*1 897 walking standing due to light In work argument. reject Wheeler’s jobs limitations, proposed fact that despite vocational ex- questions framing his guide- regulation match expert precisely asked not did specifically ALJ pert, the definitions). review with Wheeler’s job applicant or DOT a lines to assume resid- education, experience, the ALJ’s conclusion work the record shows that age, limi- including her in capacity, functional evidence ual substantial walking, standing, sitting, tations and/or as a whole. the record breaks, one 30 minutes at normal with affirmed. judgment day, and 8 hour 4 hours in an time with In accordance stooping. never ALJ tеstimony, expert’s
vocational less perform that Wheeler could
found work, due to light range full a
than stooping sitting, walking,
standing, as
limitations, able to work would be addresser, clerk, clerk, order expediter
an ar- clerk, helper. Wheeler office mail COULSTON, Appellant, Jim as jobs, defined proposed that the gues her DOT, residu- inconsistent v. are and limitations. capacity functional al APFEL, Commissioner Kenneth S. as a defin- the DOT “reliance on Wheeler’s Security, Appellee. of Social mis- job requirements is authority on itive No. 99-4183. are however, definitions for DOT placed, that offer job descriptions simply generic Appeals, Court United States requirements maximum approximate Circuit. Eighth range.” their than rather position, each Chater, 109 F.3d Hall 16, 2000. June Submitted omitted). (internal Cir.1997) quotations Sept. 2000. Decided descrip- that its cautions itself The DOT every respect coincide may not tions jobs performed as content of
with the lo- or at certain establishments
particular (internal Hall, at 1259
calities. omitted). words, all other
quotations require- category have every jobs in those as rigorous to or as
ments identical Hall, 109 F.3d at in the DOT.
listed matter, includ- in the
The record expert, vocational testimony of the
ing that included hypothetical а answered limitations, the ALJ’s supports
Wheeler’s perform could Wheeler
conclusion economy. jobs within
certain available (court Hall, satisfied F.3d at 1259 perform number could
that claimant the vocational categories
jobs within impairments); listed, her despite
expert (Commis- also, at 436 Craig,
see per- claimant could finding that
sioner’s jobs affirmed where existing
form certain range of full not perform
claimant could
Joseph Basque, G. Bluffs, IA, Council argued, for Appellant.
Inga Bumbary-Langston, Moines, Des IA, (Ann argued Reeg, K. City, Kansas MO, brief), for Appellee. WOLLMAN, Before Judge, Chief BEAM, BYE, and Judges. Circuit PER CURIAM.
Occasionally, the Security Social Admin- (thе Administration) istration sends a ben- efit wrong person. check When this occurs, the Administration is entitled to recover money unless the recipient of the check was without fault recovery the purpose subvert securi- ty or against equity con- science. See U.S.C. 404. In this the Administration er $20,658 roneously sent a check to Jim Coulston, a man who receives benefits be- ability of Coulston’s Coul- impairment. of an intellectual cause finances their own manage friend to thought the reading, ston, has trouble advice. dispense for medical payment awas back Medi- he canceled because expenses opinion ALJ’s of much The thrust used check and care, so he cashed friend knew ex-wife and *3 pur- and money to bills pay of the most going was suspected what have or should now must We presents. Christmas true, chase it is irrele- may well be but on. This may re- Administration the whether decide regulations Administration’s vant. The may it not. money. find its We coup at if he knew is fault a claimant state that have known the or should money to unspent the returned Coulston § 404.507. 20 C.F.R. See was incorrect. have Administration, did not he the also state regulations Administration’s The the immediately repay to the resources only of fault is determination that the Administration already spent. The money overpaid individual made as to the any further benefit to withhold threatened Administra- whom the from person other the it reclaimed until from Coulston checks that What See id. to recover. tion seeks money. ($18,249) Coul- of the remainder that ALJ should the in this case means from sought a waiver then ston himself Coulston what have considered Administration, asserting he was to the Instead, the known. should have knew or sub- recovery would that fault and without substantially what on Coul- relied ALJ security or be of social vert the have should friend and ston’s ex-wife He conscience. and against and known; ex-wife Coulston’s and while an Administra- hearing before received (or known may very well have friend (ALJ), found Coulston Judge tive Law on, known) it going was what have should then Coulston a waiver. undeserving of and impute their actions to was erroneous court, district to federal his case brought to Coulston. abilities determination. the upheld ALJ’s which case, the must review So, decide this tо not ALJ the did also think evidence. the record opinion and im ALJ the intellectual account properly determining When pairments Coulston. check, got, receiving the After is without individual overpaid an was words, from and “advice in the ALJ’s by statute fault, required ALJ is Ba- and a friend. ex-wife by” his assisted account” individ take into “sрecifically cashing sically, this assistance limitations. educational mental or ual’s determining the check. spending fair, the To 42 U.S.C. fault, the was without whether Coulston intellectual of Coulston’s most ALJ noted Coul- substantially on role relied ALJ limitations, his including: and educational ALJ The played. friend ex-wife and ston’s writing; his reading and difficulty with an intellec- that, had while noted at classes education special attendance no evidence there was impairment, tual training school; months eight friend suffered ex-wife either his the skill to learn Industries with Goodwill This led disability. a similar from But, then basi the ALJ dishwashing. that, cashing conclude before ALJ would these limitations how cally ignored check, least one “at spending know ability to Coulston’s affected have have should individuals involved” three Instead, re as was erroneous. the check Adminis- inquiries further made substantially above, relied ALJ lated that, in de- noted ALJ also tration. limitations intellectual lack of neither he cоnsidered ciding the ex-wife “advisors”—his Coulston’s nor friend testified Coulston’s friend. they did why explain hearing empha- significant placed also The ALJ check. of the receipt question surrounding the events sis on conclusion to the ALJ’s important Also attempts to cash the check. either, much ALJ stock in it as we doubt most found Coulston was unable to cash the people, even those without an intellectual check at the bank first obvi- impairment, tried —the overpay- remember an ous inference being that the bank refused ment incident that occurred almost fifteen to cash the check because of its years substantiаl earlier. This,
amount. according ALJ, to the So, should have a tip-off been to Coulston and after a careful review of the record, to his friend problem that a existed with the following evidence remains: But, check. the record reveals the Coulston has an impairment intellectual bank refused to cash the check substantial enough because him entitle to social a problem identification, with Coulston’s security benefits for the last twenty-plus not because large years; amount of the he received a check with an over *4 And, check. again, payment; while his may friend he believed overpаyment have situation, known the real was for Coulston’s back payments medical because he may intellectual limitations well had pre- have canceled his policy; spent Medicare he vented him from ascertaining the much real situ- to pay check off buy bills and ation. presents Christmas until informed the mistake; awas and he then paid parties in this case make of much back remaining money. Is this enough supposed Coulston’s interaction sup for Coulston to meet his of proving burden posed non-interaction with the Administra he is without fault? See Apfel, Banuelos v. tion in the following month receipt his of (7th 1166, Cir.1999) (claim 165 F.3d 1170 the erroneous check. After re Coulston ant has burden of proving entitlement check, ceived the he a received notice from waiver of repayment), overruled on other informing Administration him he was grounds by Johnson v. Apfel, 561, 189 F.3d entitled to the check and to a substantial (7th Cir.1999); 562 Sullivan, Watson v. in increase his monthly benefits. The Ad (6th 168, Cir.1991) 940 F.2d 171 (same); ministration only claims Coulston received Schweiker, v. Viehman 223, 679 F.2d 227 this notice he after became aware the (11th Cir.1982) (same). check was an error. Coulston also claims he and his made phone several We think burden; Coulston his meets Administration, calls to the and Adminis barely. Generally, if the evidence is in tration employees said he was entitled to equipoise, party with the burden of $20,658. The Administration claims proof Cigaran Heston, loses. See v. 159 that, every call, in phone they informed (8th 355, F.3d 357-58 The evi- Coulston he was not money. entitled to the dence here is so close it is in almost But, the ALJ declined to credit either equipoise. But, Coulston testified he events, version of and so do we. The thought overpayment was for back evidence on inconclusive, and, this issue is medical payments. The op- ALJ had the as an appellate court, we should not en portunity to discredit testimony, this gage in fact-finding on this issue. See So, did not. subjeсtive think- Co., v. (8th Deere 70, & 111 F.3d 74 Duffie ing, objective coupled evidence of (role Cir.1997) of appellate court is to “re his impairment, intellectual leads us to view, make, rather findings than conclude he has met his proving burden of fact”). he was without fault.
The Administration also calls to our at- tention Coulston’s “history” of оverpay- finding that Coulston was ments. Apparently, 1980s, in early without fault does not automatically result Coulston overpaid by $4,000. about in victory a for him. We must also deter But, the ALJ made no mention of this mine repayment would defeat the history opinion, and we do put purpose of providing social security
901 Securi- Sоcial ings of the Commissioner against be or would Coulston fact, if substan- ty as to 42 See U.S.C. good conscience. conclusive”). evidence, tial shall Coulston well-off. far from is Coulston dishwash- part-time as a decision the Commissioner’s subject on-and-off works a month er, about for a waiver request receives deny and he a claimant’s Thus, his annual of bene- security benefits. in an repayment social United line. See poverty very same standard income skirts to the fits case 14, (visited Aug. Callahan, Bureau 139 Census v. States See review. Gladden (8th Cir.1998); 2000) <www.census.gov/hhes/poverty/ 1220, 1222, 1219, 1223 F.3d (1999 poverty Sullivan, 168, F.2d v. 940 accord Watson threshld/thresh99.html> no $8,667). (6th Cir.1991); also has threshold Viehman account, obviously lives from Schweiker, n. 5 savings so & Banuelos, (“Substantial Cir.1982) evidence sets check to check. assets (considering claimant’s of the Secre- 1170-71 for our review parameters defeats in this determining whether final determination tary’s adverse light case.”). security). benefits] [overpayment circumstances, credit these explains majority that he “has hearing at the statement *5 that he was not proving burden bore the and, meet,” be- making ends hard time But it enough. true That at fault. a small this, taking even think we cause here con- are not point. the misses away from Coulston of benefits amount his bur- met with cerned security. of social the defeat would that the Commissioner proving to den of reasons, reverse foregoing the For tois sole not at fault. Our concern he was with di court the district to and remand ul- the Commissioner’s determine whether in favor of judgment enter rections to was timate decision—that Callahаn, 139 See Gladden Coulston. waiver fault, to a was not entitled 1219, 1223 upon “substantial based repayment —was affirm so, obliged to we are If evidence.” concurring. BYE, Judge, Circuit decision. the Commissioner’s 405(g). § ma- U.S.C. the reached the result join I majority’s join the I cannot jority, but is not the ALJ’s decision I that conclude empha- to separately I write reasoning. evidence,” for by “substantial First, majority ig- points. those size the Commissioner that simple reason governs that of review the standard nores controvert Coul- to no introduced evidence standard case, I believe that this The Commis- of events. account ston’s applied. Sec- explicated and to ought with come forward failed to sioner own estimate ond, majority makes its that Coul- position its supporting evidence not) ability of Coulston’s it should (though Coulston, part, at fault. ston repay to the SSA. (much which evidence presented discredit) had relied that he ALJ did I representations SSA’s upon the Hence, ulti- the ALJ’s money was his. many different courts review Federal at fault that Coulston was decision mate by the Com- rendered kinds of decisions record—substantial in the support virtually lacked Security. missioner of Social logic, the matter of As a or otherwise. governed review is courts’ every such rеcord in the evidence utter absence evidence” statutory “substantial by the (“The “substantial.”1 be deemed find- cannot 405(g) § 42 U.S.C. test. See deny Then, ought relief the Commissioner thumb is exception rule of to this The one not met has the claimant ground that evidence. fails to when claimant majority The apparently ty ought confuses Coul- to remand permit the ALJ to administrative ston’s (proving burden non- “ability make repay” findings.2 fault) (demon- appellate with his burden Despite presence potential this strating evidence”). a lack of “substantial factual dispute, however, we need not re- reason, join For that I cannot in the mа- mand. A claimant’s reliance on agency jority opinion. proper Reviewed under the representations automatically establishes standard, the record reveals no substantial repayment offend evidentiary support basis to the Commis- good Gladden, conscience. See sioner’s сonclusion that Coulston was at at 1223. Much like the claimant Glad- fault. den, Coulston upon relied a host of SSA
representations in assuming that the lump- II sum belonged to him. I am hard- pressed to overlook Gladden’s clear lan- majority The properly proceeds to ex- guage in majority’s favor of the own calcu- amine the step of second n lation of ability repay. I analysis, whether deem controlling, Gladden and I would “would the purpose defeat [Title II] avoid analyzing Coulston’s picture financial would be against equity con- entirely. majority’s methodology science.” majori- U.S.C. ineluctably leads to the cоnclusion that this ty compares Coulston’s monthly income ought matter to be remanded —a conclu- poverty line and determines that sion in considerable tension with Gladden. Coulston could not repay afford to I concur in respectfully the judgment of SSA. Yet the record suggests the possibili- the court. ty of a differеnt answer. Coulston re- ceives benefits, about a month in SSA
and he earns about per month $500 as a
part-time Adding dishwasher. those sums
together, monthly his total income exceeds Given
$1100. Coulston’s remarkably low estimate of monthly expenses, ap- America, UNITED STATES of pears to have at per least month in Appellee, disposable income. Presumably, some portion of that income could be used to JOLIVET, Catherine A. also knоwn as repay the without defeating SSA pur- Vaho, Appellant. A. Catherine pose of security. No. 99-2886. are,
These course, calculations my findings own of fact. United States Court majority’s of Appeals, con clusion Eighth that Coulston cannot Circuit. repay the equally SSA is dependent implicit on fact- 9,May Submitted 2000. finding. disagreement why illustrates Sept. Decided circuit judges are properly loathe to find the facts on appeal. See v. Apfel, Cox Faced
with a fact-dependent impasse, majori- If, proof.
his burden of proof, such upon burden of evidentiary evidence, Commissioner also failed to merit of the claimant’s contentions. the total absencе evidence in rec- ord preclude would not our affirmance —de- 2. The ALJ calculated ability never Coulston's spite the ostensible absence of "substantial (the repay step) second since he found evidence.” That’s because the Commission- (the Coulston "at step). fault” first ruling er's upon would be purely based