A reader asked if a child can still receive Social Security auxiliary benefits if she is living apart from the disabled parent:

If I have legal guardianship of my nephew and my sister is receiving SSDI. Can I apply to receive the benefits for his caretaking? My sister has been told that she could receive benefits for him, but unless she gets to keep it, she won’t apply for it, saying that the SS office told her it was only if he lived with her. Is that true or could I apply for him?

This is similar to a situation I wrote about concerning divorced parents. Children with disabled parents are still eligible for Social Security auxiliary benefits even if they are living apart from the disabled parent. Please note: the disabled parent has to be receiving Title 2: Disability Insurance Benefits (DIB). If the parent is receiving only Title 16: Supplemental Security Income (SSI), then there are no auxiliary benefits available.

The applicable regulation is 29 CFR 404.350 which describes when children are entitled to auxiliary benefits:

(a) General. You are entitled to child’s benefits on the earnings record of an insured person who is entitled to old-age or disability benefits or who has died if—

(1) You are the insured person’s child, based upon a relationship described in §§404.355 through 404.359;

(2) You are dependent on the insured, as defined in §§404.360 through 404.365;

(3) You apply;

(4) You are unmarried; and

(5) You are under age 18; you are 18 years old or older and have a disability that began before you became 22 years old; or you are 18 years or older and qualify for benefits as a full-time student as described in §404.367.

Basically, a child is entitled to auxiliary benefits if a parent is disabled or has died, if they are the parent’s natural child, adopted child, step child, or grand child, unmarried, under 18 (or a Disabled Adult Child) and dependent on the disabled parent.

There is no requirement that the child live with the disabled parent.

Children can often receive Social Security benefits if a parent is disabled or deceased. I have previously written about these kind of Social Security auxiliary and survivors benefits. However, there are times when proving paternity becomes an issue. Here are a couple of situations where this comes up:

• Parents separate and, the non-custodial father becomes disabled (potential auxiliary benefits based on a disabled parent).
• Common law marriages with a disabled husband or wife splitting with the father denying paternity (potential auxiliary benefits based on a disabled parent).
• Father dies (potential survivors benefits based on a deceased parent) but Social Security denies the claim because there is not enough evidence proving paternity.

Note: most of the examples deal with paternity. However, the same laws apply if there is a question  of who the mother is.

Also, I am focusing on resolving paternity without a court ordered DNA test or exhumation.

Social Security has regulations describing when a child is a “natural child” of the parent (full text below). Note: for adopted children, check out this article.

According to Social Security’s regulations, a child may be eligible to receive benefits from the insured if:

1. The child could inherit under intestacy laws of the state where the disputed parent had permanent residence. Intestacy laws are the state laws describing how property is distributed if an individual dies without a will. These laws often differ from state to state.
2. Mother and father went through a good faith marriage ceremony but there was some problem keeping the marriage from being legal.
3. The father acknowledged the child in writing as his child. For example: a will, a soldier’s application for an allotment, an insurance application, even in a letter. See Social Security Handbook Section 1709. See also POMS GN 00306.105.
4. A court has ordered that the individual is the parent. See POMS GN 00306.110.
5. A court has ordered that the individual has to pay support as the parent.
6. “Other evidence” supporting paternity. This can be any other evidence which shows who the child’s parent is. However, if you are relying on “other evidence” to prove paternity, you must also show that the disputed parent was either living with the child or contributing to the child’s support at the time the child applied for benefits. If the disputed parent has died,  the child must show the disputed parent was either living with the child or contributing to the child’s support when he or she died.

Keep in mind that these requirements all start off with, “you are the insured’s natural child.” If someone can disprove paternity, a plain reading of the regulations suggests that the child might not be eligible for any benefits (even if you could meet the other requirements).

The easiest way to prove paternity is if you have written acknowledgment of the child from the disputed parent or a court order. If you do not have either, things get much tougher. However, you may have “other evidence” of the disputed parent’s paternity. According to the Social Security Handbook Section 1712 (See also POMS GN 00306.125), this includes:

• Hospital, religious, or school records;
• A court order or decree that [does not meet all of the following requirements in §404.355(a)(3) but otherwise supports paternity].
• A statement from the attending physician, relative, or other person who knows the child’s relationship to you, including the basis for that knowledge; and
• Evidence that you and the child’s mother were living together at the time of the child’s conception.

These are just examples. “Other evidence” can be anything that shows paternity, including videos, birthday cards, even school registration or permission forms. Use your imagination here.

Ultimately though, you may have to contact a family law and/or probate attorney in the state of the disputed parents permanent residence (either at the time the application was filed – if the disputed parent is living, or at the time of the disputed parents death – if deceased) to determine the state intestacy laws.

For an idea of what you may be facing, take a look at Social Security’s list of state intestacy laws here (scroll half way down the page to the section titled “State Intestacy Laws”). Colorado’s intestacy laws are listed at POMS GN 00306.435. However, state laws are subject to change and the POMS may not have the most current version.

Here is the Social Security regulation re-formated for easier reading:

§404.355 Who is the insured’s natural child?

(a) Eligibility as a natural child. You may be eligible for benefits as the insured’s natural child if any of the following conditions is met:

(1) You could inherit the insured’s personal property as his or her natural child under State inheritance laws, as described in paragraph (b) of this section.

(2) You are the insured’s natural child and the insured and your mother or father went through a ceremony which would have resulted in a valid marriage between them except for a “legal impediment” as described in §404.346(a).

[Per §404.346(a)] A legal impediment includes only an impediment which results because a previous marriage had not ended at the time of the ceremony or because there was a defect in the procedure followed in connection with the intended marriage. For example, a defect in the procedure may be found where a marriage was performed through a religious ceremony in a country that requires a civil ceremony for a valid marriage. Good faith means that at the time of the ceremony you did not know that a legal impediment existed, or if you did know, you thought that it would not prevent a valid marriage.

(3) You are the insured’s natural child and your mother or father has not married the insured, but the insured has either acknowledged in writing that you are his or her child, been decreed by a court to be your father or mother, or been ordered by a court to contribute to your support because you are his or her child. If the insured is deceased, the acknowledgment, court decree, or court order must have been made or issued before his or her death. To determine whether the conditions of entitlement are met throughout the first month as stated in §404.352(a), the written acknowledgment, court decree, or court order will be considered to have occurred on the first day of the month in which it actually occurred.

(4) Your mother or father has not married the insured but you have evidence other than the evidence described in paragraph (a)(3) of this section to show that the insured is your natural father or mother. Additionally, you must have evidence to show that the insured was either living with you or contributing to your support at the time you applied for benefits. If the insured is not alive at the time of your application, you must have evidence to show that the insured was either living with you or contributing to your support when he or she died. See §404.366 for an explanation of the terms “living with” and “contributions for support.”

(b) Use of State Laws—

(1) General. To decide whether you have inheritance rights as the natural child of the insured, we use the law on inheritance rights that the State courts would use to decide whether you could inherit a child’s share of the insured’s personal property if the insured were to die without leaving a will. If the insured is living, we look to the laws of the State where the insured has his or her permanent home when you apply for benefits. If the insured is deceased, we look to the laws of the State where the insured had his or her permanent home when he or she died. If the insured’s permanent home is not or was not in one of the 50 States, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, or the Northern Mariana Islands, we will look to the laws of the District of Columbia. For a definition of permanent home, see §404.303. For a further discussion of the State laws we use to determine whether you qualify as the insured’s natural child, see paragraphs (b)(3) and (b)(4) of this section. If these laws would permit you to inherit the insured’s personal property as his or her child, we will consider you the child of the insured.

(2) Standards. We will not apply any State inheritance law requirement that an action to establish paternity must be taken within a specified period of time measured from the worker’s death or the child’s birth, or that an action to establish paternity must have been started or completed before the worker’s death. If applicable State inheritance law requires a court determination of paternity, we will not require that you obtain such a determination but will decide your paternity by using the standard of proof that the State court would use as the basis for a determination of paternity.

(3) Insured is living. If the insured is living, we apply the law of the State where the insured has his or her permanent home when you file your application for benefits. We apply the version of State law in effect when we make our final decision on your application for benefits. If you do not qualify as a child of the insured under that version of State law, we look at all versions of State law that were in effect from the first month for which you could be entitled to benefits up until the time of our final decision and apply the version of State law that is most beneficial to you.

(4) Insured is deceased. If the insured is deceased, we apply the law of the State where the insured had his or her permanent home when he or she died. We apply the version of State law in effect when we make our final decision on your application for benefits. If you do not qualify as a child of the insured under that version of State law, we will apply the version of State law that was in effect at the time the insured died, or any version of State law in effect from the first month for which you could be entitled to benefits up until our final decision on your application. We will apply whichever version is most beneficial to you. We use the following rules to determine the law in effect as of the date of death:

(i) If a State inheritance law enacted after the insured’s death indicates that the law would be retroactive to the time of death, we will apply that law; or

(ii) If the inheritance law in effect at the time of the insured’s death was later declared unconstitutional, we will apply the State law which superseded the unconstitutional law.

Here is the short answer: if you are hospitalized in a medical treatment facility for 30 days, your SSI benefits may be cut to $30 per month.

Now, here is the long answer:

You are not eligible for SSI benefits for any month throughout which you are a resident of a “public institution.” A “public institution” means an institution that is operated by or controlled by the Federal government, a State, or a political subdivision of a State such as a city or county.

As a side note, if you apply for SSI while you are a resident of a public institution, you cannot be eligible for payment of benefits (even though you meet all other eligibility requirements) until the “first day of the month following the day of your release from the institution.”

Basically, your benefits will not start until the month after your release. If you were released on January 1st, your benefits would start February 1st. If you are released January 31st, your benefits still start on February 1st. The first day of the month following the day of your release from the institution.

However, this does not include a publicly operated community residence which serves 16 or fewer residents. What is a community residence?

To be a community residence, a facility must provide food and shelter. In addition, it must make available some other services. For example, the other services could be-

(i) Social services;
(ii) Help with personal living activities;
(iii) Training in socialization and life skills; or
(iv) Providing occasional or incidental medical or remedial care.

Serving no more than 16 residents. A community residence serves no more than 16 residents if-

(i) It is designed and planned to serve no more than 16 residents, or the design and plan were changed to serve no more than 16 residents; and
(ii) It is in fact serving 16 or fewer residents.

Publicly operated. A community residence is publicly operated if it is operated or controlled by the Federal government, a State, or a political subdivision of a State such as a city or county.

Facilities which are not a publicly operated community residence. If you live in any of the following facilities, you are not a resident of a publicly operated community residence:

(i) A residential facility which is on the grounds of or next to a large institution or multipurpose complex;
(ii) An educational or vocational training institution whose main function is to provide an approved, accredited, or recognized program to some or all of those who live there;
(iii) A jail or other facility where the personal freedom of anyone who lives there is restricted because that person is a prisoner, is being held under court order, or is being held until charges against that person are disposed of; or
(iv) A medical treatment facility (defined in §416.201).

Citations:

• 20 CFR §416.201 General definitions and terms used in this subpart.
• 20 CFR §416.211 You are a resident of a public institution.
• 20 CFR §416.212 Continuation of full benefits in certain cases of medical confinement.
• 20 CFR §416.414 Amount of benefits; eligible individual or eligible couple in a medical treatment facility.

If you are receiving Social Security disability benefits, the last thing you want is to get a letter in the mail telling you that you owe Social Security money. I have seem many individuals with overpayment notices for tens of thousands of dollars.

So, what can you do?

Read what Social Security sends you

This may sound obvious, but who wants to slog through the brochures and letters Social Security sends? Well, unless you want to be stuck with an overpayment, you do!

Social Security expects individuals to be diligent about complying with the requirements of the benefits they receive. Social Security sends out publications when benefits begin and it is a good idea to review them at least annually. Here are two critical ones:

• Reporting Your Wages When You Receive Supplemental Security Income (SSI)
• What You Need To Know When You Get Supplemental Security Income (SSI)

The second publication provides a list of things you must report to Social Security in plain english with links to further explanations.

Personally, I still see quite a number of people getting bitten because they missed some nuance of the Social Security system and Social Security can be very slow to correct errors which can result in
overpayments in the tens of thousands of dollars. So I am sympathetic to individuals facing an overpayment.

However, the best advice I can give to reduce an individual’s risk of an overpayment, is to read and follow the instructions and notice requirements provided in Social Security publications.

You may note that these publications list the Social Security 800 number as an acceptable way of providing Social Security with information. However, you want able to document your contact with Social Security. If an individual later has to go to hearing, how will they prove that they made a phone call to Social Security and what was said? While it is more difficult, sending a letter with delivery confirmation is often a better method from an evidentiary standpoint.

Request an annual meeting with Social Security

While it may not prevent an overpayment, it is a good idea to try to schedule an annual appointment with Social Security to confirm continuing benefit eligibility. Social Security technicians are trained in the ins and outs of benefit eligibility (even more so than attorneys because of the limitations of legal fees in Social Security matters). Of course, be sure to document the information provided, who the meeting is with, what was discussed, and the outcome.

Unfortunately, the local Social Security office might refuse to add an “extra” meeting to their already overflowing schedule. Sadly, this puts an individual into the position of trying to do a self audit. This is a bad solution because a regular person cannot be expected to know all the eligibility requirements of a trained Social Security technician.

That said, an individual should at least call Social Security to determine the maximum gross (pre-tax and pre-deduction) earnings his or her family can earn and still remain eligible for benefits. Then take a hard look at whether the income is above or below that amount. Being below does not mean a family is safe, but being above that amount is certainly a red flag.

Many people wonder what will happen after they are approved for Social Security disability benefits?

Will my benefits be stopped?

Will I continue to get Social Security disability benefits for the rest of my life?

Except for closed period cases, Social Security disability benefits normally can continue for an indefinite period of time. An individual may be able to receive benefit for the rest of his or her life.

Of course, this assumes that the impairments continue to be disabling (and any other non-medical requirements continue to be met).

Here is the catch: Social Security rarely assumes that conditions will continue to be disabling. There are a number of reasons for this:

• While there are some conditions which may never get better, many conditions may improve over time.
• An individual may obtain retraining to allow them to return to work.
• An individual may find ways of living with an otherwise disabling condition and be able to work.

Even in cases of an extremely physically debilitating disability, an individual may confound the odds and find a way of working. One example of this is theoretical physicist Stephen Hawking. Although almost completely paralyzed due to neuro-muscular dystrophy, Dr. Hawking continues to work.

While Social Security does not expect every disabled individual to be Stephen Hawking, whether a currently disabled individual will remain so years from today, is an open question.

Continuing Disability Reviews

So, Social Security reviews cases to check for continuing disability. Not surprisingly, these are called, “Continuing Disability Reviews” or CDRs. CDRs are medical reviews to see if an individual’s disabilities continue to be disabling.

For individuals on Supplemental Security Income (SSI), Social Security may also perform a financial review to confirm continuing financial eligibility.

As a side note: it is important to note that financial changes, and especially returning to work, may alter eligibility for Social Security benefits under either Social Security Disability Insurance or Supplemental Security Income benefits. If an individual returns to work, it is essential to consider the eligibility issue again. Too many people ignore this only to face a hefty Social Security overpayment notice.

How often a case will be reviewed, varies from case to case. CDRs can be performed in as little as 12 months. Although, typically cases are reviewed every three to five years. For children’s cases, Social Security will review the case at age 18, and apply the adult standard of disability. In many instances, this results in the child no longer qualifying for Social Security benefits.

For more information about CDRs, how often they occur and how to prepare for them, check out these articles:

• For some tips on what to do when faced with a CDR, read my earlier article here.
• Tim Moore has great information about CDRs here.
• HCV Advocate also has a great article about the forms Social Security expects you to complete.
• Lastly, for more information about how Social Security reviews cases (in complete mind numbing detail), see §404.1594 How we will determine whether your disability continues or ends.

I was recently asked if Social Security child’s benefits continue for a full time student who is 18 or over. At first blush, the regulations seem to suggest it might be possible.

20 CFR 404.350 “Who is entitled to child’s benefits” states

(a) General. You are entitled to child’s benefits on the earnings record of an insured person who is entitled to old-age or disability benefits or who has died if-

(1) You are the insured person’s child, based upon a relationship described in §§404.355 through 404.359;
(2) You are dependent on the insured, as defined in §§404.360 through 404.365;
(3) You apply;
(4) You are unmarried; and
(5) You are under age 18; you are 18 years old or older and have a disability that began before you became 22 years old; or you are 18 years or older and qualify for benefits as a full-time student as described in §404.367.

Subsection 5 concerns continuing benefits for those 18 or over, who are still full time students. Under this section, it appears an individual has to be either:

1. Under 18; or
2. A Disabled Adult Child (DAC); or
3. 18 or older and a full time student under §404.367.

There is a “however.”

However, §404.367 only deals with primary and secondary school students. In fact part “e” specifically requires that “You are in grade 12 or below.”

As such, it appears that the child’s benefits are only paid to full time students over 18 while they are still in high school.

As always, I encourage contacting Social Security for answers on how the regulations apply to any individual’s specific circumstances.

When a disabled individual receives Social Security disability insurance benefits (also known as DIB, SSDI or Title 2 benefits), their spouse or minor children may also be eligible to receive Social Security benefits. These benefits paid to the spouse or minor child are called “auxiliary benefits.”

Wait a minute, I’m on SSI, but my kids didn’t get any Social Security benefits.

Whether a spouse or children receive Social Security benefits depends on which Social Security benefits the spouse or parent is receiving. There are two kinds of Social Security disability benefits: Social Security disability insurance (SSDI) and Supplemental Security Income (SSI).

Note: Even though only “Social Security Disability Insurance” uses the word “disability,” both programs provide Social Security benefits for disabled individuals. However, only Social Security Disability Insurance (SSDI) has auxiliary benefits.

This means you have to be receiving SSDI for your spouse or children to receive auxiliary benefits. If you are on SSI, you are the only person who can receive benefits because there are no auxiliary benefits for SSI.

See my other articles on auxiliary benefits are other types of Social Security benefits you may not be aware of.

It can be very difficult to get by on the small amount of Supplemental Security Income (SSI) pays. Many individuals are forced to borrow money from friends or family just to make ends meet. But, how can this negatively affect SSI eligibility?

If you need to borrow money from family or friends, you may be able to do this without affecting SSI eligibility.However, it has to be clear and provable to Social Security that the money was a loan and not a gift.

SSI is a “needs based” program. If a friend of family member is providing money, food, clothing or shelter, the SSI benefits may be reduced or stopped altogether.

I have had a number of cases where a client lives with family while the SSI cases is winding its way through the SSA system. If the claimant is expected to pay back the cost of rent or utilities, I encourage using a written agreement (it does not have to be formal) stating what the claimant will pay for, and an itemization of the expenses.

Keep in mind that this is not fool-proof! However, it can help show Social Security that the money or other assistance was a loan and not a gift.

Social Security may approve Supplemental Security Income (SSI) benefits to children with a low birth weight (regardless or whether the child is premature).

According to the Social Security regulations, these cases are often reviewed by the child’s first birthday.

When we will conduct a continuing disability review. … we will start a continuing disability review …

By your first birthday, if you are a child whose low birth weight was a contributing factor material to our determination that you were disabled; i.e., whether we would have found you disabled if we had not considered your low birth weight. However, we will conduct your continuing disability review later if at the time of our initial determination that you were disabled.

That last sentence from 20 CFR 416.990 is a bit unclear. While not legally binding on Social Security, the publication Benefits For Children With Disabilities provides a better explanation.

By age 1 for babies who are getting SSI payments because of their low birth weight, unless we determine their medical condition is not expected to improve by their first birthday and we schedule the review for a later date.

In other words, unless Social does not expect improvement, a low birth weight baby approved for Social Security SSI benefits will usually have his or her case reviewed by age 1.

If you have a child or grandchild with a disability, you may be thinking about applying for Social Security disability benefits for the child. The most common type of children’s disability benefits is Supplemental Security Income (SSI).

However, proving disability in only half of a SSI case. All SSI cases have two parts:

1. The individual (adult or child) has to be medically disabled (this includes psychological disabilities).
2. The individual has to be financially eligible to receive SSI benefits.

It is quite possible for Social Security to decide that a person is disabled, but then deny that individual on financial grounds. See my article about financial eligibility in adult SSI cases.

Children’s SSI cases can be even tougher.  In adult SSI cases, Social Security considers the individual’s and their spouse’s income. In children’s SSI cases, Social Security considers then entire household income in deciding financial eligibility. The household finances test continues until the child turn 18. On the child’s 18th birthday, Social Security only considers the child’s income (which in many cases is zero).  However, once the child turns 18, he or she is considered an adult and evaluated under the adult standard of disability.

What often happens is the parents’ income makes the child financially ineligible for children’s SSI benefits. If this happens to you, there are a couple of limited options.

• Look into the possibility of DAC benefits.
• Reapply once the child turns 18 or if the household income decreases.

Has your child been financially denied children’s SSI benefits? How did you handle it? Tell me in the comments.

I was asked to address some of the issues parents should consider when deciding whether to start an application for Social Security disability benefits (typically children’s Supplemental Security Income – SSI – benefits) for their disabled child.

Many parents worry that if their child receives Social Security disability benefits, they will be labeled as “disabled,” and carry that for the rest of their lives. Even beyond being on disability, the child may be diagnosed with a socially stigmatizing condition such as mental retardation.

I want my child to have a normal life.  I want my child to overcome this. Will being “disabled” make my child stop trying?

I believe that disability can largely remain a private matter. It is possible for a child to be on Social Security disability benefits and not have other students, their parents, or even the school know. Of course, this depends on the nature of the disability and medical practicalities. In many cases, the school should be aware of disabling medical conditions to allow the child to have access to medications at school and to let the school take appropriate action in case of a medical emergency. Also, you may want the school to know so an appropriate Individualized Educational Plan (IEP) or 504 Plan can be put into place.

Parents should consider what receiving Social Security benefits might provide and weigh that against the potential negatives. Children’s Social Security benefits usually consist of a monthly benefit amount plus Medicaid benefits. Medical benefits provided by Medicaid are often the main reasons parents apply for their children. Medicaid helps many parents getting out of the local clinic, and opens new treatment possibilities such as seeing a specialist, and obtaining speech, occupational, physical, and cognitive therapies.

Ultimately, I believe it comes down to this, if you feel that the treatment options possible under Medicaid can help your child, it may be time to consider applying for Social Security benefits.

This is a particularly tough question. I previously wrote about how earning more than the Substantial Gainful Activity amount may cause your benefits to be stopped in Social Security Disability Insurance cases. 

In SSI cases, I just learned that you can earn more than the SGA amount and still keep your SSI benefits.

WARNING: I do not pretend to be a understand SSI benefits calculations. I strongly encourage anyone reading this to check this information with Social Security. Also, any Social Security technicians are more than welcome correct any errors I may make here.

To figure out how much you can earn, I need to introduce the 20-65-1/2 rule. This rule helps us determine the “countable earned income.”

If you are working, and receiving both Social Security Disability Insurance (SSDI, DIB) as well as Supplemental Security Income (SSI).

1. Subtract $20 from SSDI amount.
2. Subtract $65 from he amount you earn (before taxes or any deductions) then divide by 2.
3. Add the two amounts together

In other words: (SSDI – $20) + (gross income – $65) / 2 = countable earned income.

Let’s do an example

If you are getting $100 from SSDI and earn $150,

($100 – $20) + (($150 – $65) / 2)

$80 + ($85 / 2)

$80 + $43 (we rounded up)

$123

Now, you take the SSI benefit amount and subtract the number we just got. 

If you were getting $637 in SSI, you subtract the $123, which equals $551. This is the amount you will still get in SSI benefits. 

If you are receiving SSI and also working, you would use this formula

((gross income – (65 + $20)) / 2  

Note: the $20 is the unearned income disregard previously subtracted from the SSDI amount 

(gross income - $85) /2

Using the amount from the previous example:

($150 – $85) / 2 

($65) / 2 

$33

Social Security will subtract the $33 from the current SSI benefit amount. So, even though you earn $150, Social Security will only reduce your SSI benefits by $33.

Based on this formula, in 2009, you can earn just around $1,400 and still qualify for SSI benefits. But, please, if you find yourself in the situation really having to know how much you can make and still keep your Social Security SSI benefits, speak to Social Security. 

Note: if you were reveiving both SSDI and SSI, the $1,400 in income will probably make you lose your SSDI. So, keep in mind the exceptions I discussed in my earlier article.  Many of them apply in SSI cases as well. 

My thanks to Peter Komlos-Hrobsky, Supervising Attorney of the Health/Elder Unit of Colorado Legal Aid in Denver for bringing this to my attention.

A quickie article answering a common question: can you garnish Social Security disability benefits for child support?

Title 2 Disability Insurance (aka SSDI or DIB) benefits can be garnished for child support.

However, Title 16 Supplemental Security Income (aka SSI) benefits cannot be garnished. 

This is general information only and not legal advice. Contact a lawyer for advice on your specific circumstances.

I recently wrote about receiving both Social Security Disability Insurance (SSDI or DIB) and Supplemental Security Income (SSI) benefits.  Let’s look at the advantages of being on both benefits programs.

SSDI and SSI provide different medical benefits:

• Supplemental Security Income provides Medicaid benefits which can pay for treatment, specialists and surgeries.
• Social Security disability insurance provides Medicare benefits, including Medicare Part D, which pays for prescription drugs.

If you get both SSDI and SSI, you may be able to get both Medicare and Medicaid.

Getting both SSDI and SSI is also helpful in mitigating the 5 month waiting period in SSDI cases. While you may not be able to get your Disability Insurance during the first 5 months, you may still be able to get SSI benefits during that time.

Keep in mind that this requires the alleged onset date to be the same as the protected filing date because of the limits on back benefits in SSI cases.

I recently wrote about the difference between Social Security disability insurance (SSDI) and Supplemental Security Income (SSI).

But, can you get both: SSI and SSDI?

Depending on your circumstances, yes. 

The maximum you can receive on SSI is based on the annual Federal Benefit Rate (FBR).  For 2009, the FBR is $674.  That mean the most you can receive on SSI in $674 per month.  

Disability Insurance Benefits are based on your payroll contribution to Social Security.  The more you have paid into Social Security, the more in monthly benefits you may be entitled to.  

The only way to get both SSDI and SSI is for your SSDI benefits to be less than the Federal Benefit Rate (FBR). 

If that happens, and you qualify financially for SSI, you can also get Supplemental Security Income to pay up to the Federal Benefit rate.

I realize this may sound like a bunch of legalistic gobbledygook. So, here is a quick example:

Let’s say you only qualify for $500 per month in Social Security disability insurance benefits. 

SSI may pay you an additional $174 to bring your total monthly benefits up to the Federal Benefit rate.

However, if you get $700 from SSDI, you will probably get nothing from SSI, because you already are receiving more than the $674 Federal Benefit Rate in SSDI.

We previously discussed Social Security’s Disability Insurance Benefit (DIB) and Supplemental Security Income (SSI) programs.

The big difference between DIB and SSI is type of income which affects eligibility. 

Under the “Disability Insurance” Program, Social Security considers whether you are working and earning money (engaging in a Substantial Gainful Activity – SGA). If you earn too much money as income, you may be denied Social Security DIB benefits.  Of course, there are some exceptions.

In other words, if you are applying for Disability Insurance Benefits, your earnings, if any, may make you ineligible.  But, other sources of money: gifts, prizes, winnings, settlements, and even spouses income, are NOT counted in determining eligibility.

Under Supplemental Security Income, all income: your earnings, your spouse’s earnings, gifts, settlements, and in children’s cases: household income, can make you financially ineligible to receive SSI.  SSI is a ”needs based” program and a program of last resort, if you have another source of income, then your “needs” are viewed as decreased.

In addition to income, SSI also considers your assets in determining eligibility. The plot of land you own, those shares of stock you received, most any assets you have may make you ineligible for SSI.

HOWEVER, the income and asset rules are so complicated and have so many exceptions that you do not want to jump to conclusions about whether or not you may be eligible.  This is something you will want to go over with Social Security.

Is there a difference between Disability Insurance (DIB) and Supplemental Security Income (SSI) benefit amounts?

Yes. The maximum you can receive on SSI is based on the annual Federal Benefit Rate (FBR).  For 2009, the FBR is $674.  That mean the most you can receive on SSI in $674 per month.  

Generally, Disability Insurance Benefits are based on your payroll contribution to Social Security.  The more you have paid into Social Security, the more in monthly benefits you may be entitled to.  

If you want to get an idea of how much you may be entitled if you become disabled, Social Security has online benefit calculators which can estimate benefits amounts.  Social Security also mails you a “Social Security Statement” every year before your birthday which describes your estimated benefits.

In order to qualify for Social Security Supplemental Security Income benefits (SSI), not only do you have to be disabled, you also have to qualify financially.

To be eligible for SSI a person must have $2,000 or less in countable resources. A married couple must have $3,000 or less in countable resources. If you own resources over the SSI limit, you may be able to get SSI benefits while trying to sell the resources.

Not all of your resources count toward the SSI resource limit. For example:

• the home you live in and the land it’s on do not count.
• your personal effects and household goods do not count.
• life insurance policies may not count, depending on their value.
• your car usually does not count.
• burial plots for you and members of your immediate family do not count.
• up to $1,500 in burial funds for you and up to $1,500 in burial funds for your spouse may not count.
• if you are blind or have a disability, some items may not count if you plan to use them to work or earn extra income.

See Understanding SSI and SSI Spotlight for more information.

If an individual is disabled and receives Title 2 Social Security Disability Insurance benefits (SSDI aka DIB), their spouse (husband or wife) and minor children can also receive benefits because of the spouse’s / parent’s disability. These are called auxiliary benefits.

I previously coved how Social Security benefits stop if a disabled person is goes to jail / prison.  

So, what happens to the children’s or spouse’s benefits if the disabled individual is incarcerated: goes to jail or prison?  

Do the wife or husband’s auxiliary benefits stop?

Do the children’s auxiliary benefits stop?

The best answer I have been able to find to this question is in the Social Security Online Handbook. Part 501. Entitlement to Disabled Worker’s Benefits says,

“Auxiliary benefits” are additional monthly benefits (see Chapter 3). These benefits may be payable to other family members on your earnings record if you are entitled to disabled worker’s benefits. They are payable to your family members even when you are not receiving benefits because of imprisonment.

So, it looks like, yes, auxiliary benefits to spouses or children are payable even thought the disabled individual is incarcerated and cannot receive Social Security benefits him/herself.

However, keep in mind that the Social Security Handbook is a guide explaining to how Social Security is supposed to work.  The Social Security Handbook has no binding legal authority. So take this answer with a bit of caution.

If you are disabled, how far back will Social Security pay benefits? Back to when the disabiilty began?

It depends on whether you are applying for Social Security Disability Insurance (SSDI or DIB), or Supplemental Security Income (SSI).

Social Security Supplemental Security Income (SSI) pays benefits back to the “Protected Filing Date (PFD),” the date you contacted Social Security and asked to apply for benefits.

Social Security Disability Insurance, on the other hand, pays benefits up to 12 months before the Protected Filing Date.  However, you should also keep in mind the “5 month waiting period.”

Note: these are maximum back benefit payments. Social Security has to find you disabled back to the PFD (for SSI) or 12 months before the PFD (for SSDI) to get those back benefits.

If you apply for Social Security Disability Insurance benefits (SSDI or DIB), you may be surprised that Social Security keeps the first 5 months of back benefits.

This is referred to as the “5 month waiting period.”

If you awarded benefits back to January 1st, Social Security actually keeps the benefits for January, February, March… all the way through May.  Your disability insurance benefits will start in June.  

What?!?!  But, it is my money!

I know! But, that is how the system works!

However, there is an exception to the 5 month waiting period.

Bear with me while I go over some basics:  Disability Insurance benefits can only be paid 12 months prior to the Protected Filing Date (PFD). 

If your PFD is January 2009, at most you can get benefits back to January 2008. If your Alleged Onset Date (AOD) is January 2008, Social Security applies the 5 month waiting period (keeping your benefits for January through May) and your benefits begin to paid as of June 2008.  

Here is the exception to the 5 month waiting period: if your Alleged Onset Date (AOD) is 5 months or more BEFORE the 12 month maximum back payment period, you do not lose 5 months of benefits?

What? Go over that part again.

Let me put it another way. If your Alleged Onset Date is 17 (or more) months before the protected filing date (PFD), you are eligible to get the maximum 12 months of back benefits prior to Protected Filing Date.

Just keep in mind that you cannot just pick a date 17 months before you applied as your Alleged Onset Date (AOD) and leave it at that.  You have to prove you were disabled back to the Alleged Onset Date. The further back you have prove your disability, the more difficult your case becomes.