View Mobile Site

The ball is in your court

Text Size: Small Large Medium
POSTED September 7, 2012 9:18 p.m.

Q. I need to know if you think I should hire a lawyer for an appeal that I have filed with the Social Security Administration. In a nutshell, here is my case. I waited until age 70 to file for my Social Security retirement benefits because I wanted to get the 32 percent bonus offered to those who delay filing for Social Security until that time.

But when I filed for my retirement benefits, I was told at that time that I could have been receiving spousal benefits on my husband's record since my 66th birthday. (When he originally filed, I was 60 at the time.) They said they were able to pay me six months worth of payments on my husband's account — which they did. But I filed an appeal complaining that I should have been paid benefits all the way back to age 66. My feeling was that SSA failed to notify me of my right to benefits. So it is their fault that I didn't file at age 66, and I believe they owe me the retroactive benefits.

They turned down my first appeal saying I had not proven that SSA personnel misinformed me. I think the fact that they told me nothing is the same as misinforming me. I asked for a review of their decision not to pay me retroactive benefits, and that appeal was also denied.

I now have filed for a hearing before an administrative law judge. What is your opinion of my chances? And do you think I need a lawyer?

A. I always hate being the purveyor of bad news, but I don't think you have any chance of winning your case. The general rule of thumb is that when it comes to filing for any kind of Social Security benefits, the ball is in your court. In other words, it wasn't the government's job to tell you to file for wife's benefits on your husband's account when you turned 66. It was your job to know that you should have been eligible for such payments and to file for them yourself.

Think of it this way. Thousands of people retire and become eligible for Social Security benefits every day. And all of those folks take the initiative and either call SSA's 800 number to make an appointment to file for retirement benefits — or they go to SSA's website to file their claim online. The government doesn't contact them to say, "Now that you're a senior citizen, make sure you file for Social Security."

When a woman's husband dies, she is expected to contact the Social Security office to inquire about filing for widow's benefits. (However, see the answer to the next question for an exception.)

When people become disabled, a government representative isn't sent to their home to hold their hands and guide them to a Social Security office to file for disability benefits. Again, they do it on their own initiative.

So why should things be different for you? You certainly knew that your husband was getting Social Security benefits — and the law assumes that you know that you could have been eligible for wife's benefits on his record. Or at least it assumes that you would be curious enough and contact the Social Security office to find out if you are possibly due benefits.

Had you done that, and had a Social Security representative told you that you were not eligible, then you would have grounds for an appeal based on getting misinformation from the government. But there is no misinformation in your case. As I said, the ball was in your court, and frankly, I think you dropped it.

But I don't want to discourage you from carrying this through. If you really think you've been wronged, you should proceed with your appeal. It's just that I wouldn't lie awake nights awaiting a judgment in your favor with lots of retroactive spousal benefits.

Oh, and you asked about hiring a lawyer. You can do so if you want, but I really believe you would be wasting whatever fee he or she charges for what I think is a hopeless case. Besides, I think about 99 percent of the lawyers I've ever encountered who work on Social Security cases specialize in disability claims. To be honest, that's where the money is!

Q. My best friend's husband died about six months ago. And not long after that, she started getting widow's benefits. This all happened automatically. She didn't do a thing. Yet several months ago after my father died, my mother waited for her widow's benefits, but nothing happened. She had to go to the Social Security office to apply for them. Why didn't my mother get the same treatment as my neighbor?

A. I purposely put your question here to show that there are some situations where the Social Security Administration takes the initiative to help someone get the Social Security benefits they are due.

I will bet your friend was getting wife's benefits on her husband's record before he died. In other words, all the information Social Security needed to determine her eligibility for widow's benefits (like a marriage certificate, for example) was already in their files. And as soon as they learned of her husband's death, which might have come from the funeral home or from a computer matching operation with the state or county bureau of vital statistics, they simply needed to push a few buttons to switch her from wife's to widow's benefits.

On the other hand, I'm guessing your mother was getting her own Social Security benefit. In that kind of situation, your father's Social Security record may not have contained any information about your mother. Or even if it did, your mom may have had some choices to make regarding taking widow's benefits or continuing to receive her own retirement payments. In that kind of case, the ball goes back to the claimant. It is her job to contact Social Security to inquire about widow's benefits.

 

Commenting is not available.

Commenting not available.

Please wait ...