Protective Filing Date

A protective filing date is the date when a person first contacts the Social Security Administration (the “SSA”) about filing for benefits, which may be used to establish an earlier application date than the date the SSA claims it received the signed application. An earlier application date can result in additional benefits.

On January 29, 2010, a fifty one year old former professional recruiter consulted me about filing for Social Security Disability (“SSD”) benefits. She told me that she became disabled on August 17, 2007, and that she first contacted the SSA about filing for SSD benefits well over a year ealier, but neither she nor the SSA had a record of that contact. Since it was the last business day of the month, I advised the claimant to call the SSA to request an appointment to file an application for SSD benefits. I told her to make sure that they would promise to send her a letter to confirm the appointment.

On March 23, 2010, I filed the claimant’s application SSD benefits by certified mail. Nonetheless, the SSA claimed that the claimant’s application was filed April 9, 2010, even though it had date stamped the application in its own file with a date of March 24, 2010.

An Administrative Law Judge (“ALJ”) was assigned the case to resolve the filing date. At the hearing, the claimant testified that she first contacted the SSA about applying for SSD benefits in January 2008, and then restarted the application process again in February of this year. I then produced a copy of a letter that the SSA sent in February this year about the claimant’s appointment for seeking SSD benefits.

The ALJ’s decision today found that the claimant had a protective filing date of February 1, 2010, which effectively is the same as a January 29, 2010 protective date because in either case February 2010 is the first month that counts towards the five month waiting period for SSD benefits to begin. This means that the claimant’s SSD benefits will begin as of July 2010; whereas, they would have begun October 2010 if April 9, 2010 had been used as the application date. Unfortunately, without written evidence of the 2008 contact, the ALJ would not accept an earlier protective filing date, which resulted in the loss of over a year of SSD benefits.

If you intend to file for SSD benefits and more than 17 months have elapsed since you became disabled, then you should ask the SSA to send a letter confirming that you inquired about SSD benefits, and send the SSA a confirmatory letter as well.