Appealing a Denial of Disability Benefits for Surviving Child Social Security Disability Benefits

Is it possible for an adult child to receive disability benefits after his parents’ deaths even if he has done minimal work during his lifetime?

Most people would agree that it is stressful enough dealing with a disabled child during their most dependent years of childhood and adolescence without having to worry about how they will manage  financially after your death.  Nonetheless,  this is the situation thousands of parents are confronted with as their children reach adulthood and middle-age.

If the challenged individual has worked during her or his lifetime, even sporadically for a few years at minimum wage, the amount earned is deducted from that individual’s monthly Social Security Insurance (SSI) stipend. Assuming the disabled child is being supported by her or his parents during this period, and the SSI check represents a small contribution to living expenses (expenses which in all likelihood are higher than average because of the disability), how is the challenged individual supposed to survive after the parents are gone?

On average, , SSI benefits for disabled individuals who do not work range from approximately $1000 to $1200 per month, barely enough to cover rent alone.  Assuming the individual has had the ability to work for some period of time, albeit at minimum wage, her wages will have been deducted from her benefit checks. Even more disturbing, she would not be able to claim a surviving child benefit after her parents’ deaths because of her previous  work experience.  Further inequity surfaces when it becomes apparent that the adult child cannot receive Social Security based on his own work because he did not work for a long enough period of time. For families whose disabled children fall into this catch-22. the odds of receiving justice may seem insurmountable.

Fortunately, according to Jerry Lutz, a  former Social Security technical expert, there are possible ways to fight such an unjust decision.  The premise of the Social Security Administration that a childhood disability can be ruled out if that individual performed substantial gainful activity (SGA) — $800 per month — after the age of 22 is often unfair and can be disputed for any of the following reasons:

  • The individual was hired under a special workshop program
  • The individual had a job coach
  • The individual’s supervisor certifies that disability prevented the employee from accomplishing more than 80 percent of the work required
  • The individual required impairment-related work expenses (IRWE), such as special transportation costs which can be subtracted from employment earning

If you, or a loved one, has been denied childhood disability benefits and any of the above issues apply, it is possible to reapply.  Even if the claim is disallowed again, there is an appeals process in place. The first part of the appeals process,  known as reconsideration, is handled by Social Security, and is, therefore, not likely to be reversed. The second part of the appeals process, however, involves a hearing before an administrative law judge (ALJ).  Such judges have much more flexibility in altering a previous rejection and, in fact, overrule more than 80 percent of Social Security decisions.

If you are confronting a seemingly unjust Social Security ruling regarding childhood disability or other disability issues, please contact one of our attorneys at Peña & Bromberg, all of whom have expertise in this field.  Proudly serving clients throughout the San Francisco and Central Valley area of California, we can be reached at 559.439.9700.

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