                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                        F I L E D
                            UNITED STATES COURT OF APPEALS
                                                         June 27, 2006
                                          FIFTH CIRCUIT
                                                                    Charles R. Fulbruge III
                                                                            Clerk
                                        _________________

                                            No. 05-30843

                                        (Summary Calendar)
                                        _________________


FRANK D STEWART,


                                Plaintiff - Appellant,

versus


JO ANNE B BARNHART, COMMISSIONER OF SOCIAL SECURITY,


                                Defendant - Appellee.



                            Appeal from the United States District Court
                               For the Eastern District of Louisiana
                                    USDC No. 2:04-CV-01724



Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

         Frank Stewart, recipient of supplemental social security income, appeals the district court’s

entry of judgment against the Commissioner in the amount of $2,731.20. In his appeal from the




         *
         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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Social Security Administration, Stewart sought a judgment ordering the Commissioner to reissue

several benefit checks that he claimed he had not cashed.             He also sought review of the

Commissioner’s decision to deduct $43 a month from his benefits for Medicare premiums.

        Stewart argues that the district court erred in holding that his claim that the Commissioner

erroneously deducted $43 a month from his benefits to cover his Medicare premiums was not

administratively exhausted. Stewart argues that he made an oral request to the Commissioner that

this amount not be deducted. However, he fails to cite any evidence in the record that this claim was

presented to the Administrative Law Judge (“ALJ”) or the Appeals Council. He therefore has not

met his burden of establishing exhaustion.

        Stewart next contends that the district court erroneously offset the judgment against the

Commissioner by $1,153.80, which is the amount of an alleged overpayment Stewart received.

Stewart argues that the issue of an offset was not pled or raised by the Commissioner in the district

court. Nor does either party or the district court direct our attention to a valid administrative finding

of an overpayment. The district court relied on the ALJ’s finding that an overpayment had been

made, but the Appeals Council vacated this finding in part because a motion for reconsideration was

pending before the Commissioner on the issue. Accordingly, we remand this case to the district court

to ascertain whether there was or is now a proper administrative finding of an overpayment and if so,

to resolve the issue of an overpayment.

        The motions to strike the appellee’s brief and hear the case on the appellant’s brief and record

excerpts alone are DENIED. The judgment of the district court is AFFIRMED in part, REVERSED

in part, and the case REMANDED to the district court for further proceedings.




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