Question:

My wife and I have had legal court ordered custody of our almost 11-year-old granddaughter named Jaylee for about 10 years. Jaylee has severe medical problems. I turned 66 years old on 4/16/19. I filed for Social Security benefits including making claims to my wife receiving benefits and my granddaughter receiving benefits. The Social Security employee told me that my claim was denied for my wife and granddaughter because my granddaughter has not been adopted by us. I made reference to her about what the Social Security website defines as a family. Instantly her attitude changed for the worse and she rudely raised her voice and said to me, “did you not hear what I just told you.”

From my research on the Social Security website, I found a section regarding BENEFITS FOR YOUR CHILDREN. The first paragraph states that “a dependent grandchild may also qualify.” But the statement does not define the word “may.” Under “FAMILY BENEFITS,” it has many definitions of how they define a family. Under “BENEFITS FOR CHILDREN,” the site once again says “Under certain circumstances, we can also pay benefits to a stepchild, grandchild, step-grandchild, or adopted child.” Then it says, “To get benefits, a child must have: — A parent who’s disabled or retired and entitled to Social Security benefits; or  — A parent who died after having worked long enough in a job where they paid Social Security taxes.” I qualify for the first part of the statement.

But a Social Security worker told me that I do not qualify because my granddaughter’s parents are not dead and my wife and I have not adopted our granddaughter. What’s the right answer and how should we proceed?

Response:

The dilemma you are facing is that the Social Security Administration’s (SSA) rules are complicated, and the SSA’s consumer-oriented publications do not provide the details of the various program requirements.

In your case, it sounds like you are asking a straightforward question:

In what circumstances may a dependent minor grandchild who has NOT been legally adopted by the grandparent be entitled to collect SS Child’s Benefits as a dependent when the grandparent becomes entitled to SS Retirement Benefits?

In your case, while the SSA booklet and SSA staff you consulted were less than precise in explaining the exact criteria governing dependent benefits for grandchildren, the POMS provision entitled: “GN 00306.235 Entitlement Requirements – Benefits Based on Earnings Record of Grandparent” at  https://secure.ssa.gov/poms.nsf/lnx/0200306235 should provide the answer to your question. The POMS are the authority SSA workers are supposed to follow.

You can follow the hyperlink above to read the full text of the rule yourself, but in summary ,even if you have not legally adopted your grandchild, she is entitled to collect a SS Child’s benefit if:

• She is financially dependent on you, and
• At the time you first became entitled to SS retirement benefits, both of the child’s parents were either deceased or disabled.

You say that her parents are alive, but you did not say whether they are disabled. If you think one or both of your granddaughter’s parents meets these criteria, my advice to you is to definitely NOT follow the SSA staffer’s suggestion that you withdraw the Child’s Benefit application that you filed. Instead, you might request that the local office issue a decision on the claim, so that if it is a denial, you will have the option of filing a request for reconsideration if you think the SSA was wrong.

I also want to mention that the Childhood Disability Benefit (CDB) program also applies to grandchild’s benefits.  That is, while ordinarily, a dependent’s benefits end when the child reaches age 18, (or, if still in high school, 19), benefits may continue after that age if it is established that the child is disabled, unmarried, and if she is working, her countable earnings are below the permissible limit.

Finally, while not relevant to your situation, other readers might benefit from knowing that even if the dependent grandchild was an adult at the time the grandparent became entitled to retirement benefits, the dependent’s benefits might still be payable to the grandchild under the CDB program, if, as we learned from the POMS above: the grandchild has been continuously disabled since age 22, and meets the other criteria outlined above.  In addition, as has been discussed in an earlier post on this site, an additional payment to the grandparent’s spouse may also be available. In what circumstances? You can read the POMS yourself and find out! See https://secure.ssa.gov/poms.nsf/lnx/0300202001

This response is provided by Mark Bronstein, Esq., who has been representing individuals in disability related matters since 1980. In addition to Social Security disability and retirement claims, he handles claims under private and group disability insurance plans, and also consults with individuals who have chronic or progressive illnesses and are “still working but worried.” In addition to representing individuals, he regularly consults with other attorneys on complex cases, and provides training and support to legal, chronic illness, and provider organizations. He is based in Newton, Massachusetts and can be reached at mark@bronsteinlaw.com or 617-244-5551.