Home / Problems and Opportunities / SSA Misinformation Deters Applying

Cases Where SSA Misinformation Deters Applying

If the claimant has been disabled for quite some time but never before filed an application for benefits, find out why he or she didn’t apply earlier. Inquire whether an SSA employee may have provided misinformation that deterred the claimant from applying for benefits. If you find such a case, you may be able to use the date the misinformation was provided as a “deemed” application date, resulting in months or even years of additional back benefits. The statutory provision authorizing this procedure in Social Security disability cases, 42 U.S.C. § 402(j)(5), applies to misinformation given after December 31, 1982 for benefits payable after December 1982.

In Social Security disability cases, you need look at this issue only when there are more than 17 months between the date of onset and the date of application. If less than that much time has passed, the claimant will receive all benefits due, anyway.

In SSI cases, this rule may have even greater impact because benefits are not paid before the date of the application and because of the quantity of misinformation SSA employees regularly dispense about this complicated welfare program. The SSI provision of the law, 42 U.S.C. § 1383(e)(4), applies to benefits payable for months after December 1989 based on misinformation given on or after December 19, 1989.

According to 20 C.F.R. § 404.633(d), applicable to Social Security disability claims, and 20 C.F.R. § 416.351(d), applicable to SSI claims, preferred evidence that misinformation was provided is “written evidence which relates directly to your inquiry about your eligibility for benefits . . . .” Such written evidence includes a notice or letter from SSA, and SSA telephone or interview records. In the absence of preferred evidence, SSA will consider other evidence, including but not limited to:

  • The individual’s statements, including information about the date and time of the contact with SSA; how the contact was made; reasons for the contact; who gave the misinformation; questions asked by the individual; facts given and questions asked by the SSA employee and the information the employee gave at the time;
  • Statements from others who were present;
  • If the individual can identify the employee or the employee recalls the inquiry—
  • Statements from the employee about the contact; and
  • An assessment of the likelihood that the SSA employee gave the misinformation.
  • An evaluation of the credibility and validity of the individual’s allegation in conjunction with other relevant information; and
  • Any other information.

SSA says that it “will not find that we gave you misinformation based solely on your statements.” 20 C.F.R. § 404.633(d)(2) and 20 C.F.R. § 416.351(d)(2). SSA explained its policy this way when it published the regulations:

We will evaluate the individual’s allegations and seek corroboration; we will resolve reasonable doubt in the individual’s favor if the allegation of misinformation seems credible, is supported by other evidence, and there is no contradictory evidence.

59 Fed. Reg. 44,920 (1994).

If you find a case in which it appears that misinformation from an SSA employee caused a claimant not to apply for benefits, this issue will need to be developed initially at the Social Security office before it is presented to an administrative law judge. Contact the local office and request that it investigate the matter, take an additional application, and rule on the issue.