SOCIAL SECURITY
DISABILITY:
How to Obtain the
BENEFITS
You Deserve
By Jeffrey M. Freedman, Esq.
All rights reserved. Except where otherwise
provided in the text of this publication and except
as provided by law, no portion of this publication
may be reproduced, copied or transmitted in any
form without the written permission of the author
or publisher. No copyright is claimed in any
statutes contained in this publication.
Copyright © 2013 Jeffrey M. Freedman
SOCIAL SECURITY DISABILITY
HOW TO OBTAIN THE BENEFITS YOU DESERVE
By Jeffrey M. Freedman, Esq.
Administrative Offices:
Buffalo : 424 Main Street, Suite 622, Buffalo, NY 14202
Rochester : 3445 Winton Place, Suite 202, Rochester, NY 14623
Telephone : 1-800-343-8537
Website : www.jeffreyfreedman.com
Email: [email protected]
2
Acknowledgements
Since 1980, Jeffrey Freedman Attorneys, PLLC has helped over fifteen
thousand disabled individuals obtain Social Security Disability and
Supplemental Security Income (SSI) benefits. Helping our clients has
given us a great deal of insight into their perception of the claims
process, and we thank them for sharing their experiences with us.
3
About the Author
Jeffrey M. Freedman, senior partner of Jeffrey Freedman Attorneys, PLLC,
oversees one of the largest Social Security Disability law practices in New York
State. Since 1980, he has helped 15,000 clients obtain Social Security Disability
benefits across the state and nationally.
In addition to his Social Security Disability practice, he has assisted nearly 30,000
families with debt problems, and his firm has obtained millions of dollars for
clients who have been injured in accidents.
Mr. Freedman is a sustaining member of the National Organization of Social
Security Claimants’ Representatives. He is a member of the bar associations in
Erie and Monroe counties and the New York State Bar Association.
Mr. Freedman is admitted to practice law in New York State and Pennsylvania.
He has been the recipient of both the New York State Bar Association and the
Erie County Bar Association Pro Bono Awards.
He was also named Lawyer of the Year in 2007 by the Erie County Bar
Association.
Mr. Freedman has written articles on legal topics for several publications,
including The Buffalo News, The Rochester Democrat and Chronicle, Business
First, the New York State Bar Association Journal, and the American Bankruptcy
Institute Journal. He has lectured before many national, state, and local groups
and has appeared on numerous radio and television talk shows. Additionally, his
firm frequently holds educational seminars for the public and medical
professionals on the topic of Social Security Disability.
4
Table of Contents
Introduction ...................................................................................................................6
Chapter 1 : Social Security And The Basics Of Disability Benefits......................10
Chapter 2 : Am I Entitled to Social Security Benefits ? ........................................16
Chapter 3 : How – And When – To Apply For Benefits...................................
23
Chapter 4 : Tips For Dealing With The Social Security Administration.............28
Chapter 5: How Can My Doctor Help?..................................................................33
Chapter 6: Do I Need An Attorney? .......................................................................36
Chapter 7: What If The Social Security Administration Denies My Claim? .....39
Chapter 8: The Hearing...........................................................................................43
Chapter 9: What You’ll Receive If You Win Your Claim....................................48
Chapter 10: Health Insurance And Disability .........................................................56
Chapter 11: Social Security Disability (SSD) vs.
Supplemental Security Income (SSI) .................................................58
Chapter 12: Going Back to Work .............................................................................62
Chapter 13: Continuing Disability Reviews.............................................................66
Chapter 14: The Emotional Effects of Disability.....................................................70
Chapter 15: Questions And Answers........................................................................74
Glossary........................................................................................................................81
5
Introduction
If you are filing for Social Security Disability benefits, you are not alone.
Over the past few years, millions of people have applied for Social Security
Disability (SSD) or Supplemental Security Income (SSI).
Did You Know That…
The average age of a disabled worker-beneficiary was 53.
There are currently 7.1 million disabled workers and their dependents
receiving SSD benefits and 7.5 million people receiving SSI benefits.
The average monthly new SSD award is $1,111 for a disabled worker,
$299 for the spouse, and $330 for the children (as of December 2012
according to the Social Security Administration).
The average monthly SSI benefit amount is $502 (as of December 2012
according to the Social Security Administration).
46% of SSD beneficiaries are women, and 54% are men.
Social Security Disability (SSD) is a federal program that pays cash
benefits to people who, because of physical, emotional, or mental disability, are
unable to work for at least a full year. SSD won’t replace your lost income, but it
is a safety net. Supplemental Security Income (SSI) is a program that provides a
cash benefit and Medicaid. Disabled clients with little or no work history may be
eligible for SSI.
The overwhelming number of SSD and SSI applications filed each year
has caused unprecedented delays in processing claims. Also, federal budget
tightening has put pressure on the Social Security Administration to cut back on
awarding benefits. It is now more important than ever for you to be informed
about your rights regarding disability benefits.
I’ve been helping clients with Social Security Disability claims for over
30 years. I’ve met people from all walks of life, with disabilities ranging from
crippling back problems to life-threatening heart conditions, from major
depression to immobilizing panic disorder. These individuals have one thing in
common: they would rather be healthy and able to work than disabled and
collecting SSD or SSI. But for those who are totally disabled, working is not an
option, and the safety net of SSD/SSI benefits is often the only hope for financial
survival.
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There can be a long fall before the safety net catches you, and if you’re
not persistent, or if you are unfamiliar with the law, it may not catch you at all.
Most people are denied in the initial stages of their SSD/SSI claim, and many of
those denied, overwhelmed by severe medical problems and intimidated by red
tape, give up fighting.
My wish is to help you find greater success in obtaining benefits. I’ve
written this book to share some of the knowledge I’ve gained during my years
practicing Social Security Disability law and to help guide you through the
complex Social Security system. This book will provide information, which will:
Assist you in determining if SSD or SSI is the right answer for you
Outline the process of obtaining benefits, step-by-step
Explain Social Security’s complex rules and regulations in easy-tounderstand terms
Help you understand what to expect as you go through the various stages of
the claim
Show you how to prevent unnecessary delays and improve your chances of
winning your claim
Demonstrate how having a representative can help
Give you tips for dealing with the emotional side effects of disability and
show you where to get help
Provide you with answers to commonly asked questions
Though no book can substitute for competent legal advice, it is my hope that the
guidelines presented in this book will help you succeed in obtaining SSD or SSI
benefits. Once you begin the process of applying for benefits, information will
become your most powerful weapon in the battle to protect your rights.
Jeffrey M. Freedman
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This book is intended to serve as a basic guide to Social Security Disability
law. It provides answers to the questions and issues that most frequently
arise when seeking SSD and SSI benefits.
This book is not intended to be a definitive treatment of Social Security
Disability law. Reliance on any statements made herein should not be a
substitute for an attorney’s independent research and judgment.
To protect client confidentiality, fictitious names have been used in any
illustrative examples or anecdotes appearing in this book. Any resemblance
to real names is purely coincidental.
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Throughout this book, certain terms are used repeatedly in discussing the Social
Security Disability claims process. For ease of reading, these terms have been
abbreviated as much as possible. Abbreviations frequently used include:
ALJ (Administrative Law Judge)
SSA (Social Security Administration)
SSD (Social Security Disability)
SSI (Supplemental Security Income)
There also are several references to Social Security’s toll-free number. That
number is 1-800-772-1213. Many inquiries can be handled using the automated
services available through the toll-free number.
You may find additional information on their website at
www.socialsecurity.gov/disability
9
ou would probably be surprised if you met this group at the same party
or backyard barbecue. But they do have at least one thing in common —
they all depend on Social Security benefits. Whether it’s disability,
Medicare, retirement benefits, survivors’ benefits, or other Social Security
programs, more than 55 million Americans receive Social Security benefits each
year. Approximately 7.1 million disabled workers and their families receive
Social Security Disability benefits.
Social Security Disability
Social Security Disability pays monthly cash benefits to disabled workers.
Eligible SSD beneficiaries are those younger than retirement age who, because of
physical injury or illness, or emotional or mental illness, are unable to work and
whose disability is expected to last at least 12 months or result in death. Social
Security also pays benefits to the dependents of disabled workers.
You may hear Social Security Disability referred to by several different
terms. In addition to the abbreviation “SSD,” it is often referred to as “DIB” for
Disability Insurance Benefits, “SSDI” for Social Security Disability Insurance, or
“Title II” for the specific section of Social Security law that provides for disability
benefits. Throughout this book, we will use the terms “Social Security Disability”
and “SSD” interchangeably.
SSD is funded by payroll taxes. You and your employer each pay half the
tax. If you are self-employed, you pay the entire tax. The amount you
10
are taxed depends on the tax rate and how much taxable income you earn. You
can think of Social Security taxes as insurance premiums you pay to help
protect you and your family’s standard of living should your income be
reduced or eliminated by a major life event such as disability, retirement, or
death.
Should you become disabled, SSD benefits are not meant to replace all of
your previous income. Rather, they are meant to supplement your other means of
support to help you through the tough times. The government assumes you are
also relying on your savings, private disability insurance, or other resources to
make up the difference between your former income and your disability benefits.
The exact amount of your disability benefit will depend on many factors,
such as your former income while working, how long you worked, and whether
or not you have children. As of 2012, the average benefit in current payment
status is $1,189; the maximum benefit for an individual claimant is about $2,537
per month, and the maximum family benefit is about $3,805 (this amount
includes the claimant’s own benefit amount).
Refer to Chapter 9, “What You’ll Receive If You Win Your Claim,” for
more detailed information about benefit rates.
It’s very important to remember that when it comes to obtaining Social
Security benefits, you only get what you ask for, and asking means filing an
application. Benefits are not automatic. You must apply to receive the benefits
you are entitled to — and the sooner you apply, the sooner you can succeed.
The Social Security Disability Timeline
If I could grant my clients one wish regarding their SSD claims — other
than a guarantee of success — it would be to speed up the process for them.
Although we take measures to minimize delays, the length of time each step takes
is, for the most part, unavoidable.
Obtaining SSD benefits is a long, complex process. The “SSD Stages”
chart in this chapter lists the stages of the SSD application process, the average
time frame for each stage, and the percentage of claimants who are successful
at each stage.
While waiting for your claim to be processed, the key
word is “patience.”
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SSD Stages And Determination Statistics for 2012
Stage of Process
Average
Time
Frame
%
Allowed
%
Denied
%
Dismissed
% Remanded
(Back to ALJ)
Volume
Initial
Application
Hearing
4-6
33%
67%
3,121,433
Months
12-24
52%
32%
16%
668,061
Months
Appeals
12-18
2%
77%
4%
18%
134,335
Council
Months
Federal Court
12-24
3%
43%
9%
45%
14,575
Months
Prepared by: SSA, Office of Disability Program Management Information 11/26/12
How The System Is Organized
At present, SSA is made up of many components. From the time you
submit your initial application for disability benefits until the arrival of your
first benefit payment, your Social Security file gets routed through several
different offices. The following is an outline of the various offices involved in
the processing of your claim with a brief description of each area’s function.
Social Security Administration Headquarters
If you have worked and paid into Social Security, you have a file which is
kept at SSA headquarters in Baltimore, Maryland. Your file contains information
about your lifetime employment, your earnings history, any prior applications for
disability benefits, and other information that will be used when an application for
any type of Social Security benefit is filed.
District Offices
Your SSA District Office (D.O.) is the “home base” for the processing of
your claim for disability benefits. This is where you will submit your initial
application, at which time your file is electronically forwarded to the state agency
to be processed. Most communication you have with Social Security will be
through your District Office.
Most cities have one or more District Offices within their metropolitan area.
Each D.O. handles cases for a specific geographic area. To find out where your
District Office is located, call Social Security’s toll-free number.
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Disability Determination Services (DDS; also referred to as “Office of
Disability Determinations,” or ODD)
When the initial processing of your application has been completed at the
District Office, your file is sent to the state Disability Determination Services
office. This office is a state-run agency and is not part of the Social Security
Administration itself but works with the administration in the processing of your
claim. (Throughout this book, any reference to the functions of the Social Security
Administration can be assumed to include those functions actually carried out by
DDS.) At the DDS office, your case is developed, medical reports are obtained,
other information about your condition is collected, and, if necessary, consultative
examinations with Social Security-appointed doctors are arranged for you. The
DDS office may contact you for information related to your claim or to arrange a
consultative examination.
The DDS office makes the initial determination on your claim. If that
determination is a denial, and you appeal the decision by requesting a hearing,
your appeal will be processed through the Office of Disability Adjudication and
Review. Your claim will be assigned to an ALJ and eventually will be
scheduled for a hearing.
Office Of Disability Adjudication and Review (ODAR)
If your application is denied, and you appeal that decision by requesting a
hearing, your file is transferred to the Office of Disability Adjudication and
Review (ODAR), formerly known as the Office of Hearings and Appeals
(OHA). Most medium to large cities have a hearings office within their area.
At ODAR, an Administrative Law Judge (ALJ) is assigned to your case,
your file is further developed, and your records are formally organized and
exhibited. Sometimes additional consultative examinations are ordered. After
your file is completely developed (records obtained and organized), your hearing
is scheduled.
Occasionally the ALJ, or a senior attorney working with the ALJ on your
case, determines that the medical evidence in your file warrants a “decision on
the record.” This means that your claim is approved without the need for a
hearing. In most cases, however, the hearing is held as scheduled in a small
room at the hearings office. Present are you and your attorney, the ALJ and his
or her assistant, and any witnesses that may be testifying. Witnesses can include
a Vocational Expert, a Medical Expert, or any person whose testimony the
attorney or judge feels is relevant to the case.
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SSA has begun to use video teleconferencing to make the hearing process
more efficient. A video hearing is the same as a hearing where you appear inperson, except for the video equipment. The ALJ’s are generally in a different
city and state than you are in. The ALJ remains in his or her office and is able
to see and hear you through a large television screen. SSA claims a video
hearing may be scheduled faster than an in-person hearing.
Your formal hearing notice advises you that you can opt out of the video
hearing, and you can have your case reassigned to have an in-person hearing. As
this may delay your hearing even more, most claimants opt for the video hearing
rather than wait any longer.
In the weeks following your hearing, the ALJ reviews your file, including
notes and records from the hearing itself, and renders a decision on your claim.
The formal decision is mailed to you and your attorney from the hearings office.
Most claims are approved at the hearing level with no further appeals
required. However, if your claim is denied by the ALJ, there are additional levels
of appeal available to you.
The Appeals Council
If the Administrative Law Judge denies your claim, and you appeal that
decision, your case is transferred to the Appeals Council with a request for further
review and a new determination. There is no hearing before the Appeals Council.
The council merely reviews the record, together with any written arguments or
new evidence you submit.
There are three possible outcomes of a request for review by the Appeals
Council. The Appeals Council can affirm the ALJ’s decision denying your claim,
it can send your case back to the ALJ for a new determination, or it can reverse
the ALJ’s decision and approve your claim (this rarely occurs). If the Appeals
Council either affirms or reverses the ALJ decision, the Appeals Council’s
decision is the final decision of the Social Security Administration.
There is one Appeals Council which handles all disability cases at this
level.
United States District Court
(not part of the Social Security Administration)
If the Appeals Council affirms the ALJ’s denial of your claim, and you appeal
that decision, the appeal takes the form of a lawsuit against the Social Security
Administration. The suit is handled in U.S. District Court in the same manner as any
other federal lawsuit. Submission of new evidence is rarely allowed in District
Court. Generally, the Court only reviews the record as it appeared at the time of the
Appeals Council decision.
There are three possible outcomes of an appeal to District Court. The Social
Security Administration’s decision can be upheld (your claim is denied), the case
can be sent back to SSA for a new determination, or SSA’s decision can be
14
reversed and your claim approved. If your claim is approved, it is sent back to
SSA for processing of your benefits.
There are many U.S. District Courts throughout the country, each covering a
specific geographic region.
The Payment Centers
After a favorable decision, your Social Security file is sent to one of SSA’s
many payment centers for processing of your benefits. Your ongoing benefit amount
is calculated, as well as any retroactive payment you may receive. If you are eligible
for Medicare, the cost of your premium for optional services is determined. If you
are represented by an attorney, your attorney’s fee is also processed through the
payment center.
The payment center sends you and your attorney a Notice of Award, which
outlines all payment-related information and arranges for your retroactive payment
and ongoing benefits to be released to you. If your family is eligible for benefits, the
payment center will also issue a separate Notice of Award for each eligible member
and will arrange for the release of his or her payments.
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:
:
“Am I Eligible?”
o qualify for SSD benefits, you must have worked long enough and recently
enough in a job “covered” under Social Security. (If Social Security taxes were
taken out of your pay, your job was covered.) Most workers in the U.S. are
covered under Social Security, including the self-employed. There are a few exceptions,
such as railroad workers and certain government employees. If you aren’t sure whether you
were covered under Social Security, take a look at your past pay stubs. If you were
covered, they should show Social Security deductions. If you were self-employed, your
income tax returns should include a self-employment tax form.
Social Security eligibility is measured in quarters of coverage. You accrue quarters
of coverage on the basis of income earned, and you can accrue up to a maximum of four
quarters for every year you work. The income you must earn to accrue one quarter of
coverage increases each year as general wage levels increase.
As of 2013, workers accrue one quarter of coverage for every $1,160 they earn in
wages or self-employment income covered under Social Security. So, a worker who earns
$4,640 (4 x $1,160) in 2013 would have four quarters of coverage for that year, and a
worker who earns $150,000 in the same year would also have four quarters of coverage.
16
The number of quarters of coverage you need to be eligible for SSD depends on
what year you were born and how old you are when you become disabled. The
following information is extracted from the Social Security publication
“Disability.” The term “credits,” as used here, means quarters of coverage.
The number of work credits needed for disability benefits depends on the age at
which you become disabled.
Before age 24 You need 6 credits in the 3-year period ending when your
disability starts.
Age 24 to 31 You need credit for having worked half the time between 21 and
the time you become disabled. For example, if you became disabled at age 27, you
would need credit for three years of work (out of six years).
Age 31 or older You need to have the same number of work credits as you
would need for retirement, as shown in the following chart. Also, you generally must
have earned at least 20 of the credits in the 10 years immediately before you became
disabled.
Credits
Born After 1929,
Became Disabled At
Age:
Born Before 1930, Became
Disabled Before 62:
31 through 42
62 or older
Credit You Need
20
44
22
46
24
48
26
50
28
52
30
53
31
54
32
55
33
56
34
57
1986
35
58
1987
36
59
1988
37
60
1989
38
1991 or later
40
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You might want to check with your local Social Security office to
determine if you have enough work quarters, especially if you’re under 31 years old.
But a general rule of thumb is if you worked and paid Social Security taxes for at
least five out of the last 10 years before you became disabled, you probably meet
eligibility requirements. Nobody needs more than 40 quarters of coverage, and
young people may qualify with as few as six.
What About My Family?
All workers should receive a copy of their Personal Earnings and Benefits Statement from Social Security before their birthday. This statement contains your Social Security earnings history, shows how many quarters of coverage you have accrued, and estimates your retirement and disability benefits. It’s a helpful document for planning your financial future, and it’s a good idea to check the statement so you can correct any errors. To obtain a copy of your earnings statement, call Social Security’s toll‐free number. If you are awarded SSD benefits, some of
your family members may be eligible for benefits
based on your employment record. Family members
who qualify on your work record do not need Social
Security work credits of their own.
It is critical that you include information about
all qualifying family members on your initial
application. Omitting a name could result in a
substantial loss of benefits for that family member.
Qualifying Family Beneficiaries Include:
• Your unmarried son or daughter. The child must be
under 18, or under 19 if he or she is still in high
school full time. This includes a stepchild, adopted
child, and, in some cases, a grandchild.
• Your unmarried son or daughter, 18, or older, if
he or she has a disability that began before age 22.
• Your spouse who is 62 or older.
1-800-772-1213
• Your spouse of any age if he or she is taking care of
your child who is under 16 or disabled and also receiving benefits.
In the event of your death, additional family members may become eligible for
benefits. They include:
• Your disabled widow or widower 50 years of age or older. In most cases, the
disability must have started before your death or within seven years after your
death.
• Your disabled ex-wife or ex-husband who is 50 years of age or older, if the
marriage lasted 10 years or longer.
TIP
Those who are disabled but do not have the required work quarters
for SSD and do not qualify on anyone else’s work record may still be
able to receive benefits through a program called SSI. See Chapter 11,
“Social Security Disability (SSD) vs. Supplemental Security Income
(SSI),” for a description of this program.
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“Am I Totally Disabled?”
SSA has a very strict definition of disability that is different from the
definitions used by other disability programs. It is possible to qualify for
Workers’ Compensation, private disability insurance, or a state disability program
and not qualify for SSD. You must be “totally disabled” to qualify for SSD
benefits. Total disability means the inability to perform “substantial gainful
activity” in the current economy.
What is substantial gainful activity? As of 2013, it’s work that you can do
to earn at least $1,040 per month. You could have a part-time job earning less
than $1,040 per month and still be considered disabled if your medical problems
prevent you from being able to work longer or more frequent hours.
Keep in mind, though, that the standard used by Social Security is whether
you are capable of doing any kind of gainful work. The standard is not whether
you can still do your old job. The standard is not whether you can find a job you
are able to perform that pays as well as your old job. The standard is not whether
you have been able to find a job lately. The standard is whether you are capable of
performing jobs available in the national economy. SSA uses complex formulas
that factor in your medical condition, age, education, and work experience to
determine if you are capable of gainful work in the current economy.
You might have a serious condition, such as multiple sclerosis, and still be
able to work. If so, Social Security doesn’t consider you totally disabled. On the
other hand, you might have a condition some might consider less serious, like
carpal tunnel syndrome that prevents you from working. Under Social Security
regulations, someone with multiple sclerosis might be considered capable of
working, and someone with carpal tunnel might be considered disabled.
In summary, to be considered totally disabled under Social Security law,
you must have a physical, emotional, or mental impairment (or a combination
of impairments) which:
• prevents you from doing any substantial gainful work, and
• is expected to last, or has lasted, for at least one year, or is expected to
result in your death.
Let’s take a look at some conditions that are often severe enough to be
considered disabling by SSA:
‰
Back problems — Severe pain and discomfort affecting the claimant’s
ability to sit, stand, walk, or lift; often combined with numbness or
weakness in hands and arms; ability to sustain continuous work activity
severely limited.
19
‰
Arthritis - Inflammation, pain, stiffness, swelling in joints; loss of
flexibility; ability to perform physical labor impaired.
‰
Asthma - Shortness of breath, coughing, wheezing, tightness in the chest;
severe attacks in spite of treatment and medication; often triggered by the
work environment and/or stress.
‰
Heart disease - Chest pain, fatigue, shortness of breath; often
accompanied by swelling in ankles, difficulty walking; can affect the
claimant’s ability to handle both physical labor and emotional stress.
‰
Diabetes - Can cause impairments such as severe fatigue; frequent
infections, serious vision problems; high blood pressure; coronary artery
disease; deterioration of nerves and blood vessels in feet and hands; and in
extreme cases, amputation of fingers or toes; can severely limit the
claimant’s ability to carry out daily work-related tasks.
‰
Lupus - Can cause a variety of disabling conditions, including joint pain,
tenderness and swelling, often affecting the fingers and wrists; sensitivity
to sunlight that brings on fever and rashes; chest pain and coughing;
fatigue.
‰
Chronic obstructive pulmonary disease (also called emphysema) Shortness of breath, chronic cough. When emphysema is severe, the
claimant cannot tolerate even mild exertion.
‰
AIDS (Acquired Immune Deficiency Syndrome) - Caused by the
retrovirus known as HIV (human immunodeficiency virus); leaves the
body unable to fight infection. AIDS-related conditions often resulting in a
finding of disability are Kaposi’s sarcoma (a type of skin cancer),
Pneumocystis carinii pneumonia (PCP), and cervical cancer.
‰
Chronic Fatigue Syndrome (CFS) - Severe fatigue, weakness, difficulty
concentrating, poor memory; can cause fever, sore throat, painful lymph
nodes, headaches, muscle soreness; sleep disturbance; can make it
impossible to perform the most basic job routines.
‰
Carpal Tunnel Syndrome - Causes tingling or numbness in fingers and
hands, shooting pains in wrists and arms; common in workers whose jobs
require repetitive wrist movements - computer operators, typists, assembly
workers, meat cutters; can completely disable use of hands for work.
‰
Depression — An affective (mood) disorder; often results in sleep
disturbance, fatigue, difficulty concentrating, a loss of interest in activities
and relationships; can cause a host of physical ailments; can make it
impossible for the depressed person to continue the routines of daily life.
20
‰
Post Traumatic Stress Disorder (PTSD) — An emotional condition that
sometimes surfaces in people who have endured a traumatic life
experience, such as serving in war, surviving an airplane crash or natural
disaster, or being a victim of rape or other violent crime; can cause
disabling depression, anxiety and isolation, making it impossible for the
claimant to work.
‰
Schizophrenia — A psychotic disorder; often causes delusions or
hallucinations, emotional isolation, illogical thinking; can make normal
functioning in social and work environments impossible.
The above is by no means a complete list of disabling
impairments There are many other medical problems severe enough to
entitle a patient to SSD.
The Effect of Drugs and Alcohol on Disability
Alcohol or other drugs sometimes play a part in a claimant’s disability. If
SSA determines that a claimant’s medical problems would cease if the
claimant stopped using drugs or alcohol, then the claimant will not be
awarded SSD benefits.
How Do People Win?
When we develop a client’s case for entitlement to SSD benefits, we
establish what is known as the “theory of the case,” or the basis for the claim
of disability. In the majority of cases, we use four main guidelines to
determine the theory of the case: the Listings, the Grids, the Treating
Physician Rule, and the Sit Stand Rule.
The Listings
SSA maintains a list of medical impairments it considers so severe that
having one automatically qualifies you for SSD. This list of medical
impairments is called the Listings. If your disability matches one of the
Listings exactly, it is said to “meet the Listings.” If it does not meet the
Listings, SSA will decide if your condition is of the same severity as an
impairment on the Listings. This is called “equaling the Listings.” The
Listings are extremely strict and exacting. It isn’t enough to simply have the
impairment; you must also fall within certain parameters on physical tests,
suffer from specific complications, and meet other requirements as spelled out
in the particular Listing.
Only 10 percent of SSD applicants win based on the Listings.
21
The Grids
SSA has developed a set of vocational grids, or charts, that theoretically
make determinations of disability more objective. The Grids take into account
age, education, past work experience, and transferable skills to determine
disability.
Treating Physician Rule
About 30 percent of SSD applicants win
on the basis of the Treating Physician Rule.
Legal precedent, or the history of legal
opinions over time, holds that if your treating
physician provides a written opinion stating
that you are totally disabled and unable to
engage in gainful employment, SSA must find
that you are disabled. This opinion must be
supported by objective medical evidence such
as x-rays, blood tests, or CT scans. In recent
years, this rule has been watered down, but it
is still the basis of approval in a substantial
number of cases.
Sit Stand Rule
The Sit Stand Rule applies to people who
cannot sit or stand for significant periods of
time. Roughly 30 percent of SSD applicants
win on the basis of the Sit Stand Rule, mostly
those with lower back problems.
These four categories are not completely hard and fast. It is
possible to win a disability case based on a combination of factors
from all of the categories.
Remember, the overlying issue is whether your medical condition
will prevent you from being able to work for at least a full year. If it
will, or already has, and you meet the non-medical requirements for
eligibility, you may qualify for benefits.
22
r
ou should seriously consider applying for benefits as soon as you
think your illness or injury may keep you out of work for at least
one year. Though it may be difficult to accept that you could be
disabled for a year or more, by applying for SSD benefits as soon as
possible, you are protecting your financial stability. It’s not negative
thinking, it’s practical thinking.
I meet many people who don’t explore Social Security Disability
benefits until they are out of work, out of money, and out of luck. They are
hoping against all odds that their medical conditions will improve, and
they will be able to get back to their jobs and their normal daily lives. In
the meantime, no paychecks are coming in, their savings accounts are
bone dry, and they’re putting their groceries on credit cards.
Don’t wait until you’re desperate to apply for SSD. Social Security
Disability should not be a last resort; it’s a program to help disabled
people get through tough times.
Another important reason to apply as soon as you become disabled is
that SSD benefits only go back to a maximum of one year before your
application is filed. If you wait two years, for example, you’ll lose back
benefits you could have received if you had applied earlier.
23
Remember — when it comes to Social Security Disability benefits,
you only get what you ask for, and the only way to ask is to file an
application.
How Do I Apply?
You can apply for SSD benefits in person, by telephone, by mail, or
online. You can complete some or all of the forms online or call their toll-free
number 1-800-772-1213 to schedule an appointment, and they will help you in
person or by phone. You can apply for disability benefits online at
www.socialsecurity.gov/applyfordisability. You can also find the most
convenient Social Security office at
www.socialsecurity.gov/regions/ and click on
Social Security Office Locator.
If you apply in person you will meet with a
Social Security representative for a face-to-face
interview at your local Social Security District
office. During the interview the representative will
provide whatever assistance you need in completing
your application forms. While this is a convenience
for many claimants, there is a drawback: in
describing your medical condition, the Social
Security representative may not fully reflect the
extent of your problems. He or she is not familiar
with the effect your condition has had on you and
does not necessarily have your best interests at heart
when completing your application forms.
If you apply via telephone conference, Social
Security will mail you a portion of the application forms to complete yourself
prior to the scheduled phone interview; the remaining information will be
completed by the SSA representative over the phone (when you mail the
application forms back to Social Security, be sure to send them via certified mail,
“return receipt requested.”) If a disabled person isn’t able to manage his or her
affairs, the application can be completed by a spouse, parent, other relative,
friend, or legal guardian.
Another way to apply is to seek the services of an attorney who will assist
you in completing and filing the required forms. This may be especially helpful if
you don’t know quite how to express the suffering you’ve been going through, or
you feel too ill to deal with Social Security or their forms by yourself. At our firm,
we find our clients appreciate being relieved of the worry of missing a deadline or
writing something on the forms in a way that could hurt their case — they
welcome the helping hand.
I believe it is a good idea to speak to an attorney even before you initiate
the application process. An attorney will analyze your case and evaluate your
chances for winning SSD benefits. Many firms that practice Social Security
24
Disability law offer free initial consultations. If retained, a firm will usually
provide assistance with completing and filing the required forms.
What Information Do I Need?
You can help the application process go more smoothly by being
prepared. Whether Social Security is completing your application, your attorney
is assisting you with the forms, or you are filling them out yourself, gather the
following information ahead of time (be sure to verify accuracy: incorrect or
incomplete information will cause unnecessary delays in your claim):
Social Security number and proof of age for each person eligible for
payments, along with his or her birth certificate.
Names and current addresses and phone numbers of doctors, hospitals,
clinics, and other medical facilities that have treated you, and the approximate
dates of treatment.
A summary of where you worked and the kind of work you did during the last
15 years before you became disabled, including detailed information about
your job duties and any problems you had performing required tasks.
If you worked at any time during the calendar year immediately preceding the
year in which you are applying, a copy of your W-2 Form (Wage and Tax
Statement) from that year. If you were self-employed during the calendar year
immediately preceding the year in which you are applying, your federal
income tax return for that year.
If you worked at any time during the calendar year in which you are applying,
your most recent pay stub showing year-to-date earnings. If you were selfemployed at any time during the calendar year in which you are applying, your
records showing year-to-date earnings.
Dates of military service.
Dates and locations of all marriages, past and present, and the Social Security
numbers of your spouse and/or ex-spouses.
Copies of any prior applications or denial notices from Social Security.
All pertinent information about any other benefit you receive because of your
disability.
It is also a good idea to prepare yourself for the application process by
writing down your symptoms and limitations. This will help you gather your
thoughts. While you’re doing this, remember that many people with disabilities
25
have a tendency to minimize their problems. As one of my clients says, the SSD
application is not the place to look at your disability through rose-colored glasses;
you need to document the full extent of your disability and limitations. Have a
friend or relative look over your notes to make sure your own picture of your
condition isn’t unrealistically rosy.
While completing your application, resist the temptation to provide more
information than what is requested. You may unknowingly hurt your claim by
volunteering unnecessary facts or comments that might misrepresent your
condition. Answer only the questions being asked of you.
During the initial stages of the claims process, your application and the
related forms are the only vehicle you have for telling Social Security about
your disability. The information you provide on these forms can make a
difference in the outcome of your case. You can maximize your chances of
obtaining benefits by following these guidelines:
‰
Never minimize your problems. Provide honest but full descriptions of your
impairments. If your condition includes significant pain, indicate so. Include
any side effects of medications you are taking.
‰
Show the specific relationship between your medical impairments and the
requirements of your former job. Make it clear how you can no longer do
what you formerly did on the job.
‰
If you continued working after your medical problems began, clearly indicate
any changes in your job or work schedule, attendance problems, or difficulties
in performing your job duties because of your medical condition. Be sure to
indicate any special accommodations made for you or special consideration
given to you to allow you to continue working.
‰
Be sure to provide information regarding all medical treatment. Don’t leave
out any doctors’ names, hospital admissions, emergency room visits, etc.
‰
Answer questions about your daily activities cautiously. If you require
assistance with a particular activity, state so. If you must take breaks and rest
periodically, make this fact clear. If you perform a household chore only
minimally, be sure this is conveyed; for instance, if you do light dusting once
a week, state exactly what you do and how often, rather than saying you do
regular cleaning.
‰
Have someone who is familiar with your medical problems help you
formulate your answers. Often, others see your condition more clearly than
you can.
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Delayed Claims
There are a significant number of people who have been out of work for
years due to disability and who have not yet filed for SSD. As previously
mentioned, this is unfortunate because back benefits are paid for a maximum of
12 months prior to the date of the initial application.
Don’t delay filing your application. The important thing is to submit
your application. Lost time can mean lost benefits!
27
fter you file for Social Security Disability, your local Social Security
District Office studies your application to determine if you meet the
non-medical requirements for eligibility. Have you worked long enough
and earned enough Social Security credits? Is your history of employment recent
enough?
If the District Office determines that you meet the non-medical
requirements, your application and file are sent to the Disability Determination
Services (DDS) office. (For a description of DDS’ role, see Chapter 1, “Social
Security And The Basics Of Disability Benefits.”) The DDS team then gathers
evidence, investigates your case, evaluates your condition, and determines
whether you meet SSA’s criteria for disability.
Processing Your Claim
First, the DDS team establishes whether or not you are currently working. If
you are working, and you’re earning $1,040 (as of 2013) per month or more, you
generally won’t be considered disabled. If DDS determines that you are not
working, it will begin to gather medical evidence from your physicians and the
hospitals, clinics, and other facilities where you’ve received treatment.
The DDS team sends medical report forms to your doctors and other
sources to develop a history of your medical condition. What impairments do
you have? When did the condition start? Does the condition limit your activities?
28
What have tests revealed about your condition? What treatments or medications
have you been receiving? Are the treatments or medications working?
Your physicians will also be asked if your condition limits your
ability to perform work-related activities
such as lifting, pushing, pulling, standing or
sitting, or to handle emotional situations like
job-related stress, dealing with the public, or
getting along with coworkers.
Throughout the processing of your claim,
you may be asked to furnish Social Security
with medical records you have that might be
useful for your file. If you are represented by
an attorney, always show these records to
your attorney first. Your attorney will
thoroughly review your medical records and
submit them to Social Security on your
behalf.
You should always provide your
attorney with copies of any medical records you may have.
The following are examples of records that might be useful for your file:
Reports from your doctor or medical clinic
Physician’s notes
Hospital records
Laboratory reports, such as x-rays, MRI’s, CT Scans, neurological
evaluations, heart test results, etc.
Physical Therapy reports
Pharmacy records
Chiropractor’s reports and records
Psychologist’s reports and records
In many cases, the DDS team will require an additional medical opinion about
your condition. In these cases you may be asked to have a consultative
examination which is usually performed by a physician contracted by Social
Security.
29
Evaluation
After the DDS team has completed their investigation, they compile all of
the information they have collected and systematically ask the following
questions in the following order to determine if you are disabled. This method
of decision-making is called the sequential evaluation process because the
answer to each question determines whether the evaluation will proceed to the
next step.
1. Is your condition severe?
In order to be considered severe, your condition must interfere with basic
work-related activities. If the DDS team decides your condition is severe, they
continue to the next question. If they decide your condition is not severe, your
application is denied.
2. Is your condition on the list of disabling impairments?
As mentioned in Chapter 2 (“Am I Entitled To Social Security Disability
Benefits?”), the Social Security Administration maintains a list of medical
problems (the “Listings”) it considers so severe that having one is automatic
qualification for disability. Again, if your disability matches one of the Listings
exactly, it is said to “meet the Listings.” If it does not, the DDS team decides if
your condition is of the same severity as an impairment on the Listings. This is
called “equaling the Listings.”
The Listings are extremely strict. You must not only have the condition, you
must also meet specific test parameters, precise physical limitations, and
exacting requirements. An attorney who works with me has been practicing
disability law for 12 years, and he has never seen a person who met the Listing
for heart disease. Some attorneys swear that it is impossible to meet this listing
and still be alive.
If your disability meets or equals a listing, you are approved for SSD
benefits. If it doesn’t, the DDS team goes on to the next question.
3. Can you do the work you did previously?
The DDS team will determine if your condition prevents you from doing
the work you did in the last 15 years before you became disabled. If they
decide it does not, your claim will be denied. If they decide it does, your
evaluation continues on to the next question.
4. Can you do any other type of work?
If you can no longer perform your previous work, the DDS team will
determine if you are capable of performing other work available in the
national economy.
30
The DDS team will use the Grids in this final step of the sequential
evaluation. As discussed in Chapter 2 (“Am I Entitled To Social Security
Disability Benefits?”), the Grids are a set of charts developed by SSA to help
make determinations of disability more objective. The Grids take into account
your age, physical abilities, education, past work experience, and transferable
skills to determine if you are disabled. If a clear determination cannot be made
using the Grids alone, the DDS team will analyze the medical evidence to arrive
at its decision.
If DDS determines that you cannot do any other type of work, your claim
will be approved. If it decides you can, your claim will be denied. After a
determination on your claim is made, Social Security will inform you in writing.
If you are denied, the letter will explain the reasons for the decision.
Unfortunately, denial letters often read as if they were written by a computer, and
sometimes the computer doesn’t even have the facts straight. One of my clients
was told in his denial letter that he was healthy enough to return to his job as a
salesman. The only problem was that my client had never worked as a salesman.
Your denial notice will also explain your appeal rights. At each stage, you
have a specified amount of time, generally 60 days, to submit an appeal of SSA’s
decision (if you are represented, your attorney will usually file your appeal for
you). It is extremely important to file your appeal on time; not doing so can mean
having to start all over again by filing a new application and can result in a loss of
benefits.
Although you have little control over the length of time it takes for your
claim to be processed, you can prevent unnecessary delays by being prepared,
providing complete and accurate information, and filing appeals in a timely
manner.
Be Prepared To Exercise Patience
The Social Security Administration is a bureaucracy, staffed by individuals
who are each responsible for a part of the total application process. These workers
are handling caseloads that have increased significantly over the past five years.
SSA has made a commitment to improve service, and most of the people
you will have contact with are trying to get your claim processed as quickly as
possible. Even so, as one client put it: “The people are usually polite, but be
prepared to feel like a number, not a person.”
31
What can you do to help make the process and your case go more smoothly?
When you’re on the telephone with SSA, get the name of the person you are talking
to.
Don’t lose your temper. Yelling and screaming will alienate the people you need to
help you. Be persistent and firm, but don’t go on a rampage.
Don’t sweat the small stuff. You’re on a long journey. If you get upset about every
obstacle, you’ll run out of energy.
Send all correspondence to SSA via certified mail, “return receipt requested,” and
keep a copy for your own records.
If you don’t understand, ask questions.
Keep a log of phone calls. If you reach a dead end with someone, ask to speak to his
or her supervisor.
The name and phone number of your claims representative is usually on your
application receipt. Keep that receipt, and ask for him or her when you phone with
questions.
It’s also important to keep your own detailed file on your case. You thought you
weren’t working? You’ll discover that managing your case is your new job. The
following are some suggestions for keeping an up-to-date and helpful case file.
Keep your paperwork organized — don’t let it pile up.
Keep a notebook of questions you have for the SSA office, your attorney, your
physician, and others involved in your case.
Write down the names and telephone numbers of people you contact frequently.
Keep a diary of your symptoms. Record how often you have pain and how intense it
is. Document how your condition restricts your daily activities and hobbies. This diary
will be especially useful when you prepare for your hearing.
Paperwork can get lost, so make copies of everything.
TIP
The most important tip I can give you for dealing with SSA and the claims
process is don’t give up. Stay actively involved in your case, be persistent, and be
patient. If your claim is ultimately approved, it will be well worth the effort.
32
:
our treating physician — the doctor who treats you for your
disabling condition — is an important link in a strong Social
Security Disability case. Because your treating physician knows
your case well, his or her opinion about your abilities and disabilities carries a
significant amount of weight.
In fact, 30 percent of SSD claimants win their cases based on what is
called the Treating Physician Rule. This legal precedent holds that if your treating
physician provides a written report stating that you are totally disabled and unable
to work, and the report is backed by concrete medical evidence and is consistent
with other substantial evidence in the record, the Social Security Administration
must find you disabled. Unfortunately, SSA does not always follow this rule,
especially at the earlier stages of a claim. Still, your doctor’s support is one of the
strongest foundations for building your SSD case.
Ask For Your Doctor’s Support
If you are still working and thinking about pursuing a disability claim, I
urge you to talk to your treating physician before you quit your job. Ask if he or
she will support your case. It can make a real difference if you know that your
doctor will provide the medical evidence necessary to win your claim.
If you have already applied for SSD benefits, discuss your case with
your treating physician as soon as possible. Make it clear to your doctor that his
or her support will be crucial to the success of your claim.
33
Based on the information you provide in your application, SSA will
request records from your treating physician, from specialists he or she has
referred you to, and from hospitals and clinics where you’ve been treated. SSA
will also ask that you provide any medical records you may have. However, if you
are represented by an attorney, you should always give your medical records to
your attorney so that he or she can review them and submit them to Social
Security on your behalf.
Your medical records are an important part of the evidence in your case,
but there is often one crucial thing missing from them — your physician’s
opinion about your capacity for work. This opinion can be provided by a
written physician’s report. The report should include:
A clear statement of your physician’s opinion of your abilty to do physical
activity such as sitting, standing, walking, lifting, carrying, fine
manipulation etc. If you have mental health issues, it should address your
ability to engage in cognitive activities, deal with stress, follow instructions,
deal with the public, etc.
The dates of your disability.
A short summary of your medical history, results of recent examinations
and tests, and any applicable diagnoses.
The physician’s report should be supported by medical records such as
detailed office notes, diagnostic test results, consulting physicians’ reports, and
hospital discharge summaries. Records such as these that substantiate your
doctor’s opinion should be submitted to Social Security with your doctor’s
report in order to strengthen your case.
For example, a stomach specialist (gastroenterologist) may state in a
report that you have a serious intestinal illness like Crohn’s disease and are totally
disabled. Such a report would be helpful to your case. If medical records show
that you have been hospitalized six times in the past two years for Crohn’s
disease, your doctor’s opinion is then backed up with concrete supporting
information.
Usually, physicians and other medical providers are not experts on the
intricacies of the Social Security Disability system. Your attorney can assist your
doctor by providing direction on writing a report that will strengthen your
disability case.
Keep in mind that your doctor’s main job is to treat patients. Physicians
are often extremely busy tending to their patients’ medical care, both in their
offices and at hospitals. Finding the time to write detailed reports may not be
easy.
34
Be Persistent
Most doctors want to help with their patients’ disability cases and do
comply with requests for information. Many respond promptly to the first request
they receive. However, in the course of maintaining a busy practice, requests can
sometimes get lost in the shuffle. Often a second or even a third request is
necessary. In these cases a reminder directly from the patient can sometimes help
the request get processed more quickly.
You should also know that your doctor may charge you for writing
medical reports or providing copies of your records. The fee for writing a
narrative report can range from $25 to several hundred dollars, with the average
fee running between $100 and $200. The standard cost for copies of medical
records is 75 cents per page. Fees vary from case to case and from doctor to
doctor, and in certain cases a doctor might not charge any fee at all for either a
narrative report or copies of a patient’s records. (The above figures are based on
2013 information.)
35
am pleased that Sue was a satisfied client, but I can’t promise that hiring a
lawyer will make applying for Social Security Disability easy. I believe,
however, that support from a law firm with a successful track record of
handling SSD cases will make the long application process less confusing and
lonely and can improve your chances of obtaining benefits at any stage of the
process.
Some people have successfully obtained benefits without an attorney, but
statistics show that people represented by attorneys have a much higher success
rate than people without attorneys.
When Is The Best Time To Contact An Attorney?
Law firms vary in their policies on when they like to be called in on a case.
Our firm recommends seeing an attorney right away, at the application stage. A
lawyer can assist you throughout the entire process and can improve your chances
of obtaining an early favorable decision.
What Information Does My Attorney Need?
When you first meet with your attorney you should bring all your Social
Security papers with you — denial notices, decisions, appeal forms. You should
also bring any medical records you have at home.
36
In Addition, Bring:
Our law firm has a set of forms that cover all these points. We provide
the forms to clients when they first call for an appointment so that they can
complete them and bring them to their consultation.
How Much Will An Attorney Charge?
Most attorneys who represent SSD claimants do so on a contingent fee
basis, which means there is no fee unless your claim is approved. If the
claim is won, your attorney will generally be paid 25 percent of your pastdue benefits. In some cases, even though a claim is approved, there are no
past-due benefits; in this situation, your attorney will either charge you a
minimum fee or waive the fee, usually depending on the amount of work
performed on your case. Fees charged for representing clients in SSD claims
must be approved by the Social Security Administration. SSA will
automatically subtract 25 percent from your past-due benefit payment and
will send that amount to your attorney. This is a one-time deduction that
does not affect your future monthly disability benefits.
In a contingent fee arrangement, there is no attorney’s fee if you lose
your case. However, you will have to reimburse your attorney for any outof-pocket expenses incurred while representing you. These expenses are
usually small charges for copying medical records or doctors’ fees for
writing medical reports.
37
Checklist
Every case is different, but the following is a general list
of what your attorney can do for you:
9
9
Analyze your case under Social Security regulations to develop a strategy
for your claim.
Collect medical and other evidence.
9
Help you keep a diary that details your condition.
9
Explain Social Security Administration notices.
9
Answer your day-to-day questions about the application process.
9
File appeals.
9
Complete or review all paperwork required by SSA.
9
Provide moral support.
9
Seek the opinion of your physicians regarding your ability to work.
9
Advise you to see specialists for additional medical reports.
9
Send you to a vocational expert for a report on your ability to work.
9
9
Suggest that SSA send you to a doctor for a consultative examination
when appropriate.
Obtain, review, and analyze documents from your Social Security file.
9
Review actions taken by SSA and respond appropriately.
9
Investigate unusual delays in the processing of your claim.
9
Help you prepare for your hearing. Attorneys experienced in SSD law
usually know the judges and what to expect from them.
Address exceptional situations, such as the re-opening of prior claims.
9
9
9
Protect your right to a fair hearing by objecting to improper evidence and
procedures.
Ask questions of you at your hearing to make sure all relevant information
is heard by the judge.
Cross-examine witnesses at your hearing if appropriate.
9
If you win, make sure that SSA correctly calculates your benefits.
9
If you lose at the ALJ hearing, request a review of the hearing decision by
SSA’s Appeals Council, if appropriate.
If appropriate, represent you in a Federal Court review of your case.
9
9
38
uch to my surprise, Mr. Stevenson agreed with Social Security. “I
could go to work for all the SSD applicants who get denied — my job
would be to find employment opportunities for people who can’t
walk more than 10 feet, can’t stand longer than five minutes, and get fatigued
after finishing one task.”
If the Social Security Administration denies your claim, you have the right to
appeal. An appeal is simply your request that SSA take another look at your case
when you don’t agree with their decision.
When you think about it, applying for Social Security Disability is
essentially a series of appeals, since so many applications are denied in the early
stages. In fact, you should probably expect your initial application to be denied —
64 percent of them are.
Many of those denied at the initial application level don’t appeal, even
though they may be entitled to benefits. Don’t be one of those people! The
only way you will win SSD benefits is to fight, and fighting means
appealing.
Appealing means moving on. Don’t expend too much energy trying to
explain to the Social Security Administration that they’ve made a mistake and
misunderstood your case on the initial application denial. Move right on to the
next stage in the process.
39
There Are Five Levels of Appeal :
1.
2.
3.
4.
5.
Hearing before an Administrative Law Judge
Review by the Appeals Council
Federal Court Review
U.S. Circuit Court of Appeals Review
U.S. Supreme Court Review
Most denials are not appealed
beyond the Federal Court review level.
You generally have 60 days from the
time you receive a denial notice to file an
appeal. (There are some exceptions. In
certain cases you have only 30 days to
appeal an ALJ denial. Your written decision
will state the amount of time you have to file
an appeal.)
Don’t wait until the last minute to
appeal, or you could miss your deadline. If
you intend to continue with your claim,
consult with your attorney as soon as possible. He or she will weigh the technical
issues involved and advise you about the
appropriate time to appeal.
Under certain circumstances, SSA will accept an appeal that is not filed on
time. If you were sick when you received your denial notice, especially if you
were hospitalized, you may have grounds for a late appeal. If a claimant is
mentally impaired and didn’t understand the denial notice, he or she may also
have grounds for a late appeal. However, it is best not to rely on being granted a
late appeal. Social Security does not have to accept it, no matter what the reason
for lateness. Again, it is extremely important to file your appeal on time.
Hearing
If you are denied at the application stage, you may request a hearing.
Again, you have just 60 days from the date you receive your denial to file your
hearing request.
The hearing takes place before an Administrative Law Judge at the Social
Security Office of Disability Adjudication and Review. For a complete
description of the hearing process, see Chapter 8, “The Hearing.”
The hearing stage is the first and only time in the entire process that the
odds of success are in your favor. 52% of all claims at the hearing stage are
approved.
40
Review By The Appeals Council
If you disagree with your hearing decision, you can ask the Appeals
Council to review it. The Appeals Council may deny your request for review if
they believe the Administrative Law Judge’s decision was correct. If the Appeals
Council proceeds with their review, they may either reverse the ALJ’s decision
and grant benefits or remand the case back to the ALJ for further review.
In two percent of cases taken to the Appeals Council, the ALJ’s decision is
reversed, and the claimant is awarded benefits. In seventy-three percent of
Appeals Council cases, the ALJ’s decision denying benefits is upheld and allowed
to stand. 18% of these cases are “remanded,” or sent back to the ALJ for a new
hearing.
Federal Court
If the Appeals Council affirms the ALJ’s denial of your claim, or if you
disagree with the Appeals Council’s decision, you can file a lawsuit in federal
district court. Taking this step means you are suing the Social Security
Administration for refusing to give you Social Security benefits that you believe
you are entitled to.
A lawsuit in U.S. District Court can take anywhere from nine months to
several years to complete. Deciding whether or not to pursue this option is
complicated. With the help of your attorney you will need to evaluate:
the merits of your claim
probability of success
potential time frames
other options
Should I Appeal Or Reapply Or Both?
For some claimants it may make more sense to reapply than to sue in federal
court. Essentially, this means that you start again by filing a new application. In
some cases, it may actually take less time to win benefits by starting the whole
process again than by suing in district court.
If you reapply, you must use an onset date (the date you became totally
disabled) that is later than the date of the ALJ’s original decision. You need to
verify that you still meet eligibility requirements using the later onset date.
Remember that SSD benefits can only be paid back to a maximum of 12
months prior to the date of filing the claim, so if you reapply you will probably be
sacrificing some back benefits.
41
A third option is to appeal your current claim in district court and file a new
claim at the same time.
A previous claim may be reopened for any reason if an application is filed
within 12 months of the date of the notice of the initial determination. Requests
to reopen a previous claim are determined by the ALJ.
Reopening Prior Claims
It is possible in some circumstances to reopen a prior claim, sometimes years
after the initial denial.
Let’s look at an example:
Michael Jones, a construction worker, developed heart problems and quit his
job March 15, 2001. He applied for SSD benefits the following October and was
denied in January of 2003. He never appealed his initial denial but was still
unable to return to work.
In April of 2005, Mr. Jones filed a new application for SSD. With the new
claim, he asked to have his first application reopened. His condition had grown
much worse. This time his doctor wrote very supportive medical reports which
not only documented Mr. Jones’s current condition but also substantiated his
claim that the condition had been disabling for several years. Mr. Jones’s request
to re-open his first claim was ultimately approved, and he received retroactive
benefits all the way back to September of 2001 (allowing for the waiting period of
five full months following the onset of disability).
If filed within four years of the initial denial of an SSD claim — or within
two years of an initial SSI denial (refer to Chapter 11, “Social Security Disability
(SSD) vs. Supplemental Security Income (SSI),” for additional information about
SSI claims) — a re-opening request may be granted if the ALJ finds good cause.
Under very rare circumstances involving severe mental illness, an ALJ may allow
the re-opening of a prior claim regardless of the amount of time that has passed.
If you abandoned a claim after being denied, discuss the situation with
your attorney. But remember, it’s always better to keep fighting than to abandon
your claim and try to re-open it years later.
Percentages mentioned in this chapter were obtained from SSA Office of Disability Program
Management Information 11/26/12.
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8
Chapter
The Hearing
My clients have expressed varied
feelings about the Social Security
Disability hearing. Some say it was
the worst part of the process, some
feel it was the best part.
t doesn’t surprise me that clients have such strong and contradictory feelings about the
hearing stage of the SSD application process. Most of us are nervous when we have to
speak in front of strangers, and by the time claimants get to the hearing, they’ve usually
spent well over 20-24 months struggling through the Social Security system.
To many clients, the hearing was a relief because it was the first time they could
explain their cases in their own words to someone from the Social Security Administration,
the first time they had a face-to-face meeting with an individual who had the power to make
a decision. As one client remembered: “Someone actually listened to my entire story, and I
knew there would be a decision soon.” Some clients with bad memories of their hearings
remembered feeling nervous and on-the-spot. One recalls: “I was nervous and
uncomfortable, and when it was over I felt completely drained.”
If you approach it as an opportunity to tell your own story and are properly
prepared, you can help make the hearing a positive experience.
Before your hearing takes place, you and your attorney will have a detailed prehearing conference where you’ll go over the hearing process step by step, including what
questions will most likely be asked of you. You’ll enter the hearing knowing what to
expect.
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What Is A Hearing?
The Social Security hearing is an administrative proceeding, not a trial.
Testimony is taken under oath, but strict rules of evidence do not apply, and the
hearing is less formal than a regular court hearing.
The purpose of the administrative hearing is to present information that will
help the judge make a sound decision based on the evidence in your case. This
includes your medical records, your treating physicians’ reports, other related
documents, and testimony at the hearing.
The Setting
Social Security Disability hearings are held in a small, informal conference
room at SSA’s Office of Disability Adjudication and Review, not a formal courtroom.
The decision-maker is an Administrative Law Judge who works for the Social Security
Administration. This judge has had nothing to do with the prior decisions made on
your claim.
The location of the hearings vary according to where you live. Hearings are
held at the Office of Disability Adjudication and Review either in-person or by video
teleconference. Hearings can even be held in hotels.
There won’t be any spectators; the only people present in the hearing room
are the judge, the judge’s assistant, you, your attorney, and, if you wish and if
allowed by the ALJ, a spouse or friend who can attend for moral support. Depending
on your case, there may be witnesses, such as physicians, vocational experts, or
personal acquaintances called by you, your attorney, or the ALJ.
Your Testimony
Usually, the hearing begins with the judge’s confirmation of your name and
address and your placement under oath. The next step is the hearing of your
testimony, which may be presented in a number of ways. Sometimes the ALJ
conducts a detailed interrogation, asking questions about your age, education, work
experience, impairments, physical and mental limitations, daily activities, and
medical care; your attorney will then ask any additional questions necessary to
clarify a point or to bring out more specific information. Sometimes the judge will
ask just the basics and leave the full questioning to your lawyer; when your
attorney has finished, the ALJ will ask follow-up questions.
Each ALJ has a unique approach and manner. Your attorney will
usually be familiar with your particular judge’s style and can prepare for your
testimony accordingly.
The purpose of your testimony is to provide a complete and honest picture
of your condition in order to supplement the medical records and reports which are
the foundation of your case. The ALJ wants you to describe in your own words how
your medical condition limits your ability to perform work for which your
44
education, training, and experience would otherwise qualify you.
Try to be specific and detailed, but don’t ramble. And remember, your
testimony is being recorded on audio tape (not video) — if you point to your neck
and say: “It hurts here,” the record won’t contain clear evidence of your
impairments. (Your lawyer will clarify any questions about the meaning of your
statements.)
By the time you get to your hearing you may be frustrated and angry with
the Social Security Administration. Don’t take that anger out on the
Administrative Law Judge. Personalizing your anger could seriously damage
your case.
Your testimony will cover the following general topics:
Medical Condition
You will be asked how your medical
condition makes you feel. Do you experience
dizziness, nausea, numbness and tingling,
paralysis, or pain? What kind of pain do you
feel? Is it burning, throbbing, aching, stabbing?
Does your pain limit the way you can move,
walk, reach, or bend? Does your pain make it
hard for you to concentrate?
Do heating pads or icepacks make the pain
less severe? How about sitting with your legs elevated? Do you take medications
for your pain, and do they work? Do your medications cause side effects such as
dizziness, an upset stomach, or confusion?
If you have mental or emotional disorders, you will be asked how your
particular psychological problems make you feel in a work setting. Do you
experience severe anxiety? Are you depressed to the point of being unable to
function? Do you feel isolated from the real world? You may be asked what kind
of professional counseling you’ve received and whether you feel your condition
has improved with therapy.
When you are asked simple questions, answer yes or no. Don’t shake or nod
your head or say: “uh-huh.”
Medical History
You will be asked to describe your condition, its symptoms, and the
treatment you have received since your illness began. You might be asked
how often you see your doctor and what specialists you have been referred to.
If you are suffering from more than one problem, stick to describing one
illness at a time. But do remember to bring up all the illnesses that are creating
your total disability. We often win claims because we are able to establish that our
client is disabled due to a combination of impairments.
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Physical Abilities
If your disabling condition is of a physical nature, you will be asked: how
far you can walk before you need to rest; how long you can sit at one time; how
long you can stand at one time; and the total length of time you can sit and stand
during an eight-hour day? Do you take naps during the day? How much can you
lift and how often? Can you use your hands to grasp, push, and pull? Can you use
your feet to push and pull? Do you drive? Are there chemicals or fumes that you
cannot tolerate?
Some conditions, like multiple sclerosis or chronic fatigue syndrome, have
symptoms that may be vague and difficult to describe. For example, a chronic
fatigue patient might be able to walk for 20 minutes on a good day but generally
feels so listless that holding even a part-time desk job would be impossible. Your
attorney can help you describe any hard-to-explain conditions.
Mental Abilities
If your case involves a mental or emotional disability, you will be asked
about your ability to concentrate, remember, follow both simple and detailed
instructions, and get along with supervisors, co-workers, and the public. You may
be asked if it is difficult for you to cope with change, pressure, criticism, and
other stresses on the job.
Education And Training
You will be asked about your educational background. Be specific.
Instead of responding: “I went to high school,” reply: “I finished 11th grade”
(if that is the case). You will also be asked about vocational and on-the-job
training.
Work Experience
You will be asked to describe the duties and responsibilities of your last
job and any other jobs you held during the 15 years before you became
disabled. Expect questions such as: “How much weight did you have to lift?”
“How much time did you spend on your feet?” or “Did you have to deal with
the public?”
Daily Activities
You may be asked how you spend an average day, from getting up in
the morning to going to bed at night. Your ability to perform household
chores like washing dishes, cooking, and mowing the lawn will probably be
discussed.
Be specific and honest. Don’t be ashamed of your limitations. If you testify
that you are able to mow the lawn but fail to mention that you have a very small
yard and you need to take breaks every 10 minutes, the judge won’t understand
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the true nature of your condition. If you are able to make dinner, but your children
have to lift heavy pots and pans and open and close the oven door for you, be
specific about your limitations and the help you must have to get that meal on the
table.
Very important — Don’t exaggerate your problems, but don’t minimize
them either. Always tell the truth.
Summing Up
Most hearings take about one hour. The length of time for the ALJ’s written
decision to be issued is anywhere from a few weeks to three months or longer; the
average time is about eight weeks.
Don’t be discouraged. Your chances of obtaining benefits at the hearing
stage are better than they have been at any point in the process so far.
Remember :
Always tell the truth.
Neither exaggerate nor minimize.
Be specific and detailed but don’t ramble.
It’s OK to say: “I don’t know”, or “I don’t remember.”
It’s OK to stand up or walk around during your hearing if sitting is too
uncomfortable.
Listen carefully.
Try to relax. Remember, you are there to tell your story, and you are the
best expert on how your medical condition affects you.
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fter your SSD claim is approved in writing, the next thing that takes
place is the computation of your benefits.
Calculating Benefit Amounts
Your monthly benefit amount is calculated by Social Security using a
complicated formula based on your lifetime earnings. The exact amount of your
monthly payment depends on your particular earnings history. Every case is
different.
As of 2012, the average new award benefit amount was $1,111 per month.
The maximum benefit for an individual claimant was $2,537 per month, and the
maximum family benefit was $3,805 (this amount includes the claimant’s own
benefit amount).
The following chart from the Social Security Administration shows the
Estimated Average Monthly Social Security Benefits Payable in January 2013:
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Average Benefits at the end of December 2012
Type of benefit or family
Benefit All Retired Workers
Type
All Disabled Workers
Average Benefit
$1,261
1,111
Family Aged Couple
Type
Surviving Child(ren) Onlya
2,048
991
Widowed Mother and 2 Children
2,592
Aged widow(er) alone
1,214
Disabled Worker, Spouse, and One or
More Children
1,919
a
Family with one or more children excludes surviving parent or guardian who is
ineligible to receive benefits.
Note: The above estimates are based on actual benefit data through December
2012.
Source: Social Security Administration
*COLA (Cost of Living Adjustment)
Your attorney can obtain an estimate of your benefit amount from your local
Social Security office any time after you file a claim for disability benefits. (If
you do not have a pending claim for benefits, you can request a benefit estimate
statement by calling Social Security’s toll-free number.)
Your First Payment
You can expect your first Social Security Disability payment to arrive
about four to eight weeks after the Social Security Administration notifies you
in writing that your claim has been approved. Because the application process
takes so long, your first SSD payment will probably include back benefits.
How are your back benefits computed?
First, your “entitlement date” is determined. This is the date your benefits
became effective. There are two rules involved in determining your entitlement
date.
First, there is a five-month waiting period after the onset of your
disability for which you do not receive benefits. The waiting period starts with
the first full month you were found unable to work. Because of the waiting
period, your entitlement date is always at least the sixth month following your
disability onset date.
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Let’s look at an example:
Eric J. was seriously injured in a car accident on September 10, 2003. He
filed for SSD immediately following his accident. Eric eventually had a
hearing before an Administrative Law Judge and received a favorable decision
on February 2, 2005. Eric’s entitlement date was determined as March 2004
(the sixth full month following his onset date of September 10, 2003). So, his
first payment will be retroactive to March 2004.
The second rule in determining your entitlement date is that your entitlement
can never go back further than one year before you filed your application. So, if
you filed more than 17 months after your onset of disability, there will be months
for which you won’t get benefits in addition to the five-month waiting period.
Let’s look at another example:
Susan F. injured her back in a fall on January 1, 2003. She didn’t file for
SSD benefits until September 1, 2004 — 20 months after she became disabled.
Her claim was eventually approved and she received her back benefit payment
on October 5, 2005. Susan’s entitlement date was September 2003 (one year
prior to the date she filed her application and nine months after she became
disabled). So, even though she had been disabled since January 1, 2003, and
her waiting period ended May 31, 2003, Susan’s benefits did not become
effective until September of 2003. By delaying the filing of her SSD
application, Susan lost three months of back benefits.
To summarize, your entitlement date is either the sixth full month
following your disability onset date or one year prior to the date you filed your
application, whichever is later.
Once your entitlement date has been determined, the amount of your back
benefits is computed. The calculation of past-due benefits can get very
complicated. In addition to your basic monthly benefit rate, several factors are
taken into account; these include cost of living adjustments, offsets from other
benefits received (such as Workers’ Compensation), and, in some cases,
deductions for Medicare premiums.
As a general rule, the benefit amount is calculated for each past-due month,
starting with your first month of entitlement and ending with the month before
your back benefit payment is issued. The benefit amounts for all of those months
are added together, and the sum is your total back benefit amount. If you were
represented by an attorney, 25 percent of your total back benefit amount (not to
exceed $6,000.00) will be withheld by Social Security towards payment of your
attorney’s fee.
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Let’s take another look at our two examples, the cases of Eric and
Susan:
Eric, the car accident victim, had an entitlement date of March 2004.
Following his favorable decision, he received his back benefit payment on
April 8, 2005. Eric’s monthly benefit amount was $1,000. At $1,000 per
month, beginning with March of 2004, up to and including March of 2005,
Eric’s total back benefit amount was $13,000, plus a cost of living
adjustment applied to a portion of the back benefit period.
Susan’s entitlement date was September 2003. She received her first
payment in October 2005. Her benefit rate was $800 per month. Susan’s first
payment included benefits from September 2003 through September 2005, a
total of 25 months of back benefits. At $800 per month, the total amount of
her back benefit was $20,000 plus two annual cost of living adjustments.
As I said, because the application process takes so long, almost everyone’s
first payment includes back benefits. Here is a less likely but possible scenario
where there would be no back benefits for the claimant:
John A. had a severe heart attack on March 15, 2004. His family quickly
filed for disability on March 29, 2004. John’s heart attack was so serious that
his condition met the Listings. His claim was approved on May 30, 2004. The
following September was John’s sixth full month of disability, so his benefits
began that month. His first payment (the September payment) arrived in early
October. In John’s case, there were no back benefits involved.
Your Award Notice
Around the time that you receive your back benefit payment, SSA will
send you an award notice (called the Notice of Award). This document outlines
the details of the benefits you’ve been awarded, such as:
The dollar amount of your monthly benefit
Any offsets that will reduce your monthly payment (The next section of this
chapter, “Offsets from Other Benefits,” discusses this topic in more detail.)
The dollar amount of your past due benefits
The attorney’s fee withheld from your past due benefits, if applicable
Medicare coverage, if applicable
If you are entitled to Medicare at the time your award notice is issued, the
notice will tell you about your coverage options. Read this section carefully —
Medicare coverage includes an optional portion for which you must pay a
premium. It will be assumed that you want the optional coverage, and the
premium will automatically be deducted from your monthly benefit. If you do not
want the optional portion of Medicare, you must let Social Security know within a
specified length of time (stated in the award notice).
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Unfortunately, award notices can be very confusing, and you may need
assistance to understand yours. Your attorney can help you interpret the
information.
Award notices can also contain errors. The most frequent errors occur in
the calculation of benefit offsets (most commonly for Workers’ Compensation
benefits received by the claimant) and the computation of past-due benefits. Your
notice will explain what you need to do if you disagree with any portion of the
information.
Being Reviewed
There is a chance your case will be reviewed in the future to determine if
you are still disabled. The award notice sometimes mentions Social Security’s
plans to conduct a review. If so, it will usually indicate a general time frame
within which this will occur.
Refer to Chapter 13, “Continuing Disability Reviews,” for detailed
information about case reviews.
Direct Deposit
SSA uses a direct deposit system for payment of your disability benefits.
Your monthly payment is sent electronically to your bank account which is safer
and more reliable than mailing checks to your home. The money is in your
account and available at the opening of business on the payment date, which is
usually the third of each month. (SSA now uses the direct deposit method for all
new claims that are approved. If you are already receiving benefit checks for a
claim approved in the past, you can convert to the direct deposit system if you
wish. Contact Social Security through your District Office or by calling SSA’s
toll-free number.)
Offsets From Other Benefits
If you are receiving other disability benefits, such as Workers’
Compensation or benefits from certain government, civil service, or military
disability programs, your SSD benefit may be reduced. The total combined
benefits that you and your family receive from Social Security and these other
programs generally cannot exceed 80 percent of your prior average gross earnings
before becoming disabled.
Let’s look at an example:
Sally K. was an assembly worker for many years. She developed carpal
tunnel syndrome in both hands and eventually had to quit her job. At 55 years
old, with only a 10th grade education and no transferable skills, Sally was
awarded SSD benefits.
Sally also receives Workers’ Compensation (WC) at the rate of $100 per
week. Social Security multiplies her weekly WC figure by 4.33 to arrive at a
monthly WC figure of $433.
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When Sally was working, her average gross earnings were $1000 per
month. Eighty percent of that amount is $800 — this is the total amount Sally
is allowed to receive between both Workers’ Compensation and SSD.
Sally’s SSD monthly benefit amount was computed at $500. However,
adding $500 to her monthly WC benefit amount of $433 would bring her total
to $933 per month — $133 over the limit of $800. So Sally’s SSD benefit
amount will be reduced by $133, leaving her with a monthly SSD benefit of
$367 ($500 minus $133). Her total benefit amount ($367 from SSD and $433
from Workers’ Compensation) will now be exactly $800 per month.
If Sally’s Workers’ Compensation benefit is reduced in the future, her
Social Security benefit amount will be adjusted accordingly.
These offsets can get complicated, and no two cases are exactly alike. Your
attorney can help you understand any offsets applied in your case and can make
sure that SSA has computed your benefits accurately.
Long-Term Disability Benefits
Some companies offer their employees private long-term disability (LTD)
insurance as an employee benefit, or some people buy these policies on their
own. Payments from these policies cannot be used as offsets against SSD
benefits. However, your LTD policy may stipulate that any SSD benefits
received will be used as an offset against your LTD payment. Not all LTD
policies carry this stipulation, but if yours does, your LTD benefit will be
reduced because of the SSD benefit, and the LTD carrier might demand
repayment after you have been approved for SSD and have received your SSD
back benefit payment.
Let’s look at an example:
Mary S. receives long-term disability benefits at the rate of $1,500
per month. Her LTD policy stipulates that her monthly benefit amount will
be reduced by any SSD benefit she may receive and that any retroactive
SSD benefit she receives will be used to reimburse the LTD carrier for
benefits paid during the retroactive period.
Mary files for Social Security Disability, and after 18 months her
claim is approved. She is awarded SSD benefits at the rate of $1,000 per
month. Her back benefit amount includes past-due payments for a total of 16
months. The amount of the back benefit payment after deducting the
attorney’s fee is $12,000.
Mary will be required to turn over the entire back benefit amount to
her LTD carrier. Thereafter, her monthly LTD benefit will be reduced by
$1,000. She will still receive a total of $1,500 per month between both
LTD and SSD benefits.
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You may wonder why you would bother applying for Social Security Disability
if your entire benefit amount is going to be effectively turned over to your LTD
carrier. There are several reasons:
Your LTD carrier will probably require it.
If your LTD benefit is ever terminated for any reason, you may need to rely
solely on your SSD payment.
If you cannot work for an extended period of time, but you don’t apply for
SSD (and are, therefore, never found disabled by Social Security’s rules), your
future Social Security retirement benefit could be affected; you will be penalized
for the years you did not work but were considered capable of working in the eyes
of the Social Security Administration, and your Social Security retirement benefit
could be reduced significantly.
If you are awarded SSD benefits, and you have children, they may be entitled
to additional Social Security benefits based on your claim.
After being entitled to SSD benefits for two years, you become entitled to
Medicare coverage. (Refer to Chapter 10, “Health Insurance And Disability,” for
additional information about Medicare.)
Depending on your LTD policy, you may be allowed to keep any cost of
living adjustments to your SSD payment (COLA’s).
Taxes And Your Benefits
In many cases, Social Security benefits are not taxable. However, there are
some exceptions. If your adjusted gross income, interest on any tax-exempt bonds
you may have, and half your Social Security benefits all total more than a certain
base amount, you will have to pay federal income tax on a portion of your Social
Security benefits.
The base amount varies depending on your filing status. If you file taxes as
a single person, the base amount is $25,000. If you are married and file jointly,
the base is $32,000. If you are married and have lived with your spouse for any
part of the tax year but are filing separately, the base is zero. If you are married
but have lived apart from your spouse the entire year, the base is the same as for a
single person, $25,000. (These figures are based on 2012 tax information.)
After the end of each year, you will receive a Social Security Benefits
Statement (Form SSA-1099) showing the amount of benefits you received in the
preceding year. The statement is to be used only for completing your federal
income tax return should any of your benefits be subject to tax. For more
information about taxation of benefits, ask for IRS booklet 915 at any Social
Security office or Internal Revenue Service office.
It is a good idea to contact an accountant or tax consultant before you apply
for Social Security Disability benefits.
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How Long Your Benefits Will Continue
Your disability benefits should continue until you are no longer disabled
or if you begin and continue “substantial gainful activity” (working and earning at
least $1,040 a month). See Chapter 12, “Going Back To Work,” for more detailed
information.
Your case may be reviewed periodically to determine if you are still
disabled. Refer to Chapter 13, “Continuing Disability Reviews,” for additional
information about case reviews.
After you’ve been approved for disability benefits, you’ll probably continue
to see your doctors to continue your medical care. But there is another reason to
see your physicians regularly: if SSA reviews your case, you’ll want to be able to
provide up-to-date medical evidence to support a case for continued disability.
If you are still receiving SSD benefits when you reach retirement age, your
benefits continue at the same level but are considered retirement benefits rather
than disability benefits.
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n most cases, when you stop working you are no longer eligible for your
former employer’s health insurance coverage. (You can continue this
coverage for 18 months by paying the premium yourself through the
COBRA program. Your former employer should be able to provide you with
more detailed information about COBRA coverage.)
Fortunately, when you are awarded SSD benefits you also become eligible
for Medicare which in some ways is even more important than your cash benefits.
You are eligible for Medicare 24 months after your SSD entitlement date (the date
your benefits effectively began).
For example, let’s say you stop working on February 15, 2003 due to
disability. You apply for SSD benefits in October of 2003, and your claim is
approved in December 2004. Your SSD entitlement date is August 1, 2003 (the
sixth full month of disability) — that’s how far back your retroactive benefits
will go. You will be eligible for Medicare in August of 2005, two years after
your SSD entitlement date.
There are two parts to Medicare coverage. Part A is Hospital Insurance
which helps pay for hospitalization and some home health services. You
automatically receive Part A coverage at no cost. Part B is Supplementary
Medical Insurance which helps pay for doctor visits, some outpatient hospital
services, and certain other related services. Part B is optional. If you elect to
take this coverage, you will be charged a small monthly premium which will be
deducted from your disability payment.
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You can obtain more detailed information about both parts of Medicare
coverage from your local Social Security office. Ask for the booklet, “Medicare”
(Publication No. 05-10043).
Additional Coverage
Some Health Maintenance Organizations (HMOs) offer additional Medicare
insurance programs for those who are receiving both Part A and Part B Medicare
coverage. For an extra monthly premium, this additional insurance provides
extensive coverage not available with either Part A or Part B Medicare. However,
if you choose this option, you may be required to receive all medical treatment
through the HMO, depending on the particular HMO’s policy. Anyone who has
Medicare may be able to get Medicare prescription drug coverage. If you have
limited income and resources, you may be eligible for extra help to pay the costs
related to a Medicare prescription drug plan. To apply for the extra help, you can
apply online at www.socialsecurity.gov or call Social Security at 1-800-772-1213.
Medigap
Medigap plans are private insurance policies designed to fill in the gaps not
covered by Medicare. Many health reform organizations and groups that lobby for
the disabled are working to make Medigap policies more available to disabled
people. The American Association of Retired Persons (AARP) as well as many
private insurance carriers offer Medigap policies.
Medicaid
Medicaid is a federal program administered by individual states which
provides medical coverage for people in financial need. You may be eligible for
Medicaid while you are waiting for your Medicare coverage to become
effective. You can apply for Medicaid through your County Department of
Social Services. Once approved for Medicaid, you can use the services of any
doctor or health care facility that accepts Medicaid-insured patients. Virtually
all medical services are covered, including inpatient hospital stays, outpatient
visits, diagnostic tests, routine doctor visits, and prescription medications.
In New York State, if you are awarded SSI (see next chapter) as well as
SSD, you automatically become eligible for Medicaid. Your local Social Security
office will provide you with information about obtaining Medicaid coverage when
your SSI claim is approved.
Private Insurance Policies
While waiting for your Medicare entitlement to begin, you also have the
option of obtaining coverage by buying your own policy with a private
insurance carrier or an HMO. In New York State, all insurance carriers and
HMOs are required to offer individual policies.
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S
ocial Security Disability (SSD) is only one type of disability benefit
available through the Social Security Administration. Supplemental
Security Income, or SSI, is another. To be eligible for SSI, you must have
limited financial resources in addition to being disabled. Depending on your work
history and your financial situation, you may be eligible only for SSD, only for
SSI, or for both SSD and SSI benefits. If you are eligible for both benefits your
claim is referred to as a “concurrent” claim.
What Is The Difference Between SSD And SSI?
Social Security Disability is a federal disability insurance program which
workers and employers fund by paying Social Security taxes. Supplemental
Security Income is basically a federal needs-based disability program supported
by income tax dollars. Both programs are run by the Social Security
Administration.
SSD and SSI programs use the same criteria for determining whether a
person is disabled.
Non-Medical Requirements For Eligibility
We discussed eligibility requirements for SSD in Chapter 2, “Am I Entitled
To Social Security Disability Benefits?”
The non-medical requirements for SSI eligibility involve an entirely
different set of criteria. SSI is designed for people with low incomes and little
58
personal property and is sometimes called a “program of last resort.” Its purpose
is to make certain that disabled people — even those who do not have a
significant work history — receive a minimum basic income when they aren’t
able to work because of their physical and/or mental health.
Your Income And Property
There are strict income and asset limits for SSI eligibility, governed by
rules which vary from state to state.
When determining your income, the Social Security Administration
considers the earned income you receive, such as gross wages, and unearned
income such as Social Security benefits and pensions. It also looks at the value
you receive from the support of others (e.g., living in someone’s home rentfree, meals, etc.).
SSA also looks at your assets — the things you own — when determining
if you are eligible for SSI. Your assets might include real estate, personal
belongings, bank accounts, cash, stocks, bonds, etc. If the sum of all these
exceeds a certain amount, you are not eligible for SSI.
Let’s look at some specific profiles to understand who might get help
from SSD, SSI, or both.
SSD Only
John A. had worked at a pharmaceutical company for 20 years when he had
a serious heart attack. At the time of his heart attack he was a supervisor, and his
gross salary was $39,500 a year. His wife, Kathy, works part-time as a medical
secretary in a hospital and grosses about $14,000 a year. They own their own
home, both have pension plans through work and have built up a significant nest
egg. Between Kathy’s income and their combined assets, John does not qualify
financially for SSI. He does, however, qualify for SSD benefits.
SSI Only
Karen B. is a 52-year-old divorced woman with two grown children.
Except for helping out in her brother’s neighborhood grocery occasionally, she
has never worked outside the home. She has no Social Security credits. She has
no savings and very little property except for some furniture.
In her late 40s, Karen was hospitalized for several months because of
psychological problems. Her case manager at the hospital helped her process an
SSI disability claim which was eventually approved. Karen now receives monthly
SSI benefits. She also receives Medicaid insurance coverage. (Refer to Chapter
10, “Health Insurance And Disability,” for information regarding Medicaid
coverage.)
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SSD And SSI
John Z. worked on the loading dock of a furniture manufacturing company
until a serious lower back injury made it impossible for him to lift heavy weights
or even stand for more than 15 minutes. John is only 22. He has two young
children, and his wife, Susan, is a full-time homemaker. John had just enough
Social Security credits to be eligible for SSD, and his application was approved
after a hearing.
Because of his earnings history, John’s SSD benefit is only $400 per
month. John and his wife are just starting out, and they only own a car and some
furniture. They have $700 in savings. John and his family’s SSD benefit will be
supplemented with SSI in the amount of approximately $150 (for New York
State residents), and they will also receive Medicaid coverage. (Refer to Chapter
10, “Health Insurance and Disability,” for information regarding Medicaid
coverage.)
When Do SSI Benefits Start?
Unlike SSD benefits, there is no five-month waiting period before SSI
payments begin. Once your claim is approved, SSI benefits are effective as of the
first day of the month following the date you filed your initial application. For
example, if you filed your SSI application on May 15, 2003, and it is approved in
April, 2004, the effective date of your benefits is June 1, 2003.
An exception to this rule is if the Social Security Administration
determines your disability onset date to be later than the date you filed your
application. In that case, the effective date will be the onset date. For instance,
say you filed an SSI application on May 15, 2003, claiming that you had been
disabled since February 10, 2003. Your claim is approved in April, 2004;
however, the judge has determined that you have only been disabled since
September 1, 2003. The effective date of your benefits is September 1, 2003.
Unlike SSD, no SSI benefits are ever awarded prior to the date of
application.
How Much Will I Receive In SSI Benefits?
The amount of your SSI payment varies depending on your living
arrangement and the amount of any income or assets you may have. In New York
State, the SSI payment is approximately $797 for an individual living alone.
Concurrent Claims
As in the case of John Z., it’s possible to be eligible for both SSD and
SSI benefits. This is called a concurrent claim.
Concurrent benefits can sometimes get complicated, especially when
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calculating back benefit amounts. In many concurrent claims, SSI will raise the
monthly benefit received to approximately $797 if the SSD benefit is below that
amount. Additionally, if you have been receiving public assistance while waiting
for your disability claim to be approved, the SSI portion of your back benefit
payment will be used to reimburse Social Services. Your lawyer can help you sort
out the issues involved in concurrent claims.
Other Help That Comes With SSI
In some states, including New York, qualifying for SSI means automatic
eligibility for Medicaid, a federal medical insurance program for people with
limited financial resources. You are eligible for Medicaid regardless of the
amount of your SSI payment. So even if your SSI benefit is very low (as with
some concurrent claims), your eligibility for Medicaid could mean access to
medical care you could not otherwise receive. When your claim for SSI benefits is
approved, your local Social Security office will provide you with information
about your Medicaid coverage. (Refer to Chapter 10, “Health Insurance and
Disability,” for additional information regarding Medicaid coverage.)
Attorney’s Fee
The attorney’s fee for handling an SSI claim is withheld from the claimant’s
back benefit payment as it is for SSD claims.
What If You Are Turned Down?
If your application for SSI (or SSD and SSI) is denied, you have the right to
appeal. In fact, the appeal process for SSI is exactly the same as the appeal
process for SSD — Hearing, Appeals Council, and Federal Court Review. Take a
look at Chapter 7, “What If The Social Security Administration Denies My
Claim?” for a full picture of the appeal process for both SSD and SSI.
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:
ost people would rather earn a decent wage at a job they enjoy
than make do living on Social Security Disability payments. Of
course, there is a dilemma. Imagine that you’ve been on disability
for a couple of years, and you begin to feel better. You don’t tire as easily as
you used to, and your doctor has prescribed a new medication that doesn’t have
the negative side effects the old one did. You can stand for longer periods of
time before you begin to experience pain. You’re bored spending so much time
at home. You’d like to try going back to work, but you’re afraid your SSD
benefits will be taken away. What if you go back to work only to discover that
you’re not well enough to return to a job after all? You’re afraid you’ll be right
back where you started.
Because the Social Security Administration encourages people to go
back to work but understands claimants are worried about losing their benefits
and then failing in their work attempt, they have developed rules called work
incentives. While giving SSD recipients an opportunity to go back to work on a
trial basis, these incentives can potentially save money for the federal
government. If you are considering going back to work, you should be aware of
how these rules and regulations can protect you. You should also be aware of
how they could work against you — that you might be jeopardizing your SSD
benefits by going back to work.
SSA work incentives are complicated. You should talk to your attorney
before deciding whether to return to work.
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The following are some of the work incentives Social Security has
developed for SSD recipients. (Note: if you are receiving SSI benefits, they
will be affected by any income you earn. Be sure you understand the impact
working will have on your SSI benefit before you decide whether to take a
job. Your local SSA District Office can provide you with further
information.)
Trial Work Period
You may work and earn as much money as you can for a total of nine months
in a five-year period without affecting your SSD benefits. The nine-month period
does not have to be consecutive. As of 2013, a trial work month is any month in
which a disability beneficiary earns at least $750.
At the end of your trial work period, SSA will evaluate your earnings to
determine if they are “substantial.” (As of 2013, SSA generally considers work
substantial if you earn more than $1,040 in a one-month period.) If your
earnings do not average more than $1,040 a month, your benefits will continue.
If you do earn more than $1,040 a month, you will continue receiving SSD
benefits for a three-month grace period, and then the benefits will end.
Let’s look at some examples:
Michael S. was a 35-year-old construction worker when he was
severely injured in a car accident, and his doctors told him he might never
be able to return to work. Michael applied for SSD benefits right away, and
his claim was approved within six months.
For more than a year following his accident, Michael received
extensive rehabilitation. During his recovery he completed some business
courses. Eighteen months after his accident, Michael got a job as a manager
in a contracting firm. He continued receiving SSD benefits while working on
a trial basis.
Michael’s trial work period ended nine months after he started with
the firm. At the end of his trial work period, SSA reviewed his earnings,
which averaged $1,800 per month. Since his earnings were far above the
substantial level of $1,040 per month, Michael’s SSD benefits were
terminated (after an additional three-month grace period).
Since the regulations do not require that benefits received during a trial
work period be paid back to Social Security, and the claimant continues working,
Michael was able to use the benefit money to help pay outstanding medical bills
from the accident.
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Let’s look at another example:
Fred H. was a 52-year-old assembly worker who had developed back
problems as a result of the work he did. He finally had to quit his job, and
three months later he filed an SSD application. Eighteen months after filing,
Fred received his first payment.
Three years after Fred began receiving SSD benefits he decided to
try going back to work and got a job as a machine operator in a
manufacturing plant. Since this was a trial work period, he continued
receiving his SSD benefits while earning a paycheck.
Although he was in great discomfort while working, Fred rationalized
that he was going through an adjustment to the new activities. He really
wanted to keep working. However, after six months of increasing pain and
backaches and growing concern from his doctor, Fred realized that it just
wasn’t going to work. He quit his job and continued receiving SSD benefits.
Fred had the satisfaction of knowing he had made a genuine effort to
return to work and had done his best to succeed at it. And, fortunately, he never
had to experience a disruption in his benefits.
Extended Period Of Eligibility
What if you have a successful trial work period, your benefits stop, and
then your health gets worse, and you are unable to continue working? For 36
months after a successful trial work period, you are eligible for a monthly benefit
for any month in which your earnings fall below $1,040. You do not have to file a
new application to receive these benefits.
Let’s look at Michael S. again:
After receiving SSD benefits for more than a year, Michael returned
to work at a contracting firm on a trial basis. He earned an average of $1,800
per month at the firm. After his nine-month trial work period ended (plus an
additional three-month grace period), his SSD benefits were terminated.
Michael continued to work for two years until his previous injuries began to
cause more problems for him. He required surgery which put him out of
work for four months. During those four months he was able to receive SSD
benefits without filing a new application.
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Medicare
Your Medicare benefits will continue for 39
months after your trial work period ends. When
your Medicare coverage stops, you will be able to
purchase it yourself for a monthly premium. (See
Chapter 10, “Health Insurance And Disability” for
more information about your Medicare options.)
Unsuccessful Work Attempt
If you return to work and within three months
find you are unable to continue because of your
disability, this is considered an unsuccessful work
attempt, and you are not penalized. Your SSD
benefits continue with no disruption. Unsuccessful
work attempts are very common.
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rom the late-1980s through the mid-1990s, there wasn’t much cause for
concern about keeping SSD benefits once a claim was approved. The
Social Security Administration rarely conducted case reviews, due
partly to a lack of funds and partly to dramatic increases in the number of initial
claims being filed. SSA simply did not have enough money or staff available to
support case reviews.
But that changed with the passage of the “Contract with America
Advancement Act of 1996,” signed into law on March 29, 1996. This legislation
provided for huge increases in funding for “Continuing Disability Reviews”
(CDRs).
Expect To Be Reviewed
If you have been awarded SSD benefits, you should expect now more than
ever that your case will be reviewed at some point in the future. Exactly when and
how often a CDR will take place depends on the likelihood of improvement in
your medical condition.
If SSA determines that your medical condition is “expected” to improve,
your case may be reviewed every 6 to 18 months following the approval of your
claim. If medical improvement is considered “possible,” you may be reviewed
every three years after approval. If no improvement is expected, you
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may still be reviewed every seven years after approval.
Don’t Panic
The prospect of being reviewed is not cause for alarm; the majority of
claims will still be allowed, and most people will continue receiving benefits.
However, the more informed and prepared you are ahead of time, the better your
chances of continuing your benefits if your case is reviewed.
Continue Treatment With Your Physician
As I’ve mentioned earlier, it is extremely important that you continue
treatment with your physicians after your SSD claim is initially approved. Aside
from needing their medical care, you will be relying on their support in the event
your case is reviewed.
Be sure to keep a record of all your doctor visits, hospital admissions, ER
treatments, physical therapy sessions, and medication prescriptions. Get correct
spellings of doctors’ names, and make sure all addresses are complete and up-todate. Remember, the more complete and accurate information you can provide to
SSA during a review, the less time they will have to spend obtaining or
correcting those details.
If You Work, Keep Records
If you perform any type of paid work after you begin receiving SSD
benefits, keep a complete record of where you work, how many hours per week,
the amount of wages you earn, the names and addresses of your employers, and,
most importantly, any limitations or problems you encounter during your attempt
at working. Include in your records any doctors’ restrictions related to your ability
to work.
Keep in mind that there is always a risk of jeopardizing your SSD benefits
if you return to any form of work. Refer to Chapter 12, “Going Back To Work,”
for additional information about your options.
Log Your Activities
You should continue to keep a diary of your daily activities after you start
collecting SSD benefits. Note any limitations, problems performing specific tasks,
restrictions in movement, difficulty dealing with people or situations, etc. Pay
particular attention to any changes in your condition. This information will be
valuable if SSA reviews your case.
What To Expect If Your Case Is Reviewed
You are entitled to receive notice from SSA if a CDR is being conducted
on your case. The notice will be in writing and will describe the nature of the
review and will make clear that your benefits could stop as a result of the
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review. Your right to submit medical and other evidence in support of your case
will also be explained in the notice. All eligible dependents not living in your
household must also be notified by SSA of the review.
The process for conducting the CDR is similar in many ways to the
processing of your initial claim. You will be asked for current information about
your doctors and medical treatment, you will be required to complete forms as
appropriate for your situation, and you may be asked to undergo one or more
consultative examinations.
It is extremely important that you cooperate with SSA during the
review; failure to do so could harm your chances for continuing your benefits.
You do have the right to submit medical reports and any other evidence you
feel will help your case.
The initial determination on your CDR is made by the DDS office (the
State Agency). A sequential evaluation process is used, similar to the one used in
the original determination of your claim, with additional steps addressing
whether there has been medical improvement related to your ability to work.
Termination Of Benefits
If the DDS office determines that you are no longer disabled and that your
benefits will be terminated, SSA will send you written notification of the decision.
The notice will include an explanation of your appeal rights and your right to
request continuation of benefit payments to you and your dependents while your
appeal is pending. (If you have eligible dependents, they will also receive their
own notice.)
CDR Appeals
To appeal the initial CDR determination, you must file a request for
reconsideration within the time frame stated on your SSA notice. You are then
entitled to a face-to-face meeting with a disability hearing officer (DHO). This is
a disability examiner, usually an employee of the DDS office, not an ALJ.
In preparation for the reconsideration hearing, you may obtain and submit
additional evidence (medical or other) and review the evidence SSA has collected.
You may also ask SSA to assist in obtaining any other evidence needed.
The DDS office may obtain additional medical evidence on its own or
may schedule one or more consultative examinations. DDS can also issue a
favorable decision (to continue benefits) at any time, even if a hearing has not
yet been held.
If you do have a reconsideration hearing, you have the right to be
represented, to submit additional evidence, to call witnesses, and to question
any other witnesses testifying. You can also waive your right to appear at the
hearing.
You will receive written notice of the reconsidered determination. If it is
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a denial, and you wish to appeal the decision, you must do so within 60 days of
receiving your reconsideration denial notice. Upon appeal, your claim will
proceed to the ALJ hearing level.
The remaining steps of the CDR appeal process are the same as for
initial claims.
Benefits While Appeal Is Pending
You can receive SSD payments while appealing the termination of your
benefits. If you plan to request reconsideration, and you wish to continue
receiving benefits while your appeal is pending, you must file a request to have
your benefits continued within 10 days of receiving SSA’s initial determination
that you are no longer disabled. For your dependents to continue receiving
payments while your appeal is pending, both you and each eligible dependent
must request continuation of benefits.
If you are denied at reconsideration, you may again request to have your
benefits continued pending appeal to an ALJ, and you must again file your request
within 10 days of receiving your
reconsideration denial. Your eligible
dependents will also need to file their own
requests for continuation of payments.
Even if you did not request
continuation of benefit payments at
reconsideration, you can still request it at the
ALJ level. Your payments will be reinstated
as of the month the reconsideration
determination was issued. (This is true only
for SSD benefits, not SSI payments.)
Generally, benefits paid while a CDR
appeal is pending can continue through the
date of an ALJ decision (or, in certain cases,
the date of final action by the Appeals
Council).
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hen emotional or mental illness is a major part of the claimant’s
disabling condition, the problem is usually treated by a qualified
professional. But when disability is due primarily to physical
problems, people often become so focused on those conditions that they don’t
realize they may also be suffering from depression.
Depression: A Natural Side Effect
The very nature of disabling physical conditions can cause people to
become depressed. They are no longer able to do many of the things they used to
take for granted, such as recreational pastimes they used to enjoy, maintaining the
household, or picking up their grandchildren. Some become bored as they
experience more idle hours each day because of their physical limitations. Many
are coping with the realization that they may never again be able to work. This
can be the hardest pill to swallow, as once fully functioning members of society
now feel they can no longer contribute in a meaningful way. They may feel
useless and helpless.
The Long Process Of Obtaining Benefits
Even those who are otherwise emotionally healthy can get worn down
simply by the long process of obtaining SSD benefits. From the time of initial
application, it may take up to two years for the claim to be approved and for
payments to begin.
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In most cases, several months go by with no news on the claim.
Applicants may feel as if they have been forgotten or lost in the system, or they
begin to feel they have been betrayed by our government, after having worked
and paid their dues all those years. In other cases, claimants are referred to one or
more physicians within the Social Security Administration. After having already
seen more doctors than they ever knew existed, they begin to feel like they’re on
an assembly line with the entire medical profession working on them! It can be
frustrating and can even cause feelings of failure for those who’ve been told their
problems “aren’t that bad.”
For many claimants, receiving an initial denial notice is a major setback.
Even though they have been told to initially expect the worst, it can come as a
shock and be very discouraging. Some are ready to give up on their claims at
that point.
During the long wait for benefits, many families struggle with financial
problems. A major source of income, or, in some cases, the sole source, has
been taken away. Some claimants no longer have medical coverage. Their
entire lifestyle has been turned upside down.
Again, these situations can result in depression without the person even
realizing it.
Recognize The Symptoms
If you are dealing with any form of disability, even temporarily, watch for these
signs that you may be suffering from depression:
You find little interest or pleasure in doing things you used to enjoy (even if
you’re still physically capable of doing them)
You feel down, depressed or angry
You feel hopeless, worthless
You feel a sense of doom — the worst possible thing that could ever happen is
certain to happen to you
You feel responsible for all the bad things that happen to you, while all the good
things are due to luck
You have trouble sleeping
You have difficulty concentrating
You’re fidgety, nervous
You feel a lack of energy
You have multiple physical symptoms with no medical explanation
You feel bad about yourself
You have a poor appetite, or you overeat
You abuse alcohol or other drugs
You have suicidal thoughts
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Talk To Your Doctor
Many people are afraid or unwilling to bring up the subject of depression with
their physicians. They may feel their doctors are not interested in their emotional
problems, or they may feel there is still a stigma attached to emotional distress. And
depression can be frightening, perhaps scarier than all of their physical ailments put
together. But depression and other emotional difficulties, like any medical problems, is
best treated early and will usually only get worse if left untreated. If you suspect you
are suffering from depression, you should speak to your doctor immediately. He or she
may refer you to another professional for counseling which often helps alleviate
feelings of depression and anxiety. If you are claiming disability in part as a result of a
mental health condition, you really need to be under the care of a psychologist or
psychiatrist/therapist. A general practitioner, primary care physician, or certified
social worker’s opinion about mental health issues does not carry much weight.
Help Is Available
There is help available to anyone facing these struggles. For those who have
medical coverage, their individual insurance policy or HMO contract will
determine what services are covered and who can provide them. Those receiving
Medicaid benefits can seek the services of any physician or mental health
practitioner who accepts Medicaid patients. (Refer to Chapter 10, “Health
Insurance And Disability,” for information regarding Medicaid coverage.)
For those with no medical coverage, there are many organizations that
provide financial aid, emotional support, medical assistance, counseling, and
other services to anyone going through difficult times. Fees vary depending on the
type of service provided and the financial status of the person seeking help. Refer
to your telephone directory or check with your local library for services available
in your area.
Do What You Can To Help Yourself
Whether you are experiencing depression or just trying to stay as
emotionally healthy as possible, there are things you can do to ease the adjustment
to your new situation:
1. Talk about your problems. If you have a friend or relative who will lend a
sympathetic ear, take advantage of it. If there are several such people on
whom you can rely, it will lessen the tendency to “unload” on one person.
Keep in mind that they are only human, too. You can talk to them without
overburdening them.
2. Find a support group. There are groups for nearly every kind of medical
problem, as well as for general emotional support while experiencing life
changes.
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3. Participate, if you are able to, in community or church activities. Do volunteer
work, even if only a little a week. It’s a great way to feel useful while getting
your mind off your own troubles.
4. With your doctor’s approval, get as much physical exercise as you’re capable
of.
It Will Get Better
As with other challenges in life, most people dealing with disability will
ultimately make adjustments they never thought possible. But it takes time.
Patience isn’t easy under these circumstances, but the more you can manage, the
better you’ll feel.
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:
f you are applying for Social Security Disability benefits, or have a friend or
relative who is, you’re probably somewhere between Mary Jones and John
Smith. Most people have questions but don’t quite know where to begin.
We’ve grouped together some of the most common questions we receive
from our clients as their SSD claims are processed. Keep in mind that every case
is different. But the answers we’ve provided can be used as guidelines and will
give you a general idea of what to expect.
Time Frame For Getting Benefits
Q. How long does it take to receive Social Security Disability benefits?
A. The length of time varies widely. 33% of claims get approved at the initial
application level, and in those cases, benefits can start as early as a few
months from the time the application was filed. However, most claims go to
the hearing stage before they are approved. At this stage, 52 percent are
approved, and it takes on average 18 to 36 months from the initial filing to
receipt of the first benefit payment. (The above percentages were obtained
from the SSA Office of Disability Program Management Information
11/26/12. Refer to Chapter 1, “Social Security And The Basics Of Disability
Benefits,” for additional information.)
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Medical Support
Q. I don’t have a family doctor whom I see regularly. How will Social
Security get the medical reports they need for my claim?
A. The disabled person has the burden of proving they are disabled. It is
important to see a doctor so that your medical problems can be documented
for Social Security. The more the doctor treats you for your disability-related
problems, the better your chances of winning your claim. If you have limited
financial resources, you may be able to obtain treatment through one of your
local hospital clinics, Medicaid, or Family Health Plus.
Q. My doctor thinks I can work, but I don’t feel I can because of my
problems. Should I switch doctors?
A. You should consider at least consulting with another doctor. It is extremely
important for your claim to have your doctor’s support. However, you also
have to consider what is best for you medically. You must weigh the
possible benefit of switching doctors against any medical risk you might be
taking.
Initial Determinations
Q. If Social Security denies my application the first time, what are my
chances of getting approved on an appeal?
A. Roughly 33% of all Social Security Disability claims are approved at the
initial application level. At the hearing level, 52 percent are granted. It is very
important not to get discouraged by the first or second denial and even more
important not to give up!
Q. I got a denial notice three months ago, but I was in the hospital for the
last two months. Is it too late to appeal?
A. You generally have 60 days to submit an appeal after receiving a denial
notice. However, under certain circumstances Social Security will accept a
late appeal. Some reasons Social Security might consider “good cause” for
filing a late appeal are: having a serious illness or being hospitalized during
the 60-day appeal time; having limited mental capacity to understand the
appeal process; and not having received written notice of the denial.
If your reason for appealing late is not accepted as good cause, you can still
file a new application and request re-opening of the prior application.
Unfortunately, you will be starting the process over, but the good news is that
if your claim is approved, and the re-opening is granted, your back benefits
will extend as far back as they would have with the original application.
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The Hearing
Q. Is it necessary for me to appear at the hearing? Can my attorney
handle it for me?
A. Unless it is absolutely impossible, we strongly recommend that you appear at
the hearing with your attorney. The judge can get a much better understanding
of your problems when he or she sees you in person, hears your testimony,
and views first-hand the effects of your medical problems and your
medications.
Q. How should I dress for my hearing? Will the way I dress affect the
judge’s decision?
A. You should dress comfortably and casually, but neatly. Getting too dressed up
might create a false image that you’re healthy and ready to work. On the other
hand, an unkempt look could give the judge an impression of laziness or
disinterest rather than disability. If you’re a woman, wear minimal make-up,
especially if your problems are of a physical nature. The appearance of having
spent a lot of time applying make-up, nail polish, etc. can convey the message
that you’re capable of performing detailed physical work.
Q. Can my husband come to the hearing? Will the judge ask him
questions about my disability?
A. Spouses are always welcome to attend the hearing. But unless your spouse is
sworn in as a witness, the judge will not ask him or her any questions. In most
cases, if the judge or your attorney feels your spouse’s testimony would be
helpful, you will be told of this in advance of the hearing and your attorney
will help your spouse prepare.
Q. Will Social Security have any attorneys at the hearing?
A. No. But the judge will ask you questions. The proceeding is tape recorded
for later use by Social Security, and, in the case of a further appeal, a copy
of the tape is provided to your attorney.
Q. Should I take my medications the day of the hearing?
A. Follow your usual schedule of medication. Bring all your pill bottles to the
hearing.
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Q. I’m afraid I’ll say the wrong thing to the judge and hurt my chances of
getting benefits.
A. The most important thing for you to do is to answer all questions honestly and
in your own words. Neither minimize nor exaggerate your problems. You
won’t be asked to give medical opinions or to diagnose your own conditions.
You’ll be asked to talk about your symptoms and how they keep you from
being able to work. You’re the best expert on what you are feeling.
Q. Does the judge tell you at the hearing if you’re going to get benefits?
A. Not usually. Occasionally, the judge will ask for a stipulation (an agreement
from you and your attorney) to a different onset date or a closed period (a
granting of temporary benefits). But, generally, no decision is made at the
hearing itself.
After The Hearing — Time Frames
Q. How long after the hearing will I receive the decision?
A. Anywhere from three to five months, on average.
Q. When do benefits start once a claim is approved?
A. Generally, it takes at least one to two months for your retroactive
payment to arrive and your regular monthly benefits to begin.
Assets/Earned Income — Effect On SSD Benefit
Q. Can I receive benefits if I have a lot of money in the bank?
A.
Social Security Disability benefits are not based on financial need and
therefore do not require you to fall within income/asset limits (except where
the income is earned by working). If you meet the work history requirements,
and SSA determines that you are totally disabled, you will receive benefits
regardless of how much money you have in the bank.
Q. Can I earn income while I am receiving Social Security Disability?
A. This is very tricky. As of 2013, you are allowed to earn income as long as it is
under $1,040 gross, before taxes per month. However, any ability to earn
money by working could possibly be used against you. The closer the amount
is to $1,040 per month, the greater the risk that SSA will decide you are
capable of working. (Refer to Chapter 12, “Going Back To Work,” for
additional information.)
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While your claim is still pending, any employment is extremely risky. Again,
you must weigh your need for additional money against the risk of losing your
claim.
Workers’ Compensation — Effect On SSD Benefit
Q. I was awarded Workers’ Compensation benefits. Will the Compensation
Board’s decision improve my chances of winning Social Security
Disability benefits?
A. Winning Workers’ Compensation benefits will have little or no impact on
Social Security’s decision to award or deny you disability benefits. However,
if your SSD claim is approved, the amount you receive could be affected by
the amount of your Workers’ Compensation benefit (refer to Chapter 9, “What
You’ll Receive If You Win Your Claim,” for further information).
Q. I am receiving Social Security Disability. If I take a lump sum settlement
from Workers’ Compensation, how will my Social Security benefit be
affected?
A. Depending on how the Workers’ Compensation Board structures your lump
sum settlement, Social Security may prorate the amount of your settlement
over a specified length of time. Your SSD benefit would then be adjusted as if
you were still receiving weekly Workers’ Compensation benefits until the
specified length of time expires.
If you are in the process of structuring a Workers’ Compensation lump sum
settlement, and you are also applying for SSD, consult your SSD attorney
about your situation before deciding on the terms of your Workers’
Compensation settlement.
SSD Benefits — Temporary Vs. Indefinite
Q. What if I was out of work due to disability, but I’ve since returned to
work? Can I get benefits for the time I was off?
A. Social Security requires that you be disabled from working for at least a full
year in order to collect benefits. This doesn’t mean you can’t apply before the
year is up; but if you do, your doctor has to support your claim that you
will be out of work for at least a year due to disability.)
If you later return to work, you may still qualify for benefits at least for the
period you were off due to disability (minus the five-month waiting period).
This is called a “closed period of benefits.” You might even be able to collect
while you are attempting to return to work, depending on circumstances (refer
to Chapter 12, “Going Back To Work,” for additional information).
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Q. Once I’m approved for disability, will I receive benefits permanently?
A. Being approved for Social Security Disability means you’ll receive
benefits until otherwise notified. SSA can, however, decide to review your
case at some point in the future. For this reason, you should continue to
see your doctors regularly.
Other Types Of Disability Benefits
Q. What other types of benefits are there that I might be eligible for besides
Social Security Disability?
A. There are many benefit programs for those who can no longer work due to
disability. You may qualify for one or more of them, depending on what your
former occupation was. Other types of disability benefits include:
1) Department of Veterans Affairs benefits, commonly referred to as
VA benefits. There are two types of VA benefits: compensation (for
service-connected disability) and pension benefits (whether disability
is service-connected or not). These benefits can be paid at a partial rate
if you are partially, but not totally, disabled.
2) New York State Disability Retirement benefits. These benefits are
available to those who worked for a state or local municipality,
including school districts but can no longer perform their former job
because of disability. There are generally two types of disability for
which you may receive these benefits: ordinary disability (any type of
permanent disability) and accidental disability (permanent disability as
a result of an unusual or unanticipated incident occurring at work).
Accidental disability benefits are significantly higher than ordinary
disability benefits. In addition, police officers, corrections officers, and
firefighters are eligible for benefits exceeding the ordinary disability
rate if their disability occurred while performing their job duties.
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3) New York State disability benefits. Generally, these benefits are for
workers who become disabled for a relatively short time, usually a
maximum of 26 weeks. The disability cannot be work-related. The
maximum benefit rate for any disability is $170.00 per week
according to the Workers’ Compensation Board, Disability Benefits
Bureau.
4) Workers’ Compensation benefits. People whose illness or injury is
work-related may be entitled to this benefit. You cannot receive both
Workers’ Compensation and New York State disability benefits for the
same medical disability.
5) Federal disability benefit programs. There are some federallyadministered disability programs other than SSD and SSI for which
you may be eligible depending on your former occupation.
Examples include the Federal Employees Retirement System
(FERS), Railroad Retirement, and Black Lung benefits. These
benefits may offset any Social Security Disability benefits you
receive.
If you think you may be eligible for any of these benefits, you might
want to contact an attorney for assistance.
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Glossary
Listed below are some terms with which you should be familiar if you
apply for Social Security Disability benefits. These terms are defined
in the context of an SSD or SSI claim.
Administrative Law Judge (ALJ)
The “trier of facts” — an independent, fair, and impartial judge or decision
maker who presides over the Social Security hearing, listens to testimony,
studies all evidence, applies the law, and renders the determination on the
claim.
ALJ — See “Administrative Law Judge.”
Appeal
A formal request that the SSA decision on a claim be reviewed. There are six
levels of appeal: reconsideration, ALJ hearing, review by the Appeals Council,
U.S. District Court review, U.S. Circuit Court of Appeals review, and
U.S. Supreme Court review. Most denials are not appealed beyond the
District Court review level.
Appeals Council
A panel of judges of the Social Security Administration which processes requests
for review of the ALJ hearing decision. The Appeals Council can reverse the
ALJ’s decision (allow payment of benefits), uphold the ALJ’s decision (deny
payment of benefits), or remand the case back to the ALJ for a new hearing.
Assets
The resources you own that have cash value, such as your house, car,
savings accounts, and pension plans.
Claimant
The person applying for SSD or SSI benefits or appealing the termination of
SSD or SSI benefits.
COBRA
Federal law that allows you to continue your employee health insurance after
leaving your job, as long as you pay the full amount of the premium.
Concurrent Claim
A claim for both SSD (Social Security Disability) and SSI (Supplemental
Security Income) benefits.
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Consultative Exam
A physical or psychological examination with a physician or psychologist,
arranged by the Social Security Administration in order to supplement the
information in your medical file.
Contingent Fee
The arrangement most attorneys use to charge SSD clients. As a general rule, if
your claim is approved, your attorney is paid 25 percent of your past-due benefits
and any auxiliary benefits. SSA withholds the fee from your past-due benefit
payment and sends the fee directly to your attorney. If your claim is not approved,
you are not charged an attorney’s fee.
Continuing Disability Review (CDR)
A process by which the Social Security Administration reviews a current SSD or
SSI beneficiary’s case to determine if he or she is still disabled. The claimant is
notified of the review and SSA’s determination. If SSA determines that the
claimant is no longer disabled and terminates his or her benefits, the claimant
can appeal the decision and can continue to receive benefits while the appeal is
processed.
Direct Deposit
The SSA service which electronically deposits your SSD payment into your bank
account. Direct deposit is more secure than the mail, and most people find it more
convenient.
Disability
By Social Security standards, disability is defined as illness or injury which
results in a person’s inability to perform substantial gainful activity at a job or
jobs which exist in significant numbers in the regional or national economy,
which is expected to last or has lasted for 12 months or more.
Disability Determination Services (DDS)
The state agency that determines if you are disabled by Social Security
standards.
District Court Review
The fourth step in the appeal process. You are essentially suing the Social
Security Administration for denying your SSD benefits.
District Office
The local SSA office that serves your area.
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Grids
A set of charts used by SSA to help determine whether a claimant is disabled
based upon the person’s residual functional capacity. The grids take into account
age, education, past work experience, and transferable skills to determine if you
are disabled.
Hearing
The second step in the appeal process. If you have been denied at the initial
application, you may request a hearing before an Administrative Law Judge. Most
Social Security Disability cases go to the hearing level for resolution.
Inpatient
A patient who is admitted to and treated in the hospital.
Listings
SSA’s list of criteria for certain impairments. If you meet all the criteria, you
automatically qualify for disability benefits.
Long-term Disability Insurance (LTD)
Private disability insurance. Cannot be used as an offset against SSD
payments. The LTD carrier may require that you apply for SSD benefits and
may adjust your LTD payments if your SSD claim is approved.
Medicaid
The federal medical insurance program for people with few assets and little
income.
Medicare
The federally funded health insurance program for people age 65 or over and
disabled people under 65. Medicare coverage has two parts — Part A and Part B.
Part A is hospital insurance. Part B is medical insurance for doctor visits, some
outpatient hospital services, and other related services. You are eligible for
Medicare 24 months after the effective date of your SSD benefit.
Medigap
A type of private health insurance designed to cover the gaps in Medicare
coverage.
Office of Disability Adjudication and Review (ODAR)
The office that administers the hearings and appeals program for SSA.
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Offset
The amount by which your SSD payment is reduced because of other
benefits you receive (such as Workers’ Compensation). Generally your
combined benefits cannot exceed 80 percent of your prior average earnings.
Onset Date
The date you became unable to work due to disability.
Outpatient
Patient who receives treatment at a hospital without being admitted to the
hospital. For example, if you receive chemotherapy at a hospital-based clinic, but
you don’t spend the night at the facility, you are an outpatient.
Paralegal
A person who is trained in certain aspects of the law but does not generally have a
law degree and is not licensed to practice law. A paralegal provides critical
assistance to your lawyer to prepare your disability case.
Personal Earnings and Benefit Statement
A document produced by the Social Security Administration which summarizes
your work and earnings history, shows how many quarters of coverage you have
accrued, and estimates your Social Security benefit amount. Every worker should
request a Personal Earnings and Benefit Statement from SSA to double check its
accuracy. SSA should provide this statement annually as stated in the regulations.
Quarters of Coverage
A measurement used by the Social Security Administration to determine if you
are eligible for Social Security benefits from the standpoint of your earnings
history. Quarters of coverage are accrued on the basis of dollars earned. You
earn a maximum of four quarters of coverage for every year you work.
Representative Payee
A person designated to receive SSD benefit payments on behalf of a
beneficiary when the beneficiary is not capable of managing his or her
financial affairs.
Retroactive Payment
Past-due payment. For example, your claim is approved in July of 1997. Your
entitlement to benefits goes back to December of 1996. You receive your first
SSD payment in September of 1997. The payment you receive in September
will be retroactive to December of 1996 and will include nine months of pastdue benefits.
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Sit Stand Rule
The guideline by which disability is determined based on how long the
applicant can sit or stand during an 8 hour workday.
Social Security Administration (SSA)
The federal agency that manages Social Security Disability, SSI, Social
Security Retirement, and Social Security Survivors’ benefit programs. SSA
is an independent agency of the federal government.
Social Security Disability (SSD)
A federal program that pays monthly cash benefits to workers younger than
retirement age who, because of physical injury or illness, or emotional or mental
illness, are no longer able to work. The disabling condition must be expected to
last at least 12 months or result in death.
Social Security Toll-free Number
A national toll-free number available to anyone inquiring about or applying for
any type of Social Security benefit. The number is 1-800-772-1213.
SSA — see “Social Security Administration.”
SSD — see “Social Security Disability.”
SSI — see “Supplemental Security Income.”
Substantial Gainful Activity (SGA)
Work for which a person is paid at least $1,040 per month (as of 2013).
Supplemental Security Income (SSI)
A federal disability benefit program supported by income tax dollars and
intended for people with low income and little personal property.
Treating Physician
The physician who treats you for your disabling condition(s). Your treating
physician’s opinion carries significant weight with SSA.
Treating Physician Rule
A legal precedent which holds that if your treating physician provides a
written opinion that you are totally disabled and unable to engage in gainful
employment, SSA may have to give that opinion greater weight than opinions
of consultative examiners or non-examining physicians.
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Trial Work Period
Period in which you can attempt to return to work without necessarily losing your
SSD benefits. You can work and earn any amount of money for a total of nine
months during a five-year period. Extremely risky during a pending claim for
benefits or a case review.
Unsuccessful Work Attempt
An attempt to return to work which results in the SSD recipient being forced to
quit again within three months because of his or her disabling condition. SSD
benefits are not affected by an unsuccessful work attempt.
Vocational Expert
A professional who specializes in evaluating job requirements, employment
trends, and applicants’ qualifications. A vocational expert may be called to testify
at your ALJ hearing.
Work Incentive
SSA rules which encourage SSD recipients to try returning to work. These rules
have been developed so that SSD recipients can test their ability to return to
work without necessarily losing their benefits. See ‘trial work period’ and
‘unsuccessful work attempt.’
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