Akbar-Afzali v. Callahan, Civil Action No. 96-2337-KHV.

• Decision Date: 05 May 1997
• Docket Number: Civil Action No. 96-2337-KHV.
• Parties: Ali AKBAR-AFZALI, SSN: 511-90-0920, Plaintiff, v. John J. CALLAHAN, Ph.D., Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Kansas

968 F.Supp. 578

Ali AKBAR-AFZALI, SSN: 511-90-0920, Plaintiff, v. John J. CALLAHAN, Ph.D., Acting Commissioner of Social Security, Defendant.

Civil Action No. 96-2337-KHV.

United States District Court, D. Kansas.

May 5, 1997.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Teresa M. Meagher, Law Office of Teresa M. Meagher, Leawood, KS, for plaintiff.

Robert A. Olsen, Office of U.S. Atty., Kansas City, KS, for defendant.

MEMORANDUM AND ORDER

VRATIL, District Judge.

This matter comes before the Court on plaintiff's Motion For Summary Reversal Or Remand Of The Commissioner's Decision (Doc. # 9) filed January 3, 1997. Plaintiff brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the Commissioner's decision to deny benefits under the Social Security Act ("Act") and the Commissioner's finding that plaintiff received overpayments which cannot be waived. For the reasons set forth below, the Commissioner's decision is affirmed.

Procedural Background

Plaintiff has resided in the United States since 1984, but he did not become a permanent resident alien until August 29, 1991. Plaintiff's daughter, Dr. Azadeh Mosoumeh Afzali, executed an Affidavit of Support in May 1991, sponsoring his entry into the United States and agreeing to support him so that he would not become a public charge.

In the fall of 1991, plaintiff filed an application for supplemental security income ("SSI") benefits based on his age (over 65). The Social Security Administration ("SSA") denied plaintiff's application because it did not indicate that he was a U.S. citizen or permanent resident alien. Plaintiff filed for reconsideration and in July, 1992, the SSA retroactively awarded plaintiff benefits from November 15, 1991 (the date of his application). Plaintiff received these benefits because of age, not disability, and because the SSA determined that plaintiff was in fact a permanent resident alien.

Plaintiff's application stated that no one had sponsored his entry into the United States. The SSA later determined that this statement was not true, and that plaintiff's sponsor (Dr. Afzali) had income and assets in excess of SSI eligibility guidelines. It therefore notified plaintiff that his benefits would cease September 1, 1993. The SSA further advised plaintiff that he had received overpayments of $9,160.07.

Plaintiff timely challenged the denial of further benefits and the SSA's finding concerning the alleged overpayments. On November 30, 1994, an administrative law judge ("ALJ") conducted a hearing at which plaintiff appeared personally and through counsel. Plaintiff's daughter (Elznea Afzali, a college student) served as his interpreter. On April 28, 1995, the ALJ issued a decision which contained the following findings:

1. The claimant has not engaged in substantial gainful activity since being admitted to the United States.

2. The medical evidence establishes that the claimant has the following impairments: very mild degenerative changes in the lumbosacral spine, degenerative changes about the right shoulder and acromioclavicular joint with a small peritendonous calcification adjacent to the tuberosity, calcification of the left interosseous ligament and a mass above the left scrotum.

3. The claimant's testimony and allegations are not found credible when considered in light of the medical signs and findings, history of medical treatment, reports of treating and examining physicians and the inconsistencies in the claimant's testimony, all of which is discussed more fully in the Rationale section of this decision.

4. The claimant does not have any impairment or impairments, singularly or in combination, which significantly limit his ability to perform basic work related activities; therefore, the claimant does not have a severe impairment (20 C.F.R. § 416.921).

5. The claimant did not become disabled, as defined in 20 C.F.R. § 416.901, (at any age) after his admission to the United States, see 20 C.F.R. § 416.1166a(d)(3).

6. The claimant was not entitled to benefits from November 1991 through September 1993.

7. The claimant was overpaid benefits in the amount of $9,160.07.

8. The claimant was not without fault in causing and accepting the overpayment (20 C.F.R. § 416.552).

9. Recovery of the overpayment is not waived (20 C.F.R. § 404.550).

After considering additional evidence on May 21, 1995, the Appeals Council denied plaintiff's request for review. The ALJ's decision thus stands as the final decision of the Commissioner.

Standard of Review

The Commissioner's determination is binding on this Court if supported by substantial evidence. See 42 U.S.C. § 405(g); Dixon v. Heckler, 811 F.2d 506, 508 (10th Cir.1987). The Court's review is to determine whether the record as a whole contains substantial evidence to support the Commissioner's decision and whether the Commissioner applied the proper legal standards. Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). While "more than a mere scintilla," substantial evidence is only "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). This standard of review also applies to the question whether waiver of overpaid benefits was appropriate. See Chapman v. Bowen, 810 F.2d 151, 152 (8th Cir.1986) (citing Howard v. Secretary of Health & Human Servs., 741 F.2d 4, 8 (2d Cir.1984)) (whether acceptance of overpayment was "without fault" is factual determination reviewed under substantial evidence standard).

Summary of Facts

Plaintiff is a non-English speaking Iranian immigrant. At the time of the administrative hearing plaintiff was approximately 75 years old. Plaintiff has a high school diploma and he last worked in Iran, as a road contractor and laborer, fifteen years ago. Plaintiff has never worked in the United States.

The SSA terminated plaintiff's benefits when it determined that his sponsor had resources in excess of the amount which permitted plaintiff to collect social security benefits.¹ On the Affidavit of Support which she executed in May 1991, Dr. Afzali averred that she had $8,500 in savings, $50,000 in personal property, $2,000 in life insurance and $65,000 in real estate. Dr. Afzali also averred that she had annual income of $55,000. After the United States admitted plaintiff as a permanent resident alien, however, Dr. Afzali reported that she and her husband had little or no personal property or savings, and that they each had incurred significant losses in their self-employment.

The SSA realized that Dr. Afzali's conflicting statements had not been reconciled when plaintiff's wife (from whom he is separated) applied for SSI benefits on June 18, 1993. Although Dr. Afzali did not cooperate fully in the ensuing investigation, the SSA obtained enough information to determine that Dr. Afzali and her husband had sufficient income and resources that plaintiff was not eligible for benefits.

At that point, plaintiff alleged for the first time that he became disabled after his admission to the United States, and argued that the assets of his daughter and son-in-law should not be considered in his case.²

Analysis

To establish entitlement to disability benefits, plaintiff must show that he is unable to engage in any substantial gainful activity by reason of a medically determinable impairment which can be expected to end in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(A); Talbot v. Heckler, 814 F.2d 1456, 1459-60 (10th Cir.1987). A five-step sequential evaluation process is used to determine whether an individual is disabled within the meaning of the Act. See 20 C.F.R. §§ 404.1520(a)-(f), 416.920; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir.1988). If at any step in the process the Commissioner determines that the claimant is disabled or is not disabled, the evaluation ends.

In this case, the ALJ determined that plaintiff had failed to establish a disability at the second step in the process — in other words, he found that no impairment or combination of impairments significantly limited plaintiff's ability to perform basic work related activities. 20 C.F.R. § 416.921(a). At this stage in the evaluation, medical evidence alone is evaluated.³

Substantial evidence supports the ALJ's finding of "no disability." Plaintiff's disability claim rests primarily on his allegations of vision problems and arthritic pain in his back, knee and shoulder. Plaintiff also complains of declining memory, liver dysfunction affecting his digestion, fatigue, generalized weakness, depression, foot cramps, coughing spells which cause him to choke and urinary frequency.

The objective medical evidence does not support plaintiff's claim that he cannot engage in substantial gainful activity, and the Commissioner is not bound by plaintiff's contrary testimony. Musgrave v. Sullivan, 966 F.2d 1371, 1376 (10th Cir.1992). It is the Commissioner's position to weigh the evidence and assess plaintiff's credibility, and subjective complaints must be evaluated with due consideration for credibility, motivation and medical evidence. Frey v. Bowen, 816 F.2d 508, 516 (10th Cir.1987). The ALJ thoroughly summarized his review of plaintiff's objective medical evidence and subjective complaints, as follows:

The record reveals the claimant's x-ray of the right shoulder in February 1992 revealed no fractures and normal overall bony density, the September 1993 x-ray of the left ankle contained no evidence of fractures and normal soft tissue contours, the claimant stated in a September 1993 progress note that Naprosyn really helped his condition, the claimant has nearly normal vision according to his October 1993 visual acuity test, had very mild degenerative changes in the lumbosacral spine with osteophytes on August 1994 x-rays but no disc...