Compassionate Allowance Comes Too Late

January 1, 2009

Author: Catherine M. Callery (Kate)| Louise M. Tarantino

Ann Biddle, Esq., Paul M. Ryther, Esq.

An article in the November 2008 edition of the Disability Law News described SSA Commissioner Astrue’s “Compassionate Allowance” initiative.  At least one advocate took the Commissioner up on his offer of expediting the processing of disability claims for applicants whose medical conditions are so severe that their conditions obviously meet Social Security’s standards.
 
LJ Fisher of the Rochester office of the Empire Justice Center requested a decision on the record (OTR) as a compassionate allowance on behalf of her client, who had a recently diagnosed metastatic adenocarcinoma of the lung, as well as HIV/AIDS with ring enhancing brain lesions.  On January 7, 2008, LJ contacted the Office of Adjudication and Review in Buffalo, citing the new compassionate allowance standards at www.socialsecurity.gov/compassionateallowances.  She also submitted supporting documentation from the claimant’s treating physician.  She received a fully favorable senior attorney decision dated January 13, 2009, finding that the claimant’s condition met Listing13.14 for malignant neoplastic diseases of the lungs.  Unfortunately, her client passed away on January 11th.
 
Because the application was only for SSI (Supplemental Security Income), no benefits will be paid since the claimant did not have a spouse or children.  Only a surviving spouse or parent of a minor child claimant who lived with the claimant at the time of death or with the six months preceding death (as long as he or she did not cause the death!) can collect the retroactive benefits - or underpayment - owed to the deceased.  See 20 C.F.R. §416.542(b)&(c).  Obviously, neither the spouse nor the parent would be entitled to any on-going benefits.  Note, however, SSI can still withhold interim assistance paid to the State or county for reimbursement.  20 C.F.R. §416.525. See POMS SI 02101.003 for general provisions regarding payment after the death of a claimant.  For more on benefits due after a claimant dies, see also the September 2003 edition of the Disability Law News.
 
On a more mundane note, LJ received the decision, dated January 13, 2008, on January 12, 2008.  How can that be?  According to the November 2008 NOSSCR Forum, electronic signatures are another part of the Commissioner’s initiatives to reduce the backlog.  ALJs and senior decision writers are now authorized to sign decisions electronically using PIN numbers.  As soon as the ALJ approves and “signs” the decision, it is uploaded into the centralized ODAR document management system and printed.  The printed date is usually three days after the ALJ electronically signs and authorizes the decision.  Too bad it could not have been dated earlier rather than later in this case.