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.

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.

Did you know that you can get Social Security benefits based on your spouse’s earnings, even if you are divorced?

Click to read who is entitled to wife’s or husband’s benefits as a divorced spouse?

You are entitled to wife’s or husband’s benefits as the divorced wife or divorced husband of an insured person who is entitled to old-age or disability benefits if you meet the requirements of paragraphs (a) through (e). You are entitled to these benefits even though the insured person is not yet entitled to benefits, if the insured person is at least age 62 and if you meet the requirements of paragraphs (a) through (f). The requirements are that-

(a) You are the insured’s divorced wife or divorced husband and-

(1) You were validly married to the insured under State law as described in §404.345 or you were deemed to be validly married as described in §404.346; and
(2) You were married to the insured for at least 10 years immediately before your divorce became final;

(b) You apply;

(c) You are not married. (For purposes of meeting this requirement, you will be considered not to be married throughout the month in which the divorce occurred);

(d) You are age 62 or older throughout a month in which all other conditions of entitlement are met; and

(e) You are not entitled to an old-age or disability benefit based upon a primary insurance amount that is equal to or larger than the full wife’s or husband’s benefit.

(f) You have been divorced from the insured person for at least 2 years.

For most individuals, the important factors are that both you and ex have to be at least 62 years old, you are unmarried and you have to have been divorced for at least 2 years. 

Click to read Social Security’s §404.331 on who is entitled to wife’s or husband’s benefits as a divorced spouse.

If you are on Supplemental Security Income (SSI), or applying for SSI, you should know that Social Security’s SSI benefits have increased. 

For 2008, the Federal Benefit Rate (the maximum you can receive in SSI) is $674 for individuals and $1,011 for couples. For most people though, this means the maximum SSI benefits you can get i 2008 is $674 per month.

This is up from $637 per month in 2008.

This page lists the Federal Benefit Rates back to 1998.

I was recently asked this question:

My Ex is getting Social Security disability benefits.  I have custody of our kids.  Can my kids get any benefits because of my ex’s disability?

Perhaps, but you have to meet several requirements:

1. The disabled parent must be receiving Title 2 Social Security Disability benefits. If the parent is receiving Title 16 SSI benefits, there are no auxiliary benefits available.  Auxiliary benefits are benefits paid to a spouse or minor child of a disabled individual.
2. You have to be able to prove that the child is the child of the disabled parent.  This is usually a non-issue, but there are instances where this is disputed.  For example: the father may be in and out of the picture, his name may not be on the child’s birth certificate.  Later the father becomes disabled.  If the father does not acknowledge the child, it may be difficult to get benefits for the child. 
3. The child has to be under 18 (or 19 if in school).

This great discussion of eligibility for children’s benefits appears on Jonathan Ginsberg’s blog.

If your spouse is disabled and entitled to Social Security Title 2 benefits -Disability Insurance Benefits, you may be entitled to receive benefits from Social Security.  

These benefits are called “auxiliary benefits.”

It is important to remember that auxiliary benefits are only available if the disabled spouse (disabled husband or disabled wife) is receiving Disability Insurance benefits.  There are no auxiliary benefits when the disable spouse is receiving Social Security Title 16 Supplemental Security Income (SSI) benefits.Who is entitled to wife’s or husband’s benefits.

Am I entitled to Social Security auxiliary benefits?

You are entitled to benefits as the wife or husband of an insured person who is entitled to old-age or disability benefits if you meet the criteria listing in 20 CFR 404.330.:

(a) You are the insured’s wife or husband based upon a relationship described in §§404.345 through 404.346 and one of the following conditions is met:

(1) Your relationship to the insured as a wife or husband has lasted at least 1 year. (You will be considered to meet the 1-year duration requirement throughout the month in which the first anniversary of the marriage occurs.)
(2) You and the insured are the natural parents of a child; or
(3) In the month before you married the insured you were entitled to, or if you had applied and been old enough you could have been entitled to, any of these benefits or payments: Wife’s, husband’s, widow’s, widower’s, or parent’s benefits; disabled child’s benefits; or annuity payments under the Railroad Retirement Act for widows, widowers, parents, or children 18 years old or older;

(b) You apply;

(c) You are age 62 or older throughout a month and you meet all other conditions of entitlement, or you are the insured’s wife or husband and have in your care (as defined in §§404.348 through 404.349), throughout a month in which all other conditions of entitlement are met, a child who is entitled to child’s benefits on the insured’s earnings record and the child is either under age 16 or disabled; and

(d) You are not entitled to an old-age or disability benefit based upon a primary insurance amount that is equal to or larger than the full wife’s or husband’s benefit.

I know, it is all very legalistic.  Fortunately, Social Security has a much better summary in their, What Every Woman Should Know FAQ.

If you have not worked or do not have enough Social Security credits and you are married, you may be eligible for Social Security benefits as a result of your husband’s work. You and your children (younger than age 18 or younger than age 19 if still in secondary school or disabled before age 22) have Social Security protection through your husband’s work. When he retires, or if he becomes disabled, you could be eligible for benefits as early as age 62. If you are caring for your child who is younger than age 16 or disabled and entitled to benefits, you could receive benefits at any age.

Auxiliary benefits are normally processed automatically along with the spouse’s disability benefits.  But, if for some reason they were not, it may be a good idea to contact Social Security to see if you qualify.  

Updated 05/22/09.

If an individual is disabled and entitled to Social Security Title 2 benefits – also called Disability Insurance benefits, his or her minor children can also receive benefits from Social Security.  

These benefits are called “auxiliary benefits” by Social Security.

It is important to remember that auxiliary benefits are only available if the disabled parent (disabled mother or disabled father) is receiving Disability Insurance benefits.  There are no auxiliary benefits when the disable parent is receiving Social Security Title 16 Supplemental Security Income (SSI) benefits.

Other than the parent being disabled, what else do you need to receive children’s benefits?

This is governed by 20 CFR 404.350 “Who is entitled to children’s 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.

So, if you are disabled, receiving Disability Insurance benefits from Social Security, and have an unmarried child under 18, they should already be receiving children’s benefits.  If not, apply for them.

If your husband or wife dies, you may wonder if you can receive Social Security benefits based on your spouse’s contribution to Social Security.  

This is especially important if your spouse made more money that you did, or if your spouse was the sole earner and you did not work.

Many people worry that if they cannot receive Social Security based on their spouse’s earnings, they may not be able to get Social Security.

For most people, here is what you need to know to answer the question whether you can get Social Security survivors’ benefits after your spouse dies:

Most survivor’s benefit claims depend on meeting one of two requirements:

1. You have to be 60 years old, or
2. You have to be at least 50 years old and be found disabled by Social Security.

Because there are many other requirement to receive benefits as a surviving spouse, I am providing the entire text of 20 CFR 404.335 “How do I become entitled to widow’s or widower’s benefits?” I have reformatted it to make for easier reading.

We will find you entitled to benefits as the widow or widower of a person who died fully insured if you meet the requirements in paragraphs (a) through (e) of this section:

(a) You are the insured’s widow or widower based upon a relationship described in §§404.345 through 404.346, and you meet one of the conditions in paragraphs (a)(1) through (4) of this section:

(1) Your relationship to the insured as a wife or husband lasted for at least 9 months immediately before the insured died.

(2) Your relationship to the insured as a wife or husband did not last 9 months before the insured died, but you meet one of the conditions in paragraphs (a)(2)(i) through (iv) of this section.

(i) At the time of your marriage the insured was reasonably expected to live for 9 months, and the death of the insured was accidental. The death is accidental if it was caused by an event that the insured did not expect, if it was the result of bodily injuries received from violent and external causes, and if, as a direct result of these injuries, death occurred not later than 3 months after the day on which the bodily injuries were received. An intentional and voluntary suicide will not be considered an accidental death.
(ii) At the time of your marriage the insured was reasonably expected to live for 9 months, and the death of the insured occurred in the line of duty while he or she was serving on active duty as a member of the uniformed services as defined in §404.1019.
(iii) At the time of your marriage the insured was reasonably expected to live for 9 months, and you had been previously married to the insured for at least 9 months.
(iv) The insured had been married prior to his or her marriage to you and the prior spouse was institutionalized during the marriage to the insured due to mental incompetence or similar incapacity. During the period of the prior spouse’s institutionalization, the insured, as determined based on evidence satisfactory to the Agency, would have divorced the prior spouse and married you, but the insured did not do so because the divorce would have been unlawful, by reason of the institutionalization, under the laws of the State in which the insured was domiciled at the time. Additionally, the prior spouse must have remained institutionalized up to the time of his or her death and the insured must have married you within 60 days after the prior spouse’s death.

(3) You and the insured were the natural parents of a child; or you were married to the insured when either of you adopted the other’s child or when both of you adopted a child who was then under 18 years old.

(4) In the month before you married the insured, you were entitled to or, if you had applied and had been old enough, could have been entitled to any of these benefits or payments: widow’s, widower’s, father’s (based on the record of a fully insured individual), mother’s (based on the record of a fully insured individual), wife’s, husband’s, parent’s, or disabled child’s benefits; or annuity payments under the Railroad Retirement Act for widows, widowers, parents, or children age 18 or older.

(b) You apply, except that you need not apply again if you meet one of the conditions in paragraphs (b)(1) through (4) of this section:

(1) You are entitled to wife’s or husband’s benefits for the month before the month in which the insured dies and you have attained full retirement age (as defined in §404.409) or you are not entitled to either old-age or disability benefits.

(2) You are entitled to mother’s or father’s benefits for the month before the month in which you attained full retirement age (as defined in §404.409).

(3) You are entitled to wife’s or husband’s benefits and to either old-age or disability benefits in the month before the month of the insured’s death, you are under full retirement age (as defined in §404.409) in the month of death, and you have filed a Certificate of Election in which you elect to receive reduced widow’s or widower’s benefits.

(4) You applied in 1990 for widow’s or widower’s benefits based on disability and you meet both of the conditions in paragraphs (b)(4)(i) and (ii) of this section:

(i) You were entitled to disability insurance benefits for December 1990, or eligible for supplemental security income or federally administered State supplementary payments, as specified in subparts B and T of part 416 of this chapter, respectively, for January 1991.

(ii) You were found not disabled for any month based on the definition of disability in §§404.1577 and 404.1578, as in effect prior to January 1991, but would have been entitled if the standard in §404.1505(a) had applied. (This exception to the requirement for filing an application is effective only with respect to benefits payable for months after December 1990.)

(c) You are at least 60 years old; or you are at least 50 years old and have a disability as defined in §404.1505 and you meet all of the conditions in paragraphs (c)(1) through (4) of this section:

(1) Your disability started not later than 7 years after the insured died or 7 years after you were last entitled to mother’s or father’s benefits or to widow’s or widower’s benefits based upon a disability, whichever occurred last.

(2) Your disability continued during a waiting period of 5 full consecutive months, unless months beginning with the first month of eligibility for supplemental security income or federally administered State supplementary payments are counted, as explained in the Exception in paragraph (c)(3) of this section. The waiting period may begin no earlier than the 17th month before you applied; the fifth month before the insured died; or if you were previously entitled to mother’s, father’s, widow’s, or widower’s benefits, the 5th month before your entitlement to benefits ended. If you were previously entitled to widow’s or widower’s benefits based upon a disability, no waiting period is required.

(3) Exception: For monthly benefits payable for months after December 1990, if you were or have been eligible for supplemental security income or federally administered State supplementary payments, as specified in subparts B and T of part 416 of this chapter, respectively, your disability need not have continued through a separate, full 5-month waiting period before you may begin receiving benefits. We will include as months of the 5-month waiting period the months in a period beginning with the first month you received supplemental security income or a federally administered State supplementary payment and continuing through all succeeding months, regardless of whether the months in the period coincide with the months in which your waiting period would have occurred, or whether you continued to be eligible for supplemental security income or a federally administered State supplementary payment after the period began, or whether you met the nondisability requirements for entitlement to widow’s or widower’s benefits. However, we will not pay you benefits under this provision for any month prior to January 1991.

(4) You have not previously received 36 months of payments based on disability when drug addiction or alcoholism was a contributing factor material to the determination of disability (as described in §404.1535), regardless of the number of entitlement periods you may have had, or your current application for widow’s or widower’s benefits is not based on a disability where drug addiction or alcoholism is a contributing factor material to the determination of disability.

(d) You are not entitled to an old-age benefit that is equal to or larger than the insured person’s primary insurance amount.

(e) You are unmarried, unless for benefits for months after 1983 you meet one of the conditions in paragraphs (e)(1) through (3) of this section:

(1) You remarried after you became 60 years old.

(2) You are now age 60 or older and you meet both of the conditions in paragraphs (e)(2)(i) and (ii) of this section:

(i) You remarried after attaining age 50 but before attaining age 60.

(ii) At the time of the remarriage, you were entitled to widow’s or widower’s benefits as a disabled widow or widower.

(3) You are now at least age 50, but not yet age 60 and you meet both of the conditions in paragraphs (e)(3)(i) and (ii) of this section:

(i) You remarried after attaining age 50.

(ii) You met the disability requirements in paragraph (c) of this section at the time of your remarriage (i.e., your disability began within the specified time and before your remarriage).

I previously wrote about how Social Security can stop benefits if a person is a fleeing or fugitive felon.

The courts have been wrestling with the question of whether an outstanding arrest warrant (not a conviction, just the arrest warrant) is enough to make a person a “fleeing felon.”

NSCLC Website writes about a court’s rejection of Social Security claiming a person was “fleeing” in order to stop their benefits.  

Another court, this time in Tennessee, has rejected the Social Security Administration’s (SSA) position that it can suspend Supplemental Security Income (SSI) benefits by relying on the existence of an outstanding arrest warrant alone to conclude that a person falls within the statutory prohibition on payment of benefits to a person who is “fleeing to avoid prosecution” for a felony. Caldwell v. Astrue, 2008 WL 2713714 (E.D. Tenn. July 10, 2008). The court relied on the SSI regulation, 20 CFR 416.1339(b)(1), which “requires a court finding that the person is fleeing,” as well as on Sixth Circuit caselaw interpreting the similar language in the federal criminal law provision for tolling the statute of limitations when someone is “fleeing justice.”  18 U.S.C. 3290. Mr. Caldwell said he left California after being questioned by police, not because he was fleeing to avoid prosecution, but rather out of fear for his safety because of threats made by the individuals involved in the criminal matter.

Keep in mind that this case is just in the 6th District and is not “the law of the land.” 

Via Yet Another Court Rejects SSA’s ‘Fleeing’ Rule.

Note: there is a lot of litigation concerning what constitutes a “fleeing felon.” Check with a lawyer if you, or someone you love, has had the benefit stopped by Social Security because they are a, “fleeing felon.”

Updated 06/05/09.

Can a person work and still receive Social Security disability benefits or Supplemental Security Income (SSI) benefits?

The answer is a qualified “yes.”

Social Security wants people to try to go back to work. But, the regulations surrounding keeping your benefits while you try to go back to work make it tricky.

Are you engaged in a Substantial Gainful Activity?

Generally speaking, the test of disability is whether you can perform a substantial gainful activity (SGA)? That is, are your monthly gross earnings (income before taxes and deduction) equal to, or greater than the Substantial Gainful Activity amounts set by Social Security.

In 2009, if you are making at least $980 per month, before taxes, your work is a substantial gainful activity. To see the current SGA amount, or SGA amount for other years, click here.

So, if I my gross income is the SGA amount, or more, I have a problem,

But, if my monthlty gross income is less than SGA, Social Security will leave me alone.

That is generally correct and it is a good rule of thumb.

However, and this is a big however, this is not the end of the analysis. There are exceptions to allow your benefits to continue if you are earning more than SGA and exceptions that might stop your benefits even if you are earning less than SGA.

If you are receiving Supplemental Security Income, you can earn more than the SGA amount and still receive your SSI benefits. But, that is an article in itself.

If you earn more than the SGA amount:

There are a number of exceptions to allow your benefits to continue even if you earn more than the substantial gainful activity amount. Let’s take a look at them.

Unsuccessful Work Attempt (UWA)

Did the work last for less than 6 months? If yes, the work may qualify as an unsuccessful work attempt or UWA. This is the most common way to continue benefits if you return to work and earn more than the SGA amount.

Simply put, if you work at or above the SGA level for up to six months but have to stop because of your disability, as opposed to being laid off, or quitting, the work may be an unsuccessful work attempt.

There are a number of requirements for an unsuccessful work attempt, read about them here.

Impairment Related Work Expenses (IRWE)

If your work is performed at a SGA level, you may be able to reduce the income SSA considers through Impairment Related Work Expenses (IRWEs).  Any medically necessary expenses related to your impairment which are necessary to allow you to work may be deducted from your gross income as an IRWE.

For example: if you have a disabling seizure disorder.  However, due to a new medication, your seizure disorder is controlled enough to allow you to go back to work.  The medications, doctors visits, and blood tests to test the level of medication in you blood stream may all be IRWEs and might reduce your income.

Subsidy

A subsidy is any compensation over the fair value of your work.  This often happens if you work for a family member or if you work through an agency like Goodwill.

If you are paid for a 40 hour week but you only work 25 hours, you have a 15 hour subsidy.  Another possibility is if the value of your work is $8.00 an hour, but you are paid $10.00 an hour (a $2.00 an hour subsidy).

If you subtract the subsidy, and your gross income is below the SGA amount, you might still be able to keep your Social Security benefits. Click for more information about subsidies.

Trial Work Period

If you are receiving Disability Insurance (not SSI), Social Security allows you a Trial Work Period: you can go back to work, and earn even more than the SGA amount, and still be considered disabled, for 9 months.

Click for more information about Trial Work Periods.

Even if you earn LESS THAN the SGA amount watch out!

Any work may create the impression that an individual is not really disabled.  That is the greatest risk of going back to work.

I have heard too many stories of Social Security stopping benefits and even claiming an overpayment, because they thought a person who had gone back to work was never disabled in the first place, or that their disability stopped months or years ago.

Performing a job at a non-SGA level, may suggest the ability to perform other work at a SGA level.

you could do a different job at a SGA amount.  Therefore, you are not disabled and your benefits should stop.

An extreme example of this is working a part time construction or labor job.

• You may be limited to only being able to do this work part-time.
• Your earnings may be less than the SGA amount.
• BUT, if you can do part-time construction, doesn’t that mean you may be able to do full time (SGA) work at an easier job, for example as an information clerk.

Lets get real here:  if there is a less demanding full time SGA job that you can perform, your disability benefits will be questioned sooner or later and you may be assessed an overpayment.

Are you structuring your work to be less than the SGA amount?

If you are keeping your hours below a certain amount, not for a medical reason, but just to earn less than the SGA amount, you are committing fraud.

Your benefits will probably be stopped, and you are looking at an overpayment and will probably have to repay Social Security. But things, can get much worse: Social Security may also refer your case to the Attorney Generals office for federal prosecution.

Do not game the system.  It is not worth it.