Answers On Social Security Disability Benefits
The law governing Social Security Disability benefits is complex and confusing. Even experienced attorneys may not understand it. So it's not surprising that people have lots of important questions to ask about it. You can always call Binder & Binder® with your specific questions and speak with one of our knowledgeable SSD advocates. Our toll free information number is 1-800-662:4633. Or if you prefer, you're welcome to use our online contact form.
A person is considered disabled if he has a physical and/or emotional condition that renders him unable to perform substantial gainful activity, considering his age, education and past work history. The condition must have been or be expected to last one year (or to result in death).
A disability is any medical condition that prevents you from working on a regular full-time job for at least 12 months.
You must have a disability that is expected to last or has lasted 12 months, you must not be working, and you must meet the earnings requirements at the time you became disabled. To meet the earnings requirements, you must have been fully insured (worked most of your life), as well as having worked five years out of the last ten when you became disabled.
No. There is no requirement that you be completely incapacitated (for example, in a wheelchair) in order to get disability benefits.
The only expenses that any client has are the cost of medical reports from their doctors. There are no costs to file an SSD application or an SSI application.
Apply as soon as you and your doctors agree that your disability is going to last a full year. You are not eligible for Social Security Disability Benefits if your condition doesn't last a full year, so many people have to wait for a while to see what happens with their medical conditions. Others, who have been struggling to work in spite of their disability and know the condition is not going away, should apply as soon as they stop working.
Yes. You can get retroactive benefits for up to one year before you applied, provided you were not working and you can prove you were disabled. Retroactive benefits are for the months prior to your application date - up to 12 months, provided you were not working and you were disabled.
Sometimes it is not different. If you had an injury on the job, or you have a car accident on the way home from work, it may be the same day. But sometimes your injury may be unrelated to your work, or it may have occurred at a different time. Then your onset date would be the date that you were hospitalized or injured, not the last date that you worked.
9. I have just applied for Social Security Disability benefits. When can I expect my formal interview with Social Security?
There is no "face to face" at the initial application stage. Your first opportunity to explain in person to someone what's wrong with you is at the Administrative Law Judge hearing which is why it is the most crucial stage.
10. I have applied for Social Security Disability benefits and been turned down. How long do I have to appeal?
Generally you have 60 days to appeal any denial of Social Security Disability benefits. You or your representative can appeal a denial the same way that you file an application by either doing it in person or by mail.
There are at least four. There is the Initial Application stage. You have 60 days to appeal after the initial denial. Most people are denied at the initial application. The second stage is called Reconsideration. Again, after that decision, you will have 60 days in which to appeal. The third stage is the most critical. It is the hearing stage. This is where you meet the Administrative Law Judge. If you are denied at a hearing, you have 60 days to appeal to the Appeals Council. If you lose at the Appeals Council, you have the right to file in federal court though generally that is extremely difficult and cannot be done successfully without an experienced lawyer.
Each state has a separate state agency that is responsible for making the initial medical determination on a disability case. The amount of time depends on what state you are in. Generally 6 months is not unusual.
13. I was denied for Social Security Disability (SSD) benefits recently. Should I appeal or just file again?
It is generally better to appeal rather than to re-file. There are some times, however, particularly after denial at the hearing that you may want to do both, especially if there is some new medical proof that makes your case stronger than before.
The best cases are those where the medical evidence is extremely strong. In particular, the strongest cases are those in which your doctor supplies a thorough narrative.
The older you are, the more you are felt to not be trainable and less able to adjust to new work environments-you're less employable. So it's always easier to win if you are older than if you are younger.
If you are legally blind, you are automatically disabled. If you have Lou Gehrig's Disease, it's likely you will be paid right away. On the other hand, psychiatric cases are generally harder to win than others because many psychiatric patients fight the process or they don't see their doctors regularly. It is also very hard to win a pain case where someone alleges a great deal of pain and there is no readily determinable injury. For that reason, people who have fibromyalgia have difficulties winning cases, as do people with chronic fatigue disorders.
17. I have been turned down and I have been told to apply for a hearing. How long will it take to get a hearing?
No one wants to believe this answer, but it is rare for you to get a hearing in less than one year. In some parts of the country, it takes two years to get a hearing. The average is well over one year.
In some hearing offices, but not all, judges will try to weed out the cases they can easily grant because the medical evidence is so strong. If you have very strong medicals or a very serious condition, we at Binder & Binder will try to do what is called an "on-the-record" letter to the judge hoping to expedite the matter. We write to the judge, summarizing the overwhelming evidence of disability in the hope that the judge will agree and grant benefits without the need for a hearing. However, some judges never grant on-the-record letters. If you are assigned to one of those judges, there's not much you can do but wait for the hearing. In order to be granted on-the-record, you must have very strong medical evidence and it must be current at the time the letter is being written. A year-old report, even with a current note from your doctor saying it's still the same condition is rarely enough.
Non-citizens can apply for SSD if they are here legally. This is a very political issue, however, so it would not surprise me if this changed in the coming years, especially if Republicans are in control of Congress.
You can qualify for benefits on other people's earnings records, such as if you are a disabled adult child, or a widow/widower, or a dependent child. However, generally, a worker has to work in order to be eligible for SSD. People who haven't worked very long are usually eligible for SSI only.
21. I am a veteran. Am I eligible for Social Security disability in addition to any veterans' benefits?
Yes and no. There are two types of veterans' disability benefits. One is service connected: the disability is in some way related to something that happened in the service. The other is non-service connected disability. Service-connected disabilities have various percentages ranging from 0 to 100 percent, while non-service disability is similar to Social Security in that either you are disabled or you are not.
You can hire a representative at any stage of the proceeding.
A fee for a lawyer or a person eligible to receive direct payment is usually 25% of the past-due benefits but most representatives only get paid if you are successful. In most cases, a fee is capped at $6,000. This cap is set by the Commissioner and is always subject to change.
Almost always. The Social Security process is not easy or uncomplicated. There are deadlines to meet and reports to be obtained. You have to know what sort of information to get from your doctors. At the hearings there are often doctors and vocational experts who testify, and it's almost impossible for a person untrained in these areas to effectively cross-examine either.
A number of things. First, my staff is highly trained and highly competent. We've been doing these cases since 1976. We have extremely high standards for our representatives. Our people work long hours, are constantly being vigorously re-trained, and we take a great deal of pride in our accomplishments.
26. I would like Binder & Binder to represent me if I receive my Continuing Disability Review. Do I have to do anything to let them know?
Yes. Social Security will not contact us when they review you. They will only contact you. The Social Security Administration will consider any continuing disability review to be a "new" case. Social Security feels we represented you only on the "old" case, so you must contact us as soon as you hear that your case is under review.
Questions About the Hearing Process
If you are turned down twice and you request a hearing, you have the right to attend the hearing, but you do not have to. However, it would be unwise to waive your right to testify in person. If you do, the judge looks at only a cold written record without your ability to explain why your impairment prevents you from working.
Administrative hearings are supposed to be non-formal and non-adversarial, but they certainly are not casual. The judge expects you to dress appropriately, but he's not expecting you to dress as if you were going to work or to be uncomfortable. Many people have to wear loose clothing because they are wearing protective devices such as back supports or knee braces, so formal business attire is usually inappropriate. I like my clients to dress as they normally dress around the house, but with a modicum of respect for the proceedings. Sometimes, people dress in a way that suggests their disability. Many psychiatric clients who have severe problems coping with the activities of daily living, dress sloppily, not having shaved, appear dirty - all of which is suggestive of the problem.
Most judges will question you directly at the hearing though some judges prefer that the representative ask all the questions. At the hearing, your representative can ask whatever questions he thinks important. Generally, you testify as to your history and your symptomatology. The doctors usually supply evidence in the form of written reports.
It depends on the region of the country. Some ALJs have doctors and vocational experts at every hearing. This is a jackpot for the doctors and especially for vocational experts because they are paid. But some ALJs try not to waste the government's money so they do not call witnesses.
Yes, you can. Bringing a doctor to the hearing is often persuasive to the judge, but the cost involved is enormous. Generally, if you want your doctor to appear, you have to make sure that the doctor has been compensated for his time, and also make sure that the ALJ knows. We very rarely bring doctors in at the hearing.
Sometimes they do, but often they don't. Like any judicial officer, sometimes they have questions to think about, sometimes they are waiting for additional evidence, such as an updated report from your treating doctor to see whether your condition is still disabling.
Yes. Spouses, friends, former employers are all valuable witnesses, and you can request them to testify. Ordinarily, a judge is not going to have five or six witnesses testify at a hearing, but if you want your spouse or a friend to testify as to what they observe, it is often a very good idea. They can also testify by letter. Letters from employers in particular showing that you tried to work and you just couldn't do it anymore are particularly persuasive.
SSA has too few people working for them to handle the amount of cases they receive. SSA has for years reduced their work staff. Congress needs to appropriate more money to SSA but has not done so for years.
Questions About the Appeals Process
If you don't file an appeal, you may find yourself blocked from ever re-filing, so the answer is always file an appeal. You should always speak to your doctor to make sure he is supporting you, because otherwise, you will not win.
It's not abnormal. The reason is lack of staff. The Social Security Administration has, in the general anti-government mood of the 1980s and 1990s, been reducing their staff to a point where they can't get the job done. They are putting their efforts on processing new cases as opposed to appealing cases that have been denied.
Questions About Benefits and Money
37. I have no money. How does the Social Security Administration expect me to live, eat, or pay bills?
This is one of the most common questions I get asked, and it's the one to which I have no answer. Cases go on for years while you, the claimant, slowly run out of money. There is nothing one can do about it. The government takes their time, and there is no realistic way to make them speed up. It is awful, and we do everything in our power as advocates to move things along, but even we run into roadblocks.
It all depends on how much you contributed. The more money you made, the more you will get back in Social Security benefits. However, it's not a direct relationship between how much you gave in FICA taxes.
The formula is enormously complicated and cannot be described easily. Generally, though, the more you earn, the more you get. The average number for a disability check is approximately $750 per month right now.
You should be on disability until you stop being disabled or become retirement age. The law requires that everybody be reviewed every three years to see if they remain disabled though Social Security can make that a longer period if they consider that your condition will not change.
Assuming there is nothing complicated about your particular circumstances - there is no Workers' Compensation offset or state pension issue - benefits can be paid in as little as 60 days. For Supplemental Security Income (SSI) claimants, if there is an emergency financial situation, you might be able to get benefits processed more quickly by going in person to the local office and explaining your dire financial needs.
SSD depends on how much you contributed, not how much you need to live on. SSI is based on how much the government thinks you need to live on to be at the poverty level but no higher. So unfortunately the answer is no.
Yes and no. It is not uncommon for someone to have had a heart attack, be out of work four or five months, try to go back to work, work a few weeks, and then be unable to do it. That would be considered by most judges to be a "unsuccessful work attempt," and would not preclude you from getting paid your SS benefits even for that period of time that you were working. Other people will try to work part time while applying for disability benefits. If it is part time and sporadic, most judges will agree that that's unsuccessful. However, if you've still managed to work in spite of significant health problems and you are working 25 or 30 hours per week, then I know of no judge who is going to pay you SS benefits no matter how sick you are. Those who struggle to work generally will have a harder time winning than those who simply stop early on.
It is presumed that somebody working and earning under $1,010 per month is not working. But be careful - just because you are earning less than that, it doesn't mean you are safe from SSA saying you are working and not disabled. They might rule that you are being underpaid (intentionally or unintentionally), so the amount is not as important. So you can use that amount as a rough guide, but the only safe way to be considered "not working" is not to work at all.
If you return to work full time for longer than a few months, you are probably no longer considered disabled and your benefits will stop.
No. However, the government will encourage you to return to work at any time you feel able to do so, even if your medical condition has not improved. Some people find that their medical condition has not significantly improved but they would rather work through the pain than stay at home. For these people, the government allows you to try. For other people who can't return to their former job, but who may wish to be retrained, the government will provide training programs for you if you try to learn a job that is less physically demanding or perhaps less stressful. You can keep your Medicare as well for an extended period.
47. I was disabled many years ago and went back to work. Can I get the money for that period of time now?
No. The problem is that there is no way for the government to assess these claims accurately. That's why they limit the retroactive period to one year. If you had a period of disability many years ago, but then recovered and went back to work, then the government has no way to independently assess your old disability claim. Sure, you may have medical records from that time. But since they didn't have a chance to examine you themselves (with a consultative examination), they will not be able to grant you benefits.
You contribute to Social Security every week via your FICA taxes. Your contributions are matched by your employer (unless you are self-employed, in which case you pay both shares). When the economy is booming, and more people are making more money, the trust fund expands dramatically; when the economy is not booming, the trust fund does less well.
They don't pay you interest even if they take two to three years to decide your case. I've had cases that took a decade before a federal judge finally gave benefits. You cannot get interest, though you do get - as anyone else does - the cost of living increases each year. Hence, if your original rate was $600 in 2006 and it would have gone to $630 in 2007 and $660 in 2008, you will receive benefits when you win in 2009 based on those rates. But they are not paying interest on the past due benefits.
Yes, as long as you prove your disability began before age 65.
Your Social Security disability check is automatically transferred to the Social Security retirement check. Your check is coming out of a different trust fund, but otherwise, there is no change. Many disabled people are already receiving Medicare, so there is no change there either.
Questions About Family Benefits (Spousal, Widow/Widower,Child)
This is a very good question, with a lot of answers. If you are disabled and your spouse is still working, and has no dependents, the answer is that the spouse does not receive any money. If your spouse is not working but is home raising children under 16, the answer is the family receives benefits.
Benefits are determined by how much the family is entitled to, which cannot exceed 150% of what the wage earner gets. So, if you are getting $800 a month, and you have two children under 16 and your husband does not work, you would get $800, and the family would share $400.
If you are married to a disabled person and you are receiving benefits on his or her earnings record, you will continue to get benefits when you retire. The amount should not go down. It will be either the amount you are entitled to as a retiree on your own earnings record, or the amount on your disabled spouse's earnings record, whichever is higher.
Generally, it doesn't matter how wealthy your spouse is or how poor your spouse is. Everyone applies on his or her own earnings record. With SSI cases, however, any income by the spouse is deemed available to you.
In order to get benefits as a widow/widower or a divorced widow/widower, one has to be married for ten years. There are exceptions, though. If someone dies suddenly after a few months of marriage in an auto accident or some other unforeseen medical condition, the Social Security Administration does not punish the remaining partner. Of course, children are never punished, so that even if the parents had never been married, the children will always be able to receive benefits based upon the biological parent's earnings records until the child is 18.
56. I have never worked because I was home taking care of the kids. I am now disabled. Can I receive benefits if my husband died and my children receive benefits under his earnings record?
Yes. If you are 50 years old, you can receive disabled widow's benefits if your husband was insured, your disability began within 7 years of his death, or within 7 years of the time the children were under age 16.
Disabled children under 18 can receive SSI benefits only. The standards for winning a child's benefits are much harder than winning an adult case.
Children can receive benefits if an eligible parent is disabled, retired or deceased. They can receive benefits until they graduate high school or until age 18, whichever is later. The amount they receive depends on how much the adult receives. Certain adults who never earned very much money may find that the children do not receive cash benefits.
59. I have informally adopted a child. Will he be eligible to receive benefits if I'm found disabled?
If the child is legally adopted, he gets treated the same as a biological child. If he's not legally adopted, however, he is not legally your child. Children who are legally adopted after an award of disability face certain tests too complicated to be adequately described here. Generally the relationship prior to the formal adoption is significant in determining whether the child can receive benefits.
A child over 18 can receive adult child's benefits if the child's disability began before age 22, and either insured parent is disabled, deceased, or receiving Social Security retirement.
Children's benefits are payable to the person who has custody of the children. In many cases one spouse, who is disabled, does not want the children to get benefits directly, but intends to use the money as a negotiating tool in a divorce proceeding. SSA rightly takes the position that whoever has custody of the children should get the benefits. When there is joint custody, it gets complicated because it really depends on who has the custody most often. They will generally follow the law of the state in which you live.
Questions About Workers' Compensation and State Disability Benefits
62. I have been found to be permanently and totally disabled by Workers' Compensation. Why doesn't Social Security automatically give me benefits?
That's because each state's definition of workers' compensation is different. One can be "totally disabled" for workers' compensation for some states, and have that merely mean that you can't do the job which you were doing at the time you got injured. Hence, if you were a 40-year-old in New York State who worked on heavy equipment and you fell off a bulldozer and injured your back, you may never be able to work on a bulldozer again. But you might be able to do a desk job. If that were so, you might be totally and permanently disabled from the bulldozer job, and the workers' compensation may give you the full Workers' Compensation rate because of the loss of wages. However, for SSD purposes, at your age, you should still be able to work at sedentary job, and you would be found not disabled.
63. I have been found permanently but partially disabled by Workers' Comp. Can I ever get Social Security Disability?
The answer is yes, but not automatically. The definitions for disability vary. In some states, you are only "partially" disabled because the injury was not considered to be on the job. You might have been injured in an earlier, non job-related event that led to another condition that is more significant. Workers' comp might have found that the major medical problem pre-existed your injury and was not aggravated by it, and that the workers' comp injury is minor. With SSD and SSI, how you got injured (what lawyers call "causation") doesn't matter. If you are disabled by any injury or combination of impairments, you might be found disabled.
Another factor is simply the way the SSA considers your age, education, and work history, and workers' compensation may not. Hence, if you were a heavy equipment operator but you were 60 years old and had done that work for 30 years and were now limited to a desk job, the odds are that SSA would find you disabled because they would say there are very few jobs for a worker of that age and that work background that he could readily do at age 60. Hence, you could be not disabled for workers' comp purposes-if the injury was not especially job-related--and still be disabled for SSD. Remember, SSA only says you are disabled or not disabled. Many workers' comp programs can give you partial disability and award you benefits while you are still working at other jobs.
Yes, but there is a provision of the law that says you cannot get more than 80% of what you were earning from a combination of workers' compensation, certain state pensions, and SSD. Most of these affect just your SSD and workers' comp.
Let us suppose that you earned $25,000 when you got hurt on the job. At the 80% cap, you would be eligible for $20,000 maximum benefits. If you were getting $400 a week from workers' compensation, you would be getting $20,800, so you would get no SSD. If you were getting $300 a week, that would be $15,600, then the maximum SSD you could get for the year would be $20,000 minus $15,600, or $4,400 per year. If you were getting $200 a month, then you are getting $10,400, so the maximum you would get would be $9600/year or $800/week.
Disability does not affect your SS retirement except to the extent that it is a program for people who are not able to work until they are retired. If you get disability, you will continue to receive disability as long as you remain disabled until your retirement age. At that time, you will then be transferred from the disability trust fund to the retirement trust fund at the same rate.
Questions About Medical Evidence
The best report from a doctor is a report he would give as if he were explaining your condition to other physicians. First, he should give a long history. What were the initial symptoms, when did they start, when did they become significant? He should then mention his initial examination or workup. What clinical observations did he make? Next, what treatment did he give and how well did it work? He should give the diagnosis and the prognosis. He should explain the basis for the diagnosis and the prognosis, that is, how did he make these determinations, what medical tests were used. He should also describe your current clinical findings -- that is, what he finds when he examines you. Lastly, he should summarize the impact on your ability to work - how these conditions have affected your ability to function. He should describe whether they limit your ability to sit, stand, and walk, to lift, to carry, to work on a regular eight-hour-day basis. If it is an emotional condition or has emotional components, he should describe the impact of stress, working with others, working under deadlines, your ability to concentrate and deal with the general public or coworkers, to remember instructions and learn a job. He should opine whether your condition is disabling.
Almost all doctors charge for their medical reports. Some states - and this is a state-by-state law - limit how much a hospital or physician can charge for their office notes. In some states, a hospital can only charge a certain amount per page for their medical records. In other states, if you are applying for Social Security disability, the hospital cannot charge at all. Similarly, doctors are limited to how much they can charge for their office notes.
68. I've got the hospital records, and I've got my doctor's notes, but my advocate tells me this is not enough. Is that true?
Absolutely. In most cases, the most important piece of evidence is the doctor's opinion, not the mere medical records. No one in the Social Security Administration knows your case better than your doctor, and your doctor's opinion as to whether you are disabled is the single most important piece of evidence.
69. I have been suffering for years. Why doesn't Social Security care about the records prior to onset?
SSA does care about your records prior to onset if they relate to your disability. Hence, if you had a heart attack in 2007, went back to work, were able to work two more years, and then had a second heart attack in 2009, SSA would care about that earlier record. On the other hand, if you have had an appendectomy in 2007 from which you fully recovered, and did not impact in any way in your disability, then SSA really doesn't care about that.
The issue of what is or is not important, however, is a medical question, and one that is best discussed by your doctor. You can't expect the claim rep at SSA to be able to understand that a disorder that was diagnosed as hepatitis in 2007 may impact upon your ability to take certain drugs now, leaving you with a condition harder to treat.
70. I was recently denied when I went to a hearing by myself on the grounds that alcoholism was a material factor. My doctor doesn't think it is. Why can't I receive benefits?
As part of an amendment to Social Security, Congress has increasingly made it more difficult for claimants with drug or alcohol issues to win. If drug abuse or alcohol abuse is a "material" part of your disability -- that is, you would not be disabled if you didn't drink or use drugs -- then even if you are disabled you are not eligible for benefits. While the initial studies that led to this change in law involved illegal drug abuse, people who have been excessive drinkers are now finding it difficult to win benefits though alcohol is legal. However, if drinking is unrelated to your disability or if it is no longer material to your disability, you are still eligible to receive Social Security or Supplemental Security Income benefits.
Social Security believes that their consultative doctors are better able to make a judgment than your own doctor. That doesn't mean it's true; it's just what SSA believes. Government doctors vary in ability and integrity. Some states hire unbiased, board-certified physicians to evaluate you. Other states use so-called "volume" providers who usually consist of general surgeons who couldn't get a job anyplace else. Their examinations are perfunctory at best, the waiting rooms are poor and chaotic, and the qualifications of the doctor extremely limited. Since they are going to be placing you on disability for some lengthy period of time, it is not unreasonable for the government to send you to a doctor. It is unreasonable to send you to a doctor just because he's cheap.