TN 2 (06-15)
PS 09905.005 Chicago Region
May 29, 2015
A. PS 15-136 Legal Opinion: Continuation of Goldberg Kelly payments after reconsideration and remand to field office for additional information
The opinion addresses whether we should reinstate Goldberg Kelly (GK) payment continuation after an ALJ remands a case back to the field office for further development of an issue. The recipient filed a timely reconsideration and indicated he wanted an informal conference. However, there is no indication he was given the opportunity to present his case during an informal conference prior to the termination of his SSI, which may be a violation of his due process rights under GK.
You asked whether the agency should make Goldberg Kelly (GK) continuation payments after an ALJ remanded claimant E~’s case back to the field office (FO) to clarify his citizenship status in conjunction with a claim for SSI. For the reasons discussed below, we conclude that E~ is entitled to continuation benefits payments until his case, which is currently pending at the FO, is returned to the ALJ and a decision is made.
E~ was born in Amman, Jordan, and in February 2013 filed a Title II disability application, in which he stated, “I am a citizen of the United States.” He also alleged that he had entered the United States in 1991 and had been working here since the early 1990s. That application was denied due to his lack of insured status.
E~ subsequently filed a supplemental security income (SSI) application under Title XVI in March 2013. On that application, E~ alleged he met the “qualified alien” status and that he first entered the United States in October 2012 as a lawfully admitted permanent resident (LAPR) alien. However, E~ did not provide, nor did the FO request any Department of Homeland Security (DHS) documents proving his eligibility status. His file contains only an illegible, uncertified photocopy of his permanent resident document.
In May 2013, E~ received a favorable medical determination, and SSI was paid to him for the period of March 2013 through April 2014. You indicated that E~’s SSI was paid in error, as the FO had not yet requested files from DHS to verify whether E~ met the LAPR qualifications.
Eleven months later, in April 2014, the FO sent E~ a Notice of Planned Action (NOPA), informing him that his SSI would cease as of May 2014. The NOPA further informed him that he was “not a qualified resident alien,” as he was “not a resident before August 22, 1996,” and neither he nor his spouse had “worked for 10 years and paid into Social Security.” The NOPA provided both appeal and Goldberg Kelly (GK) payment continuation rights.
E~ timely appealed the NOPA by requesting reconsideration in early May 2014. He requested an informal conference and argued, “I’ve shown everything upon request. I followed the procedure. I believe I should continue receiving SSI.” That appeal was denied on May 14, 2014, and he was informed that he was no longer eligible for GK continuation payments. E~ then filed a request for hearing.
In September 2014, the Orland Park ODAR requested that the Center for RSI/SSI (RSI/SSI) review the case and provide analysis for the pending hearing. RSI/SSI provided its analysis to ODAR in September 2014, raising a number of issues, including, inter alia, the possibility that E~ is a LAPR alien as he may meet the exception condition in POMS SI 00502.100A.3.d provided that he can establish that he worked for 40 qualifying quarters; the possibility that E~ meets one of the 7-year time-limited eligibility categories in POMS SI 00502.106; and possible discrepancies in E~’s earnings record, which could affect his earlier Title II claim. Ultimately, RSI/SSI indicated that it lacked sufficient information to determine E~’s status.
On October 7, 2014, an ALJ dismissed E~’s request for hearing and remanded the case back to the FO “for development of residency as well as determination of potential wages.”
After the ALJ remanded the case back to the FO to develop the issues, E~ argued that his GK payments should be reinstated. He contended that “[t]he judge’s remand order … re-opens the prior reconsideration denial, and this case is again pending at reconsideration.”
This case is currently pending in the FO for further necessary actions. However, according to the Chicago Regional Office, the dispositive issues in question (allegation of covered employment and Title XVI alien eligibility) have been developed, and it has been determined that E~ is not a qualified eligible alien for Title XVI eligibility purposes. It has also been determined that the earnings he alleged qualify him for qualified eligible alien status cannot be credited to his earnings record because they cannot be verified or otherwise substantiated in accordance with existing policies and procedures.
A. Background Law
The Supreme Court of the United States has held that “[t]he essence of due process is the requirement that ‘a person in serious jeopardy of serious loss (be given) notice of the case against him and the opportunity to meet it.’” Mathews v. Eldridge, 424 U.S. 319, 348-349 (1976) (quoting Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123, 171-172 (U.S. 1951)). According to the Court, “the stakes are simply too high for the welfare recipient, and the possibility for honest error or irritable misjudgment too great, to allow termination of aid without giving the recipient a chance, if he so desires, to be fully informed of the case against him so that he may contest its basis and produce evidence in rebuttal.” Goldberg v. Kelly, 397 U.S. 254, 266 (1970) ; see Brown v. Weinberger, 382 F.Supp. 1092, 1099 (D. Md. 1974) (“This Court concludes that plaintiffs and the class they represent are entitled to a permanent injunction requiring the defendant to give them proper notice and a hearing pursuant to Goldberg v. Kelly, before finding them ineligible under the SSI program.”).
To comport with the dictates of due process as discussed above, POMS SI 02301.300 provides that SSI recipients receive advance notice of an adverse action. Such notice must provide the individual with sufficient opportunity to appeal and the right to object before an impartial decision maker without an interruption in benefits. Specifically, the agency shall not reduce, suspend or terminate SSI without first issuing an advance notice, which provides full due process rights, including the reason for the action and the right to appeal and continue receiving unreduced benefits until there is a decision at the first level of appeal. 20 C.F.R. § 416.1336(b) (“If appeal is filed within 10 days after the individual’s receipt of notice, the payment shall be continued … until a decision on such initial appeal is issued.); see POMS SI 02301.300.C.10 (GK payments continue “until there is a decision at the first level of appeal.”).
In order for an alien to qualify for SSI, he must demonstrate that he is in a “qualified alien” category and meet an additional condition. See POMS SI 00502.100, “Basic SSI Alien Eligibility Requirements.” According to POMS SI 00502.100A.2.a, an individual is a “qualified alien” based on DHS status when, at the time he applies for, receives, or attempts to receive a Federal public benefit, he is in the DHS category of LAPR, which E~ purports to be. The exception that E~ alleges he meets is that he is an LAPR with 40 qualifying quarters (QQ) of earnings. See POMS SI 00502.100A.3 (“Qualified alien status in and of itself is not sufficient to establish eligibility for SSI. In addition to being a qualified alien, the individual must meet one of the following additional requirements in order to be found eligible.”).
B. The NOPA
The April 10, 2014 NOPA sent to E~ appears to pass constitutional muster in terms of providing adequate notice. The Supreme Court has held that “[a]dequate notice is that which is reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950); Wilburn v. Astrue, 626 F.3d 999, 1003 (8th Cir. 2010). Federal courts have noted that “[d]ue process is flexible concept and a determination of what process is due, or what notice is adequate, depends on the particular circumstances involved.” Willburn, 626 F.3d at 1003 (upholding an SSA notice provision that “apprised [plaintiff] of the pending hearing and afforded her the opportunity to present her objections”); see e.g., Adams v. Harris, 643 F.3d 995, 998 (4th Cir. 1981) (There is “no constitutional requirement that [claimants] be informed in the notice form with particularity of the medical and vocational reasons for denial of their disability benefits.”). According to legal precedent, as long as a notice informs its recipient of the “broad reason” for the adverse action, the constitutional requirements are met. Adams, 643 F.3d at 998. In fact, the Adams court recognized that including “more detail could easily work to the disadvantage of applicants without legal representation” who might be “misled…[and] erroneously limit the evidence he presents to the administrative law judge if a hearing is requested.” Id.
Here, the NOPA informed E~ that his SSI was ceasing because he was “not a qualified resident alien.” Further, it outlined the determination that he was “not a resident before August 22, 1996,” nor had he or his spouse “worked for 10 years and paid into Social Security.” This notice apprised E~ of the cessation of his benefits, informed him of the “broad reason” for the adverse action, and explicitly stated that he had the right to appeal, with the opportunity to request a face-to-face informal conference. We thus believe that the NOPA satisfied the notice requirement of due process.
1. Due Process Violation
We are concerned, however, that E~ was not given the opportunity to have a personal conference, as requested, before his SSI was terminated. As noted above, in May 2014, a reconsideration determination was issued denying E~’s request for reconsideration of his SSI cessation and indicating that his GK continuation payments would cease. Due process requires “the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Thus, a claimant must be “permitted an opportunity for a full hearing, at which he [can] present evidence and argument, cross-examine witnesses, and be represented by counsel.” Boettcher v. Sec’y of Health & Human Servs., 759 F.2d 719, 723 (9th Cir. 1985). In Goldberg v. Kelly, the Court held that “a hearing closely approximating a judicial trial is necessary.” Mathews, 424 U.S. at 333. The Court further explained that “[i]n the present context these principles require that a recipient have … an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally. These rights are important in cases such as those before us, where recipients have challenged proposed terminations as resting on incorrect or misleading factual premises or on misapplication of the rules or policies to the facts of that particular case.” Goldberg v. Kelly, 397 U.S. 254, 267-268 (1970).
Here, there is no indication that E~ was granted a formal or informal conference, though he indicated he wanted an informal conference in his request for reconsideration. We are concerned that this failure to provide a conference to E~ may be a violation of his due process right to an opportunity to be heard prior to the cessation of his SSI. See Brown v. Weinberger, 382 F.Supp. 1092, 1099 (D. Md. 1974) (claimants must be given “a hearing pursuant to Goldberg v. Kelly, before finding them ineligible under the SSI program.”). Because the Court has held that before being denied benefits, claimants are entitled to a hearing where they can confront adverse witnesses and present evidence orally, the failure to provide that opportunity to E~ has constitutional significance. See Goldberg, 397 U.S. at 267-269 (Claimant must have the opportunity to “mold his argument to the issues the decision maker appear[ed] to regard as important.”). Moreover, while “[i]nformal procedures will suffice” since “due process does not require a particular order of proof or mode of offering evidence,” an oral hearing is a basic requirement that was not met in this case prior to terminating E~’s benefits. Id. at 269.
2. Violation of SSA Program Rules
Although not a constitutional concern, we are further concerned that the reconsideration determination did not comport with agency program rules of record development. Reconsideration “involves a thorough reexamination of all evidence on record including evidence introduced at an informal or formal conference.” POMS SI 04020.010. Moreover, POMS SI 04020.010.B.3 provides that reconsideration “consists of reexamination of all evidence of record. In addition, we undertake development if there is a reasonable basis to do so. Explore all leads for obtaining evidence.” Upon reconsideration, the FO “reconsiders nonmedical issues arising from initial determinations of SSI and certain concurrent SSI/RSDHI claims.” POMS SI 0402.010.C.1. Here, it appears that the FO failed to “undertake development” and “explore all leads” relating to E~’s citizenship in face of a “reasonable basis to do so.”
D. ALJ Dismissal
On October 7, 2014, the ALJ, without a hearing, remanded the case to the FO because of discrepancies surrounding E~’s date of entry into the United States and his qualified earnings. The ALJ’s remand order stated: “[T]his matter is remanded to the District Office for development of residency as well as determination of potential wages.” We note that there is some question about whether the ALJ had the authority to remand the case. Specifically, POMS SI 04030.040A.1 provides that an ALJ may remand a case to the appropriate component for a revised determination if there is reason to believe that the revised determination would be fully favorable to the appellant, but only where the ALJ receives new and material evidence or there is a change in law that permits a favorable determination. The criteria for a remand do not appear to have been met in this case. However, for purposes of GK continuation payments, what is significant about the ALJ proceedings is that E~ still did not receive a hearing or personal conference, as requested.
We believe that E~ is entitled to Goldberg Kelly continuation payments until the issues have been fully developed and he receives a hearing, or personal conference. As discussed above, GK continuation payments are designed to meet the constitutional due process requirement that SSI is not terminated until adequate notice of the reasons for termination is provided to the claimant, and the claimant is given the opportunity for a hearing or personal conference. Here adequate notice was provided prior to termination of SSI, but E~ was not given a hearing or personal conference, as requested. Thus, constitutional due process, as well as our program rules, require that E~’s GK continuation payments continue, including any back payments that accrued as of May 2014, when the payments were ceased.
Acting Regional Chief Counsel, Region V
Christie O. Tate
Assistant Regional Counsel