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BESBEAS v. CHATER

September 26, 1995

THOMAS BESBEAS, Plaintiff,
v.
SHIRLEY S. CHATER, COMMISSIONER OF SOCIAL SECURITY, Defendant.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 Before the court are the parties' cross-motions for summary judgment. Plaintiff Thomas Besbeas brought this action pursuant to the Social Security Act ("Act"), 42 U.S.C. §§ 405(g), 1383(c)(3) (1994), for review of the decision of the Commissioner of Social Security ("Commissioner") *fn1" The Administrative Law Judge ("ALJ") determined that Plaintiff received an overpayment of $ 6,182.00 in Supplemental Security Income ("SSI"), that he was not "without fault" in accepting that overpayment, and, therefore, that his request for waiver of overpayment would be denied. The Appeals Council affirmed that decision on October 17, 1994. For the reasons stated below, the court affirms the decision of the Appeals Council and the ALJ.

 I. Background

 The parties do not dispute the facts in this case. Plaintiff applied for SSI in June 1987. It was not until January 1989 that his application was approved. At that time, because of the delay in approval, Plaintiff received a check for retroactive benefits in the amount of $ 6,678.67. In addition, a Notice of Change in Payment ("Notice") was sent to Plaintiff, stating:

 
We are sending you a Supplemental Security Income check for $ 6,678.67 in January 1989. We will not count the part of this money which was due for back payments as your resource for 9 months. If the money is not spent before November 1, 1989, we will count any money left over as part of your resources.. . . In 1989, you cannot get SSI if the resources we count have a value of more than $ 2,000.00.

 (Commissioner's Memm. Supp. Mot. Summ. J. at 6) (emphasis added).)

 Plaintiff deposited the retroactive payment in a savings account. From January 1989 to February 1991, Plaintiff maintained that savings account with a balance of over $ 2,000, the resource limit for determination of SSI eligibility. See 20 C.F.R. §§ 416.1240(a), 416.1324(a)(1) (1993). In addition to the retroactive payment, Plaintiff received monthly SSI payments totalling $ 6,182.00 between January 1989 and February 1991. Plaintiff received the November 1989 to February 1991 payments despite his savings account, which amounted to resources in excess of $ 2,000.

 In March 1991, Plaintiff received an overpayment notice. The agency had concluded that Plaintiff was overpaid by the November 1989 to February 1991 payments ($ 6,182.00) because Plaintiff had resources (namely, the savings account) of greater than $ 2,000 during those months. *fn2" Plaintiff then applied for a waiver of overpayment.

 On March 16, 1993, the ALJ determined that Plaintiff was not "without fault" in accepting the $ 6,182.00 and, therefore, that waiver was inappropriate. On October 17, 1994, the Appeals Council affirmed that portion of the ALJ's determination.

 As of September 1991, Plaintiff had "spent down" the savings account to $ 2,437.63. Plaintiff has received monthly SSI payments since August 1991. Currently, those payments are reduced by $ 45.00 per month to permit recovery of the overpayment. In addition, Plaintiff has been receiving food stamps since June 1992.

 II. Discussion

 Under 42 U.S.C. §§ 405(g), 1383(c)(3) (1994), the court must uphold the ALJ's decision on review so long as the record provides substantial evidence for the ALJ's findings. Edwards v. Sullivan, 985 F.2d 334, 336 (7th Cir. 1993); see also Kahn v. U.S. Secretary of Labor, 64 F.3d 271, 1995 U.S. App. LEXIS 24111, 1995 WL 500670 at *3 (7th Cir. 1995). Substantial evidence may be somewhat less than a preponderance of the evidence. Delgado v. Bowen, 782 F.2d 79, 83 (7th Cir. 1986). The court may not determine the facts anew, weigh the evidence again, or supplant the judgment of the ALJ with its own. See id. at 82.

 In order for this court to uphold the ALJ's decision, the ALJ must have articulated her analysis at some minimal level. Delgado, 782 F.2d at 83. The evidence need not compel the ALJ's conclusion; rather the evidence must simply support that conclusion. ...


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