July 31, 2014

Can Child Claim Auxiliary Benefits if Disabled Parent Refuses to Apply?

I regularly receive questions about auxiliary Social Security disability benefits.   Often these questions are from divorced persons who are struggling with the cost of raising a child, while the disabled, non-custodial parent has not been cooperative with regard to auxiliary benefits.

Recently I received the following question:

i have a 15 yr old son. my ex husband is dying of cancer. he has not applied for ss , so i was told by ss that i cannot apply until my ex does. in the meantime we r struggling. help. -S

Here is my response:  unfortunately, there is nothing that S can do unless and until her ex-husband applies for disability benefits.  Cancer is a listing level impairment and my experience has been that SSA adjudicators and judges are more likely than not willing to grant benefits.   Further, some cancers are included in Social Security’s compassionate allowance program.  Even if the cancer is treatable, the treatment protocol often lasts 12 months or longer, so a cancer claimant can usually get a closed period even if on-going benefits are not awarded. [Read more...]

Does LTD Carrier Have a Claim on Auxillary Benefits Paid to Your Kids

I regularly receive questions from unhappy Social Security claimants who are facing the prospect of having to send their lump sum Social Security disability checks to their LTD carriers.   Many LTD policies, especially group policies, include provisions that offset LTD payments by any amount received by Social Security.  In other words, if the LTD benefit is $1,800 per month and Social Security awards $1,500 per month, the LTD carrier’s obligation becomes only $300 per month once SSDI is awarded.

Since the lump sum payment arises from months in which the claimant was also receiving long term disability, the LTD carrier contractually requires the claimant to turn over his Social Security lump sum payment to the LTD insurance company.

Not surprisingly, folks subject to this type of arrangement are not very happy about it.  Why should the LTD carrier swoop in an grab that $25,000 or $30,000 check?

As I noted in a 2007 blog post about LTD offsets to Social Security claims, the LTD carriers justify this money grab by contending that the price of the group LTD policy reflects an expectation of a Social Security offset.  In other words, the cost of group LTD insurance would, in theory, be higher if there was no offset.

Whether you believe this or not, I think it is safe to say that group LTD policy handbooks do not feature this offset obligation.  Often the first time that SSDI claimants learn that their struggle and stress of pursuing Social Security result in zero dollars is after their SSDI hearings.

Now, apparently, there is a new twist.   [Read more...]

Will Child be Eligible for Dependent’s Benefits When “Out of the Picture” Father is Approved

I get a lot of questions from mothers who are caring for the children of fathers who are out of the picture.  Susan’s situation is a fairly common one so I will answer it here:

My 11 year old daughter’s father has just been approved for disability. I’m not sure if it is SSI or SSD. He applied 16 months ago, he is now over $4000 behind on child support. Will she be entitled to any of the back pay he will receive? How do I go about applying to see if she is eligible to draw a check off of him now that he is on disability?

***Editor’s Note:  Due to the large number of questions I receive about child support and Social Security disability, I have set up a blog specifically about that topic – please visit my Child Support and Social Security Disability blog**

Jonathan’s response: Auxiliary benefits are payable to the child of an SSDI claimant if:

A.  An application for child’s insurance benefits is filed;
B.  The child is (or was) dependent upon the parent (see below);
C.  The child is not married;
D.  The child meets any of the following conditions:

  1. is under age 18;
  2. is age 18-19 and a full-time elementary or secondary school student; or
  3. Is age 18 or older and under a disability (which must have begun before age 22) ; and

E.  The parent meets any of the following conditions:

  1. Is entitled to disability insurance benefits;
  2. Is entitled to retirement insurance benefits;
  3. Died and was either fully or currently insured at the time of death.

A child is presumed “dependent” upon the worker if
A.  The child has not been legally adopted by someone other than the worker during the worker’s lifetime; and
B.  The child is one of the following:

  1. The legitimate child of the worker;
  2. A child born out of wedlock who would have the right under applicable State law to inherit intestate property from the worker as a child;
  3. The child of a void or voidable marriage;
  4. The child of an invalid ceremonial marriage;

In Susan’s case, she needs to find out if her child’s father has been approved for SSDI or SSI.  If he is receiving SSI only, the child will not be eligible for auxiliary benefits.  If the father is drawing SSDI, then the child would be eligible assuming she is a dependent.  Susan would need to file an application for benefits on behalf of her daughter.  Note that the child’s auxiliary benefits are in addition to the disabled father’s benefit and do not reduce his monthly check.

With regard to past due child support, Susan may be able to garnish the back pay or on-going SSDI benefits of the father if he is delinquent in his child support.  I would suggest that Susan speak with her domestic relations lawyer if she has one, or with her case worker at the child support enforcement office to discuss the procedures for seizing this money.

Disability Applicant Asks About Auxiliary Benefits for Her Children

I am disabled due to Avascular necrosis, fibramyalgia, and arthritis, I have undergone 7 surguries in past 4 years and have several more to go. I am an RN, so I made good money before moving to part time work then to being unable to work. My husband makes between 65,000-70,000 a year, we have 2 children ages 2 and 4, will I be able to collect benefits for them?

–Jamie

Jonathan Ginsberg responds: If you are eligible for Title II benefits, then your dependents would be eligible for auxiliary benefits. As you may know, SSA looks at the ten years prior to the onset of your disability to determine eligibility. If you have at least 20 covered quarters during this ten year period, you would be eligible. I have written more about the earnings requirements for Title II here.

You describe “moving to part time work,” but you do not say how long that process took or how it impacted your earnings. What you need to find out here is something called your “date last insured” for Title II. Sometimes you can get this information directly from Social Security by phone, or you can request it in writing using a Form 7004 – Request for Statement of Earnings & Benefits, which you can download at my law firm web site.

If you can show SSA that the onset date for your disability is before your date last insured, you are in good shape for Title II.

My concern here has to do with part time work. As I have noted before on this blog, part time work tends to muddy the water when it comes to disability. SSA often sees things in black and white, and some fact finders (adjudicators or judges) take the position that if you can work part time, you could also work full time at a less demanding job.

On the other hand, the medical problems you describe seem serious enough that you ought to be approved for benefits. Hopefully, you will not have any problems qualifying for Title II as your husband’s income would eliminate your eligibility for Title XVI SSI.