IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-10088 Summary Calendar

JAMES W. CRESS,

Plaintiff-Appellant,

versus

JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

__________________________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 7:01-CV-131-BE __________________________________________ September 30, 2002

Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM:*

James W. Cress appeals the district court’s judgment upholding the Commissioner of Social

Security’s (“the Commissioner”) decision to deny his request for a waiver of the recovery of disability

benefits that were overpaid him. The Social Security Act (“the Act”) requires the Commissioner to

make adjustment or recovery of Social Security disability benefits when the recipient receives more

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. than the correct amount of his benefit payment.

(a)(1); 20 C.F.R. 404.501. The

Commissioner may do this by either reducing future payments or obtaining a refund from the

beneficiary.

(a). Ho wever, no adjustment or recovery may be made against a

beneficiary who is “without fault.”

(b). An individual is not “without fault” under

this provision if he accepts payments which he knew or had reason to know were incorrect.

. The Administrative Law Judge (“ALJ”) determined that Cress and his dependents

were not entitled to a waiver of overpayments because they were not “without fault” as they had

accepted payments which they knew or should have known were incorrect.

This court’s review of the ALJ’s decision, which became the final decision of the

Commissioner when Cress’ request for appeal was denied, is limited under

(g) to

determining whether it is supported by substantial evidence and whether there were any errors of law

made in the evaluation of the evidence. See Austin v. Shalala,

(5th Cir. 1993).

“Substantial evidence is evidence that a reasonable mind would accept as adequate to support the

decision.”

Because the ALJ made no findings regarding Cress’ argument that he has already

repaid the overpayments, this court will not consider the issue. See

Even if the court were to

consider the argument, there is no evidence in the record to support it.

If his brief is liberally construed, Cress challenges the determination that the overpayments

should not be waived because he was not without fault in the overpayment. Substantial evidence

supports the ALJ’s decision that Cress was not without fault in accepting overpayments and thus not

entitled to a waiver. Cress was repeatedly advised that his disability benefits must be offset by any

workers’ compensation he received, and his benefits were in fact offset by his workers’ compensation

for a period of time. Although Cress notified the Social Security Administration (“SSA”) that he

2 received a lump-sum workers’ compensation settlement, he continued to accept overpayments after

he received the settlement, which payments he should have known were incorrect. See Bray v.

Bowen,

(5th Cir. 1988).

Because the ALJ’s determination that Cress was not without fault in accepting the

overpayments is supported by substantial evidence, the district court’s judgment is AFFIRMED.

3