127 F.3d 1260 (10th Cir. 1997), 97-3020, Wilkins v. Callahan

Docket Nº:97-3020.
Citation:127 F.3d 1260
Party Name:97 CJ C.A.R. 2452 Brett E. WILKINS, Plaintiff-Appellant, v. John J. CALLAHAN, Acting Commissioner of Social Security, [*] Defendant-Appellee.
Case Date:October 23, 1997
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1260

127 F.3d 1260 (10th Cir. 1997)

97 CJ C.A.R. 2452

Brett E. WILKINS, Plaintiff-Appellant,

v.

John J. CALLAHAN, Acting Commissioner of Social Security,

[*] Defendant-Appellee.

No. 97-3020.

United States Court of Appeals, Tenth Circuit

October 23, 1997

Page 1261

Kenneth M. Carpenter, Carpenter, Chartered, Topeka, KS, for Plaintiff-Appellant.

Jackie N. Williams, United States Attorney, Jackie A. Rapstine, Assistant United States Attorney, Topeka, KS (Frank V. Smith, III, Chief Counsel, Region VII, Social Security Administration, and Rhonda J. Wheeler, Assistant Regional Counsel, Kansas City, MO, of counsel), for Defendant-Appellee.

Before TACHA, McKAY, and BALDOCK, Circuit Judges.

TACHA, Circuit Judge.

Claimant Brett E. Wilkins appeals from the district court's judgment affirming the decision of the Commissioner of Social Security which rejected claimant's challenge to the agency's suspension of his disability benefits, originally awarded in 1989 with an onset date of 1970. 2 In early 1992, claimant pled guilty to and was convicted on one felony count of forgery pursuant to Kan. Stat. Ann. § 21-3710. The state trial court originally sentenced him to a term of incarceration of from one to two years, subject to modification after evaluation. See Appellant's App. at 52. After a hearing and review of a report from the State Reception and Diagnostics Center, the state trial court ordered claimant committed to the Larned State Security Hospital, instead, "for psychiatric care, treatment and maintenance ... until further order of this Court or until discharge...." Id. at 61-62. Claimant was transferred to Larned in May of 1992. That same month, the Social Security Administration suspended claimant's disability benefits based on his felony conviction, pursuant to 42 U.S.C. § 402(x)(1). 3 Claimant was discharged from Larned in November of 1993, and placed on one year's unsupervised probation. His Social Security disability benefits were reinstated upon his release. He challenged the agency's decision to deny him benefits during the eighteen-month period he was at Larned, both administratively and through review by an administrative law judge (ALJ). He argued that the agency wrongly applied § 402(x) to deny him benefits, noting that the Veteran's Administration (VA) had not suspended payment of his veteran's benefits while he was at Larned.

The ALJ...

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