Do you want to know how much you would receive in Social Security benefits if you were disabled, retired, or if your spouse died?  

Social Security has online calculators, as well as calculators you can download (Mac version too), to help you estimate what your Social Security benefits will be. 

If you have problems using these calculators, Social Security also estimates your retirement, disability, and family maximum benefits in the ”Social Security Statement” it mails to you every year before your birthday. Tip: the benefit estimates usually appears in the inner, left page.  

Have you tried Social Security’s benefit calculators?  Were they easy to use, or did you have problems?  Tell us in the comments!

If Social Security alleges that you owe them money to repay an overpayment, you have two choices to fight it:  

1. You can either file a Waiver of Overpayment, or 
2. You can file a Request for Reconsideration.  

Social Security may direct you towards filing the waiver, but there are some things you should know before making a decision.

What happens if I request a waiver?

Filing for a waiver is basically saying, “I owe the money, but I cannot pay it back.”  

The waiver form asks you to describe your financial life in excruciating detail.  If you pay for a cell phone, cable, internet or for anything more than the most basic necessities of life, the chances of Social Security granting that waiver may be fairly small.  

Also a waiver request can be filed at any time.  This is an important distinction between the waiver and the Reconsideration request.  You can even pursue the Reconsideration process and, if denied, then request a waiver. 

What happens if I request a reconsideration?

Unlike a Waiver request, the Reconsideration request says, “I do not owe you this money!”  It contests the underlying overpayment.

Filing this also puts you into the administrative appeal process.  The reconsideration step is the first part. Social Security will probably deny the reconsideration. However this is a necessary step to get to the next level, a hearing before an Administrative Law Judge.  In my opinion, if anyone is likely to award you some relief from having to repay the overpayment, it is the judge at a hearing.

Keep in mind that the reconsideration process may take between four and eight months.  The hearing process may take another six to eighteen months just to get in front of a judge and another one to three months for a decision to be issued.  In extreme circumstances, this entire process may take 30 months. However, in Colorado, I would usually estimate about a year and half to two years.  

This is not necessarily a bad thing.  

While the case is under appeal, you can request a forbearance of the repayment since you are contesting the underlying overpayment. A forbearance is simply a request that Social Security stop trying to collect the overpayment while you are appealing the overpayment.  This is simple fairness: you should not have to repay if you contest owing the overpayment.

The critical thing you need to know is that you usually only have 65 days to file the reconsideration after the date on the overpayment notice:  5 days to receive it and 60 days to file the Request for Reconsideration.  As always, check the time limits and form requirements in the overpayment notice as these things are subject to change.  

So, while you can file the reconsideration at any time (and SSA my push you in that direction), if you want to fight the overpayment, you must do so quickly or potentially lose that right.

Just like for adults, Social Security has a fact sheet answering the following common questions about Supplemental Security Income (SSI) benefits for disabled children:

• How does Social Security decide if a child is disabled?
• How can I get ready for the disability interview?
• How does Social Security decide if a child can get SSI?
• How will I know what Social Security has decided?
• Will my personal information be kept safe?
• What if I am more comfortable speaking in a language other than English?

The fact sheet also has information about:

• Medicaid
• State Children’s Health Insurance Program (SCHIP)
• Other Health Care Services
• Work Opportunities for Young People Who Are Getting SSI

You can get the factsheet as a pdf here.

Good news if Social Security has told you that you were overpaid, and you need to repay, Social Security benefits! Social Security has increased the “administrative waiver” amount to $1000. 

Administrative waivers of overpayments apply in cases where the cost of recovering the overpayment is greater than the amount of the overpayment itself.

If Social Security claims you are overpaid is $1000 or less, you may be able to have the amount waived because it would cost Social Security more than $1000 to recover the amount.

However, to qualify for an administrative waiver, you also need to show that you were not “at fault” for the overpayment.  

The new amount applies to all cases were a waiver request is pending — even if the waiver request was filed before September 27, 2008. 

This is the first change to the administrative waiver amount since 1993.  Before the new waiver amount became effective on September 27, 2008, the administrative waiver amount was $500. ,

I previously wrote about how Social Security disability benefits stop during incarceration.

However, your Social Security disability benefits can also stop if you labeled a “Fugitive Felon.”

Fugitive felons is anyone who is

• Fleeing to avoid prosecution for a crime which is a felony; or
• Fleeing to avoid custody or confinement after conviction for a crime which is a felony; or
• Individuals receiving Title XVI payments or Title II benefits who are violating a condition of probation or parole imposed under Federal or State law.

Read more at Social Security.

I saw this question in the comments on Jonathan Ginsberg’s site, Social Security Disability Blog:

I would like to know if a convicted felon, who is not incarcerated, can receive Title 16 SSI disability?

This is a great wrinkle on our current discussion on the effect of incarceration on Social Security disability benefits, including SSI.  I encourage anyone interested in this topic to bookmark this link and check back as I will be adding articles to the subject in the days and weeks to come.  

As a Social Security lawyer in Colorado Springs, I have worked with a number of individuals with felonies and helped them get their Social Security benefits including Title 16 SSI benefits.

I am not aware of any circumstance where the fact of a prior felony prevents someone from receiving Social Security disability benefits as a result of the charge being a felony rather than a misdemeanor.

There may be some set of circumstances which would change this, but I cannot think of one.  So, “yes,” you can get SSI benefits even if you have been convicted of a felony.

Jonathan Ginsberg of the Social Security Disability Blog writes about what happens to your Social Security benefits if you are jail/prison.

I recently received an email question from a blog reader about the eligibility of a convicted felon for Social Security disability benefits.  There is a simple answer here - you may not collect disability benefits during the time you are incarcerated.  Social Security ruling 83-28 addresses this situation directly.

There are a number of related issues, which I will be writing about in the days and weeks ahead.  But, initially, I wanted to lay the groundwork by noting that you cannot receive Social Security disability benefits while you are incarcerated.

May an Incarcerated Felon Receive Social Security Disability Benefits?.

Social Security benefits will be going up in 2009.

Monthly Social Security and Supplemental Security Income benefits for more than 55 million Americans will increase 5.8 percent in 2009, the Social Security Administration announced today.  The 5.8 percent increase is the largest since 1982.

Social Security Announces Benefit Increase for 2009.

I was recently asked if you will still receive your Supplemental Security Income (SSI) benefits if you move to a different state.  I understand the fear of moving to a different state when you rely on SSI benefits to make it month to month.

Fortunately, the general answer is yes.

Social Security is a national program.  Whether you are receiving Disability Insurance Benefits (DIB) or Supplemental Security Income (SSI) benefits, your benefits continue even if you move to a different state.

However, the following states provide additional benefits and supplement SSI benefits:

• California
• The District Of Columbia
• Hawaii
• Massachusetts
• Nevada
• New Jersey
• New York
• Pennsylvania
• Rhode Island
• Vermont

So, your benefits may change depending on what state you live in.

Social Security has a more information about how each of these states supplement SSI benefits.

Here is one questions I hear a lot:

I’m on SSI, do I have to tell Social Security about an inheritance/settlement I am getting?

The answer is simple:

YES!

There is no point beating around the bush with this one.  If you are on SSI and “come into money” whether it is a gift, inheritance or settlement (or through whatever means), you need to notify Social Security.  

Supplemental Security Income (SSI) is a “needs-based” program.  You only get it if you do not have money coming in from other sources.  So, if you are suddenly get some money, your benefits may be reduced or even cut off.  

Even worse for some people is the potential loss of Medicaid.  You have to be receiving at least $1.00 of SSI benefits to qualify for Medicaid benefits under Social Security.  So if you lose your SSI, you may also loose your Medicaid (unless you qualify under another program).

Well, I don’t want my benefits cut off!  And I can’t afford to have my Medicaid cut off!!!

I understand, and I sympathize.  However, there are worse things that can happen than having your benefits suspended or terminated.  If you fail to report this money to Social Security, you may be facing the following:

• Overpayment.  If it would be terrible to have your benefits stopped, imagine how bad it may be to have to pay back money that Social Security says you were not entitled to.  See my articles about how difficult it is to fight an overpayment claim, and how hard it is to get an attorney to help.  In my experience, it is easier to find an attorney to help you get your benefits back after SSA cuts them off rather than trying to find an attorney to help you fight an overpayment. 
• Prosecution.  While rare, if Social Security thinks that you intentionally hid assets to maintain SSI eligibility, that’s fraud.  Social Security may turn over your case to the Attorney General’s office for prosecution.  

Document communication with Social Security

Ok, so you have decided to the right thing and let Social Security know about the gift/inheritance/settlement/pot of gold.  Great!  Now ask yourself.  If Social Security comes back in two months or two years and you have to prove that you notified SSA about the money, do you have any proof?

TIP:  Always document communication with Social Security.

It does not matter if you spoke to someone over the telephone or in person at the Social Security office with a hundred witnesses.  If Social Security looses all record of your discussion, the ball is in your court to prove you provided notice.  Social Security has a lot of great, hard working people doing their very best under a heavy work-load.  

Protect yourself.   Assume that Social Security will not have proof of your communications.  You have to keep that keep that proof yourself.  

What kind of proof:

1. A certified, return receipt requested letter is always good.
2. If you meet with someone, follow up with a letter reviewing the communication.
3. A phone log and/or meeting log showing dates, times and who you met and spoke with at Social Security and a summary of what was said.  

Keep in mind, none of this is bullet-proof evidence.  However, it may show that you took steps to keep Social Security informed about your money situation, which may save you from a fraud charge. 

This is especially important if you meet with Social Security, review your income/assets and Social Security tells you that you can go ahead and keep the Social Security benefit check.  If you do not have proof of the discussion, what will you do if Social Security comes back two years later and says that you were never entitle to keep those benefits?

If you are not entitled to benefits, it may not matter if Social Security told you to keep the money

Here is another kick in the head:  even if Social Security tells you that you are entitled to keep the benefits, nothing stops Social Security from changing its mind down the road and demanding an overpayment.  Crazy, but true.  

Plus, if you read my overpayment article, you have seen that even if Social Security tells you that it is ok to keep the money, and you are without “fault,” that is only one of the two tests for determining if you have to pay the money back.  

You may still have to pay the money back.

Special Needs Trusts

Since you stuck it out through this long article, I will let you in on one way to keep the gift/settlement/inheritance and still maintain elligibility for SSI:  Special Needs Trust.

Special Needs Trust occaisionally pop up in personal injury cases.  A person has been serverly injured and becomes disabled.  Through a personal injury lawsuit the person becomes entitled to a settlement.  But, in the meantime, the person has also been approved for SSI benefits.  If the person takes the settlement, will this make him/her ineligible for SSI?  Not necessarily.

The settlement can by put into a special trust, a “special needs trust” which can only be accessed for very specific purposes.  Because of the stringent limitations on the use of the trust money, Social Security will usually not count this as an asset.  

How to set up a Special Needs Trust?

This requires a very special kind of legal voodoo.  You will need to have a trust attorney help you, and not just any trust attorney can do this right.  You need a trust attorney who is familiar with special needs trusts.  

You want a specialist for this.  

If the trust fails for any reason, the settlement or other money may be counted as an assett and the person may lose SSI benefits and Medicaid.

Social Security has two different benefit programs for individuals who are disabled.

• Disability Insurance Benefits (DIB, also known as SSDI, or Title 2 benefits); and
• Supplemental Security Income (SSI or Title 16 benefits).

Because of its name, it is a common misconception that must apply for “Disability Insurance” if you are disabled. Actually, both programs provide disability benefits.  

What is Disability Insurance Benefits (DIB)?

Generally, Disability Insurance Benefits are based on your payroll contribution to Social Security.  To qualify for DIB, you have to have earned enough Social Security credits, in the right time frame, by paying into Social Security through payroll taxes.  

There are several circumstances in which you may not have enough credits for Social Security Disability Insurance:

• If you have never worked.
• You worked so long ago that you are past your date last insured.  
• Instead of paying into Social Security, you paid into a state program (such as PERA). 

In each of these cases, you might not be eligible for Disability Insurance (DIB).
Please note that this is just an overview.  There are several circumstances in which you may still be eligible for Social Security Disability Insurance (DIB) even if you do not have not have enough credits under your own earnings, including:  

• Social Security Disability Insurance (DIB) based on a spouse’s, or former spouse’s, earnings.
• Widow/er’s benefits and Children’s benefits when a spouse/parent dies.
• DAC (Disabled Adult Child) benefits.

It is often a good idea to speak with Social Security if you think you may qualify for one of these other types of Social Security Disability Insurance Benefits (DIB).

What is Supplemental Security Income (SSI)?

Even if you are not eligible for DIB, you may still be able to apply for SSI.  

Supplemental Security Income is a Social Security program which provides disability benefits to the following groups:

• Children, 
• Adults who have never worked; and 
• Adults who do not have enough quarters of coverage, or are past their date last insured.

Between a Rock and Hard Place:

Is it possible to not be eligible for either Disability Insurance Benefits (DIB) or Supplemental Security Income (SSI)?

Sadly, yes.

If you cannot prove your disability prior to your date last insured, and your spouse makes too much money (or you have another problematic source of income), it is possible that you may not qualify for either DIB or SSI.  This is the proverbial between a rock and a hard place.

Which Program Should I Apply For?

In my opinion, apply for both.  Do not rule out your eligibility for a particular Social Security program. When you apply, Social Security will determine which benefit program(s) you are eligible for and will help you file the application.  However, if you want to know if you will qualify for either program, Social Security has a website where you can see what benefits you may be eligible for.

But, Wait!  There’s More.

Once again, this is just a quick overview of DIB and SSI.  There are differences between Social Security Disability Insurance (DIB) and Supplemental Security Income (SSI) which I will address in other articles.

I enjoy reading attorney Paul Nidich’s blog Nidich on Anything.  Paul’s knowledge nicely dovetails with my own.  When there is an area I am uncertain about, I check to see what Paul has written.  

A while ago, Paul wrote a nice article about Disabled Adult Child (DAC) benefits.  

I did a search for “Disabled Adult Child” last night. On one of the web sites, the “expert” writing about the DAC benefit had the “disabled before age ___” incorrect. In speaking about special needs trusts and attending other’s presentations on special needs trusts, I find that few lawyers are aware of the DAC benefit, and, of course, fewer people in the disability community are aware of the benefit.

Disabled Adult Child is a Social Security program for adults who became disabled before the age of 22.  The main benefit of this benefit program is that is allows the adult child to receive benefits based on the parent’s earnings record, which may mean more benefits than the child would otherwise be entitled to.

DAC benefits may also be a better option than Supplemental Security Income (SSI) benefits.  

Under SSI, a spouse’s income, an inheritance, or a law suit settlement may make the individual not longer eligible forcing Social Security to suspend or terminate benefits.  

However, under DAC, these sources of (non-employment) income are not considered.  

How do you qualify for DAC?  

Here is what Social Security says:

An adult disabled before age 22 may be eligible for child’s benefits if a parent is deceased or starts receiving retirement or disability benefits. We consider this a “child’s” benefit because it is paid on a parent’s Social Security earnings record.

We make the disability decision using the disability rules for adults.

The “adult child”-including an adopted child, or, in some cases, a stepchild, grandchild, or step grandchild-must be unmarried, age 18 or older, and have a disability that started before age 22.

Click here for more information Social Security about DAC benefits. Read the rest of Paul’s article here.

I have tried to give you as much information as I can about Social Security overpayment / repayment cases, because the chances of finding an attorney to work with you are not very good.

Many Social Security attorney get paid out of the back benefits they win for the client (typically 25% up to a cap of $5,300.00).  But, when you have an overpayment case, the best outcome is you will owe $0.00.  25% of $0.00 is $0.00.

In other words, there is nothing for the attorney to take a percentage of if they win. If you want legal help on an overpayment case you will probably have to pay some money up front. This may be between $1,000 and $3,000 depending on the complexity of the case. While my office does handle Social Security overpayment cases, they make up a small part of my Social Security practice because most people cannot afford the retainer.

Also, many attorneys do not take overpayment cases because of the extra requirement of petitioning Social Security to approve fees.  This takes extra time, beyond proving the time spent proving the case, just to try to get paid.

Is it worth hiring an attorney on an overpayment case?

Whether paying the retainer is worthwhile for you will depend on how much money you owe Social Security.

If you only owe $1,200, paying an attorney $1,000 probably does not make much sense.  But, if Social Security says you owe $15,000, then it may be worthwhile to pay an attorney for help.

Social Security has to approve any fees attorneys charges you.

When I say, “pay the attorney,” that is just short hand.  What I really mean is that you provided a retainer that is held in trust until the end of the case and the fee petition is ruled on by Social Security.

Under Social Security regulations, an attorney can almost never take any fee unless it is approved by Social Security. Note:  this requirement on Social Security approval only applies to fees: paying for the attorney’s time.  Social Security does not have to approve what you owe your attorney for expenses:  money spent developing the case.

So, when you hire an attorney for a Social Security case, if you pay a retainer toward fees, the attorney can never take fees out of that retainer unless Social Security approves the fees.  You will know if Social Security has approved any fees because they will send you a letter, usually anywhere from 1 to 6 months after the case ends, telling what fees, if any, they have approved for the attorney.  If Social Security denies fees, they attorney must return the retainer.

What happens to the interest?

Good question!  In Colorado and may other states, there are special accounts called IOLTA (Interest on Lawyers Trust Accounts).  These are “pooling” accounts for holding multiple trusts when the amount of money is not large enough, or will not be help long enough, to warrant its own account.  Any interest earned is paid to that state’s IOLTA foundation and the money goes toward information and education about the legal system; not, I am sad to say, mountain top retreats.

Article updated July 28, 2008.

 cc photo credit: openDemocracy

One of the best tips I can give about building a child’s Social Security (Supplemental Security Income) case is to hold on to any disciplinary report, office notes, write ups, teachers notes, detention or suspension notices, etc.

This may be from talking out of turn, not following instructions, not sitting down, fighting, yelling, being disruptive, cursing, throwing things, etc.

These documents are a great source of the independent evidence about the child’s problems at school.

“Independent evidence” is key.  Social Security looks for  corroboration of the problems the family will tell them about.  Reports from teachers, counselors, administrators, coaches, can be extremely valuable in proving the type and severity of the child’s problems.

Unfortunately, based on my experience in Colorado, a lot of schools do not keep these write-ups in the student’s permanent file.

So, if you do not hold on to these documents, they may not be available when you are trying to prove your child’s disability claim.

Ok, I will be honest with you:  this is a glib title.  Overpayment cases are very tough to win.  But, if you decide to fight an overpayment, you need to know what you are up against.

Here is what the law says about how Social Security evaluates whether you have to pay back an overpayment or not.  This is taken from Social Security Ruling 88-6c.

42 U.S.C. § 404(b)

The regulations state in part:

Sections 204(b) and 1870(c) of the Act provide that there shall be no adjustment or recovery in any case where an incorrect payment . . . has been made . . . with respect to an individual:

(a) Who is without fault, and
(b) Adjustment or recovery would either:

(1) Defeat the purpose of title II of the Act, or
(2) Be against equity and good conscience. 20 C.F.R. § 404.506.

So, in order to have Social Security not collect an overpayment you have to be withouth “fault” for the overpayment AND the recovery would either defeat the purpose of the Social Security Act or be against equit and good conscience.

Lets take these one at a time:

You have to be without fault.

Under 20 C.F.R. § 404.507, “fault” is defined, in part, as:

“Fault” as used in “without fault” (see § 404.506 and 42 CFR 405.355) applies only to the individual. Although the Administration may have been at fault in making the overpayment, that fact does not relieve the overpaid individual or any other individual from whom the Administration seeks to recover the overpayment from liability for repayment if such individual is not without fault.

This is critical!  It says that it does not matter that Social Security may have given you bad advice, that you met with them and showed them your paystubs and they still sent you a check.  If you are at fault, it may not matter if Social Security is also at fault.

The first hurdle is that you have to be without fault.  If you knew, or should have known that you were not entitled to receive Social Security benefits, you may have a hard time proving that you were not at fault.

Personally, I have a problem with this.  If you are meeting with Social Security and you honestly provide all necessary information and Social Security mistakenly sends you a check, unless you actually know you are not entitled to it, I believe you should be able to rely on a Social Security technician, whose job it is to know the regulations, telling you that your benefits will continue without you being “at fault” for accepting those the benefits.  Alas, that is not the law.

How does Social Security determine if you are at fault?

In determining whether an individual is at fault, the Administration will consider all pertinent circumstances, including his age, intelligence, education, and physical and mental condition. What constitutes fault (except for “deduction overpayments” — see § 404.510) on the part of the overpaid individual or on the part of any other individual from whom the Administration seeks to recover the overpayment depends upon whether the fact show that the incorrect payment to the individual or to a provider of services or other person, or an incorrect payment made under section 1814(e) of the Act, resulted from:

(a) An incorrect statement made by the individual which he knew or should have known to be incorrect; or
(b) Failure to furnish information which he knew or should have known to be material; or
(c) With respect to the overpaid individual only, acceptance of a payment which he either knew or could have been expected to know was incorrect.

In a deduction-overpayment case such as this, the regulations provide an even higher degree of care for an individual to be “without fault.” 20 C.F.R. § 404.511 provides:

(a) Degree of care. An individual will not be “without fault” if the Administration has evidence in its possession which shows either a lack of good faith or failure to exercise a high degree of care in determining whether circumstances which may cause deductions from his benefits should be brought to the attention of the Administration by an immediate report or by return of a benefit check. The high degree of care expected of an individual may vary with the complexity of the circumstances giving rise to the overpayment and the capacity of the particular payee to realize that he is being overpaid. Accordingly, variances in the personal circumstances and situations of individual payees are to be considered in determining whether the necessary degree of care has been exercised by an individual to warrant a finding that he was without fault in accepting a “deduction overpayment.”

(b) Subsequent deduction-overpayments. An individual will not be without fault where, after having been exonerated for a “deduction overpayment” and after having been advised of the correct interpretation of the deduction provision, he incurs another “deduction overpayment” under the same circumstances as the first overpayment.

I can understand not being “without fault” if you fail to provide information or if you provide false or incorrect information, but the “knew or should have known” section in practice seems to expect people know the Social Security system better than the Social Security technicians themselves.

Lets say you are “without fault.”  then you still have to prove that the adjustment or recovery (repayment) would either 1) defeat the purpose of title II of the Act, or 2) Be against equity and good conscience. 20 C.F.R. § 404.506.

Social Security Ruling 87-16c deals with the “defeat the purpose” portion.

The Secretary has promulgated regulations which interpret the meaning of the statutory phrases: “defeat the purpose of” and “against equity and good conscience.” Defeating the purpose of Title II is defined at 20 C.F.R. § 404.508 (1985):

(a) General. “Defeat the purpose of title II,” for purposes of this subpart, means defeat the purpose of benefits under this title, i.e., to deprive a person of income required for ordinary and necessary living expenses. This depends upon whether the person has an income or financial resources sufficient for more than ordinary and necessary needs, or is dependent upon all of his current benefits for such needs. An individual’s ordinary and necessary expenses include:

(1) Fixed living expenses, such as food and clothing, rent, mortgage payments, utilities, maintenance, insurance (e.g., life, accident, and health insurance including premiums for supplementary medical insurance benefits under the XVIII), taxes, installment payments, etc.;
(2) Medical, hospitalization, and other similar expenses;
(3) Expenses for the support of others for whom the individual is legally responsible; and
(4) Other miscellaneous expenses which may reasonably be considered as part of the individual’s standard of living.

(b) When adjustment or recovery will defeat the purpose of title II. Adjustment or recovery will defeat the purposes of title II in (but is not limited to) situations where the person from whom recovery is sought needs substantially all of his current income (including social security monthly benefits) to meet current ordinary and necessary living expenses.

I really cannot say it any better myself.  So to review, if you need all of your current income (including SSA benefits) for ordinary and necessary living expenses, the repayment may be “defeat the purpose of the act.”  Please note that Social Security does not list cell phone, cable, internet, eating out or going to movies as “ordinary and necessary living expenses.”  If you are spending money on any of these, you probably have income beyond just “ordindary and necessary living expense” and the repayment may not “defeat the purpsose of the act.”

But, if you meet this standard AND you are without fault for the overpayment, you may be able to win an overpayment case.

There is still the second prong, where repayment “would be against equity and good conscience.”  However, this requires a “reliance to one’s detriment.”  You may want to jump to examples which describe what this means in plain english.

Against equity and good conscience is defined at 20 C.F.R. § 404.509 (1985):

“Against equity and good conscience” means that adjustment or recovery of an incorrect payment (under title II of title XVIII) will be considered inequitable if an individual, because of a notice that such payment would be made or by reason of the incorrect payment, relinquished a valuable right (examples (1) and (4)) or changed his or her position for the worse (examples (2) and (3)). In reaching such a determination, the individual’s financial circumstances are irrelevant.

Example 1. A widow, having been awarded benefits for herself and daughter, entered her daughter in private school because the monthly benefits made this possible. After the widow and her daughter received payments for almost a year, the deceased worker was found to be not insured and all payments to the widow and child were incorrect. The widow has no other funds with which to pay the daughter’s private school expenses. Having entered the daughter in private school and thus incurred a financial obligation toward which the benefits had been applied, she was in a worse position financially than if she and her daughter had never been entitled to benefits. In this situation, the recovery of the payments would be against equity and good conscience.

Example 2. After being awarded old-age insurance benefits, an individual resigned from employment on the assumption he would receive regular monthly benefit payments. It was discovered 3 years later that (due to a Social Security Administration error) his award was erroneous because he did not have the required insured status. Due to his age, the individual was unable to get his job back and could not get any other employment. In this situation, recovery of the overpayments would be against equity and good conscience because the individual gave up a valuable right.

Example 3. M divorced K and married L. M died a few years later. When K files for benefits as a surviving divorced wife, she learns that L had been overpaid $3,200 on M’s earnings record. Because K and L are both entitled to benefits on M’s record of earnings and we could not recover the overpayment from L, we sought recovery from K. K was living in a separate household from L at the time of the overpayment and did not receive the overpayment. K requests waiver of recovery of the $3,200 overpayment from benefits due her as a surviving divorced wife of M. In this situation, it would be against equity and good conscience to recover the overpayment from K.

Example 4. G filed for and was awarded benefits. His daughter, T, also filed for student benefits on G’s earnings record. Since T was an independent, full-time student living in another State, she filed for benefits on her own behalf. Later, after T received 12 monthly benefits, the school reported that T had been a full-time student only 2 months and had withdrawn from school. Since T was overpaid 10 monthly benefits, she was requested to return the overpayment to SSA. T did not return the overpayment and further attempts to collect the overpayment were unsuccessful. G was asked to repay the overpayment because he was receiving benefits on the same earnings record. G requested waiver. To support his waiver request G established that he was not at fault in causing the overpayment because he did not know that T was receiving benefits. Since G is without fault and, in addition, meets the requirements of not living in the same household at the time of the overpayment and did not receive the overpayment, it would be against equity and good conscience to recover the overpayment from G.

There are few reported cases which discuss the recovery of overpayments under Title II of the Act. However, other federal programs have similar statutory and regulatory language governing the recovery of overpayments. For example, the recovery of overpaid Supplemental Security Income (”SSI”) benefits (Title XVI) is governed by 42 U.S.C. § 1383(b), which provides in part:

The Secretary (A) shall make such provision as he finds appropriate in the case of payment of more than the correct amount of benefits with respect to an individual with a view to avoiding penalizing such individual or his eligible spouse who was without fault in connection with the overpayment, if adjustment, or recovery on account of such overpayment in such case would defeat the purposes of this subchapter, or be against equity and good conscience. . . .

If you have read this far, first of all, thank you.  As you can see, the cards are pretty well stacked against anyone pursuing fighting to stop a repayment of a Social Security overpayment.   But it is not impossible.

To summarize, you have to be without fault for the overpayment and you either have to need all your income including Social Security benefit for the most basic of expenses or you relied to your detriment on the benefits continuing.

Good luck.

It is the opposite of winning the jackpot:  you open the letter from Social Security and find out that you owe them $10,000, $20,000, even $30,000 dollars.  

What happened?

There are several scenarios which may result in Social Security claiming an overpayment occurred; and demanding that you repay some or all of your benefits.

Sometimes, Social Security decides that you really were not disabled all this time.  So, all that money that they paid you, they would like it back.  Now.  This is a reversal of the disability determination.  Social Security previously thought you were disabled.  Now, Social Security thinks that you were not disabled.  

The other set of facts I frequently see causing an overpayment where you make too much money to receive any or all of your Social Security benefits.  This typically happens in Supplemental Security Income (SSI) cases.  In order to receive SSI, you have to be medically disabled (physically and/or psychologically) AND you also have to qualify financially.  If you, your spouse or your family (if you are child under the age of 18), makes too much money or has too much in assets, you may no longer qualify for Social Security.

So, what frequently happens is the disabled individual works and makes too much money, or their spouse makes too much money, or they receive money or land as a gift or inheritance.  Sometimes it a matter of simple arithmetic:  if Social Security only lets you make up to $940 per month (Substantial Gainful Activity threshold for 2008), and you make $1200, they you should know that you may no longer be entitled for part or all of your SSI benefits.

However, it is not always that simple.  What if you are paid every two weeks.  That would mean that some months may have two pay period and some months have three pay periods.  During the three pay period months, your earnings may go up by a third, though your hour you work stay the same.   This may mean that your income puts you over the SGA threshold for that month.

Another fairly common scenario is that you meet regularly, at least annually, with Social Security.  You bring in your pay stubs and the Social Security technician reviews them.  No one tells you that there is a problem and the benefits continue.  That is, until 2, 3, 5 years down the line.  Then Social Security tells you that your benefits should have been reduced or stopped because of your earnings and you now have to pay all that money back.  

Any of these situations can cause an overpayment.  

Please note that this is just a quick survey of what can cause an overpayment.  There are other issues which may impact whether an overpayment occurs.  If you are a disabled individual you are allowed a 9 month trial work period (TWP) during which you can earn as much as you can and your benefits continue.  The nine months do not have to be consecutive and only those months in which you earn more than the SGA threshold are considered trial work period months.  Also, after the 9 month trial work period, you are also entitled to a 36 month re-entitlement period.  Such that if you continue to work at or above substantial gainful activity levels for more than 9 months, for the following 36 months, your benefits can still be paid during any month in which you do not earn the SGA threshold amount. 

Click here to read other articles related to Social Security overpayments including what you can do about an overpayment and the standard of review.

Here is a fairly common problem. You apply for Supplemental Security Income (SSI), but then Social Security tells you that your spouse is making too much money for you to be eligible for SSI. But, how much is too much?

It was surprisingly difficult to track down an answer.

But, at long last, I was able to find out that in order to be eligible for Social Security your countable income has to be less than the Federal Benefit Rate (FBR).

In 2008, the FBR is $637 per month for individuals, and $956 per month for couples. So, your spouse has to be making less than these amounts per month to keep you eligible for SSI benefits.

At least, that is the best answer I am able to find to this surprisingly tricky question.

Note 1: I am not addressing the difference between countable income and non-countable income. For that I refer you to your local Social Security office. This is just to give you a ball-park idea of how much of your spouse’s income may be too much.

Note 2: the FBR changes annually, so these amounts are only good for 2008.  

photo credit: stephcarter

Under Social Security Regulations (20 CFR 404.352), the entitlement to child’s benefits may end for any of the following reasons.

1. You turn 18 years old and are not disabled or a full time student. Benefits end the month before the month in which you became 18 years old. Why does Social Security has to say, “the month before the month” rather than 2 months before? I have no idea.
2. Your disability ends. Benefits end with the second month following the month in which the disability ends. Exception: your benefits may be continued after your impairment is no longer disabling if you are participating in a program of vocational rehabilitation services, employment services, or other support services and you meet other requirements described at the bottom of this page.
3. You turn 19 and are not disabled. If you have not yet gotten your diploma or certificate, benefits can be paid until the last month of the semester or quarter in which you turned 19. Actually, Social Security’s language is even more hairy. The regulation says the entitlement ends, “With the last month you are a full-time student or, if earlier, with the month before the month you become age 19, if you become 18 years old and you qualify as a full-time student who is not disabled. If you become age 19 in a month in which you have not completed the requirements for, or received, a diploma or equivalent certificate from an elementary or secondary school and you are required to enroll for each quarter or semester, we will find your entitlement ended with the month in which the quarter or semester in which you are enrolled ends. If the school you are attending does not have a quarter or semester system which requires reenrollment, we will find your entitlement to benefits ended with the month you complete the course or, if earlier, the first day of the third month following the month in which you become 19 years old.” Got all that? Good!
4. You get married. Benefits end “the month before the month” you marry. Exception: your benefits will not end if you are age 18 or older, disabled, and you marry a person entitled to child’s benefits based on disability or a person entitled to old-age, divorced wife’s, divorced husband’s, widow’s, widower’s, mother’s, father’s, parent’s, or disability benefits.
5. [omited - this reason for stopping benefits deals with cases of entitlement to child's benefits not when a parent is dead, but when a parent is alive and receiving either old-age or disability benefits. Since this article only deals with why child's benefits paid because of a death of a parent may terminate, this reason is beyond the scope of this article.]
6. You die.

If you were disabled, but your impairment is no longer disabling, your benefits may be continued if you meet the following requirements. Note: I am liberally quoting directly from the regulations here.

1. “You are participating in an appropriate program of vocational rehabilitation services, employment services, or other support services, as described in §404.327(a) and (b);

2. “You began participating in the program before the date your disability ended; and
3. “Social Security has determined under §404.328 that your completion of the program, or your continuation in the program for a specified period of time, will increase the likelihood that you will not have to return to the disability benefit rolls.”

If you qualify to continue to receive child’s benefits after your disability ends (described above), Social Security may continue to pay your benefits until—

1. “The month in which you complete the program; or
2. “The month in which you stop participating in the program for any reason (see §404.327(b)); or
3. “The month in which Social Security determines under §404.328 that your continuing participation in the program will no longer increase the likelihood that you will not have to return to the disability benefit rolls.”

If you are 18 years old or over and disabled, and drug addiction or alcoholism was a material factor in the determination of your disability, there are special rules which may terminate your eligibility for child’s benefits. See §404.352(c).

photo credit: _Zahira_

1. The child is the insured person’s child. See §§404.355 through 404.359;
2. The child is dependent on the insured. See §§404.360 through 404.365;
3. The child applies for benefits;
4. The child is unmarried; and
5. The child is under age 18; - OR - 18 years old or older and have a disability that began before you became 22 years old; - OR - the child is 18 years or older and qualifies for benefits as a full-time student in a primary or secondary school as described in §404.367.

See 20 CFR 404.350 for more information.

photo credit: Jasmic

This means there are a number of ways these benefits may stop:

1. You remarry. The exception to this is if you remarry some entitled to old-age, disability, wife’s, husband’s, widow’s, widower’s, father’s, mother’s, parent’s or disabled child’s benefits. See. 20 CFR 404.341.
2. The child turns 16 (if the child is not disabled).
3. The child is 16 or older and Social Security decides that the child is no longer disabled (you do not actively supervise his or her activities and you do not make important decisions about is or her needs; or, it is not necessary for you to perform personal services for him or her such as dressing, feeding, and managing money that the child cannor do alone because of a disability). See 20 CFR 404.348.
4. The child is no longer in your care. See 20 CFR 404.349.

For more information see 20 CFR 404.339.

I thought children could get benefits until age 18 or 19?

Yes, that is true. Mother’s or father’s benefits may end when the child turns 16. However, the child may also be eligible for child’s benefits, which can be paid until age 18 or 19. See 20 CFR 404.350

photo credit: alessandro pucci