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Slusser v. Astrue: SOCIAL SECURITY - benefits lost when paranoid schizophrenic violated supervised release conditions, fled state

1The Honorable Raymond L. Erickson, Chief United States Magistrate Judge
for the District of Minnesota.
United States Court of Appeals
No. 07-3797
Virginia Slusser, *
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Michael J. Astrue, Commissioner *
of Social Security, *
Appellee. *
Submitted: October 17, 2008
Filed: March 9, 2009
Before LOKEN, Chief Judge, BYE and SMITH, Circuit Judges.
SMITH, Circuit Judge.
Virginia Slusser appeals the district court's1 judgment denying her summary
judgment motion and affirming the administrative law judge's (ALJ) finding that
Slusser was no longer eligible to receive her supplemental security income (SSI)
payments. She argues that substantial evidence does not exist in the record to support
the ALJ's finding that she is no longer eligible to receive SSI benefits under 20 C.F.R.
416.1339. Moreover, she alleges unlawful discrimination under 504 of the
Rehabilitation Act of 1973. Because we hold that substantial evidence on the record
as a whole supports the decision of the ALJ, we affirm.
I. Background
Slusser, a middle-aged, mentally disabled paranoid schizophrenic, received SSI
benefits based on an application for benefits filed on January 11, 1996. However, on
July 12, 2001, Slusser's SSI benefits were suspended retroactively to July 1999
pursuant to 202 of Public Law 104-193 of the Social Security Act (SSA) because
she had an outstanding arrest warrant and was considered a fleeing felon. That section
of the SSA, known as the Personal Responsibility and Work Opportunity
Reconciliation Act, authorizes the suspension of benefits for anyone who is fleeing
to avoid prosecution or who is violating a condition of probation. 42 U.S.C.
1382(e)(4)(A); 20 C.F.R. 416.1339(a). Authorities in Florida had issued the warrant
based on Slusser's alleged violation of the terms of her community control entered into
after her no contest plea to robbery and resisting arrest charges in Pinellas County,
Florida, in 1993.
The warrant arose as a result of events that occurred in March 1993. Slusser was
arrested in St. Petersburg, Florida, for attempting to steal the purse of an elderly
woman on a city bus. She told the arresting officers that she attempted to take the
victim's purse because she believed that it contained muriatic acid. Slusser physically
resisted arrest and attempted to bite the arresting officer. At a preliminary hearing, she
was found incompetent to stand trial and was committed to the Florida State Hospital.
Three months later, she entered a plea of no contest to the attempted robbery and
resisting arrest charges. The trial court sentenced Slusser to one year of community
control followed by one year of probation. The court's order provided that "[w]hile on
community control, you will remain confined to your approved residence except for
one half hour before and after your approved employment, public service work or any
other special activities approved by your community control officer."
In October 1993, Slusser violated the terms of her community control, and her
probation officer advised her that an additional violation would result in a request for
a warrant for her arrest. Slusser, nonetheless, departed the jurisdiction, arriving in
Minnesota in February 1994. The Pinellas County Circuit Court then issued a warrant
for Slusser's arrest based upon her probation officer's affidavit alleging that Slusser
violated the terms of a condition of her community control.
Based on this warrant, the ALJ conducted a hearing suspending Slusser's
benefits "by reason of her being a 'fugitive felon,' as that term is defined within the
meaning of the Social Security Act." The ALJ found that "Felony Arrest Warrant No.
9304623 from Pinellas County, South Largo Florida, has been verified as still active
against the claimant. Therefore . . . the claimant is ineligible to receive supplemental
security income benefits, and consequently, her benefits were properly terminated
effective July 1, 1999." Upon review, the district court affirmed the ALJ's decision,
granting the Commissioner of Social Security's ("Commissioner") motion for
summary judgment and dismissing Slusser's complaint with prejudice.
II. Discussion
Slusser appeals, arguing that the ALJ incorrectly analyzed the decision to
suspend benefits under 20 C.F.R. 416.1339(a)(3) rather than 20 C.F.R.
416.1339(a)(2), which requires a finding that she was fleeing to avoid custody or
confinement. She argues that 416.1339(a)(2) requires an element of intent and that
she lacked the mental capacity to form the intent to flee. She also argues that the
Commissioner's denial of her SSI benefits was a violation of the Rehabilitation Act
of 1973. See 29 U.S.C. 794. We affirm.
A. Standard of Review
Our review of the Commissioner's denial of benefits is limited to whether the
decision is "supported by substantial evidence in the record as a whole." Nevland v.
Apfel, 204 F.3d 853, 857 (8th Cir. 2000) (internal quotations and citations omitted).
Substantial evidence exists if "a reasonable mind would find such evidence adequate."
Id. Substantial evidence is "less than a preponderance, but enough that a reasonable
mind would find it adequate to support the ALJ's decision." Gonzales v. Barnhart, 465
F.3d 890, 894 (8th Cir. 2006). Substantial evidence means more than a mere scintilla.
Neal v. Barnhart, 405 F.3d 685, 688 (8th Cir. 2005). We may not reverse merely
because substantial evidence may also support an opposite conclusion. Nevland, 204
F.3d at 857.
B. Substantial Evidence
Slusser first argues that the ALJ erroneously reviewed her case under
416.1339(a)(3) rather than 416.1339(a)(2). Section 416.1339(a) states:
(a) Basis for suspension. An individual is ineligible for SSI benefits for
any month during which he or she is
(1) Fleeing to avoid prosecution for a crime, or an attempt to commit a
crime, which is a felony under the laws of the place from which the
individual flees (or which, in the case of the State of New Jersey, is a
high misdemeanor under the laws of that State); or
(2) Fleeing to avoid custody or confinement after conviction for a crime,
or an attempt to commit a crime, which is a felony under the laws of the
place from which the individual flees (or which, in the case of the State
of New Jersey, is a high misdemeanor under the laws of that State); or
(3) Violating a condition of probation or parole imposed under Federal
or State law.
We note that the ALJ's opinion does not reflect whether it specifically applied
416.1339(a)(2) or 416.1339(a)(3). The opinion relies largely on the uncontested
fact that a valid arrest warrant had been issued by a court of competent jurisdiction
based upon Slusser's violation of conditions of her community control. The ALJ
reviewed the facts, including Slusser's statements indicating she purposely left Florida
knowing her departure was contrary to her duty to obey the conditions of her
community control. Although the better course would have been for the ALJ to make
specific findings with respect to 416.1339(a)(2) and (3), their absence does not
eliminate substantial evidence in support of the conclusion of ineligibility under the
When Slusser left Florida in February 1994 and moved to Minnesota, a warrant
was issued for her arrest. A Florida circuit judge issued the warrant because Slusser
had violated a term of her community control requiring her to remain confined to her
approved residence. Slusser had been sentenced to one year of community control
followed by one year of probation after her guilty plea. Whether she is considered in
violation of community control or in violation of probation, Slusser has not shown
that her noncompliance, by leaving and remaining away, was not "knowing" and
"volitional" at the time. During the ALJ hearing, Slusser acknowledged that she knew
that leaving Florida was in violation of the terms of her community control and that
she had no intention to return to Florida. While we might conclude differently if we
were in the ALJ's position, we are not and, therefore, hold that substantial evidence
supports the ALJ's conclusion.
C. Rehabilitation Act
Slusser also argues that because the Commissioner disqualified her on the basis
of her disability, the Commissioner violated the Rehabilitation Act. We disagree and
therefore affirm. The Rehabilitation Act of 1973 provides, in relevant part, as follows:
No otherwise qualified individual with a disability in the United
States . . . shall, solely by reason of his or her disability, be excluded
from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial
assistance . . . .
29 U.S.C. 794(a). We have defined "an otherwise qualified person" as "one who is
able to meet all of a program's requirements in spite of his handicap." Falcone v. Univ.
of Minn., 388 F.3d 656, 659 (8th Cir. 2004). Slusser alleges that her mental illness
prevents her from complying with the terms of her sentence. As a result, Slusser
argues that because she has been denied benefits on this basis, the Rehabilitation Act
has been violated. But Slusser fails to show that her benefits were suspended based
solely on her disability. See Amir v. St. Louis Univ., 184 F.3d 1017, 1029 n.5 (8th Cir.
1999) (stating that the Rehabilitation Act "imposes a requirement that a person's
disability serve as the sole impetus for a defendant's adverse action against the
plaintiff") (emphasis in original). Moreover, Slusser cannot show that she is
"otherwise qualified" to receive benefits. The record shows that Slusser's SSI was
suspended because she violated the terms of her community control, and the ALJ also
found that she had not shown that the violation occurred because of her disability. As
stated by the district court, Slusser was not able to produce evidence beyond
conjecture that she was incapacitated at the time she departed Florida and incapable
of conforming her behavior to the conditions of her community control. See Part II.B.,
supra. Therefore, because she is not "otherwise qualified" to receive benefits, we
affirm the decision of the ALJ.
III. Conclusion
Accordingly, we affirm the district court's judgment.


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