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BANUELOS v. CHATER

July 28, 1997

ALBERTO BANUELOS, Plaintiff,
v.
SHIRLEY S. CHATER, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: WILLIAMS

 Plaintiff Alberto Banuelos asks this court to reverse the decision of the Commissioner of Social Security that Banuelos is not entitled to a waiver of overpayment of disability benefits under the Social Security Act. Defendant Shirley S. Chater, Commissioner of Social Security ("Commissioner"), moves the court to grant summary judgment in her favor. This court has jurisdiction to review the final decision of the Commissioner under 42 U.S.C. § 405(g). For the reasons set forth below, the court denies Banuelos' motion, grants the Commissioner's motion, and affirms the final decision of the Commissioner.

 Background

 The following facts are taken from the pleadings and the record as a whole. Plaintiff Alberto Banuelos was injured at his place of employment in 1989, and began receiving disability benefits under Title II of the Social Security Act, 42 U.S.C. § 404(b), in 1990. (Tr. at 24.) *fn1" At the time Banuelos filed for disability, he notified Social Security of his intention to file for Worker's Compensation benefits. (Tr. at 33.) In November 1990 Banuelos began receiving Worker's Compensation benefits. (Tr. at 37, 40-44.) The Social Security Administration ("SSA") notified him that it determined his disability benefits based upon the amount of Worker's Compensation benefits he was receiving. (Tr. at 37, 40-44.) However, the SSA had not in fact adjusted his disability benefits to account for his receipt of Worker's Compensation benefits. (Tr. at 37, 40-44.) Therefore, SSA overpaid Banuelos and his children a total of $ 39,799.00 in disability benefits between November 1990 and July 1993. (Tr. at 62.) Specifically, SSA overpaid Banuelos $ 26,543 and his two children $ 6,628 each. (Tr. at 25, 62.)

 In December 1993, prior to notification of the overpayment, Banuelos received a Worker's Compensation settlement for $ 200,000 at a net of about $ 160,000. (Tr. at 85, 126-29.) Banuelos invested $ 98,000 of the settlement into a home in Mexico where his sister and parents presently live, rent-free. (Tr. at 85, 126.) In 1994, Banuelos sold a condominium, which netted him an additional $ 12,000. Banuelos used the money from the settlement and the sale of the condo to pay off his credit card debt, to purchase a certificate of deposit in the amount of $ 19,000, to loan his brother $ 6,500, to loan a friend $ 3,000, to meet his living expenses, and to maintain two cars -- one worth $ 7,000 and the other worth $ 2,600. (Tr. at 85-86, 97-98.)

 When Banuelos received notification of the overpayment, he requested a waiver of the overpayment. In a Special Determination Hearing, the SSA found that Banuelos was "without fault" in causing the overpayment of disability benefits. (Tr. at 64.) The SSA absolved Banuelos of the overpayment of benefits to his children. (Tr. at 64.) The SSA did not waive the remaining $ 26,543 overpayment to Banuelos, finding that recovery would not deprive him of necessary funds to meet ordinary expenses. (Tr. at 64.)

 Banuelos later requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. at 22.) At the hearing Banuelos testified that his expenses were $ 1,300 a month, including $ 695 for rent, $ 300 for groceries, $ 50 for utilities, $ 77 for automobile insurance, and $ 200 for miscellaneous expenses. (Tr. at 118-122.) Banuelos also testified that he still had liquid assets totaling over $ 16,000, and that he still owned the home in Mexico. (Tr. at 124-26.) The ALJ found that recovery of the $ 26,543 would not "defeat the purpose of the Act" or be "against equity and good conscience." (Tr. at 26.) Therefore, the ALJ did not waive the overpayment. (Tr. at 26.) The Appeals Council denied Banuelos' request for review, and Banuelos sought review in this court. (Tr. at 3-4; Pl.'s Mot. at 3.)

 Banuelos now moves the court to reverse the final determination of the Commissioner that Banuelos is not entitled to a waiver for the overpayment of disability benefits. (Pl.'s Mot. at 1.) Banuelos asserts that the Commissioner did not have substantial evidence to conclude that recovery would not defeat the purpose of Title II of the Social Security Act ("the Act"), and that equity and good conscience did not preclude recovery. (Pl.'s Mot. at 3-4.) In the alternative, Banuelos urges this court to find that the Commissioner's interpretation of equity and good conscience is too narrow. (Pl.'s Mot. at 11.) The Commissioner moves for summary judgment, arguing that the law and the evidence support the decision of the Commissioner. (Def.'s Mot. at 2.)

 Analysis

 On review, the court has the power to modify, affirm, or reverse the decision of the Commissioner if any essential finding of the Administrative Law Judge ("ALJ") is not supported by substantial evidence. Adams v. Secretary of Health and Human Servs., 653 F. Supp. 249, 250 (C.D. Ill. 1986)(citing 42 U.S.C. § 405(g)); Callaghan v. Shalala, 992 F.2d 692, 695 (7th Cir. 1993). Where the Appeals Council declines to review a decision of the ALJ, that decision becomes the final decision of the Commissioner. Schroeter v. Sullivan, 977 F.2d 391, 394 (7th Cir. 1992). The court must affirm the denial of a request for waiver of repayment if substantial evidence supports the decision and the Commissioner has committed no error of law. Strunk v. Heckler, 732 F.2d 1357, 1359 (7th Cir. 1984). "Substantial evidence" is relevant evidence that a reasonable mind would "accept as adequate to support a conclusion." Angevine v. Sullivan, 881 F.2d 519, 521 (7th Cir. 1989) (quoting Richardson v. Perales, 402 U.S. 389, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971)).

 The reviewing court may not substitute its own judgment for that of the ALJ or reweigh the evidence; nor may the court simply rubber-stamp the ALJ's decision. Schroeter, 977 F.2d at 394; Cass v. Shalala, 8 F.3d 552, 555 (7th Cir. 1993). The court must review the record in its entirety, not just the evidence that supports the Commissioner's decision. Bauzo v. Bowen, 803 F.2d 917, 923 (7th Cir. 1986). However, where reasonable minds could differ in construing the evidence, the court must defer to the Commissioner's decision. Angevine, 881 F.2d at 521.

 A specific statute, 42 U.S.C. § 404, covers overpayments of Social Security benefits:

 
(a) Procedure for Adjustment or Recovery
 
Whenever the Secretary finds that more or less than the correct amount of payment has been made to any person under this subchapter, proper adjustment or recovery shall be made, under ...

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