Exhibit 3 Sample Memorandum Requesting Review of Resources Issue
Office of Appellate Operations, OARO
||Regional Commissioner (City)
||Review of Administrative Law Judge's Decision Dated 3/15/93, Re George Schmidtler,
In the decision, the ALJ finds that “. . . the claimant is in possession of $2,402.42 in savings
which are excludable from countable resources per Regulation No. 16, section 416.1236(a)(1)
. . .
,” and the “Claimant's inaction in permitting to accrue to this account is in no way
considered commingling of these privileged resources with other countable resources,
by Regulation No. 16, section 416.1236(b) . . . .” As a result, the ALJ concluded that the claimant continues to meet the resource requirements
of title XVI, the claimant's eligibility for SSI continues, and that the claimant
was not overpaid $2,434.44. This decision reversed the initial determination of October
21, 1992, and the reconsidered determination of January 16, 1993.
A review of the evaluation of the evidence section of the decision indicates that
the claimant had been the recipient of money under the Uniform Relocation Assistance
and Real Property Acquisition Policies Act of 1970, $2,000 of which they deposited
in a bank account in
September 1991. In making the deposit, the claimant unknowingly commingled the funds
received under the 1970 Act with other countable resources.
Pursuant to Regulation No. 16, section 416.1236 (a)(1), the money received by the
claimant was excluded from being counted as a resource to the claimant. However, Regulation
No. 16, section 416.1236(b) further provides that “. . . In order for payments and benefits listed in paragraph (a) to be excluded from
resources, such funds must be segregated and not commingled with other countable resources
so that the excludable funds are identifiable.”
The hearing decision is contrary to regulations because Regulation No. 16, section
416.1236 ff. does not provide any exemption from countability as a resource because
excludable funds are/may be accidentally commingled with countable resources. Moreover,
the interest accrued on excluded funds/ resources is countable as unearned income
even if the resource itself is excluded per Regulation No. 16, section 416.1210(j).
Additionally, if a sufficient amount of interest on such excludable funds/resources
were allowed to accrue to a significant amount, the accrued amount would become a
resource at the beginning of each month.
Therefore, we recommend that you consider reopening or reviewing the decision on your
own motion in accordance with the authority provided in Regulation No. 16, sections
416.1467-416.1470 and 416.1487-416.1494.