Death and Disability

This blog is ADVERTISING MATERIAL for Charles R. Samuels, Attorney at Law, PLLC – 4908 Monument Ave., Ste. 100, Richmond, VA 23230; 804-342-1995

As sad as it is to say, sometimes a person who has applied for Social Security Disability benefits passes away before the Social Security Administration (“SSA”) makes a decision.  This isn't surprising when you consider that the average wait time from noting your appeal to an administrative law judge and the actual hearing is approximately14 months for the Richmond office.  So, what happens if the claimant dies but his family needs his benefits?

Usually, unprosecuted claims for government benefits end upon the death of the applicant, but Social Security Disability claims are different.  The claim usually survives with a new eligible party substituting for the deceased.  If the claimant dies before the hearing, a party eligible to receive the deceased’s benefits may be substituted if they so desire.  HALLEX I-2-8-37 and  HALLEX I-2-1-50. Individuals who may be substituted in a social security disability case are listed in order of priority below. 

A party may be substituted for a claimant if that party is entitled to receive all or part of the claimant’s payment if the case is won. The statute, 42 U.S.C. §404(d), and regulations,  20 C.F.R. §404.503(b), provide the following order under which eligibility to receive payment is determined:

1.  To the spouse of the claimant if (a) living in the same household at the time of death, or (b) entitled to a monthly benefit on the same earnings record as the claimant for the month of death.

2.  To the children of the claimant entitled to monthly benefits on the same earnings record as the claimant for the month of death. (If there is more than one entitled child, payment is made in equal parts to each child.)

3.  To the parent or parents of the claimant entitled to monthly benefits on the same earnings record as the claimant for the month of death. (If there is more than one entitled parent, payment is made in equal parts to each parent.)

4.  To a spouse who does not meet the requirements of (1).

5.  To children who do not meet the requirements of (2).

6.  To parents who do not meet the requirements of (3).

7.  To the legal representative of the claimant’s estate.

Parties are substituted using Form HA539, “Notice Regarding Substitution of Party Upon Death of a Claimant”  In the unusual situation where there is no substitute party (because either a claimant has no heirs or no one is interested in pursuing the claim), the Administrative Law Judge may dismiss the request for hearing. This dismissal may be vacated within 60 days if a substitute party comes forward. HALLEX I-2-4-35.

Charles R. Samuels is an attorney in Richmond, Virginia practicing disability law.  He may be reached at 804-342-1995 x302.

Disclaimer:

ADVERTISING MATERIAL - Case results depend upon a variety of factors unique to each case.  Case results do not guarantee or predict a similar result in any future case undertaken by the lawyer.

Drugs, Alcohol and Social Security Disability

This blog is ADVERTISING MATERIAL for Charles R. Samuels, Attorney at Law, PLLC – 4908 Monument Ave., Ste. 100, Richmond, VA 23230; 804-342-1995

Several times in my Social Security Law practice a question has arisen that is difficult to answer:  What impact did a claimant’s drug or alcohol abuse have on his current condition and should it be a bar to receiving disability benefits?

The Social Security Administration issues a ruling to assist staff, claimants and their representatives whenever there is a persistent issue which needs addressing.  A ruling is called a “Social Security Ruling” or “SSR” for short.  You can find these SSRs here.

For over thirty years SSR 82-60 was the starting point for understanding the impact past or present drug and/or alcohol abuse (“DAA”) had on a claimant’s application for disability benefits.  However, on February 20, 2013, the Social Security Administration issued SSR 13-2, “Evaluating Cases Involving Drug Addiction and Alcoholism (DAA)." 78 Fed. Reg. 11939 (Feb. 20, 2013).  SSR 13-2 becomes effective March 22, 2013 and replaces SSR 82-60.  It also replaces EM-96-200 (EM stands for Emergency Message).

In order to determine if DAA is even an issue in a case, the SSA must have medical evidence from an acceptable medical source establishing that the claimant has a Substance Use Disorder as defined by the DSM-IV-TR, and a finding that the claimant is disabled considering all impairments, including the DAA.

The new ruling provides a six step process for the SSA to consider before awarding or denying benefits:

1.  Does the claimant have DAA?

2.  Is the claimant disabled considering all impairments, including DAA?

3.  Is DAA the only impairment?

4.  Is the other impairment(s) disabling by itself while the claimant is dependent upon or abusing drugs or alcohol?

5.  Does the DAA cause or affect the claimant's medically determinable impairment(s)?

6.  Would the other impairment(s) improve to the point of nondisability in the absence of DAA?

It is the claimant’s responsibility to prove they are disabled.  Therefore, the burden of proof proving disability throughout the DAA materiality analysis remains with the claimant. 

Charles R. Samuels is an attorney in Richmond, Virginia practicing disability law.  He may be reached at 804-342-1995 x302.

Disclaimer:

ADVERTISING MATERIAL - Case results depend upon a variety of factors unique to each case.  Case results do not guarantee or predict a similar result in any future case undertaken by the lawyer.