# SSR 86-9c: SSR 86-9c: SECTIONS 206 AND 1127 OF THE SOCIAL SECURITY ACT (42 U.S.C. 406 AND 1320a-6) ATTORNEY FEES -- DETERMINING PAST-DUE BENEFITS -- APPLICABILITY OF THE SUPPLEMENTAL SECURITY INCOME OFFSET PROVISION

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URL: https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_86_9c

## Section

- **Citation:** SSR 86-9c
- **Heading:** SSR 86-9c: SECTIONS 206 AND 1127 OF THE SOCIAL SECURITY ACT (42 U.S.C. 406 AND 1320a-6) ATTORNEY FEES -- DETERMINING PAST-DUE BENEFITS -- APPLICABILITY OF THE SUPPLEMENTAL SECURITY INCOME OFFSET PROVISION
- **Jurisdiction:** Federal
- **Kind:** Rulings
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Social Security Rulings / OASI / Attorney Fees / SSR 86-9c

## Text

20 CFR 404.408b, 404.1703, 404.1720(b)(4), and 404.1730

SSR 86-9c

Burnett v. Heckler, 756 F.2d 621 (8th Cir. 1985)

McMILLAN, Circuit Judge:

The Secretary of the Department of Health and Human Services (the
Secretary) appeals from a final judgment entered in the District Court for
the Western District of Arkansas awarding attorney's fees, pursuant to 42
U.S.C. § 406(b)(1) (1982), plus interest, to the attorney who represented
a Social Security claimant who was awarded Title II disability and
Supplemental Security income (SSI) benefits retroactively. Burnett v. Heckler , 563 F. Supp. 789 (W.D., Ark. 1983). For reversal the
Secretary argues that the district court erred in computing the amount of
the attorney's fee and in awarding interest. For the reasons discussed
below, we reverse the judgment of the district court.

The underlying facts are not in dispute. For a more detailed statement of
the administrative and judicial history, see 563 F. Supp. at 790-91. This
case involves neither the claimant's entitlement to disability benefits
nor SSI benefits nor the amount of those benefits. Nor does it involve the
application of the so-called SSI windfall offset, 42 U.S.C. § 1320a-6
(1982), [1] amended by §
2615(a) of the Deficit Reduction Act of 1984, 98 Stat. 1132 (to be
codified at 42 U.S.C.A. § 1320a-6 (West Supp.
1984)), [2] to reduce the claimant's past-due disability benefits. This case involves only
the computation of attorney's fees.
the amount of those benefits. Nor does it involve the
application of the so-called SSI windfall offset, 42 U.S.C. § 1320a-6
(1982), [1] amended by §
2615(a) of the Deficit Reduction Act of 1984, 98 Stat. 1132 (to be
codified at 42 U.S.C.A. § 1320a-6 (West Supp.
1984)), [2] to reduce the claimant's past-due disability benefits. This case involves only
the computation of attorney's fees.

Claimant Martha Burnett filed a claim for disability insurance benefits
under Title II of the Social Security Act (the Act), 42 U.S.C. § 401 et
seq., on January 18, 1979. On December 17, 1980, she filed a claim for
SSI benefits based on disability under Title XVI of the Act, id §
1381 et seq. [3] The
Secretary determined that Burnett was not disabled and denied these
claims. In two separate appeals the district court remanded the case to
the Secretary for further proceedings. On August 9, 1982, following
additional vocational expert testimony, the Secretary determined that
Burnett was in fact disabled and entitled to disability benefits beginning
in September 1978 and to SSI benefits from December 1980 through March
1982.

The Secretary determined that Burnett was entitled to gross retroactive
disability benefits in the amount of $8,079.10. Pursuant to the SSI
windfall offset, id. § 1320a-6, the Secretary then reduced the
$8,079.10 by $2,426.29, the amount of retroactive SSI benefits Burnett
would not have received if she had received the disability benefits when
they were due instead of retroactively. Thus, after application of the SSI
windfall offset, Burnett was entitled to $5,652.81 in retroactive
disability benefits. Pursuant to the attorney's fee award provision, id . § 406, the Secretary withheld 25% of this reduced amount to
cover an award of attorney's fees and paid the balance of $4,239.60 to
Burnett.
ceived the disability benefits when
they were due instead of retroactively. Thus, after application of the SSI
windfall offset, Burnett was entitled to $5,652.81 in retroactive
disability benefits. Pursuant to the attorney's fee award provision, id . § 406, the Secretary withheld 25% of this reduced amount to
cover an award of attorney's fees and paid the balance of $4,239.60 to
Burnett.

A court may award attorney's fees pursuant to 42 U.S.C. § 406(b)(1) where
the claimant receives a favorable administrative decision following a
remand of the case to the Secretary for further consideration. See, e.g., Fenix v. Finch 436 F.2d 831, 834-35 (8th Cir. 1971), citing Ray v. Gardner , 387 F.2d 162, 165 (4th Cir. 1967). In
his motion for an award of attorney's fees before the district court, the
attorney argued that, pursuant to § 406(b)(1), he was entitled to a
reasonable attorney's fee of up to 25% of "the total of the past-due
benefits" and that the attorney's fee should be computed as a percentage
of the gross retroactive disability benefits due the claimant, unreduced
by the application of the SSI windfall offset. The district court agreed
and held that

563 F. Supp. at 793. Relying upon the statutory language in § 1320a-6, the
district court determined that Congress intended the SSI windfall offset
to apply only when SSI benefits had actually been received during the
period for which retroactive disability benefits were due: "'Section
[1320a-6] speaks of cases in which a claimant for Title II benefits is subsequently determined to be entitled to those benefits and
" was " an individual to whom [SSI] benefits " were paid " for
one or more months " during " the retroactive period.'" Id. at
792 (citation omitted), emphasis is original), citing unidentified
administrative decision reported in 5 Soc. Security F. 1, 8-9 (1983).
320a-6] speaks of cases in which a claimant for Title II benefits is subsequently determined to be entitled to those benefits and
" was " an individual to whom [SSI] benefits " were paid " for
one or more months " during " the retroactive period.'" Id. at
792 (citation omitted), emphasis is original), citing unidentified
administrative decision reported in 5 Soc. Security F. 1, 8-9 (1983).

The district court also noted that because application of the SSI
windfall offset reduced the amount of "past-due" disability benefits from
which the Secretary withholds 25% for direct payment of attorney's fees or
from which the court may award up to 25% for attorney's fees, SSI windfall
offset operated as a disincentive to lawyers to represent disability
claimants, a result which was contrary to Congressional intent. 563 F.
Supp. at 792-93; see Dawson v. Finch, 425 F.2d 1192, 1195
(5th Cir.), cert. denied , 400 U.S. 830, 91 S. Ct. 60, 27 L. Ed. 2d
60 (1970). This appeal followed.

As a preliminary matter, we note that the Secretary is entitled to
participate in attorney's fee matters to protect the claimant's interest. See e.g., MacDonald v. Weinberger , 512 F.2d 144, 146-47 (9th
Cir. 1975). "In view of the humanitarian policy of the Social Security
program to benefit the disabled, . . . the Secretary 'retains an interest
in the fair distribution of monies withheld for attorney's fees.'" Lewis v. Secretary of HHS , 707 F.2d 246, 248 (6th Cir.
1983), citing Moore v. Califano , 471 F. Supp. 146, 149
(S.D.W.Va. 1979), appeal dismissed mem., 622 F.2d 585 (4th Cir. 1980).

The Secretary argues that the district court's computation of the amount
of past-due benefits is inconsistent with § 406(b)(1) and the regulations
defining the term "past-due benefits," improperly requires payment by the
Secretary of an attorney's fee award "in addition to" the amount of
past-due benefits, and erroneously applies the SSI windfall offset.
em., 622 F.2d 585 (4th Cir. 1980).

The Secretary argues that the district court's computation of the amount
of past-due benefits is inconsistent with § 406(b)(1) and the regulations
defining the term "past-due benefits," improperly requires payment by the
Secretary of an attorney's fee award "in addition to" the amount of
past-due benefits, and erroneously applies the SSI windfall offset.

The Secretary first argues that the district court's award is
inconsistent with § 406(b)(1) and the regulations defining the term
"past-due benefits." Title 42 U.S.C. § 406(b)(1) (emphasis added)
provides:

The Secretary has defined "past-due benefits" by regulation as " the
total amount of benefits payable under Title II of the Act to all
beneficiaries that has accumulated because of a favorable administrative
or judicial determination or decision, up to but not including the month
the determination or decision is made." 20 C.F.R. § 404.1703 (1984)
(emphasis added). Thus, the Secretary argues that any adjustments required
by the Act which affect the amount of benefits the claimant is entitled to
receive, including the reduction required by the SSI windfall offset, must
be made in order to determine the "total amount of benefits payable" to a
disability claimant. For this reason, the Secretary argues that "past-due
benefits" in § 406.(b)(1) refers to the "net" amount of disability
benefits payable to the claimant.

Where Congress has entrusted the Secretary with the responsibility for
implementing a statutory provision by regulation, the Secretary has the
primary responsibility for interpreting statutory terms. See, e.g., Batterton v. Francis , 432 U.S. 416, 425-26, 97 S.Ct. 2399,
2405-06, 53 L. Ed.2d 448 (1977). "[O]ur review is limited to determining
whether the regulations promulgated exceeded the Secretary's statutory
authority and whether they are arbitrary and capricious." Heckler v. Campbell , 461 U.S. 458, 466, 103 S.Ct. 1952, 1957, 76 L.Ed.2d 66
sibility for interpreting statutory terms. See, e.g., Batterton v. Francis , 432 U.S. 416, 425-26, 97 S.Ct. 2399,
2405-06, 53 L. Ed.2d 448 (1977). "[O]ur review is limited to determining
whether the regulations promulgated exceeded the Secretary's statutory
authority and whether they are arbitrary and capricious." Heckler v. Campbell , 461 U.S. 458, 466, 103 S.Ct. 1952, 1957, 76 L.Ed.2d 66
(1983). Judicial deference to administrative interpretation is
particularly appropriate in cases involving disputed terms in the Social
Security Act. See, e.g., Burkhalter v. Schweiker , 711 F.2d
841, 844 (8th Cir. 1983). Here, Congress has authorized the Secretary to
pay authorized attorney's fees out of past-due benefits directly to
attorneys who represent disability claimants and has entrusted
implementation of the provision by rule or regulation to the Secretary. 42
U.S.C. § 406(a) (administrative award), (b) (judicial award). We cannot
conclude that the Secretary's interpretation of "past-due benefits" as the
total amount of benefits payable to the claimant, that is, the "net"
amount of disability benefits, is arbitrary and capricious or exceeds the
Secretary's statutory authority.

First, computation of attorney's fees on the basis of the net amount of
benefits is consistent with the Congressional goal of insuring that
disability benefits are not consumed by attorney's fees. Cf. Dawson v. Finch , 425 F.2d at 1195 (§ 406(b) intended to insure that
disability benefits would not be diminished by deduction of attorney's fee
of one-third or one-half of benefits received). Under the Act, the
claimant is not entitled to payment of the "gross" amount of retroactive
disability benefits. The Secretary when required by the Act must reduce
the "gross" amount. The reduction can dramatically affect the amount of
benefits payable to the claimant. For example, 42 U.S.C
d not be diminished by deduction of attorney's fee
of one-third or one-half of benefits received). Under the Act, the
claimant is not entitled to payment of the "gross" amount of retroactive
disability benefits. The Secretary when required by the Act must reduce
the "gross" amount. The reduction can dramatically affect the amount of
benefits payable to the claimant. For example, 42 U.S.C. § 424a requires
the Secretary to reduce a claimant's disability benefits if the claimant
receives worker's compensation. See also 20 C.F.R. § 404.408 (1984). In Cloyd v. Weinberger , 527 F.2d 1167 (6th Cir. 1976) (order),
the claimant's gross amount of benefits was $2,703.20, but, after
reduction for worker's compensation, the net amount was $746.20. The
district court's award of an attorney's fee of $1,028.60 was greater than
the claimant's past-due benefits. The court in the Cloyd case
reversed the district court award and held that the maximum attorney's fee
allowable under § 406(b)91) was $186.55 or 25% of the reduced or net
amount of benefits. Id. at 1168. Thus, as noted in Davis v. Secretary of HEW , 320 F. Supp. 1293, 1296 (N.D.Miss 1970) (worker's
compensation), recovery of attorney's fees based on the gross award would
"in many cases [cause] a substantial portion of the actual recovery [to]
be consumed in counsel fees and the actual 'benefit' to [the] claimant
reduced to a merely minimal sum.
ced or net
amount of benefits. Id. at 1168. Thus, as noted in Davis v. Secretary of HEW , 320 F. Supp. 1293, 1296 (N.D.Miss 1970) (worker's
compensation), recovery of attorney's fees based on the gross award would
"in many cases [cause] a substantial portion of the actual recovery [to]
be consumed in counsel fees and the actual 'benefit' to [the] claimant
reduced to a merely minimal sum.

Here, the reduction required by the Act is the SSI windfall offset. 42
U.S.C. § 1320a-6; 20 C.F.R. § 404.408b (1984). We believe the Secretary's
decision to handle the reduction required by the SSI windfall offset in
the same way as the worker's compensation reduction is reasonable. We
recognize that computation of attorney's fees on the basis of the net
amount of disability benefits will necessarily "reduce the amount of
withheld Title II benefits available for the payment of attorney's fees"
and to that extent is a financial disincentive to attorneys to represent
disability applicants. 563 F. Supp. at 792. The Secretary's approach,
however, does produce a public benefit because it preserves a greater
portion of the benefits for the claimant. After reduction by the SSI
windfall offset, Burnett was entitled to benefits of $5,652.81. As
discussed below, § 406(b)91) limits direct payment of the attorney's fee
"out of, and not in addition to, the amount of such past-due benefits". An
attorney's fee award of $2,019.75 (or 25% of $8,079.10) would leave
Burnett with the balance of $3,633.06. By comparison, under the
Secretary's approach, an attorney's fee award of $1,413.20 (or 25% of
$5,652,81) would leave Burnett with $4,239.60, or about $606 more in
benefits.
ct payment of the attorney's fee
"out of, and not in addition to, the amount of such past-due benefits". An
attorney's fee award of $2,019.75 (or 25% of $8,079.10) would leave
Burnett with the balance of $3,633.06. By comparison, under the
Secretary's approach, an attorney's fee award of $1,413.20 (or 25% of
$5,652,81) would leave Burnett with $4,239.60, or about $606 more in
benefits.

Moreover, the statutory language and legislative history suggest that
Congress sought to "encourage effective legal representation of claimants
by insuring lawyers that they will receive reasonable fees directly
through certification by the Secretary. Dawson v. Finch , 425
F.2d at 1196;p see also Hearings on H.R. 6675 Before the Senate Committee
on Finance, 89th Cong., 1st Sess. 512-13 (1965) (attorney complaints that
claimants sometimes receive awards without the attorney's knowledge and do
not notify the attorney and do not pay the attorney's fee). Section 406(a)
and (b) reflect a compromise -- the Secretary must withhold and pay a
reasonable attorney's fee directly to the attorney out of the claimant's
past-due benefits, thus guaranteeing payment to the attorney and avoiding
collection problems, but the amount of the attorney's fee that must be
withheld and directly paid to the attorney is limited to a maximum of 25%
of the past-due benefits. Thus, it is primarily the direct payment feature
which provides the attorney with the financial incentive to represent
disability claimants and compensates in part for limitation of fees to a
maximum of 25% of the past-due benefits in court awards. Under the
Secretary's approach, only the amount subject to withholding and direct
payment is affected, not the direct payment feature.
efits. Thus, it is primarily the direct payment feature
which provides the attorney with the financial incentive to represent
disability claimants and compensates in part for limitation of fees to a
maximum of 25% of the past-due benefits in court awards. Under the
Secretary's approach, only the amount subject to withholding and direct
payment is affected, not the direct payment feature.

The question whether the amount of past-due benefits subject to
withholding must be reduced by the SSI windfall offset was specifically
addressed in the preamble to the final regulations implementing the SSI
windfall offset provision. Reduction of Retroactive Social Security
Benefits, 47 Fed. Reg. 4985, 4986 (1982) (hereinafter Preamble) (codified
at 20 C.F.R. §§ 404.408b, 416.1123). The question about withholding is
identical to the issue in the present case: whether the amount of past-due
benefits out of which the court may award attorney's fees must be reduced
by the SSI windfall offset. The questions are identical because although
the Secretary may authorize an attorney's fee in excess of 25% of
the past-due benefits for services rendered in connection with
administrative proceedings, the most the Secretary may withhold and
certify for direct payment to the attorney is 25% of the past-due
benefits. See 42 U. S.C. § 406(a) (Secretary to prescribe maximum fees
which may be charged for services performed in connection with any claim
before the Secretary and shall certify for payment maximum of 25% of
past-due benefits); 20 C.F.R. § 404.1725(b)92) (administrative
authorization of attorney's fee does not depend on amount of benefit
alone; Secretary may authorize a fee even if no benefits are payable),
.1730(b)(1) (maximum direct payment of 25% of past-due benefits); see
generally 3 National Organization of Social Security Claimant's
Representatives, Social Security Practice Guide § 27.01, at 27-2 (1984)
(distinguishing authorization from withholding and payment)
f attorney's fee does not depend on amount of benefit
alone; Secretary may authorize a fee even if no benefits are payable),
.1730(b)(1) (maximum direct payment of 25% of past-due benefits); see
generally 3 National Organization of Social Security Claimant's
Representatives, Social Security Practice Guide § 27.01, at 27-2 (1984)
(distinguishing authorization from withholding and payment). But see Morris v. Social Security Administration , 689 F.2d 495, 497
(4th Cir. 1982) (holding that § 406(a) limits the amount of attorney's
fees which may be awarded by the Secretary for administrative
representation to 25% of past-due benefits). Similarly, the maximum
attorney's fee that a court can award (and which the Secretary can
withhold and certify for direct payment) is 25% of the past-due benefits.
See 42 U.S.C. § 406(b)(1); 20 C.F.R. § 404.1728(b) (authorization), .1730
(a)(payment).

Several commenters had assumed that the Secretary would withhold the
amount of an attorney's fee from retroactive disability benefits before the reduction required by the SSI windfall offset. The
Secretary's response clearly rejected that position:

Preamble, 47 Fed. Reg. at 4986 (emphasis in original). Thus, the amount
of retroactive benefits payable for purposes of a court award of
attorney's fees pursuant to § 404(b)(1) is the amount of retroactive
disability benefits reduced by the SSI windfall offset or the net amount
of disability benefits.
d by the SSI windfall offset. The
Secretary's response clearly rejected that position:

Preamble, 47 Fed. Reg. at 4986 (emphasis in original). Thus, the amount
of retroactive benefits payable for purposes of a court award of
attorney's fees pursuant to § 404(b)(1) is the amount of retroactive
disability benefits reduced by the SSI windfall offset or the net amount
of disability benefits.

The Secretary also argues that the district court's award violates the
provision in § 406(b)(1) which authorize the Secretary to "certify the
amount of such fee for payment to such attorney out of, and not in
addition to, the amount of such past-due benefits" in the present case is
$5,652.81. The Secretary withheld 25% of this amount or $1,413.20 for
payment of attorney's fees and paid the balance to the claimant. The
district court's attorney's fee award of $2,019.75 exceeds the amount
withheld by $606.55. The district court could not require the Secretary to
pay the attorney $2,019.75 as an attorney's fee award made pursuant to §
406(b)(1) because $606.55 of that award represented an amount "in addition
to" the amount of past-due benefits. Cf. Ocasio v.
S chweiker , 540 F. Supp. 1320 (S.D.N.Y. 1982) (availability of
attorney's fees against the federal government under Equal Access to
Justice Act not limited by § 406(b)).

The Secretary also argues that the district court erroneously applied the
SSI windfall offset. The Secretary specifically argues that the district
court erred in holding that in cases involving concurrent applications for
retroactive disability benefits and SSI benefits, the Secretary must
compute and pay the disability benefits before computation and
payment of the SSI benefits. Because the present case involves only
computation of attorney's fees and does not involve application of the SSI
windfall offset to reduce the amount of the claimant's retroactive
disability benefits, we do not reach this issue
retroactive disability benefits and SSI benefits, the Secretary must
compute and pay the disability benefits before computation and
payment of the SSI benefits. Because the present case involves only
computation of attorney's fees and does not involve application of the SSI
windfall offset to reduce the amount of the claimant's retroactive
disability benefits, we do not reach this issue. However, some analysis of
the SSI windfall offset was necessary to resolve the attorney's fee issue
and we believe that the Secretary's argument is correct. See Gallo v. Heckler , 600 F. supp. 1513, 1518-1519 (E.D.N.Y. 1985). The
analysis is set forth in the
margin. [4]

The Secretary also argues that the district court erred in awarding
interest on the award of attorney's fees. We agree. Section 406(b) does
not contain any provision for an award of interest. The Secretary's role
under § 406(b) is limited to withholding a maximum of 24% of the past-due
benefits and certifying the court's attorney's fee award for direct
payment to the attorney. The Secretary is only a stakeholder in such
proceedings. In any event, to the extent the district court's award could
be characterized as one against the Secretary for payment of attorney's
fees, there is no provision in § 406(b) for an award of interest.
"(I)nterest on claims against the United States cannot be recovered in the
absence of an express provision to the contrary in the relevant statute. .
. ." United States v. Alcea Band of Tillamooks , 341 U.S. 48,
71 S.Ct. 552, 95 L. Ed. 738 (1951) (per curiam).

Accordingly, the judgment of the district court awarding attorney's fees
in the amount of $2,019.75, plus interest, is reversed. Because it is
clear that the district court intended to award the maximum allowable
amount, we direct the district court to enter an award of $1,413.20 as the
attorney's fees in the present case.

[1] 42 U.S.C. § 1320a-6 1982)
provided:
38 (1951) (per curiam).

Accordingly, the judgment of the district court awarding attorney's fees
in the amount of $2,019.75, plus interest, is reversed. Because it is
clear that the district court intended to award the maximum allowable
amount, we direct the district court to enter an award of $1,413.20 as the
attorney's fees in the present case.

[1] 42 U.S.C. § 1320a-6 1982)
provided:

Notwithstanding any other provision of this chapter, in any case where an
individual --

(1) makes application for benefits under subchapter II of this chapter
and is subsequently determined to be entitled to those benefits, and

(2) was an individual with respect to whom supplemental security income
benefits were paid under subchapter XVI of this chapter (including State
supplementary payments which were made under an agreement under section
1382e(a) of this title or an administrative agreement under section 212 of
Public Law 93-66) for one or more months during the period beginning with
the first month for which a benefit described in paragraph (1) is payable
and ending with the first month for which a benefit described in paragraph
(1) is payable and ending with the month before the first month in which
such benefit is paid pursuant to the application referred to in paragraph
(1), the benefits (described in paragraph (1)) which are otherwise
retroactively payable to such individual for months in the period
described in paragraph (2) shall be reduced by an amount equal to so much
of such supplemental security income benefits (including State
supplementary payments) described in paragraph (2) for such month or
months as would not have been paid with respect to such individual or his
eligible spouse if the individual had received the benefits under
subchapter II of this Chapter at the times they were regularly due during
such period rather than retroactively; and from the amount of such
reduction the Secretary shall reimburse the state on behalf of which
supplementary payments
such month or
months as would not have been paid with respect to such individual or his
eligible spouse if the individual had received the benefits under
subchapter II of this Chapter at the times they were regularly due during
such period rather than retroactively; and from the amount of such
reduction the Secretary shall reimburse the state on behalf of which
supplementary payments were made for the amount (if any) by which such
State's expenditures on account of such supplementary payments for the
period involved exceeded the expenditures which the State would have made
(for such period) if the individual had received the benefits under
subchapter II of this chapter at the times they were regularly due during
such period rather than retroactively. An amount equal to the portion of
such reduction remaining after reimbursement of the State under the
preceding sentence shall be covered into the general fund of the
Treasury.

[2] Section 2615(a) of the
Deficit Reduction Act of 1984, 98 Stat. 1132 (to be codified at 42
U.S.C.A. § 1320a-6 (West Supp. 1984)), provides:

[3] Eligibility for SSI benefits
is determined on the basis of need and either age, blindness or disability
and provides a minimum level of benefits. See Schweiker v. Hogan , 457 U.S. 569, 102 S. Ct.2 597, 2606, 73 L. Ed.2d 227 (1982)
(brief discussion of historical development of SSI program).

[4] As noted by the district
court, the SSI windfall offset provision requires the Secretary to reduce
a claimant's retroactive disability benefits if the claimant received SSI
payments for at least one month of the retroactive period; the amount of
the reduction of disability benefits in the amount of SSI payments that
would not have been paid if the claimant had received the disability
benefits when they were due instead of retroactively. Burnett v.
Heckler , 563 F. Supp. 789, 792 (W.D. Ark. 1983); 42 U.S.C. § 1320a-6
y benefits if the claimant received SSI
payments for at least one month of the retroactive period; the amount of
the reduction of disability benefits in the amount of SSI payments that
would not have been paid if the claimant had received the disability
benefits when they were due instead of retroactively. Burnett v.
Heckler , 563 F. Supp. 789, 792 (W.D. Ark. 1983); 42 U.S.C. § 1320a-6
(1982), amended by § 2615(a) of the Deficit Reduction Act of 1984,
987 Stat. 1132 (to be codified at 42 U.S.C.A. § 1320a-6) (West Supp.
1984); see H. R. Conference Rep. NO. 861, 98th Cong., 2nd sess. 1391, reprinted in 1984-6B U.S. Code Cong. & Ad. News 751, 1385; H.
R. Conference Rep. No. 944, 96th Cong. 2d Sess. 69, reprinted in 1980 U.S. Code Cong. & Ad. News 1277, 1416; s Rep. No. 408, 96th
cong., 2d Sess. 78, reprinted in 1980 U.S. Code Cong., & ad.
News 1277, 1356; see generally 3 National Organization of Social
Security Claimant's Representatives, Social Security Practice Guide §
25.33 (1984). Because eligibility for SSI depends upon financial need in
addition to age, blindness, or disability, the amount of monthly SSI
payments is inversely proportional tot he Claimant's income and resources
for that particular month. 42 U.S.C. § 1382(c)(1) (1982); 20 C.F.R. §
416.200 (SSI eligibility determined on quarterly basis), .1123(a) (1984).
Unearned income like disability benefits is considered "income" for SSI
purposes, 20 C.F.R. § 416.1121(a), but cannot be counted until actually
received, id § 416.1123(a). Thus, an SSI applicant who already
receives disability benefits receives a smaller SSI payment than an SSI
applicant who does not receive disability benefits
eligibility determined on quarterly basis), .1123(a) (1984).
Unearned income like disability benefits is considered "income" for SSI
purposes, 20 C.F.R. § 416.1121(a), but cannot be counted until actually
received, id § 416.1123(a). Thus, an SSI applicant who already
receives disability benefits receives a smaller SSI payment than an SSI
applicant who does not receive disability benefits. However, before the
passage of the SSI windfall offset provision, an SSI applicant who applied
for retroactive disability benefits or an individual who applied at
roughly the same time or concurrently for both disability and SSI benefits
could have received full SSI payments and disability benefits because the
Secretary could not reduce the amount of SSI payments to reflect the
payment of disability benefits until the claimant actually received the
disability benefits. In addition, even if the retroactive disability
benefits were paid before SSI, the disability benefits would only be
counted as income for SSI purposes during the month they were received and
not for any other months in the retroactive period. Id. § 416.1123.
Thus, an individual could have received SSI benefits that would not have
been paid if the individual had received the disability benefits that
would not have been paid if the individual had received the disability
benefits during the months they were due rather than retroactively.

## Nearby sections

- [SSR 65-33c SSR 65-33c: Rescinded](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_65_33c.md)
- [SSR 67-54c SSR 67-54c: Rescinded](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_67_54c.md)
- [SSR 68-47c SSR 68-47c: Rescinded](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_68_47c.md)
- [SSR 68-61c SSR 68-61c: SECTION 206(b)(1). -- REPRESENTATION OF CLAIMANT IN COURT PROCEEDINGS -- FIXING AMOUNT OF ATTORNEY'S FEE](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_68_61c.md)
- [SSR 71-23c SSR 71-23c: Rescinded](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_71_23c.md)
- [SSR 72-14c SSR 72-14c: Rescinded](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_72_14c.md)
- [SSR 72-31c SSR 72-31c: Rescinded](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_72_31c.md)
- [SSR 74-29 SSR 74-29: SECTION 206 (42 U.S.C. 406) -- REPRESENTATION OF CLAIMANT -- DISQUALIFICATION OF NONATTORNEY -- DUE PROCESS REQUIRES NOTICE AND OPPORTUNITY FOR HEARING](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_74_29.md)
- [SSR 78-14 SSR 78-14: Rescinded 1984](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_78_14.md)
- [SSR 82-39 SSR 82-39: TITLES II AND XVI -- USE OF TRUST OR ESCROW ACCOUNTS IN COLLECTION OF ATTORNEY FEES](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_82_39.md)
- [SSR 83-27 SSR 83-27: SECTIONS 206(a) AND 1631(d)(2) (42 U.S.C. 406(a) AND 1383(d)(2)) ATTORNEY FEES--DETERMINATION AND PAYMENT OF ATTORNEY FEES IN CONCURRENT TITLE II-TITLE XVI CLAIMS](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_83_27.md)
- [SSR 85-3 SSR 85-3: Rescinded](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_85_3.md)
- [SSR 86-9c SSR 86-9c: SECTIONS 206 AND 1127 OF THE SOCIAL SECURITY ACT (42 U.S.C. 406 AND 1320a-6) ATTORNEY FEES -- DETERMINING PAST-DUE BENEFITS -- APPLICABILITY OF THE SUPPLEMENTAL SECURITY INCOME OFFSET PROVISION](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_86_9c.md)
- [SSR 86-10c SSR 86-10c: Rescinded](https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_86_10c.md)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_86_9c. Check the current official text before relying on it. Not legal advice.