We have two adopted children that we have had since birth. One is now 14, but was born at 26 weeks weighing 1lb 14 ou. The other is now 12 but was born at 32 weeks at 3lbs 5oz.

Are they eligible for Social Security benefits now?

It is important to remember that Social Security benefits for disabled children fall under the Supplemental Security Income (SSI) program. Just as in adult SSI cases, children can only receive benefits as of their protected filing date (PFD); there are no benefits before the PFD.

That means Social Security will focus its attention on whether the child is disabled at present. There is actually a bit of wiggle room here as there can be an issue of disability starting before the PFD. However, the period of disability has to continue through the protected filing date. If you cannot show the child is disabled as of the date of filing a claim for Social Security child SSI benefits, while the child may have been disabled in the past, there are no benefits available to the child and there is no case.

Put another way, a child might have been eligible for disability benefits as an infant, or at some other time in the past, if someone filed an application. However, if no one did, you cannot file an application now based on a disability in the past.

The only exception, and it is a limited one, is when there was a prior claim filed in the past and it is still within the time period reopen the prior claim – two years from the date of the initial denial on the prior claim. If there was a prior claim, and it is within 2 years of the initial denial on that prior claim, it may be possible to try to reopen that case with a new application.

I understand that this is a harsh rule, and I find myself commiserating with parents who tell me about their children’s early hospitalizations and medical problems. However, the discussion always turns to the issue of whether there is a current claim and whether the child is disabled as of the protected filing date.

Whether a child qualifies for disability benefits depends on meeting the initial non-medical requirements and the severity of their conditions and how well the child’s medical conditions are documented. Working with a lawyer can help you get an idea of your child’s chances on a disability case. However, it is still only a guess. The only way to find out is to apply.

photo credit: limaoscarjuliet

Disabled children can apply for Social Security benefits under the Title 16 children’s Supplemental Security Income (child SSI) program. Children’s cases are considered differently than adult disability claims. However, after a child turns 18, Social Security applies the adult standard to decide disability. Note: children between 18 and 22 may be eligible for Disabled Adult Child benefits based on their parents’ contribution to Social Security.

What happens if a child turns 18 before Social Security decides if the child is disabled?

Here is what Social Security says on this (20 CFR 406.924):

If you attain age 18 after you file your disability application but before we make a determination or decision. For the period during which you are under age 18, we will use the rules in this section. For the period starting with the day you attain age 18, we will use the disability rules we use for adults who file new claims, in §416.920.

Put another way, Social Security will consider disability under the child standard for the portion of time the individual was under 18, and use the adult standard for the portion of time the individual was 18 or over. That means you, in effect, have to prove the case twice: once under the child standard and again under the adult standard.

This can get tricky as an individual can be disabled under the one standard but not the other.

Also, when a child was under 18 for only a short part of the total claim, there is an issue of whether it is worth doubling the analysis for the amount of amount of benefits potentially due.

Keep in mind that SSI back benefits can only be paid back to the protected filing date. Also, unless the claim was protectedly filed on the first day of the month, the benefits are rounded up to the next full month.

If a claim was filed on anything other than the first day of the month the child turns 18, there are no additional benefits available. However, the case will still be considered under both the child and adult standards of disability.

If the case was filed on the first day of the month in which the child turns 18, there is only one additional month of benefits. However, the case will be evaluated under both the adult and child standards. The same applies if the child was only under 18 for only a short period of time.

As a result, it is sometimes worthwhile to move the onset date to the date of the child’s 18th birthday. Of course I cannot give you a hard and fast rule describing when to amend the onset date. However, you should be aware of the costs and benefits so you can make an informed decision. In my Colorado disability practice, there have been times where the onset date was amended to age 18, and other times not.

To quote an old lottery slogan, “you can’t win, if you don’t play.” It may seem obvious, but you cannot receive Social Security disability benefits if you do not apply.

If fact, many Social Security regulations about Social Security eligibility start with this simple requirement:

Step 1: You apply.

As I have written about before, Social Security uses the protected filing date (PFD) to decide how far back your benefits can go.

From time to time, I receive a phone call like this:

I’ve been disabled since 1994, but Social Security only wants to pay me 12 months of back benefits!

I see. When did you apply for benefits?

Last month…

I then explain how Social Security pays back benefits using the protected filing date as the starting point.

Here is what it comes down to: if you want Social Security benefits, you have to apply!

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.

We have talked a lot about how far back can you get Social Security benefits. 

I want to make sure there is no confusion: Social Security does NOT limit you to only 12 months of back benefits.

There is a limit in how far BEFORE your protected filing date (PFD) you can get benefits (12 months in a Social Security Title 2 Disability Insurance claim — SSDI or DIB).

However, this is only part of the total amount of back benefits most people are entitled to.

If Social Security approved your claim as soon as you applied, then you might be limited to 12 months of back benefits (because you won as soon as you filed).

In most cases though, it takes months or years to win your case. Potentially, you are eligible to get benefits for the entire time you are kept waiting AND up to 12 months before you filed for benefits.  

Of course, Social Security requires that you prove that you were disabled that entire time.

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

The Protected Filing Date (PFD) is the date you contacted Social Security and asked to file an application.

What is so special about that?

The PFD is used to determine how far back your benefits can be paid.

What makes it “protected?”

Since the application process takes time, Social Security does not want to penalize you for delay between the time you ask to start an application and the time you actually finish it.

For example: if you contact Social Security on January 2nd to start an application (Social Security is closed on new year’s day), but do not turn in all the paperwork until February 1st, Social Security will use January 2nd as your protected filing date, even though you did not actually turn in your application until February.

This could mean an extra month of benefits for you.

Nate Craig of Truth of the Matter Asserted has a great article about what it means if a judge wants you to change the date you became disabled, or in Social Security parlance “amend your alleged onset date (AOD).”

Often, by the time the claimant’s hearing comes to be scheduled, the ALJ will review the file for the first time. During this review, the ALJ will determine if the onset date is established by the medical records. Most factors of a proposal to amend an onset date will be either a specific medical finding that seems to correlate with the claimant’s limitations or the claimant has earning posted to their earnings record, including unemployment benefits.

Long story short, if the Judge is asking you to amend the onset date, they essentially are going to award benefits.

Nate makes a great point, but there is one exception to this general rule of thumb: SSI cases.

In a SSI (Supplemental Security Income) case, you can only get benefits back to the Protected Filing Date (PFD), the date you requested to file an application.  However, in many SSI cases I see, people (understandably and correctly) claim that their disability began when they stopped being able to work. Normally this is months before they ever filed for Social Security. 

I regularly see Judges asking claimants to change their Alleged Onset Date (AOD) to the Protected Filing Date (PFD).  However, this is just a streamlining measure and does not necessarily mean the judge will approve the case. At least, not in my experience.

However, with this one exception, if the ALJ asks to amend the AOD to any other date, that is usually a good sign!

Read the rest of Nate’s excellent article here.