Following a Favorable Decision

• Author: Thomas E. Bush
• Pages: 158-250

4-158

Chapter 4

Following a Favorable

Decision

§400 Check the Decision and Contact Your Client

§410 Peculiar Problems in Concurrent Cases

§420 SSI Issues

§430 Calculating the Amount of Back Benefits

§440 Payment Issues

§450 Fleeing Felons

§460 Post-Entitlement Issues

§470 Overpayments

§480 Continuing Disability Review and Termination of Eligibility for Disability Benefits

§400 Check the Decision and Contact Your Client

§401 Favorable Decision Checklist

§402 Form: Favorable Decision Summary/Worksheet

§403 Sample: Letter to Title II Claimant After Receipt of Favorable Decision

§404 Sample: Letter to Concurrent Claimant After Receipt of Favorable Decision

§404.1 Sample: Letter to Concurrent Claimant After Receipt of Favorable Decision — SSI Stops

§404.2 Sample: Letter to SSI-Only Claimant After Receipt of Favorable Decision

§405 Sample: Letter to Social Security Office Requesting Copies of SSI Notices

§406 Sample: Letter to ALJ re: Failure to Issue Order Approving or Disapproving Fee Agreement

§407 Sample: Notice of Intent to File Fee Petition

§408 The Bad Address Problem

§409 Amending the Decision

§410 Peculiar Problems in Concurrent Cases

§411 The Odd Way That SSA Processes SSI When There Are Concurrent Applications

§412 Check for SSI Eligibility During the Five-Month Waiting Period During Which No Social Security Disability

Benefits Are Payable

§413 Determining SSI Eligibility After the Five-Month Waiting Period

§414 Consider the State Supplement

§415 The Impact of Welfare Recoupment

§416 The Strange Case of the SSI Eligible Couple

§417 What Is the Lawyer’s Duty to Advise Withdrawing an SSI Application?

§418 Form: Request for Withdrawal of Application (SSA-521)

§419 SSI Benefits Should Be Recalculated After Payment of Attorney Fees

§420 SSI Issues

§421 SSI Income: Anything in Cash or In-Kind

§422 In-Kind Support and Maintenance

§423 The One-Third Reduction Rule: Living in Another Person’s Household

§424 The Presumed Value Rule

§425 Informal Cash and In-Kind Loans

4-159 FOLLOWING A FAVORABLE DECISION

§426 POMS SI 01120.220D — Policy — Requirements for a Bona Fide Informal Loan

§427 POMS SI 00835.482A and B — Loans of In-Kind Support and Maintenance

§428 Retrospective Budgeting

§429 Installment Payment of SSI Back Benefits

§430 Calculating the Amount of Back Benefits

§431 Form: Past-Due Benefits or Attorney Fees Worksheet

§432 Date of Entitlement

§433 Claimant’s Benefit Amount

§434 Auxiliary Benefits

§435 Closed Period

§436 Disabled Widow(er)’s Benefits

§437 Workers’ Compensation and Public Disability Benefit Offset

§438 Only Certain Public Disability Benefits Are Included in the Offset Calculation

§439 Suspension of Payment When the Claimant Goes to Jail

§440 Payment Issues

§441 When It Takes Too Long for Benefits to Be Paid

§442 Dealing With SSA by Telephone

§443 Underpayments

§444 Chart: OCO Manager and Deputy Telephone and Fax Numbers

§445 Chart: Program Service Center Addresses and SSN Jurisdiction

§446 Chart: Program Service Center Phone Numbers

§450 Fleeing Felons

§460 Post-Entitlement Issues

§461 Memorandum to Claimant Re: Working Part-Time After You’ve Been Found Disabled by SSA

§470 Overpayments

§471 A Legal Challenge to the Overpayment — Appeal

§472 Request Waiver of the Overpayment

§473 Fault

§474 Defeat the Purposes of Title II/Title XVI

§475 Against Equity and Good Conscience

§476 Overpayment Recovery Questionnaire

§477 Form: Request for Waiver of Overpayment Recovery or Change in Repayment Rate (SSA-632)

§478 Adjustment or Recovery of Overpayment

§479 Compromise Payment

§480 Continuing Disability Review and Termination of Eligibility for Disability Benefits

§481 Benefit Continuation

§482 Face-to-Face Reconsideration Hearings

§483 The Continuing Disability Review Evaluation Process — Overview

§484 Chart: CDR Evaluation Process Summary Chart From POMS DI 28005.010

§485 Points of Comparison and Cessation Month

§485.1 Chart: Cessation Month POMS DI 28005.205

§486 Is There Medical Improvement?

§487 Is Medical Improvement Related to Ability to Work?

§488 Exceptions to Medical Improvement

§489 When Medical Improvement Is Found Related to Ability to Work

§489.1 Chart: Is DAA Material? From POMS DI 28005.040

§490 Cessation of Benefits Because of Performance of Substantial Gainful Activity

§491 Recipient Eligible for Trial Work Period?

§492 Will SSA Conduct Medical Review During Trial Work Period?

§493 At Conclusion of Trial Work Period

§494 Extended Period of Eligibility/Reentitlement Period

§495 Expedited Reinstatement

§496 Working SSI Recipients

§400 SOCIAL SECURITY DISABILITY PRACTICE 4-160

§400 Check the Decision and

Contact Your Client

When you receive any favorable decision, check it

against your file to make sure it really is “fully favor-

able.” Don’t rely on the cover sheet of the decision.

Sometimes a cover sheet will identify a partially favor-

able decision as fully favorable and vice versa. If the

decision is less than fully favorable, that is, it fails to give

the claim ant everything for which the claimant asked and

to which the claimant is entitled, you will need to evaluate

the appeal possibilities. See §508, infra, on appealing the

partially favorable decision. But before you launch an

appeal, make sure that the problem you perceive with the

decision is not the product of a simple error by someone in

the hearing office. It is not uncommon for an error to appear

in a decision which, if caught early, can be corrected before

the error affects receipt of benefits without a formal appeal.

If you wait, sometimes a simple error can turn into a mon-

umental delay. For this reason, it is imperative that all

decisions be reviewed carefully when you receive them.

A typographical error in the final paragraph of the

decision, known as the “decisional paragraph,” concern-

ing the onset date or sometimes even the date of applica-

tion can result in your client getting an incorrect amount

of back benefits. Such errors can also delay payment of

benefits. The error may be caught just as a payment cen-

ter is getting ready to pay benefits, causing the payment

center to request an amended decision from the ALJ

before processing payment. Or worse yet, the payment

center may refer a case to the Appeals Council “because

it contains a clerical error affecting the outcome of the

claim.” 20 C.F.R. § 404.969(b)(2).

If, for example, the body of the decision consistently

discusses one onset date but the decisional paragraph

states another date, the decisional paragraph contains

a typographical error that can be corrected simply by

bringing it to the attention of the ALJ. It is not reason-

able to assume that the error will be caught when back

benefits are calculated and an order is issued to pay ben-

efits, called “effectuating” the decision by SSA. And if

the error is detected at the payment center, payment will

be held up while the ALJ is contacted for clarification.

Something as seemingly minor as an incorrect

claimant’s address on the face of the decision has been

known to delay receipt of back benefits for months in

Title II cases. If the check for back benefits is sent to

a wrong address, it may be returned to the Treasury. It

may be a long time before it is reissued.

Section 401, infra, is a checklist for making sure

there are no errors affecting benefits and to trigger

further action as required. Section 402 contains a work-

sheet for identifying payment and attorney fee issues

and summarizing actions taken. In §431, infra, is a

worksheet for calculating back benefits to double-check

SSA’s calculations.

§401 Favorable Decision Checklist

1. Check the claimant’s address. See §408, infra, if

the address is wrong.

2. Check the date of application recited in the deci-

sional paragraph.

a. Does the file contain an application that corre-

sponds to that date?

b. Was there an earlier protective filing date that

should have been used? See §205.1 of this book on

protective filing date.

i. Title II cases: protective filing date matters

only if a claimant became disabled more than 17 months

before the date of application.

ii. SSI cases: protective filing date frequently

matters. (It doesn’t matter for applications filed after

August 22, 1996 when the protective filing date is in

the same month as the actual application date or when a

claimant becomes disabled after the actual filing date.)

c. Did the ALJ overlook a request to reopen an

earlier application? Note that a request to reopen can be

implied. See §376, supra.

3. Check date of onset of disability in the decisional

paragraph.

a. Is it the same as the onset date alleged in the

claimant’s application?

b. Did the ALJ overlook a request to amend the

onset date to a date different from that alleged in the

application?

c. If the onset date in the decisional paragraph is

different from that alleged, does it represent a deliberate

finding or a typographical error? Does it coincide with

the discussion in the body of the decision?

4. If the decision is not fully favorable, calendar it

for 45 days to evaluate appeal to the Appeals Council.

See §508, infra.

5. If the decision contains any errors that may affect

payment, immediately request that the ALJ issue an

amended decision. See §409, infra.

6. Calculate the date of entitlement to benefits. See

§432, infra.

7. Check your client’s earnings record to find out the

PIA, which is the benefit amount. See §205.4, supra,

and §433 of this book.

8. Check your file to see if your client has children

who will be entitled to auxiliary benefits. If so, advise

your client to see that applications are submitted. See

§435, infra.

9. In a case involving applications for both Social

Security disability and SSI benefits, evaluate whether it