ALJ Approves Waiver

Empire Justice Center July 31, 2019

Jennifer Karr, an attorney with the Rochester office of the Empire Justice Center, received a favorable ALJ decision in an overpayment waiver case. The claimant had been overpaid $20,000 because the Social Security administration (SSA) failed to offset Title II disability and survivor benefits before paying the SSI retroactive benefits. The claimant filed for waiver.


Although SSA agreed the claimant was not at fault in causing the overpayment, it refused to waive the overpayment. SSA found the claimant had met the first part of the waiver standard of 20 C.F.R. § 404.506 in that she was without fault. But SSA refused to find she met the second prong: that recovery would defeat the purpose of the Social Security Act or be against equity or good conscience. The claimant submitted all of the documentation SSA requested at the time of the overpayment, including bank statements and expenses. SSA nonetheless found the claimant could afford to repay the overpayment and began collecting $250 per month to recover the overpayment.


At the hearing, the claimant testified she could not meet her monthly expenses after SSA deducted $250 per month for the overpayment. The ALJ agreed, and determined recovery of the overpayment would defeat the purpose of Title II of the Social Security Act because the claimant needs substantially all of her current income to meet “ordinary and necessary living expenses.” The ALJ concluded the claimant is not able to repay the overpayment and granted waiver. Since SSA had deducted $250 per month for several years while the waiver request was pending, the claimant will be receiving a refund of over $11,000. See, e.g.,POMS GN §§ 02250.310 & 02250.370,   requiring SSA to refund benefits withheld after waiver is approved.


Thanks to Jenna’s help, her client no longer has to suffer as a result of SSA’s own error.