Thursday, October 22, 2009



Social Security Disability Benefits for Cancer Stopped, Overpayment assessed

An individual recently submitted the following scenario and questions. He asked that he not be personally identified and for this reason I have omitted his name.

"I have a relative that was diagnosed with cancer and granted SSDI back in 2001. About a year ago her case was reviewed and benefits revoked. She is cancer free but now has several conditions that impact her ability to work (respiratory illnesses). She filed for reconsideration, assuming that when her rather extensive medical records were considered, the decision would be reversed and disability reinstated.

However, this did not happen. The reconsideration judgment affirmed the original decision that her original medical condition had improved and that she was no longer disabled. She has now filed a request for hearing with an ALJ.

My first question. When the original condition has improved but there are new illnesses (likely related to the surgery used to treat the original condition), is it correct to pursue the appeal process? Or should a new claim be filed for the new conditions?

Additionally, while waiting for the reconsideration, my relative continued to receive benefits. Now that her reconsideration has been denied she is being asked to repay those benefits. The loss of disability benefits has already caused a hardship. She is currently unable to pay her bills and is preparing to file bankruptcy because of this.

I know that one of the requirements for a waiver of overpayment is ability to pay. I believe she can clearly meet that standard.

My question is on regarding "fault" clause. She fully disclosed all changes in her condition during the appeal process including submitting medical records.

She reasonably expected that based on her medical history she would win her appeal. Is this enough to claim that she was not at fault? How does Social Security view "fault" in this situation of overpayment incurred during the appeal process?"





My response:

I sympathize with your relative's situation. Unfortunately many individuals who are awarded disability benefits based on cancer lose their benefits as a result of medical improvement. The Social Security disability handbook "Disability Evaluation Under Social Security" (the blue book) addresses your relative's situation under impairment listing 13.00 Neoplastic Diseases, malignant, Part C Evaluation and Part D Effects of Therapy.

The disability handbook states that improvement has occurred when the original tumor and any metastatic disease appears to have disappeared and has not been evident for three or more years. At this point, the impairment does not meet the listing criteria for neoplastic impairment. Part D goes on to state that any significant post-treatment residual effects, not specifically addressed in the neoplastic impairment listing, must be evaluated by the impairment listing that addresses the affected body system.

The next part of your question is about the overpayment created by your relative accepting disability benefits while they reconsidered her disability cessation. Social Security considers someone to be at fault in creating their overpayment if their overpayment is one of the following: the result of a willful misstatement of facts, the result of purposefully hidden facts or fraud, the result of failure to provide information that the individual should have known or knew was important, or the acceptance of payment an individual knew or should have known was incorrect.

Just in reading the facts that you have presented with regard to your relatives situation it does not appear to me that she meets the "at fault" criteria in creating her overpayment. Additionally, her financial situation does seem to indicate that it would be an extreme hardship if she has to repay the overpayment given that she is considering bankruptcy. I would suggest that she contact her local Social Security office to get the waiver process going. In all likelihood, she may be able to have the overpayment waived or work out an extremely small repayment monthly amount at the very least.

Oh yes, I forgot to address that statement with regard to filing a new disability claim. At this point, your relative's disability claim is already at a hearings office so it would do no good to file a new claim now. All new disability claims are sent as a duplicate claim to the hearings office if there is a hearing pending. If your relative's ALJ hearing decision is a denial and your relative files an appeals council review appeal, she can file a new initial disability claim at that time. However, if the ALJ finds that your relative is indeed still disabled under the Social Security disability guidelines and reinstates her disability benefits, she may not even have an overpayment.

I hope your relative's hearing goes well.




Return to the Social Security Disability SSI Benefits Blog




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Social Security Disability Overpayments and Getting an Overpayment Waived
Denied for disability
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What are the chances of winning at a disability hearing?
Regarding an Overpayment Owed to Social Security
Can a Disability Lawyer Guarantee Winning your Case?
How to get Social Security Benefits if You are Disabled
Choosing a Social Security Disability Attorney
Social Security Overpayment Situation

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