Question:

My wife and I have had legal custody of our almost 11-year-old granddaughter, Jaylee, for about 10 years. Jaylee has severe medical problems. I turned 66 years old in April and filed for Social Security benefits, including making claims for my wife and granddaughter to receive benefits as well. The representative at the Social Security Administration told me that my claim was denied for my wife and granddaughter because my granddaughter has not been adopted by my wife and me. 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.” I was surprised at her response because all I asked was a question concerning a document on their website. Her response put up a red flag to me, wondering if Social Security acts like insurance companies where they deny claims just to see if you will appeal or refile.

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 enough detail to allow folks to understand the actual criteria for a particular benefit.

In your case, it sounds like you are asking a straightforward question, which is, in other words: “In what circumstances may a dependent grandchild who has NOT been legally adopted by the grandparent be entitled to collect a child’s benefits as a dependent when the grandparent becomes entitled to Social Security retirement benefits?”

Like many federal laws, the Social Security rules and regulations are based on three levels of rules:  The actual Social Security statutes passed by Congress, the official regulations that the SSA has issued on how it will implement and interpret the statute, and finally, the detailed internal procedural manual, known as the “Program Operations Manual System (POMS), which SSA employees are supposed to follow as a guide for their day-to-day work.

Since the POMS is online and readily searchable, there is no reason why you cannot find the applicable provision relevant to your issue to get a more detailed understanding of the criteria  governing dependents’ benefits for grandchildren than you were able to get from the booklet or the SSA employee you spoke to. The applicable section of the POMS can be found at https://secure.ssa.gov/poms.nsf/lnx/0200306235 and is entitled:

GN 00306.235 Entitlement Requirements – Benefits Based on Earnings Record of Grandparent

You can follow the hyperlink above to read the full text of the rule yourself but, in summary, the answer to your question is as follows:

Even if you have not legally adopted  your grandchild, you is entitled to collect a Social Security Child’s benefit if:

1. 1. She is financially dependent on you and
   2. At the time you first became entitled to Social Security retirement, the child’s parents were either deceased or disabled

If you think your granddaughter meets these criteria, my advice to you is to definitely NOT follow the SSA staffer’s request that you withdraw the child’s benefit application that you filed, but rather insist that they issue a decision on the claim so that if it is a denial, you will have the option of filing a request for reconsideration of the denial if you think the SSA was wrong. Of course, if the child’s parents are alive, proving their disability may be difficult.

I also want to mention that the Childhood Disability Benefit (CDB) program also applies to grandchildren benefits.  That is, while ordinarily a dependent’s benefits end when he or she reaches age 18 (or if still in high school, 19),  the child’s benefits will continue until their disability ends, they marry, or they have earnings over a certain amount per month.

Finally, while not relevant to your situation, other readers might benefit from knowing that if, at the time a grandparent retires and begins to collect Social Security benefits, he or she has an adult dependent and unmarried grandchild whose parents are deceased or disabled themselves, if the grandchild’s disability started before age 22, they will be entitled to a benefit as well.

Related Articles:

Can I Get Spousal Social Security Benefits for Taking Care of My Adult Disabled Child?

Social Security Childhood Disability Benefit May Be Available to Granddaughter

Can I Receive Disabled Adult Child Social Security Benefits?

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.