### *Th e Hon. Howard F. Sachs, United States District Judge fo r

the Western District of Missouri, sitting by designation. The Hon. John F. Forster, Jr., United Sta tes Magistrate Judge 1 

### for the Eastern District of Arkansas. _____________ No. 96-1769EA

_____________ Jimmy P. Simmons, * * Appellant, * * v. * On Appeal from the United * States District Court * for the Eastern District Shirley S. Chater, * of Arkansas. Commissioner of Social * Security, * * Appellee. *

___________ Submitted: November 21, 1996 Filed: January 6, 1997

___________ Before RIC HARD S. ARNOLD, Chief Judge, MAGILL, Circuit Judge, and SACHS, * District Judge.

___________ RICHARD S. ARNOLD, Chief Judge. JimmyP. Simmons appeals the denial of his application fo r Suppleme ntal Security Income ("SSI"). The District Court affirmed th e 1 decision of the Commissioner of Social Security. We also affirm.

### -2- In addition, since Simmons appears now to be eligible to receiv e SSI, we remand t his case to the District Court, so that it may order th e Commissioner to determine the date of Simmons's eligibility, and to pay to Simmons his monthly b enefits in accordance with that eligibility, as well as any past benefits he is due.

I. Jimmy P. Simmons was injured in 1989 while working at a sawmill. He received $27,000 in settlement of his workers' compensation claims stemmin g fromthat injury. Because he was found incompetent to manage the fund s himself, the settlement proceeds were placed in trust and distributed to him at a rate of $800 per month.

In Ja nuary 1992, Simmons applied for SSI. After a hearing, a n Administrative Law Ju dge found Simmons disabled within the meaning of the Social Security Act. 42 U.S.C. § 1382c. Simmons therefore met the initia l requireme nt to receive SSI. 20 C.F.R. § 416.202. Simmons exceeded th e income limit, however. As of the date of Simmon s's hearing, the statutory income limit for an SSI recipient was $466 per month. Because his trust distribution was $800 per month, Simmons was denied benefits.
Simmons a ppealed to the District Court, and again to our court , arguin g that the trust distribution should not have been considere d "income" for purposes of determining his eligibility to receive SSI.

II.
The regulations promulgated by the Social Security Administratio n ("SSA" ) include distributions such as those Simmons received in thei r definition of "income." 20 C.F.R. § 416.1121(a).

### Simmons cites Worley v. Harris , 666 F.2d 417 (9th Cir. 1982), 2 

### Pinkston v. Schweiker , No. B-C-81-91 (E.D. Ark. Feb. 24, 198 3), and Simmerman v. Mathews , No. B-75-C-36 (E.D. Ark. Nov. 21, 1978)
. Inclusion of Worleyis curious, since that decision was decidedly unfavorable to the plaintiff. In Worley the Ninth Circuit a ffirmed the offset of the plaintiff's payments by the amount of hi s wo rkers' compensation payment, thus reducing the social securit y disability payment for which he was eligible. 666 F.2d at 420. -3- Section 416.1102 defines income as "anything you receive in cash or in kin d tha t you can use to meet your needs for food, clothing, and shelter. " Section 416.1103(a) s pecifically lists workers' compensation as a type of unearned income relevant to calculation of SSI eligibility.
Simmons c ites three cases in support of his proposition that, since the wo rkers' compensation settlement was at least partially intended t o cover future medical expenses, it should not be counted as income for SSI purposes. None of those cases is about SSI. Rather, they ref er to social 2 security disability insurance, which is governedby a wholly different set of regulations. See 20 C.F.R. Part 404. In the disability-insurance area , wo rkers' compensation payments intended solely to pay future medica l expenses are excluded from an offset--in other w ords, they do not count as income which would lower an applicant's social security disabilit y payments.
Unfortu natelyfor Simmons, this exclusion does not apply i n calculating SSI eligi bility. Had the trust funds been paid directly to a medical services provider, paid to Simmons by aninsurer to cover expenses already incurred, or, possibly, if they had been dedicated exclusively to future medical expens es, they would not have been considered income. See 20 C.F.R. § 416.1103. Simmons testified, however, that he used his monthl y disbur sements for everyday living expenses. The regulations are quit e clear that the SSA will consider all cash or oth er incoming resources that can be used to pay for food, clothing, and shelter as income when

### -4-

determining whether an applicant exceeds the statutory income limit. Ibid
. Additi onally, only $1,000 of the trust funds could be said to b e spent on medical expenses of any kind. Simmons spent that money on dental work, however; since his injury was to his back, that expense can not have been a n intended "future medical expense" contemplated in his workers ' compensation settlement. Therefore, the ALJ properly considered Simmons to have a monthly inc ome of $800, which exceeded the statutory limit then in effect for SSI applicants. Simmons was prope rly denied SSI benefits in October 1994, and we affirm the District Court in that regard.

III. Simmons's trust fund ran out in December 1994. Presumably his income then went to zero, and he became eligible to receive SSI. At ora l argument, the SSA agreed that Simmons should hav e begun receiving benefits when his trust fund ran out. Simmons's attorney indicated that a second application, reflecting Simmons's change in income, had been filed with th e SSA.

We remand to the District Court to send this case back to th e Commis sioner with instructions to determine the date upon which Simmon s should ha ve begun receiving SSI. The Court shall also instruct th e Commissioner to beginpaying Simmons whatever SSI payments he is entitled to, and to pay him a lump sum for the payments he should have bee n receiving since Decem ber 1994 (if that is the appropriate date). Counsel for the Commissioner said at the oral argument that she had no objection to such an order.
It is so ordered.

### -5- A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.