UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HELEN L. JONES,

Plaintiff-Appellant,

v.

No. 96-2666

SHIRLEY S. CHATER, COMMISSIONER OF

SOCIAL SECURITY,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CA-95-1415-A)

Submitted: June 17, 1997

Decided: August 25, 1997

Before WILKINS, NIEMEYER, and HAMILTON, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Lewis E. Gelobter, Emily J. Kaufmann, LEGAL SERVICES OF

NORTHERN VIRGINIA, INC., Leesburg, Virginia, for Appellant.

James W. Winn, Chief Counsel, Region III, Nora R. Koch, Assistant

Regional Counsel, Office of General Counsel, SOCIAL SECURITY

ADMINISTRATION, Philadelphia, Pennsylvania; Helen F. Fahey,

United States Attorney, Rachel C. Ballow, Assistant United States

Attorney, Alexandria, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Helen Jones appeals from an order of the district court adopting the

magistrate judge's recommendation to uphold the Commissioner's

determination that she was not without fault in causing an overpayment of insurance benefits to her, and therefore may not receive a

waiver of recovery of the overpayment. Jones applied for widow's

insurance benefits in May 1990. A representative of the Social Security Administration ("SSA") recorded on her application the information provided by Jones, including the fact that she would receive a

pension upon her retirement from the federal government. The SSA

employee informed her that with the offset for the pension, her

widow's benefits would be only $18.00 per month.

Jones signed the application, which stated that she would be obligated to inform SSA when she began receiving the pension, but later

the same day filed another form withdrawing her application "because

of the government pension offset and the receipt of a government

pension." Although Jones testified that she does not recall filing the

withdrawal request, she called SSA in August 1990 to inquire about

applying for benefits. Due to a clerical error, Jones's withdrawal form

was never processed, and SSA notified her on August 20, 1990, that

her application for widow's benefits had been approved, and that her

monthly benefit, payable when she ceased working, would be

$484.90.

Jones retired in December 1990, and began receiving a government

pension of $723 a month and widow's benefits of $511 per month.

She did not inquire about the discrepancy between the $18 figure she

had been told she would receive and the $511 she actually received.

SSA eventually discovered that it never processed Jones's withdrawal

application and contacted her about it. She called SSA in April 1992,

and informed them that she did not withdraw her claim, and that her

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widow's benefits were her only source of income. When SSA contacted her again in August 1992, however, she admitted that she was

also receiving a government pension. That same month, SSA notified

Jones that her benefits would be reduced, and that she had been overpaid by $9909 from December 1990 to August 1992. The parties

agreed to a payment rate of $10 per month.

Jones filed a request for waiver of recovery of the overpayment in

December 1992. The ALJ determined that Jones was not without fault

in causing the overpayment and, accordingly, denied the request for

waiver. The Appeals Council denied review, and the district court

adopted the magistrate judge's recommendation to affirm the decision

of the Commissioner.

The Commissioner's decision must be affirmed if it is supported by

substantial evidence. 42 U.S.C. § 405(g) (1994); Richardson v.

Perales, 402 U.S. 389, 401 (1971). The Commissioner's findings of

fact, however, are not binding if they were based upon the application

of an improper legal standard. See Coffman v. Bowen, 829 F.2d 514,

517 (4th Cir. 1987).

Waiver of recovery of an overpayment is appropriate under the

Social Security Act ("Act") where the individual receiving the overpayment is: (1) without fault in causing the overpayment, and (2)

recovery would either defeat the purpose of title II of the Act or be

against equity and good conscience. 42 U.S.C. § 404(b) (1994). If the

Commissioner properly determines that a claimant is not without

fault, the inquiry ends. See Garnett v. Sullivan , 905 F.2d 778, 782 (4th

Cir. 1990). The claimant bears the burden of proving that she was

without fault in causing the overpayment. See Bray v. Bowen, 854

F.2d 685, 687 (5th Cir. 1988).

Under the applicable regulations, in all overpayment cases except

"deduction" overpayment cases, whether the claimant is at fault

depends on whether the overpayment was due to: (1) an incorrect

statement by the claimant which she knew or should have known to

be incorrect; (2) the claimant's failure to furnish information which

she knew or should have known to be material; or (3) the claimant's

acceptance of a payment which she either knew or could have been

expected to know was incorrect. See 20 C.F.R. § 404.507(a)-(c)

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(1996). For deduction overpayment cases, the ALJ is required to

apply the criteria set forth at 20 C.F.R. §§ 404.510, 511 (1996), to

determine fault. In this case, the ALJ applied section 404.507 and

found that Jones was not without fault because she knew or could

have been expected to know that the monthly checks she received

were for an amount exceeding that to which she was entitled.

On appeal, Jones's primary contention is that the ALJ applied the

wrong standard in determining fault. Jones contends that her overpayment was a deduction overpayment, because it resulted from SSA's

failure to deduct the offset for her pension from her widow's benefits.

She contends that this case must be remanded so that the ALJ can

determine fault under the proper criteria. We disagree.

The regulations provide six categories of cases in which an

insured's monthly insurance benefits must be reduced. See 20 C.F.R.

§ 404.401(a)-(f) (1996). Decreases for deductions are governed by

subsection (b) of section 404.401. Subsection (b) enumerates seven

different forms of deductions. Subsection (b) does not address

decreases based on an offset for funds received from a government

pension. Moreover, this silence is clearly not inadvertent, because

such decreases are specifically addressed by 20 C.F.R. § 404.408a

(1996). That section explicitly states that such decreases are "reductions," not deductions. Reductions are among the six categories listed

by section 404.401. See §404.401(a). Thus, viewing the regulatory

scheme as a whole, it is clear that the decrease to Jones's benefits was

not a deduction overpayment.

Jones correctly points out that the regulations provide only two

terms for overpayments; "deduction overpayments," and "entitlement

overpayments." See 20 C.F.R. §§ 404.510a, 511 (1996). Notwithstanding the fact that decreases to insurance benefits due to pension

offsets are specifically labeled "reductions" by section 404.408a, and

that such decreases are not among the universe of deductions enumerated by section 404.401(b), Jones contends that her overpayment cannot be viewed as an entitlement overpayment because the decrease to

her insurance benefits does not meet the regulatory definition of an

entitlement overpayment, and therefore can only be a deduction overpayment. The applicable regulation, however, states, in pertinent part,

that "a benefit payment exceeding the amount to which [s]he is enti-

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tled, constitutes an entitlement overpayment." 20 C.F.R. § 404.510a.

Because Jones clearly received an amount exceeding the amount to

which she was entitled, she falls within the scope of this definition.

Jones also avers that the ALJ's finding of fault was erroneous even

under section 404.507, because he failed to take into account her age,

intelligence, and mental and educational limitations. Section 404.507

requires the ALJ to consider "all pertinent circumstances, including

the individual's age and intelligence, and any physical, mental, educational, or linguistic limitations . . . the individual has." Id. (emphasis

added). The regulation does not require the ALJ to make explicit findings regarding the listed criteria where there is no basis for considering such criteria to be pertinent. See Anderson v. Sullivan, 914 F.2d

1121, 1123 (9th Cir. 1990). In this case, there was no evidence or

allegation that Jones suffered from any kind of physical or mental

impairment. Moreover, the ALJ questioned her at the hearing regarding her education (tenth-grade) and work background (23 years service as clerical worker for federal government), and presumably

gained some insight into her intelligence from this information and

from her testimony at the hearing.

The only support Jones provides for her position that such factors

were relevant is the ALJ's finding that Jones did not "understand" the

social security system or why she was receiving more than the $18

she was originally told she would receive. But this lack of understanding was not even allegedly the result of any mental deficiency, but

rather was due to the fact that SSA's actions were simply inconsistent.

The ALJ, however, rationally concluded that these inconsistencies

either actually aroused or could have been expected to arouse Jones's

suspicion that her benefit payments were erroneous. Specifically, the

ALJ reasonably found that since an SSA representative told Jones that

she was only entitled to $18 a month, and she did not understand why

she thereafter received monthly checks for nearly 27 times that

amount, she either knew or could have been expected to know that the

amounts she received was incorrect. This conclusion is further suggested by consideration of the fact that Jones did not inquire about the

discrepancy and at one point concealed from an SSA employee the

fact that she was receiving a government pension.

Accordingly, the order of the district court is affirmed. We dispense with oral argument because the facts and legal contentions are

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adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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