Counsel’s corner

SSA Due Process Violations For Years, The Social Security Administration (SSA) Has Terminated Supplemental Security Income (SSI) Benefits Without a Prior Due Process Hearing as Required by the U.S. Supreme Court

By: Steven Bruce, Esq. PWDF Legal Director

It has been the policy, in practice, of the SSA when ceasing an individual’s SSI benefits, whether for an overpayment or other reasons, to do so without the required pre-termination hearing required under the due process clause of the Fifth Amendment of the U.S. Constitution.  Since Goldberg v. Kelly, 397 U.S. 254 (1970), the U.S. Supreme Court has made it clear that an individual cannot lose a property interest without a due process hearing before (as opposed to after) a termination of SSI benefits.  The SSI benefit check an individual receives is considered property under the meaning of the Fifth Amendment.  The Supreme Court has reaffirmed this in other cases since 1969, including in Mathews v. Eldridge, 424 U.S. 319 (1976).

Regrettably, over the past several decades, the SSA continues to send people notices that their benefits are being terminated without first having a “Goldberg v. Kelly” due process hearing.  The SSA terminates these benefits for a variety of reasons, including to recoup an overpayment because the individual has engaged in substantial gainful activity (SGA), that there has been medical improvement, that the individual has not complied with some other term or condition of receipt of benefits, including reporting income, or reporting any changes in address. Under any of these circumstances, it is illegal and unconstitutional for the SSA to terminate benefits without first having a “Goldberg v. Kelly” due process hearing.

People With Disabilities Foundation (PWDF) has seen this happen throughout the entire 17 years of our existence.  It routinely comes up when someone is wrongly ceased for such reasons as the SSA made errors in its analysis of claimants’ work and/or by discriminating against the individual on the basis of a mental and/or developmental disability.

Although it is well established by the U.S. Supreme Court that these due process hearings are required, and have been for the past 45 to 50 years, the SSA is blatant in its disregard for the Constitution and its requirements.  If anyone is having their SSI checks terminated without a prior hearing, they should seek the immediate advice of an attorney.  If in the San Francisco Bay Area, they can come to the People With Disabilities Foundation for assistance; however, in another area they can and should go to their legal aid office or other disability rights agency.  In addition, the nonprofit agency Justice in Aging is collecting information about people with this issue for potential litigation.[1]

In Califano v. Yamasaki, 442 U.S. 682 (1979), the Supreme Court held that Social Security beneficiaries who request a waiver of an overpayment are entitled to an opportunity for a pre-recoupment oral hearing.  It should be noted that compliance with the due process clause is also required before recoupment when a request for reconsideration is filed on an overpayment.

For those individuals who are suspended from the SSI program, for allegedly not cooperating in an SSI income and resource eligibility annual redetermination review, for example, the SSA admits that it is their policy to offset any overpayment that they allege in toto, as opposed to what the law allows.  The Social Security Act requires that while someone is on SSI, the SSA cannot recoup more than 10 percent of the benefit check amount; however, the SSA continues to intentionally disregard these basic constitutional and statutory rights.  The Social Security Act provides a due process right in overpayment cases for both Title XVI (SSI) and Title II (Social Security Disability Insurance (SSDI)) before recoupment and, since 1970 in the Goldberg v. Kelly case, the Constitution has required a hearing before termination.

PWDF Profile

Who We Are

People With Disabilities Foundation is an operating 501(c)(3) nonprofit organization based in San Francisco, California, which focuses on the rights of the mentally and developmentally disabled.

Services

Advocacy: PWDF advocates for Social Security claimant’s disability benefits in eight Bay Area counties. We also provide services in disability rights, on issues regarding returning to work, and in ADA consultations, including areas of employment, health care, and education, among others. There is representation before all levels of federal court and Administrative Law Judges. No one is declined due to their inability to pay, and we offer a sliding scale for attorney’s fees.

Education/Public Awareness: To help eliminate the stigma against people with mental disabilities in society, PWDF’s educational program organizes workshops and public seminars, provides guest speakers with backgrounds in mental health, and produces educational materials such as videos.

Continuing Education Provider: State Bar of California MCLE, California Board of Behavioral Sciences Continuing Education, and Commission of Rehabilitation Counselor Certification.