1

The Honorable Charles B. Kornmann, United States District Judge for the

District of South Dakota, adopting the report and recommendations of the Honorable

Mark A. Moreno, United States Magistrate Judge for the District of South Dakota. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 03-2542

___________

James E. Attia, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of South Dakota

Social Security Administration; *

United States Attorney; United States * [UNPUBLISHED]

Attorney General, *

*

Appellees. *

___________

Submitted: January 7, 2004

Filed: January 22, 2004

___________

Before RILEY, McMILLIAN, and SMITH, Circuit Judges.

___________

PER CURIAM.

James E. Attia appeals from the final judgment entered in the District Court1

for the District of South Dakota affirming the Commissioner’s decisions to deny his

application for a waiver of past overpayment of benefits and his 1997 application for
-2-

supplemental security income (SSI). For the reasons discussed below, we affirm the

judgment of the district court. 

Attia began receiving SSI benefits in 1979. Sometime in 1989, he purchased

40 acres of land in Stanley County and 80 acres of land in Perkins County, South

Dakota, but did not disclose ownership of this land until October 1993. Because the

value of the land exceeded $2,000--the amount of allowable resources for an

unmarried applicant, see 42 U.S.C. § 1382(a)(3)(B)--the Social Security

Administration (SSA) suspended Attia’s SSI benefits and determined that Attia had

been overpaid $18,288 in benefits from October 1989 to June 1993. Attia later sold

the Stanley County land, filed a new application for SSI benefits, and requested

waiver of the overpayment. An administrative law judge (ALJ) denied the July 1997

SSI application because the value of the Perkins County land, which Attia still

owned, exceeded $2,000. The ALJ also refused to waive overpayment because Attia

had been at fault in causing the overpayment. Attia later sold the Perkins County land

for a net profit of $1,819, after deducting closing costs. 

We review for substantial evidence. See Gladden v. Callahan, 139 F.3d 1219,

1222 (8th Cir. 1998) (standard of review). Attia argues he was not at fault in causing

the overpayment because the land was public, he did not own it or obtain income

from it, and he lived on part of the Stanley County land. The record shows, however,

that Attia purchased the land in 1989 for $7,200, but did not disclose this to the SSA

until October 1993; the land patent conferred ownership rights on Attia; and Attia

lived on only the Stanley County land and was not living on that property when, in

May 1991, he denied owning land on which he did not reside. Thus, we conclude

substantial evidence supports the ALJ’s decision that Attia was at fault in causing the

overpayment. See 20 C.F.R. §§ 416.550 (2003) (recovery of overpayment of SSI

benefits is waived when, inter alia, individual is without fault), 416.552 (individual

is at fault when incorrect payment resulted from, inter alia, failure to furnish

information which individual knew or should have known was material). 
-3-

As for the excess resources determination leading to the denial of the 1997

application, even if Attia had a difficult time selling the land and ultimately received

a net profit of less than $2,000 for it, the ALJ relied on the tax-assessed values of the

property and realtors’ estimates of the property’s worth, all of which exceeded

$2,000. See 20 C.F.R. § 416.1205 (2003) (aged, blind, or disabled individual with

no spouse is eligible for SSI benefits if his nonexcludable resources do not exceed

$2,000). The evidence also did not establish that the property was part of a business

essential to Attia’s means of self-support. See 20 C.F.R. § 416.1222 (2003) (how

income-producing property essential to self-support is counted). Thus, we conclude

substantial evidence supports the ALJ’s decision that the Perkins County land was a

countable resource with a value exceeding $2,000. 

Attia raises additional points, which we have carefully reviewed, but we find

each of these points to be meritless. 

Accordingly, we affirm. We also deny Attia’s motions to supplement the

record. ______________________________