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Dwayne B.
Dwayne B., Lawyer
Category: Consumer Protection Law
Satisfied Customers: 32907
Experience:  Practicing for over 20 years and handled many cases and trials for consumers.
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What happens when the Social Security Admin admit to under

Customer Question

What happens when the Social Security Admin admit to under paying the monthly check...I'm I in titled to the money from all the pervious years that this mistake took place...
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  Dwayne B. replied 1 year ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts.

It depends. When you say they "underpaid" do you mean they miscalculated your monthly benefits or they calculate them correctly and then paid you less than you were supposed to be paid?

Customer: replied 1 year ago.
Miscalculated the monthly benefits...let me clarify...this inquire is for my 83 year old mother...she received a letter from the SSA stating that the have under paid her for the amount she should have received from her deceased husband.
Customer: replied 1 year ago.
They have since made and adjustment to increase her monthly payment...my question is, should they be responsible for all the money that she should have been getting before they made the adjustment....
Expert:  Dwayne B. replied 1 year ago.

The simple answer is "yes, although it isn't as clear when the issue is a miscalculation of monthly benefits and I have seen the agency, and the courts, rule both ways on this issue. When a benefit amount is awarded if you disagree with that amount then there is an appeal process to go through. Many times the agency and the courts will say that by failing to utilize the appeal process the claimant has waived any right to the past benefits. I've also seen the agency go back and recalculate and award a lump sum distribution for the amounts that were underpaid, award an increase in monthly benefits to allow the SSA to "catch up" on what should have been paid, or both. I have no idea why the SSA pays some and doesn't pay others and there doesn't appear to be any rhyme or reason.

This usually occurs with disability benefits, rarely with retirement or survivor benefits.

At this point the appropriate step to take would be to try and appeal the decision even though, technically, it is "out of time" for appeal. The Social Security publication has the following info on appeals:

"Right to appeal If you disagree with a decision made on your claim, you can appeal it. For an explanation of the steps you can take, read The Appeals Process (Publication No. 05-10041). You can handle your own appeal with free help from Social Security, or you can choose to have a representative help you. We can give you information about organizations that can help you find a representative. For more information about selecting a representative, read Your Right to Representation (Publication No. 05-10075)."

In this case, the appeal should work if she argues that the mistake wasn't discovered until the SSA revealed it and therefore she should now be able to appeal the original amount and receive the underpayment. The Code of Federal Regulations 416.542 specifically allows for her monthly amount to be increased to pay for an underpayment.

If the appeal doesn't work, then the next step would be to file a lawsuit in federal court and, of course, she would need a lawyer to help with that since it is extremely complicated.

If your question has been answered completely then I'd offer my best wishes to you and ask that you please not forget to leave a Positive Rating (of course I’d suggest Excellent!) so I receive credit for my work.

Of course, please feel free to ask any follow up questions in this thread.

Customer: replied 1 year ago.
let me make sure I understand your reply. Please see my remarks in parentheses....Many times the agency and the courts will say that by failing to utilize the appeal process the claimant has waived any right to the past benefits. ( So even if she never knew about the mistake, she has waived her right to appeal??)I've also seen the agency go back and recalculate and award a lump sum distribution for the amounts that were underpaid,
( this is were we want to be, how do we request to receive the lump sum???)award an increase in monthly benefits to allow the SSA to "catch up" on what should have been paid, or both. I have no idea why the SSA pays some and doesn't pay others and there doesn't appear to be any rhyme or reason. (Her award was increased, but she had no input or choice ? Can this be contested?)
Expert:  Dwayne B. replied 1 year ago.

So even if she never knew about the mistake, she has waived her right to appeal?

Yes, because a person is supposed to check the figures and determine whether or not a mistake has been made, just like an appeal in a regular court. The SSA isn't as strict as courts are but it has happened.

this is were we want to be, how do we request to receive the lump sum?

I don't think they are supposed to award a lump sum distribution since the statute I gave you the link to specifically says it is to be done monthly. My best guess as to why it was done is that the amount was small and the cost of setting it up monthly would have been more than just making it lump sum, but that's just a guess. I can't, and have never found, any regulation that allows them to make a lump sum distribution for survivor or retirement underpayments.

Her award was increased, but she had no input or choice ? Can this be contested?

I'm not sure what you mean by this one. Can what be contested?

Customer: replied 1 year ago.
Ok I seem to understand better now. She should have double checked the amount she was awarded and there is no real way to request a lump sum. She will need to be content with the increase that she has received. What I mean by can she contest the decision is, can she indicate that she would prefer a lump sum vs. an increase in the monthly payment.Thanks for the advise.
Expert:  Dwayne B. replied 1 year ago.

Sorry for the delay, couldn't get online for a while.

Yes, she can request a lump sum, all they can do is say no, but just realize that the statute really doesn't allow for it. She may want to cite her advanced age and ask that the increase be larger than normal per month if the lump sum isn't given.

If your question has been answered completely then I'd offer my best wishes to you and ask that you please not forget to leave a Positive Rating (of course I’d suggest Excellent!) so I receive credit for my work.

Of course, please feel free to ask any follow up questions in this thread.