     Case: 15-30285      Document: 00513368452         Page: 1    Date Filed: 02/03/2016




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


                                    No. 15-30285
                                                                                  FILED
                                                                            February 3, 2016
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
THEODORE JOHNSON,

                                                 Plaintiff–Appellant,
v.

SOCIAL SECURITY ADMINISTRATION,

                                                 Defendant–Appellee.


                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CV-6544


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Pro se appellant Theodore Johnson appeals the district court’s final order
affirming the Social Security Commissioner’s determination that Johnson
received overpayments of disability benefits. The district court also reversed
and remanded the Commissioner’s determination of the amount of overpaid
benefits.      Because there was insufficient evidence to support the
Commissioner’s ruling that Johnson received overpayments of disability




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                No. 15-30285

benefits, we REVERSE the district court’s order affirming that ruling; and
because there is no new evidence of the alleged overpayments, see 42 U.S.C.
§ 405(g), there is no need to remand to the Commissioner for further findings.
      In 2010, Johnson applied to the Social Security Administration (“SSA”)
for retirement insurance benefits. Johnson was thereafter advised by the SSA
that he had been overpaid disability insurance benefits from 1976 through
1978 and that, though he was entitled to monthly retirement benefits
beginning in May 2010, all such benefits would be withheld until the
overpayment in the amount of $4,535.90 was satisfied. Johnson requested a
hearing before an ALJ. At the hearing in December 2011, Johnson testified
that he had not received disability insurance benefits in 1976, 1977, or 1978.
Johnson testified that he had received disability benefits checks in 1970, but
that those benefits were discontinued in 1974 or 1975 after he visited an SSA
Field Office and advised them that he had returned to work. Johnson also
testified that he did not remember receiving a notice of overpayment in the
1970s. Johnson demanded to see proof of the overpayments. The ALJ ruled
that Johnson had received $4,535.90 in overpayments and that Johnson was
liable to the SSA for that full amount. Johnson requested review of the ALJ’s
decision, but the Appeals Council denied the request in September 2013 such
that the ALJ’s determination became the final administrative decision of
Johnson’s claim.
      In December 2013, Johnson filed the present action in the district court,
seeking review of the ALJ’s decision. Upon review of the parties’ cross-motions
for summary judgment, the magistrate judge issued his Report and
Recommendation, which recommended that the matter “be remanded to the
Commissioner for a determination, supported by substantial evidence, of the
amount of overpayments that were made to [Johnson].” The district court



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                                       No. 15-30285

adopted the Report and Recommendation and ordered that Johnson’s case be
“remanded to the Commissioner for further proceedings consistent with the
Court’s opinion.”      Johnson then filed a motion for relief from that order,
requesting that the district court specify whether it was affirming, modifying,
or reversing the Commissioner’s decision.              The district court granted the
motion and clarified that it was affirming the Commissioner’s determination
that Johnson received overpayments of disability benefits but was reversing
the Commissioner’s determination as to the amount of benefits overpaid and
remanding to allow the Commissioner to make a determination as to the
amount of benefits overpaid, this time supported by substantial evidence.
Johnson timely appealed.
       Johnson argues, among other things, that the ALJ’s determination that
he received overpayments of disability benefits was not supported by
substantial evidence because the SSA failed to provide any proof that he
received such overpayments. 1 “We review de novo the district court’s grant of
summary judgment, applying the same standard that the district court
applied.” Morgan v. Colvin, 803 F.3d 773, 776 (5th Cir. 2015). Our review of
the Commissioner’s decision is limited, as is the district court’s review, under
42 U.S.C. § 405(g) to two inquiries: “(1) whether substantial evidence of record
supports the decision; and (2) whether the decision comports with proper legal
standards.” Id.
       We agree with the district court that substantial evidence did not
support the Commissioner’s determination of the specific amount ($4,535.90)
of overpayments. However, we also do not find substantial evidence in the
record to justify the district court’s affirmance of the Commissioner’s decision


       1Johnson’s appellate brief states that he has “not received any checks [to] which I was
not entitled” and that “[t]he Administration has offered no evidence to establish that I
received any checks that I was ineligible for.”


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                                  No. 15-30285

that Johnson did in fact receive overpayments of disability benefits, and the
Report and Recommendation does not provide a basis for that determination.
Indeed, the Report and Recommendation expressly states that “[v]iewed in its
totality, the record provides some support, albeit minimal, of the fact of
overpayments to [Johnson].”      “Some” “minimal” evidence is less than the
requisite “substantial” evidence. See Morgan, 803 F.3d 773, 776. The adopted
Report & Recommendation states that the evidence supplied by the SSA
      do[es] not demonstrate [Johnson’s] actual receipt of DIB in . . . any
      of the . . . months for which the Commissioner sought recovery of
      overpayment. Absent from the record is anything in the nature of
      bank account information showing [Johnson] as payee and
      reflecting the direct deposit of payments to him or records
      evidencing the actual issuance of checks for all of the twenty-one
      months that overpayments were allegedly made, much less
      evidence of [Johnson] actually having negotiated the checks.

      Where there is insufficient evidence to support the Commissioner’s
ruling, we may decline to remand the matter back to the Commissioner for
further findings. 42 U.S.C. § 405(g) (“The court shall have power to enter, upon
the pleadings and transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.”). Section 405(g) allows a federal court
to “order additional evidence to be taken before the Commissioner . . . only
upon a showing that there is new evidence which is material and that there is
good cause for the failure to incorporate such evidence into the record in a prior
proceeding.” 42 U.S.C. § 405(g) (emphasis added). The SSA has made no such
showing. See Jones v. Astrue, 228 F. App’x 403, 406–07 (5th Cir. 2007) (holding
that a remand pursuant to § 405(g) is not appropriate when no new evidence
was presented to the district court); see also Hunter v. Astrue, 283 F. App’x 261,
262 (5th Cir. 2008) (stating that “new” evidence under § 405(g) is evidence that



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                              No. 15-30285

was “not in existence at the time of the administrative and district court
proceedings”).
      Because substantial evidence does not support the Commissioner’s
determination that Johnson received the alleged overpayments, and because
the SSA does not provide any new evidence of the alleged overpayments, we
REVERSE the district court’s affirmance and hold that no remand to the
Commissioner is needed.




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