TN 12 (10-91)
GN 02610.061 Acquiescence Ruling On Offset (Dion and Fagner)
Dion v. Secretary of Health and Human Services. 823 F.2d 669 (1st Cir. 1987) Fagner v. Heckler, 779 F.2d 541 (9th Cir. 1985)
The Court of Appeals in the First Circuit ruled that offset does not apply to cases where the claimant:
Resided in Maine, Massachusetts, New Hampshire, Rhode Island or Puerto Rico at the time a determination or decision is made at any administrative level (i.e., initial, reconsideration, ALJ or AC), and
Applied for concurrent claims under title II and title XVI, and
Was awarded retroactive benefits for months prior to July 1981, and
Was paid retroactive title II benefits before February 1985.
The Court of Appeals in the Ninth Circuit ruled that offset does not apply to cases where the claimant is determined to be entitled to retroactive title II benefits before July 1, 1981 (“determined” as defined by the Court of Appeals equals the date the decision is made that the person is disabled).
This decision applies at all administrative levels (initial, ALJ, etc.) to claimants who are determined to be entitled before July 1, 1981 regardless of when the claim is adjudicated, and:
Filed for both title II and title XVI, and
Resided in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon or Washington at the time of the determination.