Awarded Backpay-but now threatened due to successful work trial
 

All,

After two long years, my husband finally recieved a fully favorable ongoing AND backpay award in May 2010 (Adjudication hearing was in March 2010). Thanks to a new drug that had come on the market, he was in a trial work period at the time of the hearing - that was acknowledged to the judge and referenced in the decision letter.

He still has not received his backpay...each time we have called they say it is still processing.

We notified SSDI in October that he had returned to work full time - and in response they send us a form asking us to explain all of his earnings from the beginning of the disability onset.

We called our lawyer who handled the hearing, and he advised that he had already been paid (which comes straight from SSDI out of the backpay)


Has anyone heard of this situation? We are worried that they are now re-examining his claim - which has already been heard and decided on by a judge.

Not surprisingly, we can't get the caseworker to call us back and we visited the SSDI office and they would not let us speak with her.

Did you ask to speak w/a supervisor or manager? It's what I would have done.

Write a letter & snail mail (certified) to your case worker, "cc" to supervisor, manager & director. Make sure you include your claim number on all correspondence. +

Good luck!

Your husband's attorney was paid based on the amount one receives from SS. I would think you should also call the attorney about this. This amount of time gone by seems out of line. Why should the attorney receive moneys that was never received at all by the claimant? My wife got her positive judgement last Nov 2. She received her monthly check for the first time yesterday but has not received her 3.5 years back pay. The lawyer in her case has been paid. I would also think even if your husband can work now, apparently he couldn't before, thus he still should receive the back pay.

Sounds to me like this is another one of those "SSDI Got You" deals. They probably recommended the work trial didn't they? Your husband being a law abiding citizen went along with it. Now the fact that he is working, they plan to use that to keep his money. The judge probably told SSA to go ahead and pay the attorney to keep him off their back and hold your husbands money because of the work trial. I may be wrong, but I think that if I had been approved, I wouldn't have went back to work until I had my back pay at least. But then again, I don't know anything about their work trials.

It is possible that there is an unresolved windfall offset indicator holding up release of the retroactive benefits even if you never received SSI benefits but filed an SSI claim when you originally filed for SSDI. That is the first thing I would look for. You can call the 800# and ask them if there is such an indicator on the record. If there is, you then need to get in touch with the SSI specialist in your local office who will know what to do to get case moving again.

If the attorney was paid, then you should have also received an award notice laying out the monthly amount due you. Read the whole thing and see if there is a paragraph about holding back your retro benefits because of a prior SSI claim.

With a written decision in May of 2010, you have been patient enough and probably need to speak with a supervisor in your local office. Too bad your husband's attorney isn't trying to light a fire under SSA for him.

As long as you didn't return to work in less than 12 months after onset, there is no reason for SSA to keep his retroactive benefits. There is no such thing as an "SSA Got You" deal.

I would like to know if I am correct so please post back.

Thanks for the replies! The attorney advises that he satisfied our original contract with him....he offered that we were now basically in a blackhole and that he would write a letter for us to SS (for an additional fee) but didn't know if it would be worth it, or what else could be done.

The judge's fully favorable award specifically noted that there were 2 UNSUCCESSFUL trial work periods that were to be covered by the backpay award period....and that he was currently in the midst of another trial work period. He received both backpay and an ongoing award.

We received the letter calculating the ongoing award amount, and it said that the backpay would be sent once they had confirmed that there were no other offsets. But there was nothing specific about SSI, and I understood that to be standard language.

We began receiving the ongoing award, as well as a stimulus check probably 30-60 days later.

We never applied for SSI for him, because of my income and his other resources....but I guess I might as well call and make sure that didn't somehow happen automatically....

What I don't understand is a) why the backpay was held up with no correspondence. Each time we called, we were told it was "processsing." and b) how SSDI staff can re-investigate something a judge has already ruled on.

Since I posted originally, we have confirmation that SSDI is asking for information from his unsuccessful work trial employers about that employment.

How do you get to speak with someone besides the window clerk at the SSDI office? The last time we were there, we asked and were told there was no one else we could speak to....which I knew wasn't true...but other than causing a scene, I didn't know how to get past that.

We are going to have our Senator's office open a constituent casework file on Tuesday...anyone think that will work?

I contacted our congressman long ago about my wife's case and believe he was very helpful.

You don't have to create scene in order to be able to talk to a supervisor. You can be insistant. Bring ALL correspondence that you have with you. Since this is your husband's case, he needs to be there too. I'd go early in the workday. Ask the supervisor what they are going to do and ask for a date to follow up. And follow up every week if necessary. Sometimes these cases involve manager to manager phone calls.

i'm in the same boat as you are they owe me 85,000 in back pay you cannot call the payment center you can fax them only i call ssi once a week they will send over a fax to the payment center for you if you google it you can get the fax number to the payment center good luck what a country

They might find they gave him a favorable ruling in error. That because the medication did work and the claimant was able to go back to work full time the claimant was able to sustain substantial gainful activity. The question imo would be can an agency overrule a courts decision? Unfortunately the attorney doesn't have to make sure you get payment. His job is only to get you a favorable ruling, which he did and deserves payment. Were you working at this time? I am glad your husband is better. Sometimes we have to court our blessings health or money? One more question when he went back to work was it under a Ticket to work program?

I think legalmania is correct and SS has found the return to work as "substantial income".

I believe there is 9 months of substantial activity (does not have to be consecutive) where income over the "limit" can be made without change to benefits awarded. After that time, they may find you are able to continue work and the benefits will stop.

You said the award was May of 2010. They may be waiting for the 9 months of substantial income to be fulfilled and then plan to change the award.

I'm too new to this forum (but not the medical problems or disability) to post links, but SSA has links about the rules when working and when working changes your benefits.

The lawyer gets paid on the award decision, not whether you keep getting benefits.

I'm glad he was able to return to work.

The backpay was supposed to cover the time that he was on the trial period of the medication? Did they explain what the stimulus check was about? I'm thinking they were breaking down the backpay award into several checks. Did they tell you how much he was to receive? If you can reach someone tell them you want a copy of his payment record. It's been 7 months and sounds like you may have a fight on your hands. I hope I'm wrong, but they probably hope you will give up. I hope you have luck with your Senator, if not vote him/her out next time.

Your right parlayone, sometimes I wonder why we have laws for the disabled when it seems the SS agency is the number one cooperate.

Neither the local office nor the payment center have the authority to overturn a favorable decision by an ALJ. Since the ALJ addressed the trial work months in the decision, that is a closed issue. Since the attorney was paid something, SSA has to have computed an amount of retroactive benefits since the attorney gets a percentage of that. If there were no retroactive benefits, the attorney would not have been paid anything.

So the problem is not with the work activity; it is not an attack on the disabled by the big bad Social Security Administration; there is another systems related problem that the payment center has not yet fixed.

I would try going to your local office and talking to a supervisor who may be able to make a phone call on your behalf. Bring all your correspondence, including the award letter and the ALJ decision. Did he ever get worker's comp or other state disability benefits? Bring those proofs. I am still guessing a denied SSI claim created an erroneous windfall offset indicator.

I think attorneys do have a resonsiblity to make sure the claimant is paid the money they are due. What good is a favorable decision to you if you get no money? But your contract with the attorney may not include any legal help after a favorable decision. He got his due, but you are on your own to get your due. Remember that when someone asks your for an opinion about this attorney. He doesn't help you get across the finish line.

O.K. I found the answer. The ALJ decision is not the final decision in the agency. I should know this because I've done it.

https://secure.ssa.gov/apps10/poms.nsf/lnx/0457550060

Hi en bloc, I just read in 2006 there was a change to the law and it is now every 6 months, I'll have to find it. I have to go out but when I get back I'll see if I can find it again. Take care.

The link refers to the DRB and it only applies to DSI cases.

DSI is a now largely abandoned process for changing the way disability decisions were made. It was the pet project of the previous Social Security Commissioner.

The DRB may still be active in some parts of the country, I believe the northeast.

But the final decisionmaker in the Social Security Administration is still the Appeals Council, the level above the ALJ. They only reverse a tiny percentage of cases brought before them and they take a year or two to even make that decision. If the Appeals Council does not approve or remand a case back to the ALJ, then the claimant can go outside SSA and file a civil case in a District Court.

The lower level cannot reverse a decision made by a higher level. The payment center cannot change an ALJ award. The payment center or local office can refer a case to their regional office staff if a glaring error or misapplication of law (like granting insured status when there isn't any) was made in the written decision to see if the regional office is willing to bump the case up to the Appeals Council. But that almost never happens. So even if a lower level employee thinks the ALJ made a bad decision, the lower level employee cannot unilaterally change that decision. They don't have the authority.

The Trial Work Period is 9 months.

In being a paralegal for over 12 yrs. and reading hundreds maybe thousands of cases I know this to be false. This is what makes my job so hard. A case can go from the higher tribune and be sent back to the lower tribune. If you read a case that was in the AC you better check and make sure that it wasn't sent back. That happens a lot.

U.S. legal system

In the United States, which uses a common law system in its state courts and to a lesser extent in its federal courts, the Ninth Circuit Court of Appeals has stated:

Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere — "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not "to stand by or keep to what was said." Nor is the doctrine stare rationibus decidendi — "to keep to the rationes decidendi of past cases." Rather, under the doctrine of stare decisis a case is important only for what it decides — for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.[5]

When dealing with an agency it's a whole different ballgame.
Introduction to Problem: A private/individual party is affected by an agency action. That party wants a court to review the agency’s action, pursuant to § 706 of the APA. The agency will immediately file a motion to dismiss, claiming that its decision cannot be reviewed under the APA. If the agency action can be reviewed, however, the reviewing court can reach the merits of the party’s claim—that there is something wrong with the agency action.

And what does this have to do with the reference you made about the ALJ not being the final decisionmaker with a link to a reference about DRB? I thought you previously stated you had more than one case at the Appeals Council which is not the same as the DRB. Within the Social Security Administration, the Appeals Council is the highest decisionmaker. Do you agree or disagree?

What is false? A lower level component can change the decision made by a higher component? The higher level decides to send it back to the lower level for a modification or clarification. That doesn't mean the lower level can change the decision made by the higher level. If I want to keep my job, I can't change the decision made by my supervisor nor can my supervisor change the decision made by the manager and the manager cannot change the decision made by the CEO.

But this is my last post on the subject.

*


[B][B]B. ALJ’s decision is not the agency’s final decision.

This case is an example of what I was saying, as I said the law books are filled with cases like this.

http://www.carolinajournal.com/exclu...e.html?id=1300

If you are the administrator than you have the authority to overrule an ALJ

http://cfr.vlex.com/vid/150-457-revi...rator-19933540

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Did you read what you cited ?

Are you aware that neither citing had ANYTHING to do with the Social Security Administration ?

Are you aware that the SSA is not the only organization that utilizes ALJs ?

I'm not sure why anyone would persist in citing superfluous information that might confuse the matter when the correct information has already been given.

I believe this thread has ceased to be supportive to the original poster, and for this reason I am locking it overnight.