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I need a lawyer who understands Social Security law please.I…

I need a lawyer who...
I need a lawyer who understands Social Security law please.

I have been on SSDI disability for many years and before the birth of my child. I thought that by applying for a social security card for my newborn I would be qualifying me and my child for any benefits that we are entitled to. I never new that auxillary benefits for my child had to be filed separately in a different way. I thought I was doing it the correct way.

I lost out on about $50,000 in benefits for my kid & years later somebody tells me that I did it wrong and that I should be receiving the auxillary benefits and this is what I need to do now. So I recently when in to Social Security office and requested and applied in person with different paperwork. They gave me back pay for the last year and started up my kids benefits now. I originally thought I would not be entitled to anything since it was not granted to us through the original application to my kids social security card.

I just received a response from SS to a request for reconsideration due to the problem. They denied my request. I argued that the application should serve as a protective filing for her entitlement to child's insurance benefits. I was hoping that the reconsideration would either agree with my theory or at least give me some insight as to whether the issue had been raised before.

Since the reconsideration denial notice does not address my argument in any way, My attempt to obtain any other documentation that might shed some light upon Administation's reaction to my argument has resulted only in the response that the denial can be appealed again.

My primary reason that I am reluctant to pursue this matter further is the requirement that a writing that can be construed as a protective filing of a claim must show "an intent to claim benefits." The application for a social security number does not evidence an intent to claim benefits, only an intent to register the child's birth with Social Security.

Is there ANYTHING I can say or do to pursue them or a judge to consider my kids social security card a legitimate attempt to file. This was our money and we were entitled to it, I had to just accept No as an answer and walk away. Any insist would be so helpful here. Is it possible if I appeal that a judge would listen and rule in my favor or anything i could say. I am so disappointed.....

Thank you so much
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Answered in 8 hours by:
9/8/2013
Stephanie O Joy, Esq
Stephanie O Joy, Esq, Soc. Sec. Attorney
Category: Social Security
Satisfied Customers: 13,637
Experience: 22+ years legal exp. - 12+ years owning/operating her own SSD Law practice.
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Hi, my name is XXXXX XXXXX I thank you for your inquiry. I have been practicing SS law full time for 10+ years and look forward to assisting you. With regard to your post:

I need a lawyer who understands Social Security law please. That is why I agreed to pick this up for you.

I have been on SSDI disability for many years and before the birth of my child. OK.

 

I thought that by applying for a social security card for my newborn I would be qualifying me and my child for any benefits that we are entitled to. OK, so when her benefits didn't arrive as you expected, did you call SSA at that time, when she was a baby, to ask why? Or confirm they were recognizing and aware of the relationship? I ask, because you say that when you got your newborn the SS card/number, you thought she get benefits.

 

I never new that auxillary benefits for my child had to be filed separately in a different way. Generally, you must notify your local office of her birth, number, and the fact that she is your dependent. This is because not all birth children are the dependents of their birth parents - which is required for them to get the SS aux. benefits they would otherwise be entitled to based on the parent's disability.

 

I thought I was doing it the correct way. So sorry!

I lost out on about $50,000 in benefits I realize that is very, very painful. I have been urging Americans to push their Congressmen to change the law to have the birth and SS card of a baby, be a constructive application - I urge this because clearly ANY PARENT would have done any technical steps at that time, HAD they known. It is clearly not a situation where ANY parent would refrain from any benefits - since these benefits do NOT take away from the disabled parent benefits in any way.

 

for my kid & years later somebody tells me that I did it wrong and that I should be receiving the auxillary benefits and this is what I need to do now. Surely, if your child is under 18-19.

 

So I recently when in to Social Security office and requested and applied in person with different paperwork. They gave me back pay for the last year - Great! These were your child's back pay, you mean, yes? Since you were already getting yours all along, right?

 

and started up my kids benefits now. Good.

 

I originally thought I would not be entitled to anything since it was not granted to us through the original application to my kids social security card. Unfortunately, the law still has it that an application for a SS number is XXXXX an application for retirement, disability, or aux. benefits. I don't support the lack of law for the 3rd listed above. Particularly, and in addition to the fact that the CHILD can not be blamed for ignorance of the law - even if his/her parent could be (which I am also not saying is fair, because the laws are so convoluted and voluminious, the old saying "ignorance of the law is no excuse" doesn't really sound quite right these days, for technical laws that are not obvious laws.

I just received a response from SS to a request for reconsideration due to the problem. What were you appealing? The fact that you want more than the 12 months back benefits all the way back to her birth? Can't hurt to try, but currently that is not the status of the law - the federal goverment likely enjoys saving the many millions of dollars (or more) that they save that they should otherwise be paying out to insurance beneficiaries, but for the children's lack of power, ability and of course knowledge of the laws. They have a time limit going back. This is also true of retirement benefits and disability benefits. No retro ALL the way back to the time one could have applied.

 

They denied my request. Yes, I would think so, even if I don't agree.

 

I argued that the application should serve as a protective filing for her entitlement to child's insurance benefits. Good argument, but you need ot get your lawmakers to change that law and drop the cap on retro benefits at least for CHILDREN's benefits. I will vote for that as well!

 

I was hoping that the reconsideration would either agree with my theory or at least give me some insight as to whether the issue had been raised before. OH yes, many times. And the claimant always loses. The SSA is not permitted to award that request because Congress has passed the law limiting the retroactive benefits. Also, note that a protective filing date is only as effective as the follow up application completion. For instance, I can get a protective filing date for my client on her disability claim, but 'starting' the first page of her application for SSDIB. That will protective grab todays date as the date of application for an SSDIB claim OR an SSI claim. However, the applications for both must be completed and submitted within 6 months and 60 days, respectively. If they are not, that application never came to fruition, and it is no longer effective.

Since the reconsideration denial notice does not address my argument in any way, Right, they rarely explain themselves, probably because they do not know how to - they only know that the blanket answer is NO.

 

My attempt to obtain any other documentation that might shed some light upon Administation's reaction to my argument has resulted only in the response that the denial can be appealed again. Once you get to an ALJ hearing, whatever his decision, it will be explained fully and the law cited that he is relying on.

My primary reason that I am reluctant to pursue this matter further is the requirement that a writing that can be construed as a protective filing of a claim must show "an intent to claim benefits." Yes, that is generally correct.

 

The application for a social security number does not evidence an intent to claim benefits, only an intent to register the child's birth with Social Security. Yes. However, I believe it SHOULD do more, since clearly the SSA has the ability to connect her SS# XXXXX yours, and yours is connected to your disabilty, etc. It seems to be an overt (or passive actually) way of avoiding a clear eligibility for child's benefits - kind of like "see no evil, hear no evil" - see no 'claim', hear no 'claim' = no need to pay the claim.

Is there ANYTHING I can say or do to pursue them or a judge to consider my kids social security card a legitimate attempt to file. Not yet that we can see, because the LAW does not allow for it. But, I'd still move forward, since it costs you nothing - if you can argue that clearly if a parent NEW there was a need for special language to articulate an "intent" to claim bneefits, a parent would have done so for the child, since no one in her right mind would forego insurance benefits for the child if they knew that they would otherwise be coming.

 

This was our money and we were entitled to it,Actually NOT entitled to it, due to the state of the law, because we don't become entitled until we fulfill that last step if filing the CLAIM (this is the actual definition of 'entitled' in SS law) - prior to that step, one is at most 'eligible'.

 

I had to just accept No as an answer and walk away. No, you can still appeal for a hearing. At least get the opportunity to TALK to the judge, with a full written answer to his decision. You can also PUSH your lawmakers to change this. Get others to do the same, and you could win this one.

 

 

Any insist would be so helpful here. Is it possible if I appeal that a judge would listen and rule in my favor or anything i could say. I am so disappointed..... I understand. He is NOT allowed to make an illegal ruling, which right now you are asking him to do. But, let's say you keep it going and let's say in 5 years the law finally changes. At that time, and if the new law does not only apply prospectively but retroactively, you could be looking at a lump sum.

 

Now the above all being said, take a look here:

 

http://www.ssa.gov/OP_Home/handbook/handbook.15/handbook-1509.html


This explain WHAT is needed for a claim to be recognized, BUT

at the bottom regarding missing in action military personnel - and a filing of the report of MIA (casualty) ACTS as a "claim for benefits" for him/his dependants. This shows that lawmakers CAN change the law to allow common sense to prevail when it comes to birth filings of disabled persons, to constitute applications for eligible dependent benefits of the disabled person.

I wish for your sake and the sake of so many others, this this law would change to reflect what is/would be in the mind/heart of children and parents.


I hope this helps! My goal is to provide you with excellent and accurate service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions. Kindly rate me "excellent" when you are done. I look forward to assisting you in the future, should you have legal questions.

Sincerely,

Alexia Esq.


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Customer reply replied 4 years ago

Cannot thank you enough for your attention and generous answers.

 

So if I appeal in writing what could I say that could possibly have them reconsider? Is there any angle that may catch their attention or make sense or no matter what will the answer still be No backpay?

 

Is there any arguement that holds up currently under the facts of me being disabled and applying just for a regular social security card for my kid trusting that whatever we would be entitled to would be given since it still goes through SSA?

 

Is this something that I could handle without an attorney present?

 

Any chance at all to win on appeal for any reason? I would not want to appeal and get hopes up to know I would lose no matter what.

 

Could the fact that my mental disability prevents me from always functioning properly and being in the know with things like these application rules and guidelines?

 

Is there any loophole at all?

 

Thank you again.

Good morning, and thank you for your follow up:

Cannot thank you enough for your attention and generous answers. You are very, very welcome.

So if I appeal in writing what could I say that could possibly have them reconsider? You file your appeal, and I think you already asked them for reconsideration and they denied, right? So your next appeal is a Request for a Hearing before and Administrative Law Judge.

 

Is there any angle that may catch their attention or make sense or no matter what will the answer still be No backpay? Unfortunately, I think there is slim chance of winning because, again, to win would mean the Judge would have to give you an illegal award under today's current law. (Provided above.)

Is there any arguement that holds up currently under the facts of me being disabled and applying just for a regular social security card for my kid trusting that whatever we would be entitled to would be given since it still goes through SSA? No, as I stated above, I have not seen that happen. Since their system doesn't automatically match up the child with the fact that there is a disabled receiving payment, and turn that fact into a constructive application - I have seen no such cases. HOWEVER, that is why you need to put that idea before the Judge. It is only the squeaky wheel, or man of them, that can make change. And start nagging your Congressmen! Repeatedly, to change the law.

Is this something that I could handle without an attorney present? Yes.

Any chance at all to win on appeal for any reason? There is always a "chance", but again, it is likely remote. But there is a chance because sometimes a law or a "policy" will change overnight.

 

I would not want to appeal and get hopes up to know I would lose no matter what. I would appeal but NOT get any hopes up. By appealing, if the law does change, you will have more likely have preserved your chance to avail yourself of the change, because appealing keeps your case OPEN. If you don't appeal, it is more likely to be "res judicata" and less likely to be able to be changed or reversed later, should the law change, but it matter has been fully adjudicated and by not appealing, you are accepting that decision.

Could the fact that my mental disability prevents me from always functioning properly and being in the know with things like these application rules and guidelines? Possibly. If you have mentally limiting impairments, combine that argument along with the ones we discuss above.

Is there any loophole at all? If I knew of one, I'd certainly have shared it in m original answer. Sorry!

Thank you again.

Stephanie O Joy, Esq
Stephanie O Joy, Esq, Soc. Sec. Attorney
Category: Social Security
Satisfied Customers: 13,637
Experience: 22+ years legal exp. - 12+ years owning/operating her own SSD Law practice.
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