This opinion explains that GPO does not apply to social security benefits based on receipt of a $500 stipend payment, which resulted from a class action in Rhode Island Public Employees’ Retiree Coalition, et al., vs. Gina Raimando, et al. The lawsuit was filed to prevent implementation of the Rhode Island Retirement Security Act of 2011. A settlement agreement provides two types of incentives payments, including the stipend payment, in exchange for voluntary dismissal of the lawsuit. The stipend does not meet the regulatory definition of a government pension because it was not a based on Federal, State, or local government employment. The stipends are awarded without regard to the length of service, nature of the job, or any other job-based factor.

I. Question Presented

You asked us whether the Social Security Administration (SSA) should apply a Government Pension Offset (GPO) to a one-time, $500.00 stipend received by the claimant, E~, in exchange for her agreement (as a member of a class) to voluntarily dismiss her lawsuit against the Employees’ Retirement System of Rhode Island. In considering this question, you also asked us to review the terms of the lawsuit’s Settlement Agreement.

II. Short Answer

SSA should not apply a GPO to the $500.00 stipend.

III. Background

In 2015, the Employees’ Retirement System of the State of Rhode Island was sued by 205 plaintiffs who sought to prevent the implementation of the Rhode Island Retirement Security Act of 2011. A class action Settlement Agreement was approved in June of 2015. In exchange for their voluntary dismissal of the lawsuit, the agreement provided small increases in benefits for some retirees and workers, as well as two $500.00 stipend payments for those who retired by the effective date of the agreement, July 1, 2015.

The claimant, a retired State of Rhode Island employee, applied for spouse’s benefits, which are subject to a GPO because she is already receiving a pension from the State of Rhode Island. At issue here, however, is a single stipend payment that the claimant received as part of the class action settlement.

Plaintiff received a check, dated August XX, 2016, that included four line items in an attached itemization:

(1) taxable benefit ($2,873.34);

(2) nontaxable benefit ($2.86);

(3) COLA ($216.77); and

(4) “Settlement Stipend” ($500.00). A claims authorizer in the New York Payment Center asked whether the stipend should be subject to the pension offset. Your office originally contacted the Office of Income Security Programs (OISP) for guidance; in turn, OISP directed you to contact us to “review the legal implications set forth in the settlement agreement.”

With respect to the $500.00 stipend, the Settlement Agreement provides that “participants and/or beneficiaries of participants who have retired on or before July 1, 2015” (the effective date of the agreement) shall receive:

(i) a one-time five hundred dollar ($500.00) stipend (not added to COLA base) . . . payable within sixty (60) days of July 1, 2015; and

(ii) a second one-time five hundred dollar ($500.00) stipend (not added to COLA base) . . . payable in the same month of the following year to all retired participants and beneficiaries receiving a benefit as of the payment date.

Settlement Agreement, Exh. B, Outline of Terms for Settlement Agreement (Settlement Agreement) at 2.

IV. Applicable Law

The GPO reduces a spouse’s Social Security benefit if that spouse also receives a government pension from noncovered work (i.e., work where Social Security taxes were not deducted from the employee’s pay). See section 202(k)(5) of the Act, 42 U.S.C. § 402(k)(5). The purpose of the GPO is explained on SSA’s website as follows:

If this person’s government work had been subject to Social Security taxes, we would reduce any spouse, widow, or widower benefit because of their own Social Security benefit. The Government Pension Offset ensures that we calculate the benefits of government employees who don’t pay Social Security taxes the same as workers in the private sector who pay Social Security taxes

See Government Pension Offset .

A government pension is “any monthly periodic benefit (or equivalent) [a person] receive[s] that is based on [his or her] Federal, State, or local government employment.” 20 C.F.R. § 404.408a(a)(1)(i). Noncovered work is any “Federal, State, or local government employment that Social Security did not cover and for which [an individual] did not pay Social Security taxes.” 20 C.F.R. § 404.408a(a)(1)(ii).

SSA will reduce a spouse’s benefit for each month that he or she receives a government pension based on noncovered employment, unless one of the exceptions [in § 404.408a(b)] applies. 20 C.F.R. § 404.408a(a)(2). Those exceptions include, inter alia, pensions based on interstate employment, some pensions connected to members who served in a uniformed branch, and situations where the last 60 months of an individual’s government employment were covered by both Social Security and the pension plan that provides the government pension. 20 C.F.R. § 404.408a(b).

SSA’s Program Operations Manual System (POMS) instructions provide additional guidance. For example, SSA will generally consider payments to be a pension in the following circumstances:

• •

  the employer and employee contributions are used to determine the payment;

• •

  the contributions are included in a withdrawal from a pension plan (unless none of the employer contributions are included in the withdrawal and the employee forfeits all rights to the pension);

• •

  only employee contributions are involved, the payment amount is based on employee contributions plus interest (e.g., a savings plan), and it is the employee’s primary retirement plan;

• •

  the payments are from a defined benefit plan or defined contribution plan based on earnings from non-covered government employment, and the plan is the employee’s primary retirement plan;

• •

  the payments are lifetime annuities paid to retired federal judges; or

• •

  the payments are based on permanent disability and continue despite an individual’s unexpected return to employment.

See POMS GN 02608.400.A.

SSA has also identified numerous types of payments that are not considered pensions for GPO purposes. See POMS GN 02608.400.B. Those exceptions include payments from foreign pensions, Social Security benefits, Veterans Administration benefits, Black Lung benefits, Railroad Retirement Board annuities, survivor annuities, Worker’s Compensation benefits, State supplemental disability payments, and early incentive retirement payments (e.g., a bonus paid as an incentive for the person to retire early). Id.

V. Discussion

We believe that the $500.00 stipend should not be subject to a GPO because it does not meet the regulatory definition of a government pension and is not included in the POMS examples of payments that are considered pensions. We also note that the stipend payment is similar to a type of payment that is excluded from GPO under the POMS.

First, the stipend does not meet the regulatory definition of a government pension because it was not a “benefit . . . receive[d] that is based on [the claimant’s] Federal, State, or local government employment.” 20 C.F.R. § 404.408a(a)(1)(i). Instead, it was a cash incentive paid to a class of plaintiffs (including the claimant) in exchange for voluntarily dismissing a lawsuit.

The Settlement Agreement provides two types of incentives: (1) new pension benefits that are tied directly to the length and nature of the recipient’s employment and (2) general stipends that apply equally to all class members who retired by July 1, 2015 (the effective date of the Settlement Agreement). The former category includes benefits based on the length and nature of the noncovered employment: cost of living adjustments (COLAs) tied to type of employment and funding levels; benefit accrual periods by job category; retirement age based on age and years of service; and employer contributions by years of service. See Outline of Terms for Settlement Agreement at 2-3. In contrast, the stipends are awarded without regard to the length of service, nature of the job, or any other job-based factor. See id. at 2. Instead, the stipends are solely conditioned on a class member’s retirement on or before the effective date of the Settlement Agreement. Id.

Additionally, unlike the pension benefit itself, no COLA is associated with the stipend. A COLA is an increase in monthly retirement benefits to account for increasing consumer prices. The Settlement Agreement expressly states that the stipends are “not added to [the] COLA base.” This suggests that the stipend is not part of the claimant’s defined pension benefit. For that reason and for the reason discussed above, we do not view the stipend as a “benefit . . . receive[d] that is based on [the claimant’s] Federal, State, or local government employment.” 20 C.F.R. § 404.408a(a)(1)(i) (emphasis supplied).

Second, the claimant’s stipend is not included among the types of pensions subject to the offset in POMS GN 02608.400.A. Of those examples, only two might have conceivably related to the stipend:

(1) those where the employer and employee contributions are used to determine the payment; and

(2) those where the payments are from a defined benefit plan or defined contribution plan based on earnings from non-covered government employment, and the plan is the employee’s primary retirement plan.

See POMS GN 02608.400.A. But neither category applies to the stipend at issue. It was not determined by the employer and employee contributions. Instead, each member of the class who retired on or before the effective date of the Settlement Agreement was entitled to the same stipend amount. Similarly, the stipend is not based on the claimant’s earnings from non-covered government employment; it is a monetary incentive paid in the same amount to all class members.

Third, the stipend payment is similar to one of the types of payments that is expressly exempt from GPO: an early incentive retirement payment (e.g., a bonus paid as an incentive for the person to retire early). See POMS GN 02608.400.B. Although the stipend in this case was not an incentive for early retirement, it was still a bonus paid to the claimant as an incentive for an action—her voluntary dismissal of a lawsuit. As discussed above, the same stipend was paid to each member of the class who retired by the effective date of the Settlement Agreement and was expressly excluded from COLA adjustments.

VI. Conclusion

SSA should not apply a GPO to the claimant’s $500.00 stipend, which was received as part of a Settlement Agreement that was reached in class action lawsuit against the Employees’ Retirement System of Rhode Island. The stipend does not satisfy the regulatory definition of a government pension and is not included among the examples of payments that are considered pensions in the POMS instructions. Additionally, the stipend is similar in nature to a type of payment that is excluded from GPO under the POMS.

Michael J. Pelgro

Regional Chief Counsel

By: Candace H. Lawrence

Assistant Regional Counsel

This opinion explains a situation where the agency awarded benefits based on a relationship that is later shown not to have existed, but more than four years have passed, the agency cannot reopen the initial determination and terminate the child’s benefits.

Question Presented

May the Social Security Administration (SSA) reopen a prior determination and terminate child’s auxiliary benefits for B~ (the child), where genetic test results show 0.00% probability that he is the child of the number holder, E~ (the NH)?

Brief Answer

No. The agency suspended the child’s benefits on February XX, 2013, but did not complete a timely investigation into whether to revise the initial determination and none of the conditions that would allow the agency to reopen the initial determination more than four years later are present.

Background

The child began receiving auxiliary benefits from the NH’s record in November 2010 based on a presumption of legitimacy under Idaho state law. The NH had married the child’s mother on June XX, 2010. The child was born on October XX, 2010, and the birth certificate listed the NH as the child’s father. The NH has two other children (H~ and J~) who have received auxiliary benefits on his record since 2008.

In February 2013, the agency suspended the child’s auxiliary benefits based on evidence that the NH was not the child’s biological father.1 The evidence upon which the agency relied at that time is no longer available in the agency’s system, but the NH has subsequently submitted genetic test results showing a 0.00% probability that the NH was the child’s father. It is our understanding that the child’s benefits have remained suspended, but the agency has not taken any further action on this claim before asking for this legal opinion.

Discussion

I. Federal Law on Child’s Insurance Benefits

To be entitled to child’s insurance benefits under the Act, the claimant must be the NH’s “child” as that term is defined in 42 U.S.C. § 416(e). 42 U.S.C. § 402(d)(1). One way to show a parent-child relationship is by applying State inheritance law. 42 U.S.C. § 416(h)(2)(A). The claimant can be considered the NH’s natural child if she could inherit the NH’s personal property as his natural child under State inheritance law, if the NH died intestate (i.e., without a will). Id.; 20 C.F.R. §§ 404.355(a)(1), (b)(1) & (4). Because the NH is living, we apply the law of the State where he had his permanent home at the time that the claimant filed her application. 20 C.F.R. § 404.355(b)(3); see also District of Columbia v. Murphy, 314 U.S. 441, 455 (1941) (“The place where a man lives is properly taken to be his domicile until facts adduced establish the contrary.” (citations omitted)). Lacking information or evidence to the contrary, we apply Idaho law.

II. Idaho State Law

In Idaho, the intestate estate passes to the decedent’s surviving spouse and issue. Idaho Code §§ 15-2-101 – 15-2-103. “Issue” means all of the decedent’s lineal descendants, and therefore, includes a child. Idaho Code § 15-1-201(26). A child conceived or born during a marriage is presumed to be the child of the husband. Idaho Code §§ 7-1119, 16-2002(12); Alber v. Alber, 472 P.2d 321, 326-27 (Idaho 1970). This presumption of the husband’s paternity can be rebutted by genetic tests that show that the husband is not the father of the child. Idaho Code § 7-1119.

III. Federal Law on Reopening

If a claimant has been entitled to benefits as the child of an insured individual, the Social Security Act defines a limited number of terminating events under the Act. See 42 U.S.C. § 402(d)(1)(D)-(H); 20 C.F.R. § 404.352(b). A later determination that the child is not the number holder’s biological child is not among those listed. See 42 U.S.C. § 402(d)(1)(D)-(H); 20 C.F.R. § 404.352(b). As a result, the agency may only stop the child’s benefits if the agency can reopen the original child-status determination. See 20 C.F.R. § 404.988.

The agency may reopen a determination for different reasons based on how much time has transpired since the initial determination. Within 12 months of the date of the notice of the initial determination, the agency may reopen the determination for any reason. 20 C.F.R. § 404.988(a). Within four years of the date of the notice of the initial determination, the agency may reopen the determination if the agency finds “good cause.” 20 C.F.R. § 404.988(b). In the event that the agency reopens and begins an investigation into whether to revise the determination before the end of that four-year period, the agency may nevertheless revise the determination after the period as long as the investigation was “diligently pursued.” 20 C.F.R. § 404.991a. “Diligently pursued” means that in light of the facts and circumstances of a particular case, the agency took and carried out the necessary action as promptly as the circumstances permitted. 20 C.F.R. § 404.991a(a). Diligent pursuit is presumed to have been met if the agency concluded the investigation and if necessary, revised the determination or decision within 6 months from the date the agency began the investigation. Id. If the investigation is not “diligently pursued,” the agency may revise the determination only if it will be favorable to the claimant. 20 C.F.R. § 404.991a(b). If the determination will not be favorable to the claimant, the agency will not revise the determination. Id.

After four years of the date of the notice of the initial determination, the agency may reopen in limited circumstances. See 20 C.F.R. § 404.988(c). Among the conditions listed for reopening, the agency may reopen a determination at any time if it was obtained by fraud or similar fault. 20 C.F.R. § 404.988(c)(1). The agency may also reopen after four years if another person files a claim on the same earnings record and allowance of the claim adversely affects the claimant’s claim. 20 C.F.R. § 404.988(c)(2). And finally, if the determination was fully or partially unfavorable to the claimant, the agency may reopen, but only to correct clerical error or an error that appears on the face of the evidence that was considered when the determination was made. 20 C.F.R. § 404.988(c)(8). All of the other special situations that would permit reopening are inapplicable. See 20 C.F.R. § 404.988(c).

IV. Analysis

In 2010, the agency made an initial determination and awarded auxiliary benefits to the child based on the presumption of legitimacy for a child born during wedlock pursuant to Idaho state law. The agency suspended the child’s benefits in 2013, a little over two years after the initial determination, when the NH provided evidence showing he was not the child’s biological father. The genetic testing the agency received may have rebutted the presumption of legitimacy, but for unknown reasons, the agency did not reopen the 2010 determination and seek to terminate the child’s benefits. Instead, no action appears to have been taken with respect to this claim until 2016 when the agency requested this legal opinion.

At this point, none of the conditions for reopening and revising the 2010 determination is present. The agency received information about the child’s relationship with the NH within four years of the initial determination, and even assuming that the suspension of the child’s benefits was a re-opening, the agency did not diligently pursue its investigation. As a result, and because a redetermination of the claim would likely be unfavorable to the child, this avenue for revision is now closed. See 20 C.F.R. § 404.991a(b) (explaining that if the agency did not diligently pursue its investigation, the agency will not revise a determination if it will be unfavorable).

Furthermore, none of the other conditions for reopening a determination after four years applies. 20 C.F.R. § 404.988(c) (listing conditions for reopening a claim after four years). The initial determination was based on the evidence available at the time – i.e., the NH and the child’s mother were married when the child was born. The field office found no evidence of fraud or similar fault. 20 C.F.R. § 404.988(c)(1). Further, the NH’s other children, H~ and J~, started receiving child’s benefits in 2008, before the child. No other person has filed a claim on the NH’s earnings record such that allowance of the claim would adversely affect the child’s claim. 20 C.F.R. § 404.988(c)(2). Finally, the initial determination was fully favorable to the child, and not the result of clerical error or an error that appeared on the face of the evidence. 20 C.F.R. § 404.988(c)(8). The child properly received benefits based on the information available at the time of the initial determination.2

In sum, in a situation such as this, where the agency awarded benefits based on a relationship that is later shown not to have existed, but more than four years have passed, the agency cannot reopen the initial determination and terminate the child’s benefits.

Conclusion

It is our opinion that the agency is unable to reopen and revise the determination that the child is entitled to benefits on the NH’s record.

This opinion explains that we treat the submission of additional evidence within 60 days after the initial denial as a pending request for reconsideration.

Question Presented

The Social Security Administration (SSA) initially denied a claim for divorced spouse’s benefits because the claimant, S~ (claimant), did not provide evidence of marriage or divorce. The claimant provided that evidence within 60 days of the initial denial, but SSA took no further action on the claim. May SSA consider whether to award benefits on the claim?

Short Answer

Yes. SSA may treat the claimant’s submission of additional evidence as a pending request for reconsideration.

Background

On June XX, 2010, the claimant applied for divorced spouse’s benefits on the earnings record of her ex-spouse. Her claim was denied at the initial review level on July XX, 2010, because she did not submit proof of marriage or divorce. On August XX, 2010, the claimant submitted the evidence of marriage and divorce to SSA. SSA took no further action regarding the claim.

Discussion

Social Security Regulations provide that in order to request reconsideration of an initial determination, a claimant must submit a “written request” to an SSA office within 60 days. 20 C.F.R. § 404.909(a). But the Regulations do not describe how to make a written request. 20 C.F.R. §§ 404.907–404.922. The Program Operations Manual System (POMS) provides that: “If the claimant presents new evidence to establish eligibility or entitlement and it is within the reconsideration period, treat the new evidence as a reconsideration request . . ..” POMS GN 01010.410(C)(5).

We can treat the submission of additional evidence as a written request for reconsideration and determine whether the claimant is entitled to divorced spouse’s benefits based on that additional evidence. Here, the claimant presented new evidence to establish entitlement to benefits to an SSA office, and did so within the 60-day reconsideration time-period. The POMS instructs us to “treat the new evidence as a reconsideration request.” Id. If we treat the new evidence as a written request for reconsideration, then the claim is still pending, and we can “make a reconsidered determination based on all of this [additional] evidence.” 20 C.F.R. § 404.913(a).

Conclusion

Based on the information provided, the claimant’s submission of additional evidence within 60 days after the initial denial may be treated as a pending request for reconsideration.

This opinion explains the protective filing policy when a third-party organization that is affiliated with a hospital mails the application to SSA. The completed application date is the date SSA received the application. To hold otherwise would allow a claimant to circumvent the filing date rules simply by arranging to have the hospital's agent mail the application to SSA.

INTRODUCTION

This memorandum is in response to your request for our opinion on the interpretation of the Social Security Administration’s (SSA) policy relating to protective filing dates in situations where third party organizations (e.g., Chamberlin E~), acting as agents for hospitals, assist hospitalized claimants in completing SSA applications for benefits, and then mail the application signed by the claimant to the local field office for processing. You also indicated that in some instances, the applicant has been discharged from the hospital by the time the field office receives the application. Specifically, you have inquired whether such an application would be considered filed as of (1) the date SSA received the signed application in the mail, or the postmark date, whichever is most advantageous to the claimant, pursuant to GN 00204.007(B)(3); or (2) the date the applicant signed the application in the hospital pursuant to GN 00204.010(F)(1). For purposes of this memorandum, we will assume that: the applicant is a proper applicant under GN 00204.003; the application form is appropriate under GN 00204.002 and GN 00205.001; and the application was properly signed and not otherwise deficient under GN 00204.001 and GN 00204.002. Your query does not involve a situation where a third party (e.g., the hospital’s agent) is simply trying to establish a protective filing date for the applicant. See GN 00204.013.

Based on the information you provided to us and our research, it is our opinion that the provision in GN 00204.010(F)(1) pertaining to hospitals is inapplicable to the issue at hand because an application properly signed by the claimant and mailed to SSA does not meet the definition of a protective writing and, therefore, cannot establish a protective filing date. See

GN 00204.010(B)(1).

Instead, GN 00204.007(B) controls this situation. Thus, the appropriate application date is the date the application is received. See GN 00204.007. If the application is received by U.S. mail, then the application date is the date it was postmarked, but if the postmark is missing or illegible, then we presume a receipt date 5 days earlier than the actual receipt date. See GN 00204.007(B)(3).

BACKGROUND

A. The Application Filing Date is the Date SSA Received the Application

SSA policy provides that an application filing date is the earlier of (1) the date a valid application is received at one of the locations in GN 00204.006 GN 00204.006, provides, in relevant part, that Aan application or written statement of intent to claim benefits may be filed at: any SSA office; [or] a hospital provider of services to prevent a loss of Hospital Insurance (HI) coverage for persons age 65 or older. or (2) the protective filing date. See GN 00204.007(B)(1).

As a general rule, if SSA receives an application or protective filing by U.S. mail

[T]he postmark date is the receipt date if use of that date is more advantageous to the claimant than the actual receipt date. If the U.S. postmark is missing or illegible, presume a receipt date 5 days before the actual receipt date. If evidence exists indicating that the applicant mailed the application less than 5 days before it is received, presume that the individual mailed the application on that date Y.

GN 00204.007(B); See also GN 00204.010(A)(2).

B. Protective Filings Establish an Application Date Earlier than the Date SSA Receives the Application For Benefits

It is SSA’s policy to establish the earliest application filing date to which a claimant is entitled. See GN 00204.007(D). To that end, SSA allows a claimant to submit a Awritten statement of intent to file for Title II, Title VIII, or Title XVI benefits or [make] an oral inquiry about Title XVI benefits at one of the locations described in GN 00204.006 before submitting a completed and signed application. See GN 00204.010(A)(1) (emphasis supplied). The purpose of the protective filing date is to provide a date for an application for benefits that is before the actual application filing date.

A claimant can establish a protective filing date for his application that is earlier than the application receipt date if the following criteria are met:

1. There must be a written statement that shows the writer’s intent to claim benefits either for himself or on behalf of another;

2. The written statement must be signed by the claimant, a third party, or an SSA employee;

3. The person claiming benefits or a proper applicant must sign an application for benefits. SSA must receive the application within the Title II 6-month protective filing closeout period or the Title XVI 60-day protective filing period.

4. With the exception of limited situations, For information on SSA’s policy for processing a benefits claim for a claimant who dies before filing an application, see GN 00204.005. the claimant must be alive when the application is filed.

See GN 00204.010(B); see also 20 C.F.R. '' 404.610, 404.630, 416.340 (2010). A protective filing is established on the date the SSA receives a written statement of intent to file for Title II, Title VIII, or Title XVI benefits See GN 00204.010(A)(1). If a claimant does not follow the above-listed procedures, the applicant cannot benefit from a protective filing date, and SSA considers the application to be filed on the date it is received. See GN 00204.007(D).

1. Documents that may serve as protective filings

The POMS provide a non-exclusive list of documents that may serve as protective filings. See GN 00204.010(F)(1). Examples include the following:

A letter asking about benefit rights.

A Title II or Title XVI application that names an individual other than the applicant (e.g., a spouse or child), which serves as a protective filing for that individual.

A Title II unsigned application.

(e.g., a spouse or child), which serves as a protective filing for that individual.

(If a closeout notice was issued for an earlier protective filing date or there is no earlier protective filing date, the date the SSA employee completes a Title II application may serve to protect the claimant’s filing date if the signature requirements of GN 00204.010(B)(2) are met.)

See GN 00204.010(F)(1). If the writing satisfies the criteria of GN 00204.010(B), then the protective filing date is the date SSA receives the writing. See GN 00204.007(B); GN 00204.010(A)(2). These examples are consistent with SSA’s policy of ensuring that a claimant has the earliest application date to which he is entitled.

2. The Hospital Protective Filing

A written statement of intent to file that is filed with a hospital, e.g., an admittance form or admission record, is another document that may serve as a protective filing, under the following conditions:

The claimant is a patient in the hospital;

The hospital provides services covered by hospital insurance (Part A) under the Medicare program;

A valid application is not pending; and

The statement is sent to the SSA.

See GN 00204.010(F)(1); see also 20 C.F.R. ' 404.632. Although it is not clear from the POMS, it appears that this provision originally may have been intended to ensure that a claimant could prevent the loss of hospital insurance coverage under the Medicare provisions of the Social Security Act simply by giving notice of an intent to seek such benefits while in the hospital. See GN 00204.006. Based on your inquiry, we assume that this provision has been applied in the context of Title II and Title XVI benefits.

As set forth above, hospital admittance forms or admission records are examples of written statements that may contain the hospitalized claimant’s expression of intent to file for Social Security benefits under this provision. See GN 00204.010(F)(1). These records have an indicia of reliability because they are generally filled out contemporaneously by the hospital’s medical and/or administrative staff when the patient provides the statement of intent to file. SSA has concluded that such records are acceptable, and applies a protective date as of the Adate the individual files the statement with the hospital. See GN 00204.010(F)(1); see also 20 C.F.R.404.632.

DISCUSSION

In order for a writing to be a protective writing, it must satisfy the four criteria in GN 00204.010(B), listed above. See GN 00204.010(F)(1). A key aspect of that inquiry is whether the writing contains an expression of intent on the part of the writer to claim benefits for himself/herself or on behalf of another, which contemplates future action. See GN 00204.010(B)(1). The claimant (or proper applicant) is given additional time to take that action as long as he submits a proper protective writing. See GN 00204.010(A)(3). The protective writing will avoid the potential loss of benefits that may result as long as a claimant files an application subsequent to the initial contact with SSA. See GN 00204.010(A).

The enumerated list of documents that may serve as protective writings is instructive. Although the list is clearly not all-inclusive, it does not state that a properly signed application may serve as a protective filing for the claimant. A completed application for benefits, by its terms, does not contemplate an intent to file in the future. Instead, an application serves as a claim when signed and filed with SSA. See GN 00205.001(A)(2). As such, it does not meet the protective filing requirements of GN 00204.010(B)(1). Archived versions of GN 00204.010 make it clear that a protective writing was intended to protect a claimant’s filing date when it was not possible to obtain a prescribed application on the day of the first contact. See e.g., GN 00204.010 (Eff. Dates 11/26/99-3/18/02). Here, the date of the first contact between the applicant and SSA is when SSA receives the completed application. Such action on the part of the applicant obviates the need for a protective filing date, thus we need not apply GN 00204.010 to this situation.

The analysis does not change simply because, as in your inquiry, a hospital’s agent mails a benefits application for a patient. Notably, in that situation, the third-party also acts as agent for the applicant. The intent to take future action is still lacking. See

GN 00204.010(B)(1). Also lacking is an indicia of reliability, as is found with hospital admittance forms and admission records, in terms of SSA being able to accurately date the Aprotective@ writing. The absence of reliability in dating a protective writing is apparent in the example you provided, where, on August 25, 2010, a local field office received from Chamberlin E~ via U.S. mail a hospitalized claimant’s application that was dated July 27, 2010. Without any objective evidence of when the claimant signed application, the potential for fraud is great.

CONCLUSION

For the reasons stated above, it is our opinion that, in the circumstances described in your inquiry, the completed application date is the date SSA received the application, see GN 00204.007(B), regardless of whether a third-party organization that is affiliated with a hospital mailed the application to SSA. To hold otherwise would defeat the purpose of the protective filing date policy and allow a claimant to circumvent the filing date rules simply by arranging to have the hospital’s agent mail the application to SSA.

Eric P. K~

Regional Chief Counsel,

By: Cathy M~

Assistant Regional Counsel

To avoid all implications of possible conflict of interest, the opinion precludes medical and psychological consultants from consulting with an appointed representative appealing SSA disability determinations.

You asked whether it is a conflict of interest for a State DDS contract medical consultant (MC) to also work or consult with an attorney representative on SSA disability claims. You also asked, assuming such work would not be a conflict of interest, if an MC would need to recuse himself from working on any case in which he was previously involved or any case arising in the state of Missouri. We believe that a business relationship between an MC and attorney representative would represent a conflict of interest under SSA regulations. We also believe that no recusal from certain cases or confinement of the consulting relationship to cases arising only outside of the MC’s state would allow such a relationship to be permitted under the regulations.

Factual Background

On May 26, 2010, an MC under contract with the Missouri DDS requested guidance concerning outside employment. The MC was approached by an attorney who represents Social Security disability claimants on appeals in Missouri and Illinois. The attorney inquired whether the MC would be able to provide consulting services for his Social Security disability cases. The MC sought guidance from the Agency concerning whether outside consulting with the attorney would constitute a conflict of interest due to his work in Missouri, and whether there were any measures he could take to pursue such work while avoiding a conflict of interest.

Analysis

A conflict of interest is “a real or seeming incompatibility between one’s private interests and one’s public or fiduciary duties.” Black’s Law Dictionary (8th ed. 2004). The regulations at 20 C.F.R. §§ 404.1519q and 416.919q (2009)^[1]

[a]ll implications of possible conflict of interest between medical or psychological consultants and their medical or psychological practices will be avoided. Such consultants are not only those physicians and psychologists who work for us directly but are also those who do review and adjudication work in the State agencies.

Id. The plain text of the regulations broadly preclude any activity by an MC that could possibly be construed as a conflict of interest. As an example, the regulations preclude MC’s who perform review work from having any financial interest directly or indirectly, even through a family member, in “a medical partnership, corporation, or similar relationship in which consultative examinations are provided.” Id.

Applying the regulations to the question presented, we believe that they would preclude the proposed relationship between an MC and an attorney representing claimants in Social Security disability appeals. An attorney appealing a decision of the agency clearly has an interest adverse to the agency. Any work in support of such efforts would be against the agency’s interests. It would be reasonable to assume that consulting services rendered by an MC to the attorney would be focused at least in part on identifying possible challenges to the agency’s medical determinations in disability cases. An MC helping an opposing attorney develop arguments against determinations made by other MC’s working for the State DDS or the Agency is a clear conflict of interest. Such a relationship would not avoid “[a]ll implications of possible conflict of interest. . . .” Id. Further, given the inherent conflict of interest in such a relationship and the broad prohibition on conflicts set forth in the regulation, we do not believe that recusal from certain cases or consulting on cases originating only outside the region covered by the MC would render such consulting permissible under the regulations.

CONCLUSION

We believe that 20 C.F.R. §§ 404.1519q and 416.919q preclude a State DDS Medical Consultant from consulting with an attorney representative appealing SSA disability determinations. We also believe that an MC could not avoid the prohibition described by the regulations by recusing himself from certain cases or only consulting on cases from other jurisdictions.

Kristi A. S~

Chief Counsel, Region VII

By: Sean N. S~

Assistant Regional Counsel

An ALJ may not use his or her subpoena power to obtain release of “biological evidence” in the form of blood samples. An ALJ’s subpoena power is limited to obtaining witness testimony and documentary evidence such as books, records, correspondence, and papers.

QUESTIONS PRESENTED

You have asked whether an Administrative Law Judge (ALJ) may subpoena a medical examiner’s office for release of a deceased number holder’s “biological evidence,” in this case blood samples, to a DNA testing facility. If so, you have asked how the ALJ should handle costs in addition to service of the subpoena.

SHORT ANSWER

An ALJ may not use his or her subpoena power to obtain release of “biological evidence” in the form of blood samples. An ALJ’s subpoena power is limited to obtaining witness testimony and documentary evidence such as books, records, correspondence, and papers. The procedures for payment of fees and travel allowances for subpoenaed witnesses are set forth in the Commissioner’s regulations, the Hearings, Appeals, and Litigation Law Manual (HALLEX), and the Administrative Instruction Manual System (AIMS). The Commissioner’s regulations, the HALLEX, the AIMS, and the Program Operations Manual System (POMS) also have instructions regarding payment of costs for existing nonmedical and medical evidence of record and for tests requested by an ALJ.

DISCUSSION

Facts

According to information that you provided, Andrew W. H~ died in July 2009 while domiciled in Arizona. Nora S~, who lives with her child in Iowa, applied on the child’s behalf for surviving child’s insurance benefits on the decedent’s earnings record. According to Ms. S~, the Maricopa County Medical Examiner’s Office performed an autopsy on Mr. H~ and kept blood samples. In an effort to establish paternity, Ms. S~ has asked the ALJ to subpoena the Maricopa County Medical Examiner’s Office for release of “biological evidence” to a DNA testing center in Ohio. According to Ms. S~, the medical examiner’s office refuses to release the blood samples to the DNA testing center without written authorization from Mr. H~’s next of kin or a court ordered subpoena.^[2] She also alleges that attempts to obtain acceptable written authorization from Mr. H~’s mother for release of the blood samples have been unsuccessful.^[3]

Surviving Child’s Insurance Benefits and Arizona Laws on Intestacy and Paternity

The most obvious of the requirements for surviving child’s benefits is that the applicant be the “child” of an insured individual. See 42 U.S.C. § 402(d); 20 C.F.R. § 404.350. In relevant part, the Social Security Act (the Act) defines “child” as the child or legally adopted child of an individual. 42 U.S.C. § 416(e)(1). The Act's definition of child is met if the applicant is able to inherit from the insured under state law, if the insured were to die without leaving a will. Id. § 416(h)(2)(A); 20 C.F.R. §§ 404. 355(a)(1), (b). In determining whether an applicant should be considered the child of an insured individual, the Commissioner applies the law governing intestate transfers in the state where the decedent was domiciled at the time of his or her death. 42 U.S.C. § 416 (h)(2)(A).

Under Arizona intestacy law, a child may inherit if he or she is the issue of the decedent. Ariz. Rev. Stat. Ann. § 14-2103(1). The paternity determination statute provides that a man is presumed to be the father of the child if genetic testing affirms at least a 95% probability of paternity. Id. § 25-814(3); see also id. § 25-807(D) (noting that a party may rebut this presumption only by clear and convincing evidence).^[4]

For the reasons discussed below, an ALJ does not have authority to subpoena the release of blood samples.

ALJ Subpoena Power

The Act gives the Commissioner power to issue subpoenas in administrative proceedings. Section 205(d) of the Act provides that:

For the purpose of any hearing, investigation, or other proceeding authorized or directed under this subchapter, or relative to any matter within the Commissioner’s jurisdiction hereunder, the Commissioner of Social Security shall have power to issue subpenas requiring the attendance and testimony of witnesses and the production of any evidence that relates to any matter under investigation or in question before the Commissioner of Social Security. Such attendance of witnesses and production of evidence at the designated place of such hearing, investigation, or other proceeding may be required from any place in the United States or in any Territory or possession thereof. Subpenas of the Commissioner of Social Security shall be served by anyone authorized by the Commissioner

. . . .

42 U.S.C. § 405(d).^[5]

Section 205(a) of the Act gives the Commissioner “full power and authority . . . . to adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the rights to benefits hereunder.” Id. § 405(a). Consistent with the Act, the Commissioner has adopted regulations that authorize an ALJ or member of the Appeals Council to issue subpoenas on behalf of the Commissioner. However, the regulations also limit subpoena power, providing that an ALJ or member of the Appeals Council may issue subpoenas only “for the appearance and testimony of witnesses and for the production of books, records, correspondence, papers, or other documents that are material to an issue at the hearing.” 20 C.F.R. §§ 404.950(d), 416.1450(d);^[6] see also POMS DI 33010.050; HALLEX I-2-5-78. These regulations reflect a reasonable and permissible interpretation of the Act, and should be given deference by any reviewing court. See Barnhart v. Walton, 535 U.S. 212, 218 (2002) (citing Chevron U.S.A. Inc. v. Natural Resources Defence Council Inc., 467 U.S. 837, 842-43 (2009); United States v. Mead Corp., 533 U.S. 218, 227 (2001)).

§ 404.950(d)(2). "If an ALJ denies a claimant’s request for a subpoena, the ALJ must provide the claimant with written notification of the denial of the request. . . [that] include[s] rational that explains why the ALJ declined to issue a subpoena . . . ." HALLEX I-2-5-78(D).

In light of the Commissioner’s interpretive regulations that restrict ALJs to issuing subpoenas for witness testimony and documentary evidence, an ALJ does not have authority to issue a subpoena for "biological evidence" that is not in this form. Further, the claimant seeking benefits is responsible for obtaining and providing evidence needed to prove eligibility. 20 C.F.R. § 404.704 ("When evidence is needed to prove your eligibility . . . you will be responsible for obtaining and giving the evidence ot us. We will be glad to advise you what is needed and how to get it and we will consider any evidence you give us."). Courts have recognized that, "[i]n child benefit cases, the claimant bears the burden of proving entitlement as the child of a deceased insured wage earner." Younger o/b/o Younger v. Shalala, 30 F.3d 1265, 1266 (10th Cir. 1994) (citing Morris ex rel. Morris v. Bowen, 646 F. Supp. 363, 364 (W.D. Tex. 1986)).

Ms. S~ may have to enlist the help of a state court to obtain the blood samples. As in Schoenfeld v. Apfel, 237 F.3d 788 (7th Cir. 2001), which involved an ALJ’s refusal to order paternity tests,^[7] "it has been and continues to be within [the mother’s] power, as guardian of those children, to have those tests carried out." Id. at 799. Here, in order to facilitate DNA testing, the mother may want to consider filing suit to determine paternity. In Arizona, for example, "[p]roceedings to establish maternity and paternity have precedence over other civil proceedings. The case shall be set for trial within sixty days from the filing of an answer by the respondent." Ariz. Rev. Stat. Ann. § 25-807(A); see also id. § 25-803(A) (the mother may commence proceedings to establish paternity of a child).^[8] On its own motion or that of any party to the proceeding, the court can issue a subpoena to the Maricopa Medical Examiner’s Office for release of the “biological evidence” for DNA testing. Id. § 25-807(c).^[9]

Payment of Costs in Addition to Service of the Subpoena

In addition to paying the cost of issuing a subpoena, the Commissioner’s regulations provide that “we will pay subpoenaed witnesses the same fees and mileage they would receive if they had been subpoenaed by a Federal district court.” 20 C.F.R. §§ 404.950(3), (4). Section I-2-5-80(C) of the HALLEX also discusses payment of subpoenaed individuals for witness fees and travel allowances and refers to section 07.26.00 of the AIMS, Financial Management Manual (FFM), for specific reimbursement procedures and fee schedules. See also AIMS, FFM 07.01.02(O) (public laws regarding reimbursement).

By regulation, the agency may pay for tests approved by the agency, see 20 C.F.R. § 404.1517, and “will pay physicians not employed by the Federal government and other non-Federal providers of medical services for the reasonable cost of providing [the agency] with existing medical evidence . . . .” Id. § 404.1514; see also HALLEX I-2-5-1 (same), I-2-5-68 (Obtaining Non-Medical Evidence Directly From the Source), I-2-5-14(B) (Obtaining Medical Evidence from a Treating Source or Other Medical Source), I-2-5-14(B)(5) (noting that the hearing office is authorized to pay the same amounts for reports that the State agency would pay and citing POMS DI 11010.545 (Payment for Medical Evidence of Record) and POMS DI 22505.040 (Payment for Medical Evidence of Record-DDS)); AIMS, Materiel Resources Manual 06.02.07(A)(5) (ALJ is one of the positions listed with “[a]uthority to purchased medical evidence of record necessary to adjudicate claims under the jurisdiction of ODAR, not to exceed $1,000 in any transaction”). However, an ALJ can only purchase reports of paternity testing that has already been conducted and cannot purchase DNA testing through a consultative evaluation. See POMS GN 00301.210(A)(2)(c).

CONCLUSION

The Commissioner’s regulations and policies governing subpoenas do not permit an ALJ to subpoena any evidence that is not in the form of witness testimony or documentary evidence such as a book, record, correspondence, and papers. The Commissioner’s regulations, the HALLEX, the POMS, and the AIMS contain provisions that cover witness fees and travel expenses incurred pursuant to a duly ordered subpoena, as well as provisions that cover the cost of non-medical or medical evidence of record requested or tests arranged by the ALJ. While an ALJ may request a report of an existing paternity test necessary to adjudicate a claim, an ALJ may not use his or her subpoena power to order the parties to undergo paternity testing or to obtain blood samples or other genetic materials necessary to conduct the test.

Donna L. C~

Acting Regional Chief Counsel, Region VIII

By: Yvette G. K~

Assistant Regional Counsel

This opinion addresses compliance with a claimant's consent to release information to a third party who is not an authorized representative and who receives disability benefits based on a mental impairment.

BACKGROUND

According to the information provided, your office received an inquiry from Mickey A~, the Georgia DDS director, requesting guidance from our office regarding a disclosure issue involving an individual named Patricia O~. Ms. O~ describes herself as a "Chaplain/ Advocate" on the disability application of another individual, Antoinette E. P~ (Claimant). Ms. O~ has been contacting a Georgia DDS adjudicator to discuss Claimant's claim, but she has refused to sign an Appointment of Representative form (SSA-1686). Instead, Ms. O~ had Claimant sign a Consent to Release Information (SSA 3288). Claimant designated Ms. O~ as one of the persons to whom the Georgia DSS should release her records.

Based on information from the Cooperative Disability Investigations (CDI) unit, the Georgia DDS knows that Ms. O~ receives disability benefits based on a mental condition. The Georgia DDS also reports that Ms. O~ is very demanding and unreasonable in her contacts. The Georgia DDS is concerned that it is legally bound to release Claimant's records to Ms. O~ because Claimant has signed a consent releasing her records to Ms. O~. You also informed us that the Georgia DDS does not question Claimant's capacity to provide consent for the release of her records, nor does the DDS question any other aspect of the consent.

DISCUSSION

The Privacy Act authorizes an individual to access or consent to the disclosure of his or her records. See 5 U.S.C. § 552a(b), (d)(1). SSA's regulations implementing the Privacy Act and Section 1106(a)(1) of the Social Security Act, 42 U.S.C. § 1306(a)(1), also state that an individual has a right to access his or her records and may consent to the disclosure of his or her records to a named individual. See 20 C.F.R. §§ 401.40(a), 401.50(a), 401.100(b) (2008). The Program Operations Manual System (POMS) provides further guidance regarding an individual's ability to consent to the release of his or her records. "Under the Privacy Act (5 U.S.C. § 552a(b)), an individual may give SSA written consent to disclose his/her personal information to a third party of his/her choosing." POMS GN 03305.001B. The POMS also states: "At the written request of an individual, his/er records can be furnished to a third party (individual or group) who is merely the recipient of the record and is not authorized to act on behalf of the individual." POMS GN 03340.040A.1.

Under these provisions, Claimant may consent to the release of her records to any individual, including Ms. O~. Although the Georgia DDS may have concerns regarding Ms. O~'s mental capacity or her actions with respect to Claimant's disability claim, those concerns do not provide a basis for the Georgia DDS to withhold Claimant's records from Ms. O~. We have been unable to find any provision of the Privacy Act, the Social Security Act, the regulations, or the POMS that would allow the Georgia DDS to refuse to comply with Claimant's consent to release her records to Ms. O~.

CONCLUSION

The Georgia DDS is legally bound to comply with Claimant's consent to release her records to Ms. O~, absent any questions regarding Claimant's ability to consent or the propriety of the consent itself.

Deana R. E~-L~

Regional Chief Counsel, Region VIII

By: Robert L. V. S~

Assistant Regional Counsel

This opinion explains the options available for filing a formal claim with an estate when the debtor is deceased.

Issue

You requested an opinion as to whether the Social Security Administration (SSA) should file a formal claim against the Estate of Jose S~.

Short Answer

SSA cannot file a formal claim against the Estate of Jose S~, because the time for filing such a claim expired on or about May 10, 2004. We do not recommend SSA refer this case to the Department of Justice (DOJ) for filing a civil suit against Mr. S~' estate because there is no likelihood of recouping a significant portion of the overpayment from the estate. However, should the personal representative of Mr. S~' estate, Richard S~, pay other estate debts and close the estate without the overpayment being satisfied, SSA may consider referring the matter to DOJ for a civil action against the estate's personal representative. Prior to making such a referral, SSA should confirm that it has properly notified the personal representative of SSA's claim/debt, and that the personal representative intends to refuse to repay such debt.

FACTS

The facts you have provided show that Mr. S~ received benefits based on multiple account record of earnings from January 1996 through April 2003. Because his benefits should have been based on only one record of earnings, he received a total of $38,513.00 more in benefits than he should have, which resulted in an overpayment balance of $38,513.00. Mr. S~ died on May XX, 2003. On May 9, 2006, SSA sent notice letters to the Clerk of the Court for Carbon County and to the personal representative of Mr. S~' estate, explaining that the estate owed an overpayment debt to SSA. The notice letters specifically stated that they were not intended as a formal claim, and should not be considered as such, but were merely intended as notification of the debt and as a request to the estate for repayment.

On September 20, 2006, the undersigned contacted the Clerk of the Court, Carbon County, Utah, who revealed that the estate was opened for probate on January 5, 2006, that the petition for probate listed no other estate assets than a parcel of real property valued at $9,900.00, that no notice to creditors had been published, and that the estate had not been closed.

Contact with the Region VIII Center for Program Support revealed that the initial overpayment determination in this case was made in August 2002, that the overpayment determination was cancelled in October 2002, and that the overpayment determination was re-established in September 2005. The regional contact was unable to determine why the overpayment determination was cancelled in October 2002. The undersigned also contacted Christian B~, counsel for the personal representative of the estate. Mr. B~ stated that if SSA were to present a claim against the estate, he would contest it because it would be beyond the statutory period of time for filing a claim against the estate. Mr. B~ confirmed that the estate had not been closed and further stated that the estate was a "small estate" and qualified for summary administrative procedures. He also stated that the personal representative of the estate had sold the parcel of real property prior to receiving the May 2006 notice of the overpayment, and that there were no assets left in the estate. The undersigned discussed with Mr. B~ options to resolve this matter, including a request for waiver or an offer of a compromise settlement.

Mr. B~ informed the undersigned that he had not been able to get in contact with the personal representative of Mr. S~' estate, but would try to contact him and discuss the possibility of a request for a waiver or the offer of a compromise settlement.

Legal Analysis

SSA should not file a formal claim against the estate of Mr. S~ because the deadline to file such a claim has passed. As indicated above, the estate did not publish a "notice to creditors."

The Utah Probate Code provides that "small estates" (those valued under $20,000.00) are not required to publish a "notice to creditors." See Utah Code Ann. § 75-3-1203 (2006). The Probate Code further provides that in instances where creditors are not given actual notice, as is the case here, all claims against a decedent's estate must be presented within one year after the decedent's death. See id. § 75-3-803. Therefore, the deadline to file a formal claim expired on or about May 10, 2004. Moreover, Mr. B~ confirmed that he would contest a formal claim by SSA for the overpayment filed more than one year after Mr. S~' death. In states, such as Utah, where SSA could be subjected to the jurisdiction of the state court, SSA will not file a formal claim unless the legal representative agrees that the claim will not be contested. See POMS § GN 02215.055.

Alternatively, SSA may consider referring this matter to DOJ for the filing of a civil suit against the estate of Mr. S~. A claim of the United States must be paid first when the estate of a deceased claimant is not sufficient to pay all the decedent's debts. See 31 U.S.C. § 3173(a)(1)(B). In determining whether referral to DOJ for filing of a civil action against Mr. S~'s estate is appropriate, SSA must comply with all of its own policies. Recovery from an estate may only be explored where the overpayment is more than $600.00 and cannot be recovered in full from an underpayment, a lump sum death payment payable on the same earnings record, or benefits payable on the same earnings record to a person living in the same household with the debtor at the time of the overpayment. See POMS § GN 02215.050(B).

Here, the overpayment balance is over $600.00 and based on representations by legal counsel for the personal representative, there does not appear to be any other means of recovering the overpayment in full.

Furthermore, in deciding whether to refer a debt for a civil suit, SSA must consider additional factors, including:

1. a. 

   Whether the debt is of sufficient size to warrant additional collection costs;

2. b. 

   Whether a civil suit is barred by the statute of limitations;

3. c. 

   Whether the Government can prove its case;

4. d. 

   Whether a debtor can be located; and

5. e. 

   Whether the assets are sufficient to repay a substantial portion of the debt.

See id. § GN 02215.150(A)(1).

The debt in this case is $38,513.00, which would be sufficient to warrant additional collection costs. In order to ensure that a civil suit is not barred by the statute of limitations, SSA must file a complaint within either:

1. a. 

   Six years after the right of action accrues (i.e., within six years after the time an overpayment determination has been made); or

2. b. 

   One year after a final decision has been rendered in an administrative proceeding (i.e., reconsideration, hearing, and/or review by the Appeals Council), whichever is later.

See id. § GN 02215.150(B)(2). Based upon the information available to us, it appears that SSA would have until September 5, 2011, to file a complaint before the statute of limitations would likely bar a civil suit against the estate of Mr. S~. In determining whether the Government could prove its case, SSA should consider whether there are any questions as to the amount of the debt and whether the debtor's age, mental condition, or physical condition is prejudicial to the outcome of the judgment. Because the defendant in this case would be the estate of Mr. S~, the subject of the debtor's condition should not be an issue. While the information you provided suggests there is no question about the amount of the debt, SSA should verify that the amount of the overpayment is correct and can be proven prior to considering referral of the matter to DOJ. The location of the debtor (the estate of Mr. S~) should not be an issue.

Finally, SSA would have to determine if the assets of the estate were sufficient to repay a substantial portion of the overpayment. As discussed above, according to the personal representative's attorney, there are no assets in the estate, making the likelihood of recouping a substantial portion of the overpayment very unlikely.

The final issues remaining in assessing whether SSA should consider referring this case to DOJ for filing a civil suit against the estate is whether the personal representative has refused to recognize SSA's overpayment and whether SSA has considered a compromise settlement.

POMS § 02215.160 provides that referral of an estate for civil suit is appropriate only if an administrator or legal representative of the estate refuses to recognize SSA's overpayment. In addition, POMS §§ 02215.150, 02215.105 provides that for overpayments of $3,000.00 or more when an estate is involved and a formal claim has not been filed that a compromise settlement must be considered before the matter is referred to DOJ for a civil suit. We have not been provided any information as to whether the personal representative has expressly refused to acknowledge SSA's overpayment or whether SSA has considered a compromise settlement.

Should SSA consider referring this matter for civil suit, our office would have to reexamine the facts in existence at that time to determine the merit of a referral to DOJ. See id. § GN 02215.160(A). 31 U.S.C. § 3713(b) also imposes personal liability upon the personal representative of an estate who has been notified of a decedent's overpayment, disburses the estate's funds, and closes the estate without repaying the overpayment. Should the personal representative of the estate disburse the estate's assets and close the estate without repaying the overpayment, SSA may consider referring the case to DOJ for filing of a civil suit against the personal representative.

SSA notified the personal representative of the overpayment, as well as his potential personal liability, by letter dated May 9, 2006. As of this date, the personal representative has not responded nor repaid the overpayment. Based upon the evidence available to us, it appears that the estate's assets have been disbursed; however, the estate has not been closed. As such, the referral of this case to DOJ for collection against the personal representative of the state would be premature.

CONCLUSION

Accordingly, we advise that:

1. (a) 

   SSA not file a formal claim against Mr. S~' estate;

2. (b) 

   SSA not refer this case to DOJ for filing a civil suit against Mr. S~' estate because there is no likelihood of recouping a significant portion of the overpayment from the estate;

3. (c) 

   SSA confirms that the personal representative has been informed in writing of instructions for requesting a waiver of debt;

4. (d) 

   SSA consider a compromise settlement of the debt; and

5. (e) 

   If the estate is closed and the overpayment is not satisfied, that SSA consider referring the matter to DOJ for filing a civil suit against the personal representative of Mr. S~' estate.

Deana R. Ertl-L~

Regional Chief Counsel, Region VIII

By: Robert L. V. S~

Assistant Regional Counsel

Benefits provided to the aged, blind, and disabled and their dependents are supported by Social Security taxes collected from employee wages and employer excise taxes. These wages and taxes are not deposited into a separate bank account, but are accounted for in the U.S. Treasury as the Social Security Trust Fund. In 1937, the U.S. Supreme Court ruled that payroll taxes are not contributions guaranteeing a benefit, but are taxes. The issuance of Social Security numbers facilitates tracking an individual's earnings and taxes; however, the individual has no legal rights to their "account", as they would under traditional trust fund laws; therefore, an individual cannot legally enforce a trust indenture against SSA.

Our office received the attached correspondence from Hilda G. L~ via the Baltimore Office. We are forwarding the correspondence to you for handling. The information provided below may be helpful in addressing Ms. L~'s concerns about the solvency of the Social Security trust funds. Ms. L~ sought an indenture (agreement), in which SSA would acknowledge that, when she was assigned a Social Security Number, a trust account was created and she became the trustee for that trust. We conclude that the indenture submitted by Ms. L~ has no legal effect for the reasons discussed below.

Background

Ms. L~ contends SSA created a trust with the SSA General Trust fund as beneficiary and Ms. L~ as trustee. According to Ms. L~, SSA created a name for this trust, HILDA G~ L~. Ms. L~ further notes that SSA created a beneficiary distribution account for the trust when it issued her a Social Security Number. In accepting and signing her Social Security card, Ms. L~ claims she then became a trustee.

Ms. L~ drafted an indenture between SSA and herself which includes SSA's acknowledgement of the trust and names Ms. L~ as trustee. Ms. L~ gave SSA 30 days to respond or "forever admit (by tacit admission) the accuracy of the Indenture."

Discussion

Ms. L~ is mistaken in her understanding of the Social Security Trust Fund as she has no property rights in benefits, her indenture has no legal ramifications, and she has no cause of action against the agency.

In similar opinion requests, we advised that the indenture document has no legal effect. See Memorandum from Acting Reg. Chief Counsel, Chicago, to Ass't Reg. Comm.-MOS, Chicago, Notice of Trust Indenture-Herbert L~ M~ (November 27, 2002); Memorandum from Acting Reg. Chief Counsel, Chicago, to Ass't Reg. Comm.-MOS, Chicago, Letter Regarding Trust Indenture-Gregory J. M~(December 5, 2002), and for a more in depth discussion see also Memorandum from Acting Reg. Chief Counsel, Chicago, to Ass't Reg. Comm.-MOS, Chicago, Social Security General Trust Fund Notice of Indenture and Initiation of Administration Review-Gary C. L~ (April 10, 2002).

We reasoned, in particular, that Social Security trust funds are not "trusts" in the traditional trust law sense, and thus, Ms. L~'s attempt to apply traditional trust concepts through an indenture document cannot have any legal effect. The following information is provided to assist you in responding to Ms. L~'s letter.

The Social Security Act established a system for providing benefits to the aged, blind, and disabled and their dependents. 42 U.S.C. § 401 et seq. These benefits are supported by taxes collected under the Internal Revenue Code (IRC), including taxes under the Federal Insurance Contributions Act (FICA) and the Self-Employment Contributions Act (SECA). 42 U.S.C. § 401. The FICA tax is paid in part by withholding money from employee wages and in part by an excise tax on employers. 26 U.S.C. §§ 3101, 3111. Under the IRC, the Secretary of the Treasury, through the Internal Revenue Service (IRS), assesses and collects all taxes imposed by the IRC, including FICA and SECA taxes. These "Social Security taxes" become part of the U.S. Treasury and are not set aside, but they are accounted for separately as the Social Security Trust Funds, i.e., the Old Age and Survivors Insurance (OASI) Trust Fund and the Disability Insurance (DI) Trust Fund. As the Treasury pays Social Security benefits and administrative outlays out of general revenue, it debits the Trust Fund accounts an equivalent amount. The trust fund balances are, in effect, a promise that, if needed to pay Social Security benefits, the government will obtain resources equal to the account balances.

The indenture document submitted by Ms. L~ attempts to apply traditional trust law to the Social Security trust funds, by designating the taxes paid by her under her Social Security number as property held separately by the "trust," with Ms. L~ as trustee, to ensure her Social Security benefits in the future. The Social Security trust funds, however, are not "trusts" in the typical sense of the word. Furthermore, although the Commissioner of Social Security must issue Social Security numbers in order to maintain records of individual earnings and establish any other records necessary to carry out her administrative duties under the Act, see 42 U.S.C. § 405(c)(2)(A)-(B), the taxes collected under a particular Social Security number are not deposited into a separate account like a bank account.

We generally think of a "trust fund" as money, investments, or other property held in a trust. Under traditional trust law, every trust must have (1) a "settlor" who creates the trust and puts property into it, (2) a "trustee" who manages the trust and has legal title to the trust property and (3) a "beneficiary" who holds equitable title to the trust property and for whom the trust property is managed. Trusts also have terms stating the purpose of the trust, the trustee's powers and duties and the beneficiary's rights. The Social Security Trust Funds, however, are not "trusts" in the typical sense of the word. Nor does traditional trust law govern them. The term "trust fund," in the context of the Federal budget, generally means that the Federal government owns the assets and earnings of the Federal trust fund and can raise or lower future trust fund collections and payments or change the purpose for which the collections are used by changing existing law. Unlike beneficiaries of a typical trust, those who pay FICA and SECA taxes do not have an enforceable property right with respect to the OASI and DI trust funds. In Helvering v. Davis, 301 U.S. 619 (1937), the United States Supreme Court, upholding the constitutionality of the Social Security Act, ruled that Social Security is not an insurance program and that payroll taxes are not contributions that guarantee a benefit but are taxes like any other taxes. In Flemming v. Nestor, 363 U.S. 603 (1960), the United States Supreme Court held that workers and their families have no legal claim to their payroll tax payments. In addition, courts have repeatedly rejected the notion that federal taxes are contractual or otherwise consensual in nature. See United States v. Lee, 455 U.S. 252, 258-59 (1982) (upholding mandatory participation in the Social Security system through withholding of Social Security taxes); see also, e.g., McLaughlin v. Commissioner of IRS, 832 F. 2d 986, 987 (7th Cir. 1987); Newman v. Schiff, 778 F.2d 460, 467 (8th Cir. 1985); Coleman v. Commissioner, 791 F.2d 68, 70 (7th Cir. 1986).

CONCLUSION

We conclude that, because the Social Security trust funds are not "trusts" in the traditional trust law sense, Ms. L~'s attempt to apply traditional trust concepts through an indenture document cannot have any legal effect.

Sincerely,

Donna L. C~

Acting Regional Chief Counsel

By: Kimberly S. C~

Assistant Regional Counsel

This opinion states that a claimant representative may not place a lien on an individual's benefits in an attempt to collect (see 42 U.S.C. § 407) payment.

It further states the approved methods of fee collections, as indicated in 42 U.S.C. § 406.

You asked whether an attorney may put an attorney's lien on the social security benefits of a successful claimant. The answer is no. The Social Security Act, under 42 U.S.C. § 406, establishes the exclusive regime for obtaining fees for successful representation of Social Security benefits claimants. Disability benefits are not subject to attachment or lien by creditors and no exception was carved out in the statute for an attorney's lien.

Background

Debra B~ filed a claim for social security disability insurance benefits ("DIB") and Supplemental Security Income ("SSI"). Ms. B~ signed a "Appointment of Representative" and fee agreement with Alex B~. Apparently, Ms. B~ subsequently discharged Mr. B~ and named Bruce J~ to represent her. Ms. B~ signed an "Appointment of Representative" and a second fee agreement, this time with Mr. J~. Ms. B~ was successful in her applications and was awarded benefits. Mr. B~ subsequently wrote a letter to Mr. J~ claiming an attorney's lien on Ms. B~'s disability benefits.

Discussion

Anti-attachment Provision - 42 U.S.C. § 407

Section 207 of the Social Security Act, 42 U.S.C. § 407, provides that:

1. (a) 

   The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.

2. (b) 

   No other provision of law, enacted before, on, or after April 20, 1983, may be construed to limit, supersede, or otherwise modify the provisions of this section except to the extent that it does so by express reference to this section.

Like anti-attachment provisions generally, see Philpott v. Essex County Welfare Board, 409 U.S. 413 (1973); Wissner v. Wissner, 338 U.S. 655 (1950), the statutory language is broadly phrased and announces a legislative objective of assuring that Social Security disability benefits actually reach the beneficiary. Accordingly, the Supreme Court of the United States held, "[s]ection 407(a) unambiguously rules out any attempt to attach Social Security benefits." Bennett v. Arkansas, 485 U.S. 395, 397 (1988). The House Conference Report on the Supplemental Security Income legislation stressed, ". . . . if the benefits which would be provided under this program are to meet the most basic needs of the poor, the benefits must be protected from seizure in legal processes against the beneficiary. Therefore, any amounts paid or payable under this program would not be subject to levy, garnishment, or other legal process, except the collection of delinquent Federal taxes. Also, entitlement to these benefits would not be transferable or assignable." 1972 U.S. Code Cong. & Admn. News 5142.

However, Congress foresaw that the pursuit of entitlement to benefits might require legal assistance and, in 42 U.S.C. §§ 406(a)(2) and 1383(d)(2) of the Social Security Act, authorized the Commissioner to prescribe regulations for the recognition and payment of claimants' representatives. The implementing regulations appear at 20 C.F.R. §§ 404.1700 et seq. and 416.1500 et seq. This section allows the Commissioner to certify for payment to the claimant's attorney a certain percentage of past due benefits. If the Commissioner does not certify payment to the attorney, the attorney is precluded by 42 U.S.C. § 407 from claiming a lien on the claimant's benefits.

Attorney Representation - 42 U.S.C. § 406

The Social Security Act and regulations provide two methods by which fees can be set for attorneys who represent claimants in cases before the Social Security Administration. See 42 U.S.C. § 406. Fees may be obtained by filing a "fee petition" under 42 U.S.C. § 406(a)(1) or through the fee agreement provision of 42 U.S.C. § 406(a)(2)-(3). The Social Security Administration certifies the fee for payment out of the past-due benefits owed to the claimant. See 42 U.S.C. § 406(a)(4); 20 C.F.R. § 404.1730(b). Thus, "[t]he prescriptions set out in §§ 406(a) and (b) establish the exclusive regime for obtaining fees for successful representation of Social Security benefits claimant." See Gisbrecht, 122 S.Ct. at 1822. In either case, once the fee is approved, the Social Security Administration may certify for payment out of past-due benefits so much of the fee that does not exceed 25% of such past-due benefits. See 42 U.S.C. § 406(a)(4).

Fee Petitions

As noted above, fee may be obtained by filing a "fee petition" under 42 U.S.C. § 406(a)(1). Section 406(a) provides that the Social Security Administration should set a "reasonable fee" for representation services before the Agency in every case in which a favorable benefit determination is made. To implement this provision, the Social Security Administration, in 1980, issued regulations establishing a "fee petition" under which representatives must request and receive authorization to charge their clients a fee. See 20 C.F.R. § 404.1725. After the claimant has been awarded benefits, a representative must file a written request, itemizing the services provided, the time expended, and the amount the attorney wishes to charge. 20 C.F.R. § 404.1725(a). SSA then sets the amount of the fee based on both the purpose of the Act, which is to provide a measure of economic security to beneficiaries, and seven enumerated factors, including the extent of services performed and the level of skill and competence required. 20 C.F.R. § 404.1725(b)(1). Claimants or representatives who disagree with the fee determination may request administrative review. 20 C.F.R. § 404.1720(d). The fee determination is reviewed by an authorized official who did not take part in setting the fee, and the decision is not subject to further review. 20 C.F.R. § 404.1720(d)(1).

Fee Agreements

In 1990, Congress created as an alternative to fee petitions: fee agreements. See Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, tit. V, § 5106(a), 104 Stat. 1388, 1388-266 (1990). The "fee agreement" provisions established a second means for authorizing fees for attorneys representing Social Security claimants. 42 U.S.C. § 406(a)(2)-(3). A fee agreement must satisfy three prerequisites: (i) it must be submitted to the Commissioner in writing prior to the time the Commissioner makes a determination on the claim; (ii) it must specify a fee that does not exceed the lesser of 25% of the past-due benefits awarded or $5,300; and (iii) the Commissioner must make a determination favorable to the claimant. 42 U.S.C. § 406(a)(2)(A). If the Social Security Administration issues a favorable determination and if these requirements are satisfied, "then the Commissioner of Social Security shall approve that agreement at the time of the favorable determination, and ... the fee specified in the agreement shall be the maximum fee." 42 U.S.C. § 406(a)(2)(A). An approved agreement sets the maximum fee, and SSA then notifies the claimant and the representative of the amount of the past-due benefits, the maximum fee set by the agreement, and the method of obtaining administrative review of the fee amount. 42 U.S.C. § 406(a)(2)(D).

Where Two or More Attorneys Represent a Claim

In providing for both fee petitions and fee agreements, Congress made an important distinction: fee petitions have no maximum, whereas fee agreements do. If fee agreements did not provide for a maximum fee, the potential for abuse would be very great. While 42 U.S.C. § 406(a)(2) is silent as to what the Commissioner should do if presented with more than one fee agreement, the three statutory prerequisites, as well as the "shall approve" clause, are all written in the singular suggesting that Congress did not intend to address situations in which multiple attorneys presented agreements. See Powers v. Barnhart, -- F.3d --, 2002 WL 1275561, No. 01-5182 at *3 (D.C. Cir. June 11, 2002). If there were a mandatory duty to approve any agreement that met the three prerequisites of 42 U.S.C. § 406(a)(2)(A), then approval of more than one fee agreement could conflict with the important purposes of § 42 U.S.C. § 406(a): to cap the amount that a claimant may agree to pay in attorneys' fees at the lesser of 25% of his recovery or $5,300 and to ensure that disability benefits actually reach the beneficiary.

Fee petitions are different; since the attorney provides documentation of services provided and time spent, the potential for abuse is much less, even without a statutory maximum. For this reason, where more than one attorney represented a Social Security claimant, each is permitted to file a separate fee petition. The potential for abuse is minimized, because SSA will review the petitions to make sure that they are reasonable.

The Hearings, Appeals, and Litigation Law Manual ("HALLEX") I-5-109 clarifies the matter of what to do when two or more unrelated attorneys submit fee agreements.

Question #24 states:

If a claimant had two representatives but the first representative waived his or her fee, does exception a. in IV.A.2. of HALLEX TI 5-109 still apply?

No. Because the first representative waived his or her fee, this exception does not apply.

Neither does exception c. of the same section.

The purpose of these two exceptions is to avoid a situation in which a decision maker might inadvertently approve the fee agreement of both representatives and authorize each representative to collect the maximum amount allowed by the statute. Once one of the representatives waives his or her fee, the situation mentioned above is no longer at issue.

HALLEX I-5-109, question #24 (emphasis added). The POMS also states that a fee request must be made by fee petition where two ore more attorney's represent a claimant. See POMS GN 03940.025(C)(4). Thus, where a claimant had two representatives, and one representative did not waive his or her fee, neither representative is eligible for fees under the fee agreement process. This is consistent with the intent of Congress.

The Agency recently defended this policy in the Power's case. Like the case at hand, Powers dealt with a situation in which the Agency was presented with two attorneys who had represented the claimant over the course of his claim. See Powers, 2002 WL 1275561 at * 1-2. In that matter, "the Deputy Chief ALJ explained that '[s]ince the claimant appointed more than one representative, and did not sign a single, common fee agreement or waive charging and collecting a fee, the Social Security Administration cannot process your fee under the fee agreement process.'" See Powers, 2002 WL 1275561 at *2 (citing letter from Deputy Chief ALJ dated July 6, 1999). The Deputy Chief ALJ advised Power that he would have to "file a fee petition." (Id.).

Here, Alex B~ has not submitted a fee petition, nor has he sought a fee waiver from Bruce J~. Instead, Mr. B~ has claimed a lien on the disability benefits of the claimant. This is inappropriate. To obtain fees, Mr. B~ must file a fee petition. If appropriate, the Agency may certify for payment some or all of any approved fees out of the claimant's past-due benefits.

Conclusion

The Social Security Act ensures that social security disability benefits actually reach the beneficiary. Therefore, an attorney may not place a lien on the benefits of a beneficiary under the 42 U.S.C. § 407.

Furthermore, where the record contains more than one fee agreement, the Social Security Administration will not process any fee under the fee agreement process. Rather, the attorneys must file separate fee petitions in order to receive any fees from the claimant's past due benefits for their services rendered.

Sincerely,

Thomas W. C~

Chief Counsel, Region V

By: Alfred C. S~

Assistant Regional Counsel

The claimant/rep may contact the CE provider. They may ask them to do anything. The DDS has only directed the CE provider to refer requests for CE reports to the DDS.

However, the CE provider then has to determine whether it is in his/her interest to perform whatever service(s) the claimant/rep requested. The chance that problems including litigation might result from a new report paid for by the claimant which agrees with the previous CE report or, in cases where the reports disagree, the provider might face being dropped from the CE panel. Such situations appear to present the "appearance" of conflict of interest and thus SSA/DDS could not tolerate it.

QUESTION

You received a request from Terri H~, an assistant to James T. S~, of the Law Offices of S~, M~ & H~, in S~, Washington. Mr. S~ represents Rebecca L~, a Social Security claimant, who has an appeal pending before the Appeals Council based on an application for disability benefits filed in August 1998. Mr. S~ requests "authority" to meet with John F. M~, Ph.D., a Social Security Administration (SSA) consultative examination (CE) provider, who evaluated Ms. L~ on October 17, 2001, as part of a subsequent, successful application for disability benefits. During the meeting, Mr. S~ wants to discuss Dr. M~'s evaluation of Ms. L~ and also provide him with additional medical information in the hope of generating an additional opinion for use in her current SSA appeal.

You have also requested guidance as to how to respond in the normal course to requests from claimants or their representatives that SSA's CE providers complete evaluative forms based on examinations, tests, or evaluations performed for SSA; or conduct additional examinations or tests; or write additional reports. Finally, you questioned the use of SSA disability evaluation forms by claimants or their representatives.

ANALYSIS

An SSA employee may not disclose records or testify voluntarily or in response to a subpoena, as part of his or her official duties, in litigation to which the SSA is not a party, unless the Commissioner of Social Security in Baltimore, Maryland, or her designee, determines that compliance with the request would promote the objectives of the agency. See 20 C.F.R. § 403.100 (2001); see also United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). This policy was enacted to ensure that SSA maintains strict impartiality with respect to litigation not involving federal parties, and to minimize the disruption of official duties. See id. A subpoena for testimony from an SSA employee is not valid unless the Commissioner or her designee authorizes the testimony or if it meets one of eight exceptions to the regulations. See 20 C.F.R. § 403.115(b)(1) - (8); see also In Re B~, 25 F.3d 761, 763-767 (9th Cir. 1992) (citing Touhy, 340 U.S. at 468).

Employees of the State of Washington Disability Determination Service (DDS), including medical consultants, and consultative examination providers, are considered SSA employees for the purpose of testifying or disclosing records and/or information. See 20 C.F.R. §§ 403.100, 403.110. "Testimony" is any statement (oral or written) given under oath or under penalty of perjury. Disclosure of Social Security records in response to state and federal "court orders" is subject to the Privacy Act (PA). The PA requires that an accounting be maintained for any such disclosure. See 20 C.F.R. §§ 401.25, 401.5, 401.85. However, these rules do not apply in the context of SSA administrative proceedings. See 20 C.F.R. § 403.115(b)(l).

The regulations governing the content of a consultative examination do not require the CE provider to complete a psychiatric review technique form or other evaluative forms. See 20 C.F.R. §§ 404.1519n, 416.919n. However, there is nothing in the regulations or in the Program Operations Manual System (POMS) that would prevent a CE provider who does not otherwise work for SSA from performing an examination paid for by the claimant after the provider had performed a CE paid for by SSA. SSA's conflict of interest regulations cannot be applied to prevent our CE providers who do not otherwise work for SSA from performing such examinations. See 20 C.F.R. §§ 404.1519q, 416.919q; see also POMS DI 39569.001. There are no provisions in the regulations governing the standards of conduct for claimants' representatives that would appear to prevent a representative from obtaining an examination at the claimant's expense from a provider who previously has performed a CE at SSA's expense. See 20 C.F.R. §§ 404.1740, 416.1540. Finally, if SSA attempted to regulate this issue or to take other steps to sanction claimants' representatives for this practice, SSA's actions could be found in violation of section 216(i)(1) of the Social Security Act, 42 U.S.C. § 416(i)(1) (indicating SSA is precluded from interfering in any way with the practice of medicine or with relationships between practitioners of medicine and their patients).

CONCLUSIONS/RECOMMENDATIONS

Assuming that the SSA claimant has executed a proper written consent, the claimant or claimant's representative may request that SSA's CE providers meet with them, complete evaluative forms based on the examinations conducted for SSA, conduct additional examinations or tests and/or write additional reports. Our policy is that CE providers may perform such additional services at the request of the claimant or representative, but are not required to do so and should not feel obligated to do so. The claimant or claimant's representative would be responsible to pay for all such services requested.

In the L~ case, the claimant's representative may have asked for "authority" to meet with the CE provider believing that a grant of such authority by SSA would render SSA liable for payment for any additional CE provider services requested. Therefore, we advise you to thank the representative for his courtesy in advising you of his intent to meet with the CE provider. However, you should also expressly advise Mr. S~ that Dr. M~'s participation would be at his own voluntary discretion and that payment for any/all additional services, if rendered, would be the responsibility of the claimant or claimant's representative requesting them.

With regard to use of SSA disability evaluation forms by claimants or their representatives, as you noted, such SSA forms are public documents that may be copied and used without restriction. Therefore, there is nothing SSA can do to prevent claimants or their representatives from using the forms. Representatives sometimes craft their own forms based on SSA forms and request that medical sources complete the forms in anticipation of litigation. Ultimately, the adjudicator should consider whether an evaluative form has been altered or taken out of context in assigning weight to medical source opinions expressed on such forms. In other words, such forms should be treated like any other piece of potentially probative evidence.