Category Archives: social security disability

Your Social Security Benefits After The Defense Of Marriage Act (DOMA) Decision

Nearly two months after the Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA), the Social Security Administration has announced that it will start to pay benefits to some individuals in same-sex marriages. In order to be eligible for benefits, these individuals must meet the same criteria as individuals in opposite-sex marriages, in addition to several other requirements.

Only applications for spousal benefits are being approved right now. Spousal benefits are payable to a spouse who either 1) did not work enough to be entitled to Social Security benefits or 2) worked enough to be entitled to Social Security benefits but would be entitled to a larger benefit on their spouse’s earnings record. This is generally the case when one spouse earned significantly more than the other spouse over the course of their working lives. The individual on whose earnings record the claim is made (the number holder, in SSA’s terms) must also be entitled to old-age or disability benefits from Social Security. In order to receive spousal benefits, you must be at least age 62 and have been married to the number holder for at least one year.

The individual applying for benefits (the claimant, in SSA’s terms) must show that he or she was married to the number holder in a state that permits same-sex marriage and that the number holder is living in a state that recognizes same-sex marriage either 1) when the application for benefits is filed or 2) while the application is pending a final determination. It does not matter what state the claimant lives in. What matters for SSA’s purposes is the state the number holder lives in. This only matters when spouses live in different states.

Below is a chart from SSA that shows which states recognize same-sex marriages performed in other states, and when those states permitted same-sex marriages. If a state is not listed, it does not recognize same-sex marriages performed in other states or permit same-sex marriages to be performed.

Before filing a claim for benefits or moving to a different state, you should consult with an experienced attorney or with the Social Security Administration to determine your eligibility for benefits. As SSA continues to pay benefits to more individuals in connection with the Supreme Court’s decision, we will provide updated information regarding who may be eligible for these benefits.

State	Date Same-Sex Marriages from Any Other State Was Recognized	Date Same-Sex Marriages Were Permitted in the State
California	June 17, 2008 – November 4, 2008 June 26, 2013 – present	June 17, 2008 – November 4, 2008 June 26, 2013 – present
Connecticut	November 12, 2008	November 12, 2008
Delaware	July 1, 2013	July 1, 2013
Iowa	April 30, 2009	April 20, 2009
Maine	December 29, 2012	December 29, 2012
Maryland	February 23, 2010	January 1, 2013
Massachusetts	May 17, 2004	May 17, 2004
Minnesota	August 1, 2013	August 1, 2013
New Hampshire	January 1, 2010	January 1, 2010
New York	February 1, 2008	July 24, 2011
Rhode Island	May 14, 2012	August 1, 2013
Vermont	September 1, 2009	September 1, 2009
Washington	December 6, 2012	December 6, 2012
Washington, DC	July 7, 2009	March 9, 2010

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How Workers’ Compensation Settlements Affect Social Security Benefits

Today’s post comes from guest author Todd Bennett, from Rehm, Bennett & Moore.

It is fairly common for an injured worker to receive Social Security disability benefits and also receive a settlement for workers’ compensation. According to Social Security, “If you receive workers’ compensation or other public disability benefits and Social Security disability benefits, the total amount of these benefits cannot exceed 80 percent of your average current earnings before you became disabled.” Here’s how I handle this situation: in any settlement where an injured worker is receiving Social Security Disability Insurance (SSDI) benefits, an attorney representing that person and/or the injured worker must think about how a lump-sum settlement affects the SSDI benefits for the person. There will probably be a decrease in benefits because “workers’ compensation and other public disability benefits may reduce your Social Security benefits,” according to the Social Security Administration. Some items can be kept out of the workers’ compensation settlement total for Social Security benefits purposes. This list includes, but is not limited to, such things as: attorney fees; litigation expenses; past medical bills that need to be paid; future medications expenses; future medical care expenses; and vocational services expenses. Taking away these parts of the settlement can and should increase the value of the net settlement to the injured worker. The remaining net settlement should then be distributed proportionally over the injured worker’s life expectancy. The overall result of your attorney preparing for your settlement by making these calculations means that a workers’ compensation settlement will decrease your Social Security disability benefits less.

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Denied Or Partially Denied For Social Security Disability? A Special Ruling Means You May Be Entitled To A Re-Hearing

If you filed for Social Security disability and appeared at a hearing in the Queens Office of Disability Adjudication and Review before any of the following Administrative Law Judges – Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld, David Z. Nisnewitz, and Hazel C. Strauss, you may soon be entitled to a new hearing before a different Administrative Law Judge. You may soon receive, or have already received, a “Notice of Proposed Class Action Settlement and Fairness Hearing” from Social Security.

This notice concerns a lawsuit, Padro, et al. v. Astrue, brought against the Social Security Administration by the law firm of Gibson, Dunn, & Crutcher and the Empire Justice Center. The lawsuit was filed to address allegations of “general bias” against disability claimants by the five judges named above. In settling the lawsuit, the Social Security Administration is not admitting any wrongdoing by any of the judges.

Under the terms of the proposed settlement, any individual who received an unfavorable or partially favorable decision from one of these judges dated after January 1, 2008, is eligible to have a new hearing. The hearing will be conducted by a different judge than the judge who issued their first decision. However, if an individual filed a lawsuit in District Court and the judge’s decision was upheld by the court, that individual will not be entitled to a new hearing in front of a different judge.

The proposed settlement has not been finalized and the terms are subject to change. There is a hearing scheduled to finalize the settlement on July 24, 2013. Once the settlement is finalized, all affected individuals will receive another notice from Social Security advising them of their right to a new hearing. If you receive such a notice, you will have sixty (60) days to notify Social Security that you wish to have a new hearing. If you believe that you might be entitled to a new hearing, but have not received a notice, you should contact your local Social Security office as soon as possible.

If you are interested in having our office represent you at your hearing, please contact our office as soon as possible so that you can schedule a free initial consultation with our staff.

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What Does The Supreme Court’s Striking Down Of The Defense Of Marriage Act Mean For Your Social Security Disability Benefits?

The United States Supreme Court struck down the Defense of Marriage Act

On June 26, 2013, the Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) violated the Fifth Amendment and is therefore unconstitutional. While DOMA was in effect, the federal government did not recognize same-sex marriages that were performed in states where they are legal, such as New York. This meant that the Social Security Administration was unable to pay certain benefits to individuals who would have otherwise been entitled to them if they were married to someone of the opposite sex. As this part of the law has been struck down, validly married same-sex couples should be treated identically to opposite-sex couples by the Social Security Administration.

There are several Social Security benefits that married individuals are entitled to that unmarried individuals are not. The two largest programs are survivor benefits and disabled widow(er)s benefits. A surviving spouse can now be entitled to benefits on a deceased spouse’s earnings record once they attain age 60 or are disabled and age 50. These benefits, once only available to opposite-sex couples, should now be extended to same-sex couples as well. Stepchildren may now also be entitled to benefits on a worker’s earnings record, if the worker is either deceased or receiving Social Security retirement or disability benefits.

The Social Security Administration relies on state law to determine if a person was legally married. Social Security looks at the law of the state where a person was living at the time of their death to determine if their marriage was valid. It’s possible that a same-sex couple could be married in New York (or another state where same-sex marriage is legal) and then move to a state that does not recognize same-sex marriage. According to Social Security’s current rules, the Administration would look to the rules of the state where the person lived at the time of their death to determine if the marriage was valid.

At first glance, this seems to mean that validly married same-sex couples could be denied benefits they would have been entitled to if they didn’t move. However, Social Security also recognizes a “deemed marriage” provision. In simple terms, if both partners believed themselves to be married, and acted like a married couple, and the only reason they are not validly married is “a legal impediment not known to the applicant” at the time of the marriage ceremony, Social Security will consider the marriage to be valid for benefit purposes.

We don’t know yet how Social Security will enact these provisions or what the end result will be. However, it appears clear to us that many people who were being denied benefits because of who they love will now be entitled to them.

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Can My Social Security Disability Benefits Be Taken to Pay Old Debts?

I am often asked by clients if their disability benefits can be taken to pay old debts. Filing for Social Security disability benefits is a lengthy process, and many people accrue significant debt during the application process. These people are worried that their benefits will be taken from them in order to satisfy these debts. However, most people have nothing to fear, as Social Security disability benefits can only be garnished in certain circumstances.

If you owe money to the federal government (for example, unpaid taxes or past-due student loans from the Department of Education) the government has the power to take your Social Security disability benefits in order to satisfy the debt. Your benefits can also be garnished if you are in arrears in child support or alimony, or if you have been ordered by a court to pay restitution.

Generally, these are the only circumstances in which your Social Security disability benefits can be taken to pay old debts. If you have other debts, such as private loans or credit card debt, your Social Security disability benefits cannot be garnished as long as the benefits are not “intermingled” with other assets. Therefore, you should keep your Social Security disability benefits in a separate bank account. If your disability benefits are combined with other money you may have, the benefits are subject to garnishment. Once you are awarded disability benefits, you should consider setting up a separate bank account just for your benefits to make sure that those benefits cannot be garnished.

However, some creditors and even banks aren’t aware of the fact that Social Security disability benefits cannot be garnished. If your disability benefits (which have not been intermingled with other assets) are garnished, inform the creditor and the bank immediately that the garnishment violates Section 207 of the Social Security Act. Section 207 protects your benefits even after they have been paid to you as long as the money can be identified as being Social Security benefits – that’s why you cannot intermingle the benefits with other money you may have.

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