     Case: 13-30044       Document: 00512338023          Page: 1     Date Filed: 08/12/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                             FILED
                                                                           August 12, 2013

                                     No. 13-30044                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



WILLIE SMITH,

                                                   Plaintiff-Appellant
v.

SOCIAL SECURITY ADMINISTRATION,

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:11-CV-2367


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-appellant Willie Smith appeals from the district court’s
judgment affirming the decision of defendant-appellee, the Social Security
Administration (SSA), to stop Smith’s disability payments and assess him an
overpayment of benefits. Because we conclude that the agency’s decision is
based upon substantial evidence and is in accordance with law, we affirm.


       *
         Pursuant to Fifth Circuit Rule 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.4.
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                                        No. 13-30044

       In September 1988, Smith applied for disability benefits under Title II
and Title XVI of the Social Security Act. The SSA granted Smith’s application
in September 1989 and began paying benefits. In April 1999, Smith began
working as a pastor at Providence Baptist Church (the Church) in La Place,
Louisiana. The SSA found Smith’s work as a pastor to be substantial gainful
activity, which is “work activity that involves doing significant physical or
mental activities” for pay or profit. 20 C.F.R. § 404.1572(a), (b). Smith was
entitled to a trial work period from April through December 1999.1 An
extended period of eligibility began in January 2000.2 Smith’s extended period
of eligibility later ended, and the SSA ultimately terminated his benefits as of
January 2003.
       In October 2003, the SSA notified Smith that he had been overpaid
$7,860 because of erroneous payments from April through September 2003.
Smith reimbursed the $7,860 to the SSA in a single payment. After further
investigation, however, the SSA informed Smith in January 2004 that it had
actually overpaid him $47,956. This new calculation was based on the agency’s


       1
        A “trial work period” is a period of time during which an individual who has been found
disabled may test his or her ability to work and still be considered disabled. 20 C.F.R.
§ 404.1592(a). The period consists of performance of “services” during nine months, which do not
need to be consecutive months, but which must occur within a period of sixty consecutive
months. Id. § 404.1592(a), (e).
       2
           An “extended period of eligibility,” also called the “re-entitlement period,” is an
additional period after the trial work period during which an individual with a disabling
impairment can continue to test his or her ability to work. 20 C.F.R. § 404.1592a(a). The
extended period of eligibility lasts for 36 continuous months after the end of the trial work
period. Id. § 404.1592a(b)(ii). However, if the individual performs substantial gainful activity
during the extended period of eligibility, the SSA may find that the individual’s disability has
ceased and suspend payment of benefits. Id. § 404.1592a(a). If the individual stops performing
substantial gainful activity during the extended period of eligibility, the SSA will resume
payment of benefits. Id. If an individual’s disability ceases during the extended period of
eligibility due to substantial gainful activity, his or her entitlement to benefits terminates the
first month after the end of the extended period of eligibility in which he or she again performed
substantial gainful activity. Id. § 404.1592a(a)(3)(I).

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determination that Smith did not qualify for the extended period of eligibility
because he was already performing substantial gainful activity, such that his
disability should have been considered ceased in January 2000. Smith was,
however, still entitled for payments for that month and the next two months,
ending March 2000. Therefore, the agency alleged that he was overpaid from
April 2000 to March 2003.
      In October 2007, after a fraud investigation and a request for
reconsideration, the SSA notified Smith that he was not entitled to payments
beginning April 2000 and that his disability had ended in January that same
year because he was engaging in substantial gainful activity. Smith did not
agree with the agency determination and requested a hearing before an
Administrative Law Judge (ALJ). The first hearing was held in March 2009
before ALJ Guy Huard, who later became unavailable, and therefore, the case
was reassigned to ALJ Michael S. Hertzig. ALJ Hertzig held a hearing in
January 2010 and issued a decision the next month finding that Smith had
indeed received an overpayment from April 2000 to March 2003. The ALJ also
denied waiver of the overpayment and found Smith to be at fault for the
overpayment. The SSA Appeals Council denied review, and therefore the ALJ
decision became the SSA’s final decision. See 42 U.S.C. § 405(g).
      Smith timely sought judicial review of the agency’s decision in district
court pursuant to 42 U.S.C. § 405(g). The district court referred the matter to
a magistrate judge, who issued a Report and Recommendation recommending
affirmance of the agency decision. The district court adopted the Report and
Recommendation and upheld the ALJ’s finding.
      We review the agency’s decision only to determine: (1) whether it is
supported by substantial evidence on the record as a whole, and (2) whether the
agency applied the proper legal standard. 42 U.S.C. §§ 405(g), 1383(c)(3); see

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Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). “Substantial evidence
is such relevant evidence as a reasonable mind might accept to support a
conclusion; it is more than a mere scintilla and less than a preponderance.”
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1999) (internal quotation omitted).
“If the [agency’s] findings are supported by substantial evidence, then the
findings are conclusive and the [agency’s] decision must be affirmed.” Martinez
v. Chater, 64 F.3d 172, 173 (5th Cir. 1995). A finding of no substantial evidence
is appropriate only if no credible evidentiary choices or medical findings exist
to support the decision. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988).
We will not “re-weigh the evidence or substitute our judgment” for that of the
ALJ. Rini v. Harris, 615 F.2d 625, 627 (5th Cir. 1980).
       Smith challenges the ALJ’s determination that his work as a pastor
constituted substantial gainful activity. The SSA determines whether an
individual’s work constitutes substantial gainful activity based on whether his
or her monthly countable income averages more than a certain dollar amount.
20 C.F.R. § 404.1575(e)(3) (citing earning guidelines set forth at 20 C.F.R.
§ 404.1574(b)(2)). “Countable income” of the self-employed is considered
substantial gainful activity if the amount averages more than $700 per month
for July 1999 through December 2000, $740 per month for 2001, $780 per
month for 2002, and $800 per month for 2003.3 Earnings may show that one has
performed substantial gainful activity; therefore, in Smith’s case, had his
average monthly earnings equaled or exceeded the above threshold amounts,
this would be strong evidence that he engaged in substantial gainful activity.
We conclude that substantial evidence supports the ALJ’s findings that Smith


       3
          See Program Operation Manual System (POMS) DI 10501.015 Table B, available at
https://secure.ssa.gov/apps10/poms.nsf/lnx/0410501015; see also 20 C.F.R. §§ 404.1572, 404.1574
(definition and discussion of substantial gainful activity).

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earned more than these threshold amounts as a pastor for the Church.
      Although Smith asserted that he was genuinely mistaken as to whether
the money he received from the Church for his work was considered income, he
nevertheless also explained that the checks from the Church were written out
to cash so that his disability payments would not be affected. This statement
was confirmed by the Church’s treasurer who explained that the checks were
written out to cash so as not to affect Smith’s disability payments. The record
shows that Smith first began receiving payments from the Church in May 1995,
and that in July 1999, he started receiving $1,000 checks written out to cash.
He received these checks until September 2001, when he was given a $500
raise, which he elected to give to his wife for her work in the youth ministry.
Hence, beginning September 2001, the household was being paid a total of
$1,500 from the Church. Further, the Church’s financial records show that
Smith was paid a total of $7,500 in the first two quarters of 2002. The ALJ
noted that this evidence was consistent with the other evidence showing that
Smith was paid at least $1000 per month during the period in question.
      The ALJ did not credit Smith’s assertion that he was not aware that
these payments from the Church constituted income. To the contrary, the ALJ
found based on Smith’s own testimony that Smith knew that the payments
might affect his disability benefits. The ALJ found that Smith avoided
reporting his work activity to the SSA. Indeed, Smith reported zero earnings
on his Social Security records, even after he started work as a pastor in 1999.
The ALJ likewise was entitled to discredit Smith’s argument that his expenses,
if properly accounted for, would have reduced his income below the level of
substantial gainful activity. Smith presented no receipts or invoices to
substantiate his argument.
      Smith argues that he was not performing substantial gainful activity as

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                                 No. 13-30044
a pastor because he worked only approximately twenty hours per week.
Substantial gainful activity is defined as “work activity that involves doing
significant physical or mental activities” for pay or profit. 20 C.F.R.
§ 404.1572(a), (b). “Work may be substantial even if it is part-time or the
individual does less or earns less than when working previously.” Britton v.
Sullivan, 908 F.2d 328, 333 (8th Cir. 1990) (citing 20 C.F.R. § 404.1572(a)). The
regulations provide that self-employment will be evaluated “based on the value
of [the claimant’s] services to the business regardless of whether [the claimant]
receive[s] an immediate income for those services.” See 20 C.F.R.
§ 404.1575(a)(2). The regulations specifically provide that an individual’s
income will not be considered “alone because the amount of income [the
individual] actually receive[s] may depend on a number of different factors.” Id.
      The ALJ found that the evidence was conflicting as to the number of
hours Smith worked. Smith’s testimony that he worked only twenty hours per
week was contradicted by statements he made on an SSA work activity report,
in which he indicated that he worked forty hours per week. The ALJ found that
Smith’s estimation of his hours was low because he failed to include
preparation time for activities such as Church services and Bible study. The
ALJ also found that even if Smith’s duties amounted to less than forty hours
per week, his employment would still be considered substantial gainful activity
given the extensive nature of his responsibilities as pastor of the Church,


      Finally, Smith argues that ALJ Hertzig ignored affidavits from witnesses
that were submitted to the first ALJ assigned to the case, ALJ Huard.
However, the record shows that ALJ Hertzig did review the information from
ALJ Huard and even gave Smith an opportunity to submit additional evidence.
Thus, we cannot conclude the ALJ ignored evidence or did not apply the proper

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legal standards. Further, it is not for this Court to try the issues de novo,
re-weigh the evidence, or substitute our own judgment for that of the ALJ.
Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000). Accordingly, Smith has failed
to demonstrate that substantial evidence does not support the ALJ’s conclusion
or that the ALJ wrongly applied the law.
      The judgment of the district court is AFFIRMED.




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