Cress v. Barnhart ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10088
Summary Calendar
JAMES W. CRESS,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
__________________________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:01-CV-131-BE
__________________________________________
September 30, 2002
Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
James W. Cress appeals the district court’s judgment upholding the Commissioner of Social
Security’s (“the Commissioner”) decision to deny his request for a waiver of the recovery of disability
benefits that were overpaid him. The Social Security Act (“the Act”) requires the Commissioner to
make adjustment or recovery of Social Security disability benefits when the recipient receives more
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
than the correct amount of his benefit payment. 42 U.S.C. § 404(a)(1); 20 C.F.R. 404.501. The
Commissioner may do this by either reducing future payments or obtaining a refund from the
beneficiary. 42 U.S.C. § 404(a). Ho wever, no adjustment or recovery may be made against a
beneficiary who is “without fault.” 42 U.S.C. § 404(b). An individual is not “without fault” under
this provision if he accepts payments which he knew or had reason to know were incorrect. 20
C.F.R. § 404.507. The Administrative Law Judge (“ALJ”) determined that Cress and his dependents
were not entitled to a waiver of overpayments because they were not “without fault” as they had
accepted payments which they knew or should have known were incorrect.
This court’s review of the ALJ’s decision, which became the final decision of the
Commissioner when Cress’ request for appeal was denied, is limited under 42 U.S.C. § 405(g) to
determining whether it is supported by substantial evidence and whether there were any errors of law
made in the evaluation of the evidence. See Austin v. Shalala, 994 F.2d 1170, 1174 (5th Cir. 1993).
“Substantial evidence is evidence that a reasonable mind would accept as adequate to support the
decision.” Id. Because the ALJ made no findings regarding Cress’ argument that he has already
repaid the overpayments, this court will not consider the issue. See id. Even if the court were to
consider the argument, there is no evidence in the record to support it.
If his brief is liberally construed, Cress challenges the determination that the overpayments
should not be waived because he was not without fault in the overpayment. Substantial evidence
supports the ALJ’s decision that Cress was not without fault in accepting overpayments and thus not
entitled to a waiver. Cress was repeatedly advised that his disability benefits must be offset by any
workers’ compensation he received, and his benefits were in fact offset by his workers’ compensation
for a period of time. Although Cress notified the Social Security Administration (“SSA”) that he
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received a lump-sum workers’ compensation settlement, he continued to accept overpayments after
he received the settlement, which payments he should have known were incorrect. See Bray v.
Bowen, 854 F.2d 685, 687 (5th Cir. 1988).
Because the ALJ’s determination that Cress was not without fault in accepting the
overpayments is supported by substantial evidence, the district court’s judgment is AFFIRMED.
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