period payments”). This court has held that where state law provided that a lump-sum award was intended to compensate for the economic loss of earning capacity, the award was a periodic *342 benefit subject to offset. Hodge v. Shalala, 27 F.3d 430, 432-33 (9th Cir 1994). Under Washington law, however, an award of workers’ compensation benefits for permanent partial disability is not wage compensation intended to cover a claimant’s lost earning capacity. See Willoughby v. Dep’t of Labor & Indus. of the State of Wash., 147 Wash.2d 725, 57 P.3d 611, 616-17 (2002); McIndoe v. Dep’t of Labor & Indus., 144 Wash.2d 252, 26 P.3d 903, 908 (2001). We therefore reverse the district court’s judgment and remand with instructions to remand to the Commissioner for a recalculation and refund of any offset against Sutton’s DIB. REVERSED and REMANDED. Footnotes [**] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.