How to Appeal a Denial of a Request for Waiver of an Overpayment

Has Social Security sent you a letter that says your benefits have been overpaid? Overpayments can be the result of a clerical error or because of something you did (or failed to do—like not reporting income or employment changes to Social Security right away).

You might not have even realized you'd been overpaid until you received an overpayment notice from the Social Security Administration (SSA). But when Social Security pays you too much money, the SSA generally expects you to return it.

If you don't agree that you were overpaid, or you can't afford to return the money, you can ask Social Security to waive the overpayment (see below). If your Social Security overpayment waiver is granted, you won't have to pay the money back. But if Social Security denies your request to waive an overpayment, you can appeal.

After your waiver request is denied, your next step depends on the type of disability benefits you're getting. The appeal processes for SSI (Supplemental Security Income) and SSDI (Social Security Disability Insurance) differ somewhat. Below we'll discuss what you need to know to file an appeal if Social Security has denied your overpayment waiver request.

But first, let's look at when you can request that an overpayment be waived.

When Can You Request a Social Security Overpayment Waiver?

If Social Security sends you a notice that says your benefits have been overpaid, you have the right to request a waiver of overpayment.

If you're receiving SSI, you can request a waiver of overpayment at any time. You can even request a waiver after you've begun paying back the overpayment (or completely repaid it).

If you're receiving SSDI, you can request an overpayment waiver (or reconsideration) when:

• you don't believe that Social Security has paid you more than you're entitled to receive
• you agree you were overpaid, but you believe the amount the SSA says they overpaid you is incorrect, or
• you agree that Social Security has overpaid you, but you didn't cause the overpayment and you can't afford to pay it back.

In any case, you'll need to explain why you believe you shouldn't have to repay the overpayment. If Social Security denies your request for a waiver of overpayment, you can appeal.

Appealing a Denial of a Request for Waiver of an SSI Overpayment

SSI recipients can ask for reconsideration of a request to waive an overpayment in writing or online. To file your request in writing, you'll need to use the Request for Reconsideration form (SSA-561). You can get the form:

• at your local Social Security office
• by calling your local Social Security office and asking them to mail it to you, or
• by downloading it online.

If you call Social Security, tell the representative that you want to "request reconsideration of the waiver decision."

You also have the option to appeal the overpayment online by going to Social Security's website and requesting a Reconsideration for a Non-Medical Determination. (It's the same online reconsideration request you would've used had your SSI application been denied for non-medical reasons.)

Requesting Reconsideration for Overpayment of SSI

When you fill out the Request for Reconsideration form, you'll need to choose how you want Social Security to review your case. You'll check a box on the form to indicate which of the three options you prefer. You can choose:

• a case review (a Social Security employee reviews your file)
• an informal conference (you sit down with a Social Security employee to tell your side of the story about why you shouldn't have to repay the overpayment and you can bring witnesses), or
• a formal conference (Social Security can force witnesses to attend and can make them bring any documents you need).

In most cases, you'll want to request at least an informal conference so that you can speak with someone at Social Security about why you should get a waiver.

SSI Overpayment Waiver Appeal Deadline

You must file your request for reconsideration within 60 days of the date you received the letter telling you that Social Security denied your request to waive the overpayment. (See the note about how Social Security calculates appeal deadlines below.)

But sooner is better. If you file your reconsideration request within 30 days, Social Security won't try to collect the overpayment from you while it makes a decision about your case.

You Can Appeal a Denial of Reconsideration

If Social Security denies your request for reconsideration, you can appeal that decision as well. To continue your SSI overpayment waiver appeal, you'll need to request a hearing. The instructions for requesting an appeal hearing for an SSI overpayment waiver are the same as those for an SSDI overpayment waiver appeal (see below).

Appealing a Denial of a Request for Waiver of SSDI Overpayment

SSDI recipients can appeal the decision by directly requesting a hearing before an administrative law judge (ALJ). Social Security doesn't require a reconsideration step if the agency denies your request to waive an SSDI overpayment.

Requesting a Social Security Overpayment Waiver Hearing

To file your appeal from a denial of a waiver request, fill out a Request for Hearing by Administrative Law Judge (Form HA-501), and turn it in at your local Social Security office within sixty days of receiving your denial letter. (Your local Social Security office can help you complete the form if needed.)

The ALJ hearing will be similar in format to ALJ hearings to determine disability issues. The hearing can be held in person, by phone, or by video conference. And you can ask Social Security to subpoena witnesses or documents for you to help show that the overpayment should be waived.

Further Levels Of Appeal

If the ALJ denies your request to waive your overpayment, then you can appeal to the Appeals Council. To do that, submit a Request for Review of Hearing Decision/Order (HA-520) within 60 days of receiving the ALJ's decision. The Appeals Council will review the ALJ's decision and either:

• deny your request to review the ALJ decision
• issue another decision in your case, or
• remand (send back) the case to the ALJ.

If the Appeals Council denies your request for review, you can appeal by filing a complaint in Federal District Court. You must file your complaint within 60 days of receiving the Appeals Council's denial. You'll need an attorney to file a federal court complaint. (Read our article on how to find a disability attorney.)

A Note About Social Security Appeal Deadlines

Social Security appeal deadlines run from the date that you receive a notice. The SSA presumes that you receive its notices five days after the mailing date listed on the first page of the notice.

If you received your notice more than five days after that date, and you file your appeal more than 65 days from the date on the letter, you'll have to prove to Social Security that your notice was late or that you have another very good reason for appealing late. It's better to avoid putting yourself in that position. Submit your appeal forms as soon as you get your denial notice.

How Social Security Collects Overpayments

If Social Security doesn't grant your request for an overpayment waiver, the agency will withhold all or some of your benefits until it recovers the total amount of the overpayment. How much Social Security takes depends on the type of benefits that were overpaid.

If you receive SSI (or SSI and SSDI), Social Security can't take more than 10% of your monthly benefit to pay down an overpayment.

Up until March 24, 2024, if you only received SSDI, Social Security could withhold your entire benefit amount (100% of it) each month to pay down an overpayment until it's paid off. Today, Social Security will withhold only 10% of your monthly SSDI benefits.

Both SSI and SSDI recipients can ask for Social Security to set up an affordable repayment agreement. To change the amount of money withheld from your SSDI or SSI check, fill out form SSA-634 (Request for Change in Overpayment Recovery Rate).

When Social Security is considering whether to approve a payment agreement for an SSDI recipient, the SSA will want an agreement that results in the overpayment being paid off within three years. (For more information, see our article on how Social Security treats overpayments.)

_{Updated March 21, 2024}