Fowler v. Bowen, No. 86-2677

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: PER CURIAM
• Citation: 876 F.2d 1451
• Docket Number: No. 86-2677
• Decision Date: 06 June 1989
• Parties: , Unempl.Ins.Rep. CCH 14679A Herbert C. FOWLER, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee.

Page 1451

876 F.2d 1451 26 Soc.Sec.Rep.Ser. 47, Unempl.Ins.Rep. CCH 14679A Herbert C. FOWLER, Plaintiff-Appellant,
v.
Otis R. BOWEN, Secretary of Health and Human Services,
Defendant-Appellee. No. 86-2677. United States Court of Appeals,
Tenth Circuit. June 6, 1989.

Page 1452

Paul F. McTighe, Jr., Tulsa, Okl., for plaintiff-appellant.

Deana Ertl-Brackett, Asst. Regional Counsel, Dept. of Health and Human Services, Denver, Colo. (Richard K. Willard, Asst. Atty. Gen., Layn R. Phillips, U.S. Atty., Peter Bernhardt, Asst. U.S. Atty., Tulsa, Okl., Donald A. Gonya, Chief Counsel for Social Security, Randolph W. Gaines, Deputy Chief Counsel for Social Security Litigation, A. George Lowe, Chief, Disability Litigation Branch, Russell Shultis, Attys. for the Office of General Counsel, Dept. of Health and Human Services, Baltimore, Md., on the brief), for defendant-appellee.

Before MOORE, BARRETT and ALARCON, ^* Circuit Judges.

PER CURIAM.

Plaintiff appeals from an order of the district court affirming the Secretary's determination that plaintiff received an overpayment of Social Security Disability Insurance benefits and, because he was not without fault in causing the overpayment, the overpayment could not be waived.

In 1972, plaintiff applied for and was awarded disability benefits based on a finding that he was totally disabled and unable to engage in substantial gainful activity due to chronic glomerulonephritis. In 1980, following a hearing before an Administrative Law Judge (ALJ), the earlier finding of disability was reversed.

There was no dispute that plaintiff had a medically disabling condition. ¹ However, the ALJ found that at no time had plaintiff been unable to work for a period of at least twelve months but instead he had engaged in substantial gainful activity during the time he was receiving disability benefits. See 42 U.S.C. Sec. 423(d)(1); 20 C.F.R. Sec. 404.1520(b). Plaintiff appealed to the district court which remanded to develop the record further on the issues of whether fraud or similar fault was involved

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in plaintiff's initial application for benefits ² and, if not, when plaintiff had returned to work, and whether the Secretary should waive the overpayment. 20 C.F.R. Sec. 404.506.

Following a hearing on these issues, the ALJ determined that fraud was involved in plaintiff's application for benefits. Therefore, the reopening was proper and the overpayment could not be waived. The Appeals Council adopted the ALJ's recommended decision, thus becoming the final decision of the Secretary. Plaintiff appealed and the district court subsequently affirmed.

On appeal to this court, plaintiff argues that the Secretary's determination was not based on substantial evidence. Plaintiff argues that his testimony showed that he stopped working in April, 1972, and did not return to work at any time either prior to the time he formed his corporation in 1974 or thereafter. Plaintiff argues that he did not perform any work or duties for or receive income from the corporation. He argues that he claimed personal automobile and travel expenses as business expenses because of "an honest mistake" and that none of the checks he received represented payment for work done for the corporation.

We review a final decision of the Secretary only to determine whether the decision is supported by substantial evidence. Brown v. Bowen, 801 F.2d 361, 362 (10th Cir.1986). We may not weigh the evidence nor substitute our discretion for that of the agency. Id. Substantial evidence " 'means 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, 852 (1971) (quoting Consolidated Edison Co. v. National Labor Relations Bd., 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126, 140 (1938)).

If plaintiff actually engaged in substantial gainful activity, he could not be found disabled, regardless of the severity of his impairments. 20 C.F.R. Sec. 404.1520(b).

Substantial gainful activity is defined as

work activity that is both substantial and gainful.... Substantial work activity is work activity that involves doing significant physical or mental activities.... [W]ork may be substantial even if it is done on a part-time basis or if you do less, get paid less, or have less responsibility than when you worked before. Gainful work activity is work activity that you do for pay or profit. Work activity is gainful if it is the kind of work usually done for pay or profit, whether or not a profit is realized.

20 C.F.R. Sec. 404.1572(a),(b).

Additional considerations apply in evaluating whether a self-employed person is engaged in substantial gainful activity.

(a) We will consider your activities and their value to your business.... We will not consider your income alone.... We consider that you have engaged in substantial gainful activity if--

(1) Your work activity, in terms of factors such as hours, skills, energy output, efficiency, duties, and responsibilities, is comparable to that of unimpaired individuals in your community who are in the same or similar businesses as their means of livelihood;

(2) Your work activity, although not comparable to that of unimpaired individuals, is clearly worth the amount shown in Sec. 404.1574(b)(2) when considered in terms of its value to the business, or when compared to the salary that an owner would pay to an employee to do the work you are doing; or

(3) You render services that are significant to the...