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
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No. 05-30843
(Summary Calendar)
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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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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