Passing Away Does not Mean the Death of your Social Security Disability Claim

As you can well imagine, having handled 1000’s of Social Security disability claims for 27 years out of Maine, Massachusetts and New Hampshire, it has not been unusual for our office to face the very difficult prospect that a client passes away before we’ve been able to prevail to hearing in their case and recover the past due benefits to which they are entitled.  In many circumstances this doesn’t have to meant the end to their case:  in many such cases, we have been able to pursue the claim to a successful conclusion.   There are vast differences between how matters work for purposes of the Title II or Social Security Disability Insurance program (which is based on an individual’s earnings record) and Title XVI or the Supplemental Security Income (which is a welfare, needs based program), which we’ll set out below.

First and foremost, should one pass away while pursuing a Social Security disability claim, the first matter that will need to take place is what’s called a Substitution of Parties, which allows for what is deemed by the Social Security Administration (SSA) to be the next of kin for purposes of who may proceed with the case (and with reference to who may be entitled to receive the past due benefits that are payable up to the date of the claimant’s death).  The SSA requires that an SSA HA-539 Substitution of Parties form be filled out and that a death certificate accompany the form.

With respect to the substitution of parties, the regulations spell out the following order of eligibility: 1) to the spouse (if living in the household at the time of death or if entitled to a monthly benefit under the deceased’s earning’s record) at the time of death, 2) to any children entitled to receipt of  a monthly benefit at the time of the claimant’s death, 3) to the parent/parents entitled to receipt of a monthly benefit on the earnings record at the time of the claimant’s death, 4) to a spouse who does not meet the requirements listed option one, 5) to any children who do not meet the requirements of option 2 and 6) to any parent who does not meet the requirements of section three and 7) to the representative of the claimant’s estate.   The SSI substitution of parties rule is much stricter, given the nature of the benefit (being a welfare check, and with no dependent/family entitlement available under this program): the claim may only be pursued by the claimant’s spouse (assuming they were living in the same household as the claimant as of the date of death or during the preceding 6 months claim).  Assuming the claimant is a disabled child for purposes of an SSI claim, a substitution of party in the form of a parent who was living in the same household as the child at the time of death or during the 6 months preceding death would be the only appropriate option.  Assuming there exists an interim assistance agreement requiring repayment out of the recovery of SSI benefits, a case pending at the hearing level before an Administrative Law Judge (ALJ) may still proceed.  Likewise, while a spouse or the governmental entity holding an interim reimbursement lien interest may be the only ones entitled to recover financially in an SSI claim, it may be beneficial for the spouse to pursue the SSI claim for purposes of a favorable decision so as to allow for automatic entitlement to Medicaid  (Mainecare in Maine, Medicaid in NH and Mass Health in Massachusetts).

The bigger issue in a substitution of parties circumstance becomes whether one will be able to obtain evidence necessary to prove the claim given the claimant will no longer be around to assist.  For one, the medical authorization that your Social Security lawyer has as of the date of death will no longer be valid and it may be necessary to obtain a new medical authorization that is endorsed by the representative of the estate (in which case, an estate will need to be set up through the local probate court to allow a representative of the estate to be appointed). Assuming one is able to obtain the necessary medical documentation, this does not address the issue of who will be able to provide the testimony necessary at hearing to prove the nature of the problems the claimant was experiencing on a daily basis so as to prove their disability.  Fortunately, forms such as the Adult Function Report do memorialize the extent to which the claimant believes the are impacted by their disabling condition and, if undertaken in a thorough and complete manner, can make a huge difference at the hearing level even if lay testimony from friends or family remains limited.

Needless to say, having an experienced lawyer who is able to guide you through the process can help make what appears to be an overwhelming endeavor, a more reasonable and understandable process.  One important consideration to keep in mind should you need to move forward with hearing is that the mere fact the claimant passed away may provide support for the arguments all along that their condition remained severe and disabling and had either 1) kept them from performing gainful employment for what has been a year or longer or 2) has in fact resulted in death (which, assuming the alleged disabling condition did contribute to death, will then speak for itself in establishing entitlement).  The other consideration to keep in mind is that an ALJ will be asked to provide only a closed period of disability benefits up to the date of the claimant’s death, versus an open-ended period of disability benefits which may go on for decades.

If you are in need of legal guidance for your Social Security disability claim, our offices in Maine, Massachusetts and New Hampshire are happy to provide you with the legal assistance you need.  Contact the Law Offices of Russell J. Goldsmith now at 1-800-773-8622 for a no fee consultation.


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