1982 and 1983 Georgia Axle Trailer Sales, Inc. had gross sales of $ 65,748, $ 91,191 and $ 58,694 respectively. The tax returns do not show any substantial deductions for labor or payment of employee wages. Plaintiff's telephone and utility expenses were about $ 3900 in 1981, $ 3400 in 1982 and $ 6600 in 1983.
On February 16, 1984 plaintiff was contacted by telephone by an Administration representative. Plaintiff said that he would get in touch with his accountant and have his records sent to the Administration. The representative's report indicates that the plaintiff felt that since he does not engage in physical activity the fact that he runs a business should not be counted against him. During another phone contact by an Administration representative on February 23, 1984, plaintiff was asked for the names of any sub-contractors. Plaintiff told the representative that his brother and a college student named Bill sometimes did work for him. No other names or addresses of other subcontractors were provided.
Plaintiff was evaluated on June 7, 1984 by Dr. Sidney Tobias and was found to be "totally disabled". An examination in November 1985 by Dr. Edward Dengrove reported that the outlook for plaintiff at that time was "guarded". A medical report dated February 12, 1985, completed by Dr. B. Richmond, lists plaintiff as totally disabled.
A decision of the Secretary concerning disability benefits must be upheld by the court if an examination of the record reveals substantial evidence supporting the Secretary's conclusion. 42 U.S.C. § 405(g). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971) (quoting, Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)); Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981). If there is only a slight preponderance of the evidence on one side or the other, the Secretary's finding should be affirmed. Toborowski v. Finch, 363 F. Supp. 717 (E.D. Pa. 1973). Thus, the court is to look at the record as a whole and then determine whether or not there is substantial evidence to support the Secretary's decision. Taybron v. Harris, 667 F.2d 412, 413 (3d Cir. 1981) (quoting Hess v. Secretary of Health, Education and Welfare, 497 F.2d 837, 841 (3d Cir. 1974)).
The first issue to be reviewed in this case is whether during the period of disability determined to have begun in April 1980 the plaintiff was able to engage in gainful work activity, rendering him not "disabled" under the Act. See 20 C.F.R. § 404.1520(b). The ALJ, in his decision of April 18, 1986, determined that since plaintiff was able to perform gainful activity he was not disabled. See 20 C.F.R. §§ 404.1571-1574.
The burden is on plaintiff to show entitlement to disability insurance benefits. 20 C.F.R. § 404.703-704. Since the record indicates that plaintiff is operating a business on his premises and since the plaintiff has not offered substantial evidence to rebut or explain the evidence against him, this court must find that the plaintiff has been engaging in gainful work activity since the period of disability was first determined in 1980. Plaintiff argues that he engages in no physical activity, but under the regulations, "substantial work activity is work activity that involves doing significant physical or mental activities." 20 C.F.R. § 404.1572(a) (emphasis added). Plaintiff also argues that he has realized no income from his business; however, under the regulations, "work activity is gainful if it is the kind of work that is usually done for pay or profit, whether or not a profit is realized." 20 C.F.R. § 404.1572(b).
If the plaintiff's duties require using his "experience, skills, supervision and responsibilities . . . this tends to show that [plaintiff] has the ability to work at the substantial gainful activity level." 20 C.F.R. § 404.1573(a). 20 C.F.R. § 404.1575 outlines the considerations to apply to individuals who are self-employed. Using these guidelines, this court finds no evidence in the record that the plaintiff is not contributing significant services to the business. Since the Secretary's finding that the plaintiff is not disabled is supported by substantial evidence in the record, this court must affirm that finding.
The next issue to consider is whether the Administration ought to waive the recoupment of the overpaid benefits. The Act requires that excess payments be recovered unless the following requirements are met:
(1) the overpaid individual is without fault in causing the overpayments; and (2) recovery would either (a) defeat the purpose of Title II of the Act, or (b) would be against equity and good conscience.
20 C.F.R. § 404.506.
The Administration should consider all pertinent circumstances including the plaintiff's age, intelligence, education and physical and mental condition in determining if the plaintiff is "without fault". 20 C.F.R. § 404.507. A determination that fault exists on the part of the overpaid individual will be made if the payments resulted from:
(1) An incorrect statement made by the individual which he knew or should have known to be incorrect; or