SUBJECT:

Social Security Administration,

Office of the Inspector General,

Petitioner,

Brenda Estal,

Respondent.

I sustain the imposition by the Social Security Administration (SSA), Office of the Inspector General (I.G.), Petitioner, of a civil money penalty (CMP) against Brenda Estal, Respondent, pursuant to section 1129 of the Social Security Act (Act), 42 U.S.C. � 1320a-8. I further find that the CMP of $58,124.06 imposed by the I.G. in this case to be reasonable.

I. Procedural History

By letter dated December 2, 2000, the I.G. notified M. Estal that it intended to impose a CMP against her in the amount of $50,000, for false representations she made before SSA; and an assessment in lieu of damages in the amount of $8,124.06, for a total CMP of $58,124.06. By letter dated December 26, 2000, Ms. Estal requested a hearing before an administrative law judge (ALJ). The case was docketed at the Departmental Appeals Board, Civil Remedies Division, and assigned to me for a hearing and decision.

Ms. Estal submitted a letter dated February 15, 2001, indicating that her income and the child support payments she received precluded her from qualifying for legal services from the Kentucky Department for Legal Services. She thus indicated that she did not have a an attorney to represent her in this matter.

By letter dated February 20, 2001, the parties jointly requested that the proceedings in this matter be stayed in order for the parties to pursue settlement. By Order dated March 2, 2001, I granted the parties request for a stay. The parties, however, were not able to resolve this matter through settlement negotiations.

Numerous attempts to contact Ms. Estal to set up a prehearing conference call to discuss the case were unsuccessful. As a result, an Order was issued on March 21, 2002, setting a conference call on the case for April 16, 2002. In that Order, Ms. Estal was informed that she had a right to have legal counsel represent her in this matter, but she had to obtain her own legal counsel or represent herself in this matter.

The prehearing conference was subsequently held on April 17, 2002. During the conference call Ms. Estal was again informed of her right to have legal counsel represent her. She indicated that she would represent herself in this matter. Ms. Estal was also informed that this case could be decided based on written briefs or through an in-person hearing. I provided Ms. Estal time to decide how she wished to proceed with the presentation of the case. She was informed that if she chose to present her case through written submissions, she must file a written waiver of her right to an in-person hearing. With the parties agreement I issued an Order dated April 23, 2001, setting forth a Schedule for filing written briefs in the event that Ms. Estal decided she wanted to present her case through written submissions.

On May 8, 2002, a damaged envelope without contents marked with Ms. Estal's return address was received at the Departmental Appeals Board, Civil Remedies Division. In an e-mail dated May 23, 2002, Ms. Estal stated that "the envelope you received is from the letter I sent stating I waive my right to an in-person hearing."

The I.G. filed its brief on June 17, 2002. Ms. Estal submitted a statement in lieu of a brief dated July 29, 2002. The I.G. submitted its response to Ms. Estal's statement August 20, 2002. On September 26, 2002, I held another prehearing conference. The purpose of the prehearing conference was to discuss the record in terms of Ms. Estal's financial condition. The information provided by Ms. Estal up to that time was limited and inconsistent. In order to further develop the record, Ms. Estal was directed to complete and sign a financial disclosure form under penalties of perjury and provide a detailed work history. The I.G. objected to the submission of additional financial information. The I.G.'s objection was overruled, but she was given an opportunity to file a response to the information filed by Ms. Estal.

During the April 16, 2003 prehearing conference, Ms. Estal also raised for the first time in the course of the proceedings that she was suffering from psychiatric problems that affected her ability to work and thus affects her financial condition and capacity to pay the CMP imposed against her. Ms. Estal was informed that any evidence submitted relative to that issue would become a part of the record in this case. Ms. Estal, who holds an undergraduate degree in Psychology, indicated she understood and did not object to making the information she provided regarding her condition a part of the record in this case. The I.G. objected to the submission of material relative to Ms. Estal's purported psychiatric problems. The I.G.'s objection was overruled and Ms. Estal was informed she could submit information relative to her condition and arguments as to how it affected her ability to work and thus pay the CMP in this case.

Ms. Estal filed her Financial Disclosure Form and work history on October 29, 2002. She did not, however, file any information relative to her purported psychiatric problems. The I.G. filed its reply brief on December 31, 2002. Ms. Estal was afforded the opportunity to file a reply, but did not do so.

The I.G. submitted 15 proposed exhibits with its initial brief. Because Ms. Estal did not object to I.G.'s proposed exhibits, I have admitted them into the record. They are identified as I.G. Exhibit (Ex.) 1 - 15. Ms. Estal submitted 10 "documents" attached to her financial disclosure which I will admit into the record and consider as Respondent Exhibits (R. Ex.) 1 - 10. By Order dated March 6, 2003, I closed the record in this case.

II. Applicable Regulations

Title XVI of the Social Security Act provides for the payment of Supplemental Security Income (SSI) for certain individuals. SSA dispenses funds based upon an applicant's need. In order to be eligible for SSI benefits, a person must satisfy at least one of the following criteria: (1) be 65 years of age or older; (2) be blind; or (3) be disabled - as defined by SSA and the disability must be expected to last for at least one year or to result in death. Additionally, a person must have limited income and resources. 20 C.F.R.� 416.202, 416.1100. Anything other than a car and a primary residence is considered a resource or asset, and there is a dollar-for-dollar offset for resources and assets. 20 C.F.R. � 416.1210. In addition, all members of the household and their resources and assets are considered when determining the eligibility of any one member for SSI benefits. 20 C.F.R. � 416.1210.

Some SSI beneficiaries, either because of their age or disability, cannot manage their own benefits. 20 C.F.R. �� 416.601, 416.610. SSA will then appoint an interested party (often a parent if the SSI beneficiary is a minor) as a representative payee who is authorized to receive payments on behalf of the intended recipient. Representative payees are required to use the benefits properly for the beneficiary's well-being. Representative payees are also required to report any changes that might affect the recipient's eligibility for benefits, and/or their own ability to continue serving as the representative payee. 20 C.F.R. �� 416.635, 416.640.

A representative payee has a responsibility to --

(a) Use the payments he or she receives only for the use and benefit of the beneficiary . . . . ;

(b) Notify us of any event that will affect the amount of benefits the beneficiary receives or the right of the beneficiary to receive benefits.

20 C.F.R. � 416.635(a) (b).

Section 1129 of the Act authorizes the imposition of a CMP against any person who "makes, or causes to be made, a false or misleading statement or representation of a material fact for use in determining any initial or continuing right to, or the amount of . . . monthly insurance benefits under Title II, or . . . benefits or payments under Title XVI, . . . that the person knows or should know is false or misleading or knows or should know omits a material fact or makes a statement with knowing disregard for truth. Individuals who violate this provision are subject to a civil monetary penalty of not more than $5,000 for each statement or representation." 20 C.F.R. � 498.1039 (a). Section 1129 of the Act also authorizes the imposition an "assessment, in lieu of damages . . . of not more than twice the amount of benefits or payments paid as a result of such a statement or representation." 20 C.F.R. � 498.104.

In determining the amount of the CMP, the I.G. considers:

(1) The nature of the statements and representations and the circumstances under which they occurred;

(2) The degree of culpability;

(3) Financial condition;

(4) History of prior offenses; and

(5) Such other matters as justice may require.

20 C.F.R. � 498.106(a)(1)-(5).

The administrative procedures for imposing CMP's under section 1129 are governed by regulation promulgated at 20 C.F.R. Part 498. Under the implementing regulations, a person against whom a CMP has been imposed can request a hearing before an ALJ of the Departmental Appeals Board. The ALJ has jurisdiction to determine whether the person should be found liable for a CMP. 20 C.F.R. � 498.215(a). The person requesting the hearing; that is, respondent, has the burden of going forward and the burden of persuasion with respect to any affirmative defenses and any mitigating circumstances 20 C.F.R. � 498.215(b)(1). SSA has the burden of going forward as well as the burden of persuasion with respect to all other issues. The burdens of persuasion are to be judged by a preponderance of the evidence. 20 C.F.R. � 498.215(c).

III. Issues

The principle issues in this case are:

1. Whether Ms. Estal made representations before the SSA, in violation of Section 1129 of the Social Security Act, which she knew or should have known were false or misleading; and

2. If Ms. Estal did make representations in violation of the law, whether the amount of the proposed CMP ($58,124.06) is reasonable under the circumstances of this case and within the meaning and intent of the Act and the Regulations.

IV. Findings of Fact and Conclusions of Law

I make the following findings of fact and conclusions of law (Findings) to support my decision in this case. I set forth each Finding below in italics and bold as a separate heading. I discuss each Finding in detail and address Petitioner's arguments.

1. Ms. Estal violated Section 1129 of the Act by falsely representing to SSA that her son Andrew Estal was living with her and that she was using the SSI benefits for his needs at the time. Those material false representations resulted in the improper payment of SSI benefits to the Respondent as the representative payee for Andrew Estal.

Andrew was previously determined to be disabled by SSA. Furthermore, after a careful review of the resources and assets of those who were reported as living with Andrew, SSA determined that he met the financial standards that made him eligible to receive SSI benefits. That evaluation was based on the fact that Ms. Estal represented to SSA that her son, Andrew, was living with her. Ms. Estal was appointed the representative payee for her son, because he was a minor and because she represented that Andrew was living with her. As the representative payee for Andrew, Ms. Estal was authorized to receive payments on his behalf. Representative payees are required by law to use the benefits properly, and are required to report any changes that might affect the recipients's eligibility for benefits, and/or their own ability to continue serving as rep payee.

Beginning on or about September 1, 1998, and continuing through June 1, 1999, Andrew was sent to live with his father. Petitioners' Brief (P. Brief) at 4-5. Andrew's move into his father's house is a material fact that SSA would have used in determining Andrew's continuing eligibility for SSI benefits.

During the time that Andrew lived with his father Ms. Estal signed and cashed 10 SSI benefit checks, but did not use the money to care for her son Andrew. P. Brief at 4. Instead she used the money for her own well-being. P. Brief at 5. Representative payees are required to use the benefits properly for the beneficiary's well-being. Not using the money for her son's needs resulted in an overpayment of benefits. Ms. Estal was subsequently terminated as Andrew's representative payee in August of 1999. Id.

Ms. Estal has admitted liability for making representations to SSA, which she knew or should have known were false or misleading. In the statement filed in response to the I.G.'s initial brief dated July 19, 2002, Ms. Estal stated that "I kept the SSI money coming in although I know I shouldn't. I never told anyone that it was the right thing to do." Respondent's Statement at 2. In that same letter she goes on to say, "what I did, when I kept the SSI checks in Andrew's short absence was not right. I admit and have admitted to that." Respondent's Statement at 4 .

Ms. Estal, while admitting that she did not use the money to care for her son, argues that the money was used for "survival." Respondent's Statement at 1. Ms. Estal stated that in April of 1998 she and her youngest daughter were attacked "by a pack of Rottweiler dogs." Because of the serious nature of her injuries, "both mental and physical" she lost her job and "life took a sharp down hill turn at his point." Id. Eventually she could not afford to pay rent where she was living so she had to move in with friends. It was at this time that "I had to make the painful decision to let Andrew . . . . go live with his father in Ohio. Respondent's Statement at 2. ⁽¹⁾

The I.G. also submitted a sworn affidavit from Ms. Linda Rogers, an SSA claims representative, who discussed her conversations with Ms. Estal relative to a redetermination of Andrew's eligibility to receive SSI benefits which was initiated on April 16, 1999. In those conversations, Ms. Estal made material misrepresentations to Ms. Rogers regarding Andrew's place of residence and her current income. I.G. Ex 1. Ms. Estal subsequently submitted a letter in which she admitted that she had been untruthful and notes ". . . I knew better than to take the money that was sent for Andrew when he was not living with me. I take full responsibility for my actions." I.G. Ex. 2. The I.G. also points out that in her December 26, 2000 hearing request, Ms. Estal indicated that "[T]hose checks were used to get me back on my feet so I could continue to do just what those checks specify, to be a mother, a helper and provider to Andrew." The flaw in Ms. Estal's logic is that the checks were intended for the benefit of Andrew who was not living in her household at the time she received and cashed the checks.

By signing and cashing the SSI checks while Andrew was living with his father, and not using the money for Andrew's well being, Ms. Estal made material representations before SSA that were false or misleading. Moreover, Ms. Estal continued to falsely represent this material fact from September 1998 through June 1999.

In order for the I.G. to impose a CMP pursuant to section 1129 of the Act, the I.G. must show: (1) the person made a statement; (2) that such statement "the person knows or should know is false or misleading . . . or makes a statement with knowing disregard for the truth . . . "; and (3) that the statement is a material fact for use in determining a continuing right to or the amount of benefits or payments under Title XVI; i.e., SSI.

Ms. Estal has clearly admitted that she knowingly made false and misleading representations to SSA. I find that the facts establish that Ms. Estal violated Section 1129 of the Act by falsely representing to SSA that Andrew was living with her and that she was using the SSI benefits for his needs at the time. Those false representations resulted in the improper payment of SSI benefits to Ms. Estal as the representative payee for Andrew. Thus the I.G. has established by a preponderance of the evidence each of the elements required for the imposition of a CMP against Ms. Estal.

2. The I.G. imposition of a $58,124.06 CMP against Ms. Estal is reasonable

Having found that the I.G. has established a basis for imposing a CMP, I now consider whether the amount imposed is reasonable. The CMP imposed against Ms. Estal is $58,164.06. The regulations under 20 C.F.R. Part 498 are silent regarding the deference I must give to the I.G.'s determination of the correct CMP. The I.G. indicates it considered the appropriate factors listed in 20 C.F.R. � 498.106(a)(1)-(5); i.e.; the nature of the statements and representations and the circumstances under which they occurred; the degree of culpability; financial condition; history of prior offenses; and such other matters as justice may require. I have reviewed all of the evidence with respect to the above-stated factors and have made a de novo determination that a CMP of $58.164.06 against Respondent is reasonable.

A. Nature of the statements and representations the circumstances under which they occurred.

As previously noted Ms. Estal has admitted that she knowingly made false and misleading representations to SSA. Ms. Estal signed and negotiated checks that were intended for Andrew's needs for a period of 10 months when Andrew was not living with her. Representative payees are told and notified in writing that they are to report any changes in household income, resources, and living arrangements within 10 days of the change. I.G. Ex 1, at 1. She did not report to SSA that Andrew was no longer living in her household. To the contrary when Ms. Estal was contacted by the SSA regarding Andrew's continued eligibility to receive SSI, she again misrepresented Andrew's living arrangements. I.G. Ex. 1 - 2.

Ms. Estal suggests in her request for hearing that it was she who first came forward to initiated repayment of the SSI checks in issue. However, during the course of these proceedings, Ms. Estal has changed her position and does not presently dispute that she was first contacted by SSA regarding Andrew's living arrangements in August of 1999. Nor does she dispute that she provided false information as to when Andrew left her household, when she was contacted by Linda Rogers of SSA on August 21, 1999. Id. Ms. Estal subsequently admitted, in writing, to making false representation to Ms. Rogers. I.G. Ex. 2. In addition, Ms. Estal does not presently dispute that despite entering into a repayment agreement with SSA, she has not repaid the overpayment which resulted from her misrepresentations. Respondent's Statement at 3.

B. Respondent's degree of culpability.

Ms. Estal admits that she knowingly made false and misleading representations to SSA. Ms Estal has stated, "I kept the SSI money coming in although I know I shouldn't. I never told anyone that it was the right thing to do." Respondent's Statement at 2. In that same letter Ms. Estal states "what I did, when I kept the SSI checks in Andrew's short absence was not right. I admit and have admitted to that." Respondent's Statement at 4. As previously noted, Ms. Estal admits that she provided false material information to SSA about Andrews living arrangement when she was contacted by SSA by phone on August 21, 1999. I.G. Ex. 2. She also admits that she used the money from the checks intended for Andrew for her own use. Respondent's Statement at 2.

C. Respondents Financial Condition

The I.G. maintains that Ms. Estal filed three separate financial disclosure report forms during the course of the I.G.'s development of the case against Ms. Estal. The I.G. asserts that the information provided in those financial disclosure forms was incomplete and unreliable. The I.G. further alleges that Ms. Estal did not provide the requested documentation to substantiate the claims made on the financial disclosure forms.

None of the financial disclosure forms discussed in the I.G.'s brief were filed as part of the I.G.'s case in this matter. However, in its analysis of Ms. Estal's financial condition, the I.G. maintains that Ms. Estal is in her early forties, is gainfully employed and that while she has two minor children, the children receive child support. The I.G. also maintains that Ms. Estal has a bachelor's degree and is working on a master's degree which would indicate that her future earning potential will be substantially higher in the future.

In her request for hearing and response to the I.G.'s brief, Ms. Estal provided general information as to her financial liabilities and lack of income. She did not provide specifics or documentation as to those liabilities or her income which would assist me in weighing this factor to determine if the CMP in this case is reasonable. In order to fully evaluate Ms. Estal's financial condition, I directed her in an Order dated September 30, 2002, to complete, sign under penalties of perjury, and file a financial disclosure form. I also instructed her to prepare a description of her work history and related information for the period from 1998 to the present. Ms. Estal submitted a financial disclosure form on October 29, 2002 along with a document she titled financial history explanation.

Ms. Estal indicated in her financial disclosure form that from January 1999 until July 2001, she worked as a manager for Parham Enterprises, a temporary employment agency. Financial history and Disclosure Form at 1. Ms. Estal stated that Parham Enterprises eventually closed and she became unemployed. Id. She further stated that her unemployment benefits were exhausted in July 2002. To support her claim of unemployment, she submitted a letter from the Kentucky Unemployment Insurance Office. See Respondent's financial history explanation at 1.

Ms. Estal stated that in February 2002, she sold her mobile home and has been living on the proceeds from the sale. However, on her financial disclosure form, Ms. Estal indicated that she only had $750 in cash and no money in any bank accounts. Financial disclosure form at 2. Ms. Estal indicated that she has no monthly income whatsoever. Ms. Estal listed $920.00 as her total monthly expenses. Id. She listed as her total liabilities as $60, 479.57, which included a student loan for $47, 919.36; a car loan for $7,271.98; and her SSA overpayment of $4,368.23. The only assets Ms. Estal identifies are the value her car ($700.00), her household furniture ($500), and 750.00 cash. Ms. Estal listed the telephone number of her ex-husband Jeff Estal and indicated he could be contacted to verify certain information.

By motion dated November 26, 2002, the I.G. requested a 30-day extension to further investigate Ms. Estal's financial condition. See Petitioner's Motion for 30-day Extension. The I.G. indicated that Mr. Jeff Estal had been contacted for verification of some of the information provided by Ms. Estal. Id. That contact disclosed a number of inconsistencies with the information provided by Ms. Estal in her financial history explanation and her financial disclosure form. ⁽²⁾ Mr. Estal indicated that he believed that Ms. Estal was working at Dillard's Department Store and had worked for and continues to work for a country music musician named Billy Don Burns. Id. The extension was granted over Ms. Estal's objection. In her objection, Ms. Estal indicated that she started working after filing the financial disclosure form and she further asserted that she did not work for Billy Don Burns for monetary compensation but instead provided her services at no charge.

The I.G. subsequently filed a Reply Brief, dated December 31, 2002, which indicated that Ms. Estal was hired by "Dillard's" on November 19, 2002. Through further investigation the I.G. disclosed that Ms. Estal's application for employment at Dillard's indicated that she was presently employed by Billy Don Burns Music as a Publicist at a salary of $300.00 per week. I.G.'s Reply Brief at 5-6. This is contrary to Ms. Estal's consistent assertion that she has not worked since July 2001. Ms. Estal also indicated that she was available to work any number of hours on a full or part-time basis.

The I.G. subsequently contacted Mr. Billy Don Burns who indicated that Ms. Estal had indeed worked for him. I.G.'s Reply Brief at 6. Mr. Burns indicated he would call the I.G. Special Agent investigating the matter back with information relative to Ms. Estal's salary. According to the I.G., it was Ms. Estal who called the I.G. Special Agent to discuss her employment with Mr. Burns. The I.G. refused to speak with Ms. Estal about verification of her own employment. Mr. Burns subsequently called back, according to the I.G. and indicated that Ms. Estal had worked for him but he had only paid her a few hundred dollars. I.G.'s Reply Brief at 4-6. Both Ms. Estal and Mr. Burns appear to have been evasive regarding Ms. Estal's employment with Mr. Burns. Thus I do not find their assertions credible. I place the greater weight and veracity upon the information Ms. Estal included in her application for employment at Dillard's.

The I.G. also questioned the authenticity of the documents submitted by Ms. Estal and noted a number of other discrepancies in the documentation. The I.G. maintains that in addition to not including her work with Billy Don Burns, Ms. Estal did not include information regarding her work with Country Resurrection which was noted in the I.G.'s June 17, 2002 brief. I.G. Ex. 15. In addition, Ms. Estal notes in her financial statement that she worked for Parham Enterprises from January 1998 until June 1998, and again from January 1999 until July 19, 2001. However, in her initial July 19, 2002, statement she indicated that she lost her job in April of 1998 due to a vicious dog attack. Ms. Estal has not attempted to explain or reconcile these dates.

The I.G. also argues that while Ms. Estal maintains she has monthly expenses totaling $920.00, she also maintains that she has no income. However, as the I.G. points out, Ms. Estal's BellSouth telephone bill and her electric bill have been paid and are current. This is inconsistent with the claim that Ms. Estal is receiving no income whatsoever. The I.G. also argues that the purported rent receipt submitted by Ms. Estal, dated May 1, 2002, is not a current rent receipt and it did not indicate to whom the rent was paid and the signature on the receipt is illegible.

Ms. Estal lists liabilities for a car loan, the overpayment to SSA, and a substantial liability to Sallie Mae for students loans. She indicated that the Sallie Mae loan is currently in forbearance but she does not explain why nor does she explain if any payment are being made on the car loan.

It is clear from the facts in the case that despite entering a repayment agreement with SSA regarding the overpayment in this case, Ms. Estal is not making any payments on that debt. It must also be noted that in her request for hearing, Ms. Etal asserted that she had resumed repaying the overpayment in this case. This assertion is contradicted by the facts in this case.

The I.G. maintains that each time it has provided Ms. Estal with the opportunity to establish her financial condition, she has blatantly lied and/or submitted false or fraudulent evidence. I.G.'s Reply Brief at 7. Over objections by the I.G., I provided Ms. Estal an opportunity to provide evidence, other than her unsubstantiated assertions, to establish her financial condition. I also provided her with specific instructions as to what documents would be of assistance in addressing this issue. I also provided Ms. Estal an opportunity to reply to the I.G.'s rebuttal of the financial information that she provided. Ms. Estal is an educated, articulate individual who was informed of the importance of this issue and the impact it would have on the outcome of the case. The financial disclosure form and the financial history explanation provided by Ms. Estal did not clarify her present or past employment during the period in question nor did the documents she filed provide a better picture of her financial condition. To the contrary, Ms. Estal's submission are incomplete, evasive and only lead to additional questions which, when investigated by the I.G., revealed, at best, inconsistencies and discrepancies and, at worst, blatant misrepresentation/fraud.

I find Ms. Estal's assertions relative to her financial condition to be wholly without credibility. Other than reporting the value of her car; household furniture; cash in the bank, and the sale of her mobile home, she provided no information about her current financial condition and how she can survive on no income. While she indicated that she is living on the proceeds of the sale of her mobile home, she also indicated that she only has $750 in cash and list her total assets at $1,950.00. I find Ms. Estal's unsubstantiated statements relative to her financial condition to be evasive and incredible.

Ms. Estal has the burden of proving by a preponderance of the evidence that her financial condition would prevent her from being able to pay the penalty imposed against her. Unsupported assertions of financial distress do not justify the reduction of a proposed penalty and assessment. Berney R. Kessler, M.D., DAB CR107 (1990). Ms. Estal has not proven by a preponderance of the evidence that her financial condition would prevent her from being able to pay the CMP imposed against her.

D. History of prior offenses.

With respect to Respondent's history of prior offenses, based on the evidence of record, I find no prior offenses documented with SSA.

E. Such other matters as justice may require

During a prehearing conference, conducted on September 26, 2002, Ms. Estal asserted, for the first time during the course of these proceedings, that she suffered from psychiatric problems which affect her ability to work and thus affects her financial condition and her capacity to pay the CMP. Ms. Estal, who holds an undergraduate degree in Psychology, was afforded the opportunity to submit evidence relative to her assertion that her psychiatric problems affect her financial condition and thus her ability to pay the CMP imposed in this case. The I.G. objected to allowing evidence to be introduced in the case regarding Ms. Estal's alleged psychiatric problems because the issue had not been raised before and it would be prejudicial to the I.G. The objection was overruled during the conference and documented in my Order dated September 30, 2002. I asked Ms. Estal to file the evidence relative to this issue when she filed her financial disclosure form and employment history.

Ms. Estal subsequently filed her financial disclosure form and her financial history explanation in which she stated:

I made a statement that depression was disabling me from working at the present time and in order to back that up involved a letter from a doctor. I chose not to do that because I feel it wouldn't have made any difference and [Petitioner] objected."

Because Ms. Estal has not submitted any evidence relative to the issue she raised, I can give no weight to her uncorroborated assertions.

Ms. Estal also noted in her filings in this case that she would present evidence regarding the dog attack she asserts occurred as well as evidence to corroborate the resulting loss of employment and alleged homelessness. She also indicated she would present "many character witnesses" to prove that she would never "lie, steal or cheat."

Ms. Estal provided an e-mail purported to be from Mr. Wayne Lowthian, of Country Resurrection, in which he indicated that she had worked for Country Resurrection on a part time basis. I.G. Ex. 15. It should be noted that the employment referenced in the Lowthian e-mail was not included by Ms. Estal in her employment history or financial disclosure statement. In addition, the e-mail indicated that the writer was under the impression that it was Ms. Estal who brought the overpayment to the attention of SSA. This is the factual position Ms. Estal initially advanced in her request for hearing but later changed after the I.G. submitted a sworn statement from SSA personnel who handled the case which directly contradicted Ms. Estal's statement. I.G.'s Brief at 2; I.G.'s Ex. 1. In addition, the writer of the e-mail is laboring under the belief that SSA was demanding Ms. Estal pay over $50,000 based on the fact that she ". . . had the dicency (sic) to say she had received some money she felt may have been sent in error." P. Ex. 15. This view is contrary to Ms. Estal's own admissions in this case. Thus, I find the information in the e-mail attributed to Mr. Wayne Lowthian to be inconsistent with the established facts in this case and Ms. Estal's own admissions. As such, the e-mail is of no value in terms of bolstering Ms. Estal's character or corroborating any facts as asserted her.

Ms. Estal has not submitted any additional evidence to corroborate her assertion regarding the dog attack she maintains occurred as well as evidence to corroborate the resulting loss of employment and alleged homelessness. Nor has she provided any additional character witnesses to prove that she would never "lie, steal or cheat." Thus, her assertions regarding these matters remain unsubstantiated, uncorroborated assertions. Thus, I cannot consider these uncorroborated assertions under this factor.

The purpose of a CMP is deterrence and protection of the financial aid programs rather than retribution or punishment. Deterrence should serve the two purposes of encouraging others to follow the law and to keep a [person] from committing the wrong again. Chapman v. U.S. Dep't of Health and Human Services, 821 F.2d 523 (10^th Cir. 1987).

The facts in this case established an intentional conscience decision by Ms. Estal to make material false representations to SSA. Furthermore, she used SSI funds for her use that she clearly knew were intended for the benefit of her son. The SSI program requires protection from the type of intentional misrepresentations that have been established in this case.

V. Conclusion.

Based on the evidence of record in this case and the pleadings of the parties I sustain the I.G.'s determination to impose a CMP against Ms. Estal. I further find that based on all of the evidence and the circumstance in this case, I find that the CMP in the amount of $58,124.06 is reasonable.

Alfonso J. Montano

Administrative Law Judge

1. Ms. Estal indicated that she could provide proof that the dog attack had occurred. However, she provided no proof other than her assertion that the alleged attack occurred.

2. The I.G. contact with Mr. Estal, also identified factual inconsistencies in information provided by Respondent. Respondent has maintained throughout these proceedings that Andrew returned to her care in August of 1999. Mr. Estal indicated that Andrew was in his care in Ohio until March of 2000 and did not return to Respondent's care until that time. Ms. Estal has also made representations as to her daughter, Leah, would be returning to her care the first of November, 2002. Mr. Estal indicated that his daughter was still with him and would not return to Respondent's care until January of 2003.