## F I L E D United States Court of Appeals Tenth Circuit 

### APR 15 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CATHY McNAMAR,

Plaintiff-Appellant,

v. KENNETH S. APFEL, Commissioner of Social Security Administration,

Defendant-Appellee. No. 98-5077

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 96-CV-1134-M)

Submitted on the briefs: Paul F. McTighe, Jr., Tulsa, Oklahoma, for Plaintif f-Appellant. Stephen C. Lewis, United States Attorney, Peter Bernhardt, Assistant U.S. Attorney, Tulsa, Oklahoma, and Tina M. Waddell, Chi ef Counsel, Region VI, Mark J. Kingsolver, Deputy Chief Counsel, and LindaH. Green, Assistant Regional Counsel, Office of the General Counsel, So cial Security Administration, Dallas, Texas, for Defendant-Appellee.

Before BALDOCK , BARRETT and HENRY , Circuit Judges.

BARRETT , Senior Circuit Judge.1 After examining the briefs and appellate record, th is panel has

determined unanimously to grant the parties’ reques t for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. -2- Appellant Cathy McNamar appeals the district court’ s affirmance of the final decision of the Commissioner of Social Securi ty reducing appellant’s disability benefits by the amount of her Civil Serv ice disability benefits, without excluding her monthly health insurance premium. Be cause the Commissioner’s decision is supported by substantial evidence and c orrect legal standards were applied, we affirm. 1 Appellant is disabled by Crohn’s Disease. She rece ives $747 in monthly disability benefits from the Civil Service Retireme nt System, from which health insurance premiums and taxes are deducted. Appellant also receives social security disability benefits. Because appellant is eligible to receive both social security disability benefits and disability benefit s from another government plan, federal law requires that her social security benefits be reduced. See 42 U.S.C. § 424a(a); 20 C.F.R. § 404.408(a)(2). This appeal involves the amount by which appellant’s social security benefit must be reduced

. The Commissioner offset appellant’s entire civil se rvice disability payment against her social security disability payment, wit hout excluding her monthly-3-

health insurance premiums from the offset. The Com missioner’s decision was based on the language of 20 C.F.R. § 404.408(d), wh ich identifies expenses that may be excluded from the offset, and on several pro visions of the Social Security Administration’s Program Operations Manual System ( POMS), a set of policies issued by the Administration to be used in processi ng claims. The district court affirmed the computation. On appeal, appellant arg ues that her health insurance premiums are future medical expenses which should h ave been excluded from the offset pursuant to 20 C.F.R. § 404.408(d). We review the Commissioner’s decision to determine whether it is supported by substantial evidence and whether corre ct legal standards were applied. See Hawkins v. Chater , 113 F.3d 1162, 1164 (10th Cir. 1997). Our review of an agency’s interpretation of a statute o r regulation it administers is highly deferential. See Thomas Jefferson Univ. v. Shalala , 512 U.S. 504, 512 (1994); Wilkins v. Callahan , 127 F.3d 1260, 1262 (10th Cir. 1997). Such an interpretation is given controlling weight unless i t is arbitrary, capricious, or contrary to law. See Thomas Jefferson Univ. , 512 U.S. at 512 (“[T]he agency’s interpretation must be given controlling weight unl ess it is plainly erroneous or inconsistent with the regulation.”) (quotations omitted); New Mexico Dep’t of Human Servs. v. Department of Health & Human Servs. , 4 F.3d 882, 884 (10th Cir. 1993).-4-

The offset statute itself does not authorize the ex clusion of any amounts from the offset. See 42 U.S.C. § 424a(a). The Social Security Administ ration’s implementing regulation does, however, exclude the following amounts: [a]mounts paid or incurred, or to be incurred, by t he individual for medical, legal, or related expenses in connection w ith the claim for public disability payments . . . or the injury . . . on which the public disability award . . . is based, . . . to the exten t they . . . reflect either the actual amount of expenses already incurred or areasonable estimate . . . of future expenses. Any expenses . . . not reflecting a reasonable estimate of the individual’s actual futu re expenses will not be excluded. 20 C.F.R. § 404.408(d). The agency has further cla rified this regulation in two POMS provisions which appear to foreclose appellant ’s argument that her health insurance premiums should have been excluded as future medical expenses. See POMS DI 52001.050(C)(2), attached to Appellant’s Br . (expressly stating that health insurance premiums should be offset against the social security disability benefit, and that such amounts “are not excludable expenses”); POMS DI 52001.535(2) and (7), attached to Appellant’s Br . (requiring verification of medical expenses, and stating that amounts for futu re medical expenses which are not specified in the public disability award may not be excluded until they are actually incurred). The question then, is whet her these agency interpretations are arbitrary, capricious, or contrary to law. Because the offset statute does not exclude any amo unts from the required offset, see § 424a(a), the Commissioner’s failure to exclude appellant’s health-5-

insurance premiums cannot be contrary to the statut e. Nor does it appear that the failure to exclude such premiums is contrary to the implementing regulation, as the premiums do not represent an estimate of appell ant’s actual future expenses related to her Crohn’s disease. Although appellant ’s health insurance may, at some point, pay for disability-related medical expe nses, it is not limited to these expenses, but instead may be used to pay for an ent ire spectrum of medical care. Finally, appellant has not shown that the agency’s interpretation of the setoff requirement, as enunciated in the POMS, is arbitrary or capricious. The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED.