SSD Overpayments

I am frequently retained after the Social Security Administration (the “SSA”) rules that a claimant is liable for an overpayment of Social Security Disability (“SSD”) insurance benefits. An overpayment is the difference between the amount the SSA paid the claimant and the amount to which the SSA subsequently alleges was actually due.

It seems that the SSA almost always assumes that there was in fact an overpayment, and instead focuses only on whether the claimant is entitled to have the overpayment waived. I received a decision from the Appeals Council today remanding the decision of the Administrative Law Judge (“ALJ”) on this very issue. The Appeals Council agreed that the issue was not whether the claimant qualified for waiver of the alleged SSD overpayment, but rather, whether there an overpayment in the first place.

The ALJ concluded that the SSA overpaid my client $1,501.40 in SSD benefits between July 1, 2009 to September 30, 2009 on the grounds that the claimant was “performing work activity.” The first step in the sequential evaluation is to determine whether the claimant was engaged insubstantial gainful activity (“SGA”). Whether or not the claimant performed work activity is irrelevant unless it constituted SGA. I argued that the ALJ never made any attempt to determine if the alleged work activity constituted SGA under any of the three SGA tests. The Appeals Council agreed and remanded the case.

Under all three SGA tests the claimant’s so-called work activity cannot be deemed to qualify as SGA. As a result, not only will the claimant be entitled to SSD benefits during the July 1, 2009 to September 30, 2009 time period, but she will also be entitled to benefits from October 1, 2009 through the present.