When an administrative law judge (ALJ) makes a favorable disability or blindness decision on a case, the Appeals council (AC) may decide on its own motion to review the decision or reopen the decision. It may do this because an office protests the ALJ's decision to the AC, or because quality assurance sampling of ALJ decisions causes the AC to question the ALJ's decision.

When the AC decides to review or reopen a decision, the claimant receives a notice that tells them about the favorable ALJ decision, that the decision is being reviewed or reopened, and that benefits will be delayed while the case is under AC review or reopening. The notice also tells the claimant that there is a limit to how long benefits can be delayed.

Section 1631(a)(8) of the Social Security Act (the Act) requires the Social Security Administration (SSA) to pay prospective monthly Federal benefits to the claimant if the Commissioner of SSA (Commissioner) has not made a final decision within 110 calendar days after the date of the ALJ decision. These “interim benefits” start with the month in which the 110th day falls, and end with the month in which the final decision is made.

The law also provides that any interim benefits paid will not be considered overpayments, unless fraudulently obtained.

These requirements apply to both Title II and Supplemental Security Income (SSI). Both Title II and SSI can be paid as interim benefits. For SSI, only Federal SSI money is paid as interim benefits. Federally administered state supplementary payments are not paid as interim benefits.

1. a. 

   If a field office (FO) effectuates a favorable ALJ decision before the AC takes action to review or reopen the case interim benefits are not an issue, and interim benefit policy is not applicable to the case .

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     Do not release any additional underpayment.

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     Leave the erroneously effectuated decision on the record until SSA issues a final agency decision.

2. b. 

   If the final disability (or blindness) decision is unfavorable, the erroneously effectuated SSI payment is a collectible overpayment.

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     Document Report of Contact and SSR Special Messages - "Erroneous Effectuation of ALJ Approval - AC Review - Unfavorable Final Disability Decision." [Unit Code/Date].

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     Issue an SSA-L8171, Notice of Overpayment. See SI 02220.000, Recovery Procedures for Supplemental Security Income Overpayments.

Interim benefits are not payable when the ALJ has made a favorable decision and a claimant is waiting for the FO to complete the PERC development for SSI, but the AC's own motion review is not involved. The FO must complete effectuation of the ALJ's decision and pay regular SSI payments as soon as possible.

EXAMPLE 1:

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  The ALJ issued a favorable disability decision on June 21, 2018.

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  The AC decided to review the case on its own motion.

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  The claimant began receiving SSI interim benefits starting with October 2018, because 110 days from June 21 is in October.

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  The AC reverses the favorable ALJ decision in February 2019, and the FO stops interim benefits effective with May 2019. The payments for October 2018 through April 2019 are SSI interim benefits.

EXAMPLE 2:

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  The ALJ issued a favorable disability decision on June 21, 2018.

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  The AC decided to review the case on its own motion.

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  The claimant began receiving SSI interim benefits starting with October 2018, because 110 days from June 21 is in October.

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  The AC remanded the case to the ALJ for further proceedings and a new decision.

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  The ALJ held a new hearing and issued a subsequent unfavorable decision in February 2019.

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  The claimant filed a timely request for AC review of the unfavorable ALJ decision.

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  The AC denied the request for review in April 2019.

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  The FO stops the interim benefits effective in May 2019.

EXAMPLE 3:

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  The ALJ issued a favorable disability decision on June 21, 2018.

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  The AC decided to review the case on its own motion.

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  The claimant began receiving interim benefits starting with October 2018, because 110 days from June 21 is in October.

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  The AC remanded the case to the ALJ for further proceedings and a new decision.

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  The ALJ held a new hearing and issued a subsequent unfavorable decision in February 2019.

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  The claimant does not file an appeal to the AC.

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  Interim benefits terminate in April 2019.

  NOTE: If the claimant files an appeal to the AC more than 65 days after the date of the ALJ's unfavorable decision, and without good cause, the unfavorable ALJ decision becomes final. Remember, interim benefits paid to the claimant are not overpayments per SI 02007.001B.4.

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  The ALJ issued a favorable disability decision on June 21, 2018.

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  A FO technician effectuated the favorable ALJ case to current pay.

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  The AC reviewed the case on its own motion.

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  The final disability decision on the case is unfavorable.

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  Payments made under the favorable ALJ decision are a collectible overpayment.

See DI 42010.205. These sections state the policies and procedures for interim benefits under title II.

A person must meet all nondisability requirements for SSI eligibility to receive interim benefits (e.g., limitations on income and resources, and the requirement to file for other benefits.) See SI 00501.001.

Interim benefits are not payable to the State for reimbursement. See SI 02003.001C.

Interim benefits are not overpayments unless fraudulently obtained. Unless interim benefits were fraudulently obtained, do not take any overpayment recovery action. See GN 04101.010 regarding “SSA Program Integrity Responsibilities”. Also see SI 02201.005 regarding SSI overpayments.

All SSI posteligibility rules apply to SSI interim benefit cases, except the rule about overpayments stated in SI 02007.001B.4. See SI 02007.015 for notice requirements.

For example:

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  Claimants receiving SSI interim benefits have the same reporting responsibilities as other SSI recipients. See SI 02301.005 for recipient reporting;

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  Changes in nondisability factors can increase or decrease the monthly interim benefits due or cause interim benefits to stop;

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  Some changes in nondisability factors require the FO to conduct unscheduled redeterminations;

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  Due process requirements apply, including the requirement to provide an advance notice (Goldberg v. Kelly) before reducing or stopping interim benefits for nondisability reasons. (See SI 02301.001)

The rules for windfall offset apply to interim benefits. See GN 02610.005.

EXAMPLE:

Facts about the interim benefits:

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  The claimant applies for SSI and Title II benefits in January 2018.

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  Based on the alleged date of disability onset, the first month in which title II benefits could be due is February 2018 (benefit entitled in January).

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  The ALJ issues favorable disability decision on June 21, 2018.

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  The AC decides to review the case on its own motion.

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  The claimant begins receiving SSI and Title II interim benefits starting in October 2018, because 110 days from June 21 is in October.

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  The AC affirms the favorable ALJ decision in February 2019.

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  The claimant continues to receive monthly SSI payments and Title II benefits.

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  The claimant receives retroactive SSI benefits.

The windfall offset computation

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  The retroactive Title II benefits would have been paid in February 2018 through September 2018 (benefits entitled from January through August 2018).

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  The offset period begins February 2018, the first month Title II benefits could affect SSI if paid when due.

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  The offset period ends November 2018, 2 months after the last month in which the retroactive Title II would have been paid.