My son has Rubenstein Taybi syndrome, which was diagnosed at birth. He is clearly disabled. We were able to get him job working for YouTube (actually the contractor for food service is Bon Appetite) as a helper in the cafeteria. He was their first disabled adult employee. He works 4 days a week, 4 hours a day. We have tried to keep his monthly income below $1130, and pain in a deformed ankle keeps him from working any longer than 16 hours a week. Because of physical limitations and difficulties communicating through his own dialect of sign, he can only do his job with his mother acting as his job coach along side him every minute of his working day..

I am about to start receiving social security benefits. The local social security office wants to deny him social security (and thus Medicare) because last year he had 2 months where he earned over $1130 (one month he was over by $4.50, the other $150). In other words, they want to exclude him based on one or two month's earnings, not the average for a year. Reading your column, you said the calculation of a disabled adult's earning potential was an average monthly income over a year. Has that rule changed? Is there some place like the Federal Register that I can reference on appeal? To appreciate how dumb, punitive, and miserly the "system" is, you should know that the one month where he was over by $150, he received 3 paychecks for 3 biweekly periods, the first check received on Dec 1. In other words, the one "month" they are focusing on represented 6 weeks of work.

Thank you for your expertise and any assistance you can provide.

Hi,

I'm sorry to hear about your son's illness.

It certainly sounds like Social Security is wrong in the way they are analyzing your son's earnings. The material issue is whether or not he has performed substantial gainful activity (SGA) at any time since turning age 22, and the proper way to analyze whether or not earnings are SGA is based on average monthly earnings. The pertinent reference in Social Security's operations manual is DI 10505.015 (https://secure.ssa.gov/apps10/poms.nsf/lnx/0410505015), which is derived from section §404.1574 of the Federal Regulations (https://www.ssa.gov/OP_Home/cfr20/404/404-1574.htm).

Also, for SGA determination purposes earnings are counted when they are earned, not when they are paid, so the fact that your son had a spike in earnings due to receiving 3 paychecks in a month should not be held against him. Furthermore, it sounds like your son may not be fully earning his salary due to the assistance that your wife is providing to him. That may or may not be material to the determination, but you may want to peruse the following section from Social Security's operations manual to see if a subsidy may be involved: https://secure.ssa.gov/apps10/poms.nsf/lnx/0410505010. Social Security should also deduct any impairment related work expenses (IRWE) that he may be required to pay in order to perform his job (https://secure.ssa.gov/apps10/poms.nsf/lnx/0410520010).

If Social Security disallows your son's claim for disabled adult child benefits, he has the right to appeal the determination. For more information on the appeals process, refer to this Social Security publication: https://www.ssa.gov/pubs/EN-05-10041.pdf.

Best, Jerry