Fighting an SSI or SSDI overpayment notice

Is the Social Security Administration ("SSA") charging you with an overpayment? If so, they believe you received benefits when you should not have. This can happen if you failed to report income to SSA, or if SSA didn't take your income into account in determining if you were eligible for benefits.

For SSI, some changes include changes in income, resources, and/or household size. For SSDI, some changes include going back to work.

SSA must tell you in writing about the overpayment before they take any money from your check or try to recover (get back) the overpayment in other ways.

If you get an overpayment notice, you can:

1. Appeal the overpayment, and/or

2. Ask for a waiver

An appeal is when you ask SSA to decide that the overpayment they are charging is wrong.  You can ask for an appeal if one of these is true:

• You do not agree that you were overpaid at all, or

• You agree you were overpaid benefits, but you do not agree with the amount SSA says you were overpaid.

A waiver is when you ask SSA to decide that you should not have to pay back the overpayment. You can ask for a waiver even if you agree that you were overpaid and with how much the overpayment is.

We talk about the steps for each option below.

You must file SSA Form 561, "Request for Reconsideration." You can get this form at your local SSA office, ask for one by phone, or download it online.  You can also file a Request for Reconsideration online. You should turn the form in with evidence showing SSA did not overpay you. A different SSA worker makes the reconsideration decision than the one who decided you owe an overpayment. The reconsideration decision must be in writing.

On the form, you have 3 options for the reconsideration process:

1. Case Review - SSA makes a decision based on the documentation alone,

2. Formal Conference - a more formal meeting with an SSA representation where you can bring witnesses, or

3. Informal Conference - a less formal meeting with an SSA representative. 

In most cases, it is best to check the box for Informal Conference.  That way you can meet with an SSA representative who will go over your case and explain the reasons for the overpayment. 

Yes. You must file your Request for Reconsideration within 60 days of the date you get the overpayment notice. If you file within 30 days of getting your notice, SSA will not take any money out of your check until they decide on your request.

You can still try to file for reconsideration. You will have to show a good reason for missing the filing deadline. 

Example: You were in the hospital and did not find out about the overpayment notice in time to appeal within 60 days. 

You can ask for a hearing before an Administrative Law Judge ("ALJ"). You must fill out and file SSA Form HA501 "Request for Hearing before an ALJ."  You can do this at the SSA office, call them and ask for the form, or get it online.  You can also file a request for hearing online at ssa.gov/benefits/disability/appeal.html.

Yes.  You must file your hearing request within 60 days of the date you got the written reconsideration denial.

It will be several months after your request. SSA must send you notice of the hearing date at least 75 days beforehand.

If you have evidence that helps show you were not overpaid, you should submit it to the ALJ or let the ALJ know about it at least five business days before your hearing (sooner if possible). The ALJ may not consider evidence you submit later unless you have a good reason for being late, such as

• A physical, mental, or educational limitation

• Circumstances beyond your control

Yes.  You should let the ALJ know at least 10 business days before the hearing that you want the ALJ to issue a subpoena.

Yes. A lawyer or non-lawyer can represent you. If you have a lawyer, you should ask them about their fees so you understand how much their services will cost.

Before the hearing, you have the right to review and copy your file at the SSA hearing office. You will get a letter telling you your file is ready for review. Call SSA at the number at the top of the letter to make an appointment to copy your file.  You should review your file carefully to see if SSA has incorrect information or has made any mistakes in finding there was an overpayment.

At the hearing, the ALJ will review the information already in your file, and any other documents or evidence you provide. You can give the judge more documents, but you should try to submit any documents before the hearing date, if possible. (See above.)

At the hearing, you can testify and have witnesses testify. Make a list before the hearing of the most important things you want to tell the ALJ. You may be nervous at the hearing and forget to say things if they are not written down.  Your testimony and your witnesses' testimony is evidence that the ALJ will consider, just like any documents you submit.

The ALJ should make a decision within a few months after the hearing.  The ALJ will mail you the decision in writing. 

You can appeal further to the SSA's Appeals Council. You must file SSA Form HA520, "Request for Review of Decision/Order of Administrative Law Judge" within 60 days of the date on the ALJ's written decision. You can make the request at the SSA office, call and ask them to send you the form, or get it online.

You can ask SSA to waive (excuse you from paying) the overpaid amount. To do this, you must file a Request for Waiver (SSA Form 632). You can get the form at an SSA office, call them and ask that they mail you the form, or get it online.

No. You can ask any time, even after SSA starts collecting the overpayment from you. 

Yes, if you can show both of these:

• You are "without fault" in causing the overpayment, and

• If SSA makes you pay the money back it would "defeat the purpose" of the Social Security Act or "be against equity and good conscience." 

If both those are true, SSA should grant your waiver request.

You should try to provide proof of one or more of these:

• You didn't understand the reporting requirements for your benefits because of disabilities or limited ability to read or understand English (this will be harder to show if you have had other overpayments in the past);

• You gave information to SSA about your income or assets and any changes, or other important facts affecting your eligibility (for example, date stamped copies of documents, copies of letters with proof of receipt by SSA);

• You did not make any statements to SSA that you knew or should have known were incorrect;

• You returned any payment you knew or should have known you weren't eligible to get.

You must show that you need your income and resources to meet your ordinary and necessary living expenses.   

Ordinary and necessary living expenses include food, clothing, housing costs (mortgage or rent, utilities, insurance, taxes, maintenance), medical expenses, child support, and other miscellaneous expenses you can reasonably consider a part of your standard of living.

SSA is more likely to grant your waiver request if you do not have extra money in the bank or extra income left over each month after paying your living expenses.

You must show you have given up a valuable right or changed your position for the worse because you expected to get benefits.

Example: You signed a lease for an apartment that you thought you could afford based on the social security benefits you were getting, and now it will be hard to break your lease without paying a penalty. 

You can ask SSA to reconsider their decision by filing SSA Form 561, "Request For Reconsideration." You can get this form at your local Social Security office, download the form, or file an online appeal. 

You must submit your Request for Reconsideration within 60 days of the date you get the written denial from SSA. A different worker will review your request and make a decision.
SSA denied my Request for Reconsideration of the waiver.

You can ask for an administrative hearing with an ALJ.  See "SSA denied my Request for Reconsideration" in the previous section. 

SSA will try to recover the overpayment from you.  It usually does this by reducing the amount you get each month.   

If you get SSI, SSA can lower your benefits by up to 10% to recover the overpayment.  The current SSI benefit is $783 per month. The most SSA could lower your benefit by is $78.30 per month. If you get SSDI, SSA will lower your monthly benefit to $0 until the overpayment has been paid back.

SSA will ask you to repay the overpayment within 30 days. If you cannot afford to pay the full amount all at once, you can ask SSA to pay back the overpayment in installments.

If you do not repay the overpayment, SSA may do one or more of these:

• Garnish your wages

• Reduce the overpayment amount from your tax refund

• Reduce future SSA benefits may you receive, including retirement benefits

• Report your nonpayment to credit bureaus

You can ask SSA for a compromise or change in repayment rate.

Asking for a compromise means asking to pay SSA less than the full amount of the overpayment. SSA will not compromise the overpayment if you still have the money that was overpaid, or they found you were at fault in causing the overpayment. You can make an offer of compromise in writing and give it to your SSA office.

Asking for a change in repayment rate means asking SSA to collect the full overpayment but in smaller amounts at a time. You can ask for a change even if you agree that you were overpaid and with the amount of the overpayment.

You can ask SSA to lower your rate of repayment based on your present financial situation. Weigh your income against your expenses. Decide how much you can afford to pay each month. Ask that SSA only lower your benefit by that amount.  SSA will ask for proof of your income and expenses before deciding. You can ask for a change in repayment rate using this form.