C.F.R. » Title 20 » CHAPTER III—SOCIAL SECURITY ADMINISTRATION › PART 416—SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND DISABLED › Subpart E—Payment of Benefits, Overpayments, and Underpayments

20 C.F.R. § 416.538

Amount of underpayment or overpayment

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(a) General. The amount of an underpayment or overpayment is the difference between the amount paid to a recipient and the amount of payment actually due such recipient for a given period. An underpayment or overpayment period begins with the first month for which there is a difference between the amount paid and the amount actually due for that month. The period ends with the month the initial determination of overpayment or underpayment is made. With respect to the period established, there can be no underpayment to a recipient or his or her eligible spouse if more than the correct amount payable under title XVI of the Act has been paid, whether or not adjustment or recovery of any overpayment for that period to the recipient or his or her eligible spouse has been waived under the provisions of §§ 416.550 through 416.556. A subsequent initial determination of overpayment will require no change with respect to a prior determination of overpayment or to the period relating to such determination to the extent that the basis of the prior overpayment remains the same.

(b) Limited delay in payment of underpaid amount to recipient or eligible surviving spouse. Where an apparent overpayment has been detected but determination of the overpayment has not been made (see § 416.558(a)), a determination of an underpayment and payment of an underpaid amount which is otherwise due cannot be delayed to a recipient or eligible surviving spouse unless a determination with respect to the apparent overpayment can be made before the close of the month following the month in which the underpaid amount was discovered.

(c) Delay in payment of underpaid amount to ineligible individual or survivor. A determination of an underpayment and payment of an underpaid amount which is otherwise due an individual who is no longer eligible for SSI or is payable to a survivor pursuant to § 416.542(b) will be delayed for the resolution of all overpayments, incorrect payments, adjustments, and penalties.

(d) Limited delay in payment of underpaid amount to eligible individual under age 18 who has a representative payee. When the representative payee of an eligible individual under age 18 is required to establish a dedicated account pursuant to §§ 416.546 and 416.640(e), payment of past-due benefits which are otherwise due will be delayed until the representative payee has established the dedicated account as described in § 416.640(e). Once the account is established, SSA will deposit the past-due benefits payable directly to the account.

(e) Reduction of underpaid amount. Any underpayment amount otherwise payable to a survivor on account of a deceased recipient is reduced by the amount of any outstanding penalty imposed against the benefits payable to such deceased recipient or survivor under section 1631(e) of the Act (see § 416.537(b)(2)).

[58 FR 52912, Oct. 13, 1993, as amended at 61 FR 67205, Dec. 20, 1996]
Notes of Decisions
Cited in 8 cases, 1978–1990 · leading case: Sullivan v. Everhart
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Sullivan v. Everhart (1990) scotus · cites it 6× “" 20 CFR § 416.538 (1989). The OASDI regulation unhelpfully provides that "[t]he amount of an overpayment or underpayment is the difference between the amount paid to the beneficiary and the amount of the payment to which the beneficiary was actually entitled," 20 CFR § 404.”
Lugo Ex Rel. Lugo v. Schweiker (1984) paed · cites it 10× “If the Secretary finds that during a period a recipient has been overpaid in a given month or number of months and underpaid in another month or number of months, she sets off the amounts to come up with an “adjusted” over or underpayment figure.”
Maxine WEBB, Appellant, v. Otis R. BOWEN, Secretary of Health & Human Services, Appellee (1988) ca8 · cites it 2× “504 , Secretary used method described in 20 C.F. R. § 416.538 (1987)). 5 Although the Secretary’s regulation only calls for the application of arithmetic to find the sum due or owing the beneficiary, in cases like Webb’s the regulation also has the effect of denying the…”
Everhart v. Bowen (1988) cod · cites it 2× “The reason that the notice stated the lesser amount was because the Secretary applied the so-called “netting” policy pursuant to 20 C.F. R. § 416.538 and Social Security Ruling 81-19a and began underpaying the amount of claimant’s benefits to offset the overpayment.”
Lugo v. Schweiker (1985) ca3 · cites it 3× “Pursuant to 20 C.F.R. § 416.538 (1981), the Secretary deducted the amount underpaid from the amount overpaid and informed Lugo that he had received an adjusted overpayment of $3,301.”
Griffin v. Califano (1978) gand “Pursuant to 20 C.F.R. § 416.538 , HEW treated this as a single accounting period and further determined that, although the Griffins had received a total of $873.”
Turner v. Sullivan (1990) dcd · cites it 2× “20 C.F.R. § 416.538 (1989). However, the Act further provides: In any case in which more than the correct amount of payment has been made, there shall be no adjustments of payment to, or recovery by the United States from, any person who is without fault if such adjustment or…”
Everhart v. Bowen (1988) ca10 “The SSI netting regulation, 20 C.F.R. § 416.538 , provides in pertinent part: The amount of an underpayment or overpayment is the difference between the amount paid to a recipient and the amount of payment actually due such recipient for a given period.”
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