A Guide to Social Security Survivors Benefits

Social Security Benefits

What are Survivors Benefits: A Brief History

Economic insecurity was a social issue our nation addressed over 80 years ago with the enactment of the Social Security Act in 1935. What most people don’t realize is that the Act also provides survivors benefits: spouses, children, and dependent parents of a deceased worker can receive survivors benefits. Yet, few people understand the program rules for eligibility and may be reluctant to ask.

How to Become Insured for Survivors Benefits

Eligibility for Social Security survivors benefits is a matter of insured status. With few exceptions, a worker can insure his or her family for Social Security survivors benefits once the worker has 40 quarters of covered earnings. Breaking this down more simply: that’s 10 years of employment where the worker earned at least $5,640 per year, or $1,410 per quarter (2020 required amounts—prior years may be lower), in wages or self-employment income. The actual benefit amount will vary depending on the worker’s individual earnings and the number of quarters of taxes paid on those earnings, and can be greater for a family with more than one survivor (e.g. surviving spouse with surviving minor children in the care of a surviving spouse).

However, if the worker had income or wages not subject to the FICA tax then the worker will not be insured. Some examples are (1) state employees or public school teachers who pay into a state-sponsored, exempt retirement system, or (2) self-employed workers who fail to report their earnings to the IRS. 

Who Can Receive Survivors Benefits?

This is a 2-part question. First, is the question of the worker’s insured status (see above). Second, is the question of the survivor’s relationship to the deceased worker. Spouses and children may be eligible to claim on their deceased spouse or parent’s work record, but they must be able to prove their legal relationship to the deceased spouse/parent. Social Security follows state laws concerning the family relationship. For a child, this could become an issue if parentage was never established during the worker’s lifetime. For spouses that were “common law” married to the worker, but were never married in a civil ceremony, this could also pose a problem. A probate attorney can counsel and assist the family with the necessary state court proceedings to establish these family relationships. 

When Should You Apply for Survivors Benefits?

Application should be made as soon as you learn of the worker’s death, or otherwise become eligible under Social Security rules. Social Security will not pay more than 6 months of retroactive benefits for a minor child and 12 months for an eligible surviving spouse. Additionally, it’s important to understand that only eligible survivors can receive Social Security survivors benefits. Children can receive survivors benefits, but only until they are 18 years old and have graduated high school. Additionally, the living parent caring for a surviving minor child under the age of 16 may be eligible for Social Security survivors benefits if that parent had been married to the worker. This is true even if the surviving parent was divorced from the worker before the death occurred. An adult child who became disabled prior to the age of 22 may be eligible to receive survivors benefits into adulthood.

A surviving spouse is entitled to survivors benefits once they reach age 60 and as long as they have not re-married prior to then. However, if the surviving spouse is disabled, then they can apply for survivors benefits as early as age 50, but must apply within 7 years of the deceased spouse’s death. Additionally, if a surviving spouse claims the survivors benefits prior to their full retirement age, the benefit will be reduced. Finally, a divorced surviving spouse is also entitled to survivors benefits if they were married to the worker at least 10 years and did not re-marry prior to the age of 60.

Social Security survivors benefits can provide financial security during a time of loss. Understanding your benefits is a first step to preparing a lasting legacy for your family.

If you have questions about Social Security survivors benefits in the Dallas, Plano, McKinney, Frisco, Allen, & Prosper area, contact me, a Social Security Attorney, to discuss further. In addition to in-person consultations, I am also available by teleconference and videoconference. I also represent individuals in probate and guardianship proceedings needed to establish family relationships for the purpose of receiving Social Security survivors benefits.

Attorney Adriane Grace Published in Texas State Bar Journal

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Attorney Adriane S. Grace’s article, “What the Estate Planning Attorney Needs to Know About Social Security Fee Authorization and the New Executive Orders“, was published in the latest issue of The REPTL Reporter (Volume 58, Issue 2 May 2020). The REPTL Reporter (REPTL) is the official journal of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.

In addition to her wills, trusts, guardianship, and probate law practice, Ms. Grace is a Social Security appeals attorney. She regularly encounters overlaps in these practice areas and offers legal advice and assistance navigating the intersection of state and federal laws. For questions, contact Attorney Adriane S. Grace.

Attorney Adriane Grace Featured Speaker at the 2020 North Texas Probate Bench Bar Conference

Featured Speaker

The North Texas Probate Bench Bar is a yearly conference held in March during which time members from the probate bench and bar (judges and attorneys) from North Texas come together to hear updates on important legal topics in Estate Planning, Probate, and Guardianship. This year, Attorney Adriane S. Grace was selected by the planning committee to speak at a general assembly of the bench and bar on March 5, 2020 about “Social Security Rules the Estate Planning, Guardianship, and Probate Attorney Should Know.”

Featured Speaker

Attorney Adriane S. Grace featured speaker at the 2020 North Texas Probate Bench Bar Conference

As a Social Security Appeals Attorney and a practitioner in probate and guardianship law, Ms. Grace has identified overlaps in Social Security procedural rules and state laws on probate and guardianship. Ms. Grace used the speaking opportunity to educate local judges and her colleagues about these overlapping rules and how to navigate these issues as well as provided an update on new Social Security rules pertinent to their practice areas. As a former appellate attorney for the Social Security Administration, Attorney Adriane S. Grace possesses intricate knowledge of Social Security processes and procedure as well as the agency policies driving their rules. She is often called upon by colleagues practicing in many different areas of law for advice and assistance when their cases become impacted by Social Security issues.

The North Texas Probate Bench Bar conference is a well-attended event by estate planning and probate attorneys from Dallas, Collin, Denton, Tarrant, Rockwall, and Grayson counties as well as all the statutory probate judges and county court at law judges hearing probate cases in these counties. This year, there were approximately 300 attendees.

Avoiding Social Security Scams

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If you have called Social Security recently, you probably heard a recorded message notifying you about ongoing social security scams. Unfortunately, scammers frequently target our most vulnerable members of society: the elderly and disabled. Thus, it is important to understand how these scams work and know what steps you should take if you, or a loved one, has been targeted by a social security scammer.

How a Social Security Scam Works

These scams usually involve someone calling by phone, claiming they are an employee of the Social Security Administration. They will give some reason for calling that requires your immediate attention. For example, they may say the computers are down and there is a problem locating your information; or that they need to enroll you in a Medicare plan; or that your social security number is being suspended; or that your bank account is about to be seized. Next, the caller will ask you to take some action. The caller may ask you to confirm your social security number, bank account information, your date of birth, and/or your mother’s maiden name. Once the caller has this information, they will be able to open credit card accounts in your name. Alternatively, the caller may ask you to wire money to them, send cash, or put money on a gift card. Anyone who asks you to do these things is definitely a scammer.

How to Avoid a Social Security Scam

Scammers are becoming more technologically advanced. Oftentimes, when they call, Social Security’s main telephone number, 1-800-772-1213, will appear on your caller ID. Here is what you need to know first: Social Security primarily communicates with you by U.S. mail. It is rare for a Social Security representative to contact you first by phone. Usually, a phone contact occurs under specific circumstances. For example, when multiple attempts at mailing letters to your address have failed, or if you initiated a phone appointment with Social Security either by beginning an application for benefits online, or previously calling the main number.

Second, Social Security sends all its decisions and announcements by mail because they are required to by law. Because you have a right to appeal the determinations of the Social Security Administration, you are entitled to written notice of any determination concerning your benefits. Therefore, if there is a problem with your benefits, you will hear about it first through a letter sent in the mail; not by a phone call.

Last, if you get a phone call and are not sure whether you are talking to a representative of Social Security, do not give them any of your personal information. Instead, advise the caller that you are not available to discuss the matter at this time and hang up the phone. Immediately call the main number at 1-800-772-1213 and wait to speak to a Social Security representative. The representative who answers that line will be able to tell you if there have been any changes in your benefits and can confirm if Social Security has sent any letters to you.

Reporting Social Security Scams

Finally, if you realize you have been a victim of a social security scam, be sure to report it. Social Security scams should be reported to the Office of the Inspector General (OIG) at Social Security, and can also be reported to the Federal Trade Commission (FTC). OIG will want to know as much information as possible to assist with an investigation such as the name of the caller, the telephone number the caller used, the time and date of the call, information requested by the caller, and any other identifying information. The OIG can be reached at 1-800-269-0271, or you can file a report online here. Similarly, you can report the call to the FTC at ftc.gov/complaint.

*Adriane S. Grace is a Social Security Attorney who regularly represents individuals in Social Security appeals in the Dallas, Frisco, McKinney, Plano, Allen, and Prosper Texas area. She regularly serves as a social security consultant to other attorneys, advises individuals on eligibility issues concerning retirement and survivor benefits, and has assisted families with Texas court proceedings necessary for obtaining these benefits. Attorney Grace is licensed to practice law in Texas and Virginia and is a former Attorney-Advisor to the Social Security Administration. For more information about Attorney Grace, please check out her Attorney Profile.

Social Security Benefits 101

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In the United States, Social Security is frequently talked about in the news, but poorly understood. As a result, most people think Social Security is a “government handout”, or some form of welfare for the poor. What people fail to understand is that Social Security is primarily an insurance program for workers.

And just like the insurance you would purchase for your home, car, or business, you can make a claim on your Social Security insurance if you (1) are insured, and (2) meet program rules.

There are three main types of Social Security insurance benefits: retirementdisability, and survivors.

How to Become Insured for Social Security Benefits

But before we dive into a discussion of the types of Social Security benefits, let’s first discuss how to become insured for these benefits.To be insured for Social Security benefits, you need to work and pay your taxes.

To be insured for Social Security benefits, you need to work and pay your taxes.

For most people, paying taxes is a no-brainer. That is because your employer does it for you. When you start a new job, your employer will ask you to provide your social security number and a completed Form W-4, which they will use to withhold your income taxes and FICA tax from each paycheck. FICA stands for “Federal Insurance Contributions Act” and is a combination of taxes for Medicare and Social Security. Your employer will then pay the withheld FICA tax to the IRS, and the IRS will report your earnings and FICA tax payment to Social Security. If you are self-employed, you are responsible for paying the FICA tax directly to the IRS. Part of the withheld FICA tax goes into a trust from which Social Security will pay insurance claims.

It’s important to know that becoming insured for Social Security benefits takes some time. Unlike other insurance programs where you become immediately insured with your first premium payment, you do not become insured through your first FICA tax payment. You will be insured for Social Security benefits once you have earned enough credits, or “quarters of coverage”. The amount of money you must earn to receive a credit changes each year. For example, in 2018, you will receive a credit or “quarter of coverage” for every quarter that you earn at least $1,320 (by comparison, in 1978, it was $250). As there are 4 quarters in a year, you can only receive up to 4 credits per year.

To be fully insured for retirement and survivors insurance, you need at least 6 quarters of coverage and at least one quarter of coverage in every year after you turn 21 and the year before you die, or turn 62. To be permanently insured for these benefits, you need 40 quarters of coverage. Thus, you could be permanently insured for retirement and survivors insurance after just 10 years of full-time employment. Disability insurance is a little different, however. To be insured for disability, you need 20 quarters of coverage in the 10 years prior to the date you became disabled. The requirements are different for younger individuals under age 31.

If you are not sure whether you are insured for Social Security benefits, you can always check your Social Security Benefits Statement. Your statement will explain which benefits you are insured for, and the estimated monthly benefit you could receive based on your earnings record. Because the amount of your benefits are directly tied to your reported earnings, it’s a good idea to check your Social Security Benefits Statement on a yearly basis. This is easy to do now that you can obtain a copy of your benefits statement online at ssa.gov.

Retirement Benefits through Social Security

With the passage of the Social Security Act in 1935, the first Social Security insurance benefit was born: “federal old-age benefits”, or Social Security retirement. In addition to being fully insured, you need to be at least 62 years old before you can qualify for this Social Security benefit. The retirement benefit is not just an individual benefit, but a family benefit as well. If you are married and/or have children who are under the age of 18, or who are adults with developmental disabilities, you will receive a benefit for your spouse and children as well.

Although you can claim your retirement benefits at age 62, there are penalties for doing so. For most non-retired workers, full retirement age is somewhere around the age of 66–at this age you will be entitled to receive the full amount of your Social Security retirement benefits. However, if you choose to retire sooner, at age 62-65, your benefits will be permanently reduced by as much as 30%. Additionally, if you continue working while receiving your retirement benefits between ages 62 and 65, your benefits will be reduced by $1 for every $2 you earn. On the other hand, if you wait to claim your retirement benefits, your retirement benefit will increase for each year you delay your claim after age 66 (there are no further increases after age 70). The amount of your retirement benefit is based on your individual earnings record, but the maximum full retirement benefit for an individual in 2018 is $2,788 per month.

Social Security Survivors Benefits

Social Security survivors benefits are probably the lesser known Social Security benefits. Survivors benefits are a form of life insurance. But unlike private life insurance, you don’t have to pass a medical examination to qualify for these benefits. Thus, if you die, and were fully insured at your death, your surviving spouse and children who are under the age of 18 (or who are adults with developmental disabilities) will receive survivors benefits. There are two types of survivors benefits: a one-time death payment of $255 and a monthly benefit for your surviving spouse and/or children.

Spouses and children who could potentially claim survivors benefits should file an application for the benefits no later than 6 months after the worker dies. Social Security will not pay more than 6 months of retroactive benefits.

If you are survived by a spouse, or ex-spouse, and have children with this spouse who are under the age of 16, your spouse and each child will receive survivors benefits. If you are not survived by any children under the age of 18 (or adult developmentally disabled children), but are survived by a spouse or ex-spouse, your spouse may be entitled to survivors benefits beginning at age 60 (or 50-59 if disabled). However, if your spouse or ex-spouse remarries after your death and before they reach age 60, they will not be eligible for the survivors benefit. Additionally, for an ex-spouse to be eligible for the survivors benefit, they must have been married to you for 10 years. Dependent parents who are age 62 or older may also be eligible for survivors benefits if you provided at least half of their support. As with retirement benefits, the amount of the actual monthly Social Security survivors benefit will vary depending on your earnings record.

You should be aware that Social Security applies state family and inheritance laws when determining who is a potential spouse or child eligible for survivors benefits. In some cases, a state court order declaring a marriage, or the paternity of a child, may be necessary to claim Social Security survivors benefits if the legal relationship of the child or spouse was not established prior to the worker’s death. Spouses and children who could potentially claim survivors benefits should file an application for the benefits no later than 6 months after the worker dies. Social Security will not pay more than 6 months of retroactive benefits.

Social Security Disability Insurance Benefits

If you become disabled prior to full retirement age and are unable to work, you may be eligible for disability insurance benefits. To qualify for these benefits, you must be insured and you must meet Social Security’s definition of disability. If you are receiving disability insurance benefits and you have dependent children under the age of 18, or adult developmentally disabled children, you will receive a benefit for these children as well. However, unlike Social Security retirement and survivors benefits, there is no additional disability benefit for spouses. And as with other Social Security benefits, the amount of your disability insurance benefit is based on your individual earnings record. After you have received 24 months of disability insurance benefits, you will be eligible for Medicare benefits as well.

It is important to understand that unlike Social Security survivors and retirement insurance benefits, it is not possible to be permanently insured for disability benefits. Recall, that to be insured for disability benefits, you must have 20 quarters of coverage in the 10 years prior to the date you became disabled. Thus, once you stop working, you will eventually become uninsured for disability benefits. Additionally, Social Security will only pay 12 months of retroactive benefits for disability applications. Delaying your application for disability insurance benefits could result in less benefits for you and your family.

Delaying your application for disability insurance benefits could result in less benefits for you and your family.

Finally, Social Security disability insurance benefits should not be confused with SSI (Supplemental Security Income). Although SSI is another disability program administered by the Social Security Administration, it is not part of the Social Security insurance program. Eligibility for SSI is not based on your earnings record, but rather your lack of income and resources. SSI benefits are capped at $750/month for 2018. Although some applicants for disability insurance might meet the income and resource eligibility rules for SSI, it is not possible to receive benefits from both disability programs unless your disability insurance benefits are less than $750/month.

Now that you know what Social Security insurance benefits are, applying for Social Security insurance benefits is just one click away at ssa.gov.

*Adriane S. Grace is a Social Security Attorney who regularly represents individuals in Social Security appeals in the Dallas, Prosper, Plano, Frisco, McKinney, & Allen Texas area. She has also consulted and advised on survivors benefits and has assisted families with Texas court proceedings necessary for obtaining survivors benefits. Attorney Grace is licensed to practice law in Texas and Virginia and is a former Attorney-Advisor to the Social Security Administration. For more information about Attorney Grace, please check out her Attorney Profile.

 

When and How to Hire a Social Security Attorney

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Dealing with a government agency can be a time-consuming task, and Social Security is no exception. I frequently get calls from people who are considering applying for Social Security benefits but aren’t sure how to begin. Generally, I advise these callers to go ahead and start the application process on their own because applying for Social Security benefits is actually quite simple. That’s because the Social Security Administration now allows individuals to apply for most Social Security benefits online at ssa.gov. One exception to the rule is Supplemental Security Income, or SSI, for short. Applicants for SSI will need to either walk in to their local Social Security office, or call Social Security’s main phone line at (800) 772-1213, to start the application process.

The Disability Application Process

As with any government application, you should be prepared to answer questions about yourself or the person you are helping. This includes the basics like your social security number, date of birth, place of birth, and parents’ names so that Social Security can verify your identity. For disability applicants, you will also need to provide information about your work history, income, health conditions, treating doctors, hospitals where you have been treated, and medications prescribed to you. Failure to be prepared with this information can result in delays with processing your application and even a denial of benefits. Once you have provided this information, Social Security is responsible for obtaining your medical records and making a decision about your disability claim.

Social Security does a reasonably good job with keeping you informed about the status of your claim (albeit progress is slow so set your expectations low on timing). Social Security sends all decisions and further requests for information by mail to the address you provided them in your application, so be sure to keep your address updated with them. And if you started the application process online, you may even receive electronic updates when a decision has been made in your case.

Why are so few people approved at the initial level? The answer to this question is complex.

However, the percentage of people who will be awarded disability benefits after diligently submitting all their information is considerably low. In 2016, Social Security reported that the average award-rate between 2006 and 2015 for initial claims was 23%! That means the majority of applicants are denied and will need to pursue their appeal rights. This statistic begs the question: why are so few people approved at the initial level?

The answer to this question is complex. For starters, Social Security uses a five-step sequential evaluation process for evaluating every disability claim and this process includes the application of Social Security’s medical rules and vocational rules. At the initial level, Social Security uses state programs and state-employed physicians to evaluate the medical evidence in your case. You will never meet these people or have the opportunity to talk to them.  Opportunities for self-advocacy during this part of the process are practically non-existent. The medical examiner’s job is simply to review the medical records Social Security obtained on your behalf and determine whether you have a medical condition that meets or equals one of the conditions in the “Listing of Impairments” maintained by Social Security. Therefore, the majority of the people approved at the initial level tend to be people with extremely limiting disabilities such as severe intellectual and developmental disabilities and those with chronic life-threatening conditions. In other words, the lucky (or not so lucky, depending on how you look at it) 23% have a type of medical condition that is most likely to “meet” a Social Security Listing. In sum, these types of claims are the least complicated and usually do not require the assistance of a representative, such as an attorney or other professional.

Where the decision-making process becomes complex is when state employees attempt to apply Social Security vocational rules to the medical evidence in your file. If you have ever been denied disability benefits, then you know what I am referring to–that part in your denial letter where Social Security lists all your health problems and then tells you that you can still work. Sometimes, they may even tell you that you can return to one of your previous job. These letters typically offer no further explanation about how they arrived at such a conclusion. However, the letter will explain that you can appeal the decision within 60 days of the date of the denial letter.

Disability Appeals and Benefit Award Rates

In some states, a denial from the state disability service means you can immediately request a hearing with an Administrative Law Judge. In other states, like Texas, it means you can ask for the state service to reconsider their decision, called a “Request for Reconsideration”. If your state uses the Request for Reconsideration process, you will most likely be facing more delays in your case and another opportunity to be denied. Social Security reported that the average award rate for claims at the Request for Reconsideration level is 7% (As reported for 2015 by Social Security). If you receive a denial at this point in the process, you may be considering whether it’s worth it to have someone advocate on your behalf at the hearing level.

My answer to this is YES–three times YES! First of all, your statistical chances of an award are better at the hearing level (award rates are 38%, as of 2015 when Social Security last reported). Earlier this year, the Government Accountability Office (GAO), an independent, non-partisan agency that investigates how the federal government spends taxpayer money, released a report detailing the different factors that affected benefit award rates for Social Security disability claims. The study specifically focused on the award rates at the hearing level. Recall that once you have exhausted all your appeals at the state level, you have the right to request a hearing with an Administrative Law Judge (ALJ). At this level of the Social Security appeals process, you will have a live hearing where you can actually speak to a decisionmaker for Social Security (the ALJ) and plead your case. The GAO study concluded that individuals who had a representative at the hearing level, such as an attorney or family member, were allowed benefits at a rate nearly 3 times higher than those who did not have representation. Essentially, a person’s chance of being awarded social security benefits at the hearing level increased to 82% if they had representation!

Choosing Someone to Represent You

But let’s keep something in mind here, Social Security representatives are not equal in quality and expertise and their services are not free. Historically, Social Security had few rules about representatives. You could pretty much designate anyone you wanted as long as you made that designation known on SSA Form 1696. And all (approved) representatives are allowed to charge a fee as long as Social Security has approved the amount of the fee. The person you designate to represent you doesn’t even have to be an attorney. Social Security allows non-attorney representatives and there are a number of national organizations out there advertising Social Security representation that are staffed with non-attorneys.

However, as of August 1, 2018, Social Security rules regarding representation have changed. Specifically, Social Security will not recognize non-attorney representatives “lacking good character and reputation”. Social Security defines these people as individuals who have a felony conviction (more specifically defined in their rules) or any other type of conviction involving moral turpitude, dishonesty, false statements, misrepresentation, deceit, or theft. Social Security clarified, however, that individuals with these convictions may still assist family members, but only in an “unofficial capacity”. Notably, these rules do not apply to Attorneys. As Attorneys must pass a rigorous examination of aptitude and ethics and subject themselves to background checks before becoming licensed, this requirement is mostly a non-issue for licensed Attorneys. Additionally, Attorneys have continuing ethical obligations to their clients required by their state licensing agencies that either match or surpass any Social Security rule purporting to regulate the conduct of representatives.

The other notable change in the new rules governing representatives is that Social Security now requires all representatives to be competent and knowledgeable about Social Security law. Social Security states, “These rules reflect our interest in protecting claimants and ensuring the integrity of our administrative process, and … should not deter competent, knowledgeable, and principled representatives” (See 83 FR 127, July 2, 2018). So how does one go about finding a competent, knowledgeable, and principled representative who also doesn’t have a felony conviction or a conviction involving moral turpitude? Answer: hire a Social Security Attorney.

Attorneys are licensed by a state regulatory agency, are knowledgeable about the law, know how to research the law, and are trained in oral and written advocacy (translation: they know how to represent clients at a hearing with a judge and cross-examine expert witnesses). And Attorneys who have substantial experience in Social Security law, or who devote most of their legal practice to representing disabled individuals regularly before the Social Security Administration, are more likely to help you get a favorable outcome in your case. Most Social Security Attorneys maintain websites explaining their experience and educational background. If you are in the market for a Social Security Attorney, I encourage you to spend time reading their online profiles and interviewing the prospective Attorney before you make the decision to appoint them. Attorneys charge fees for their services and while the Social Security Administration must approve any fee charged by a representative, it’s worth understanding what you are getting into.

One last point worth mentioning, and that is that Social Security does not recognize law firms or other organizations. Some law firms and organizations get around this by having you sign an agreement with them, but may subcontract the actual representation service to another attorney or non-attorney representative you have never met. This can be done through a fee-sharing arrangement between the firm and the attorney or other representative. There is no Social Security rule against this as long as this is disclosed to you in writing, but this may come as an unsettling surprise for some when someone they have never met shows up to represent them at the hearing. If this is a concern to you, and you are going through a law firm or other organization for your representation needs, ask if the representative you are appointing on Form 1696 will be the same person who will appear with you at your hearing. In my experience, hearings go a lot smoother for individuals who have had an ongoing relationship with their attorney and who have an experienced and knowledgeable attorney who was prepared in advance of the hearing day.

*Adriane S. Grace is a Social Security Attorney who regularly represents individuals in disability and other Social Security appeals in the Dallas, Frisco, Prosper, Plano, McKinney, and Allen Texas area. She is licensed to practice law in Texas and Virginia and is a former Attorney-Advisor to the Social Security Administration. For more information about Attorney Grace, please check out her Attorney Profile.