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Social Security Disability FAQ

Over the years, the same questions come up from our clients.  We have compiled a collection of questions that are most common:

• Am I eligible?
  
• What are work credits?
  
• Where do I apply?
  
• Have you been denied Social Security Disability (SSD) benefits? 
  
• What is Reconsideration?
  
• What happens at a hearing?
  
• Is it possible to receive disability benefits without going to a hearing?
• Once a hearing date has been assigned, do I have to be present?
• What must be proven?  
• What is the definition of disability used by the Social Security
• What is considered when SSA assesses your application?
• What if I have waited years to apply, is it too late?
• Can my children recover anything?
• Can I work if approved?
• I am back to work but was out for 12 months can I get benefits?
• I was injured on the job.  I am currently drawing worker’s compensation benefits.  Should I wait until the worker’s compensation claim ends before I file for disability benefits?  
• What is a back benefit or back pay?
• Can I receive other benefits if I am on SSD?
• Are disability benefits ongoing?
• Do disability benefits change once I turn full retirement age?
• How do they calculate what they owe me?
• Do I need an attorney?
• About Attorney Fees
• WAYS TO IMPROVE YOUR SOCIAL SECURITY CASE

 

• Am I eligible?
  You are eligible if you have been out of work or expect to be out of work for 12 months consecutively.  The key here is the expect to be, you should not wait to apply. The process is LONG and usually from start to finish will take more then 2 years. Don’t delay and don’t wait for the 12 months to expire. BACK TO TOP >>

• What are work credits?
  Generally, you must have must have 40 work credits and have earned 20 of them in the last ten years. You can earn a maximum of 4 credits per year (for 2006 you get 1 credit per $970 earned, so at $3,880 you get 4 credits).  Therefore, if you are out of work you consequently are not earning credits. Again this means you should apply as soon as you can because your date of disability must be established at the time you still had credits. BACK TO TOP >>

• Where do I apply?
  You will do your initial application at your local Social Security Administration (SSA) office.  We always encourage people to apply on their own first because you may be approved without needing assistance from an attorney and hence owe no attorney fee. That doesn’t happen often, but it is worth trying. Time frame usually 3 – 6 months. BACK TO TOP >>

• Have you been denied Social Security Disability (SSD) benefits? 
  If you get denied, keep in mind this happens more often then not. Initially the person who decides if you get SSD is just an employee of the SSA, not a judge. They are only going to approve cases where there is absolutely no doubt. In addition, sometimes they are doing a gate keeping job to see if you will really appeal. Here are some points to keep in mind:
• You only have 60 days to appeal. If you fail to appeal in that time frame you have to start over.
• An attorney will be glad to help you with the appeal after you have received a denial.
• You don’t have to have an attorney to appeal the decision, and again you can go back to your local Social Security Administration office to get assistance. Above all, DON’T MISS YOUR DEADLINE TO APPEAL!
  
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• What is Reconsideration?
  This first appeal is sent to reconsideration. The case is reviewed by a worker for SSA, not a judge. Consequently, there are few cases that get approved at this stage. The majority of cases are again denied. And if you are denied, you again have 60 days only to file and appeal for a hearing. Reconsideration normally takes 6 – 9 months.
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• What happens at a hearing?
  At a hearing, things can turn in your favor. A judge will preside over your case. He or she will advise that they are NOT bound to the prior decisions and can make a NEW decision based on your testimony and evidence. It takes about 12-14 months for a hearing date to be assigned.
  
  (Please note that this is from the date that the hearing has been requested and not from the initial date of application for a claim.  Under certain “critical need” circumstances a claim may at times be expedited upon request of the local Congressman. In order to meet “critical need” status one would have to show documentation of a home being in foreclosure, an evictions notice, or a life-threatening disease.)
  
  In our experience a hearing is your best chance at winning. There are other appeals if denied (Appeals Council). So even at this stage it’s not over if you are denied. The same 60 day time to appeal would apply. 
  
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• Is it possible to receive disability benefits without going to a hearing?
  Yes. Fully favorable decisions may be granted at the initial level and at reconsideration.   However, 80% of claims are denied at both of these levels and do require attending a hearing before disability benefits are awarded.  On occasion, an “on the record” decision will be made.  This occurs once a claimant has filed for hearing and has been assigned to an Administrative Law Judge.  Upon review of the file, the Administrative Law Judge may find that there is enough supportive evidence to declare the applicant disabled and award benefits without attending a hearing.
  
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• Once a hearing date has been assigned, do I have to be present?
  Yes. The applicant must be present at the hearing. The hearing itself is very informal. The Administrative Law Judge, court reporter and the applicant’s attorney will all be present.  Occasionally a vocational or medical expert will be present as well.  However, the attorney is notified of this when the hearing date is assigned so that all parties may properly prepare.
  
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• What must be proven?  
  You are responsible for proving that you are incapable of performing any substantial gainful activity.  Not just that you can’t do your past work (which is relevant), and it is not a question of if you are performing substantial gainful activity, but if you are CAPABLE of performing it.  For SSD, that is any job that you can do on a regular basis.  Substantial gainful activity currently is defined as earning $860 a month.
  

• What is the definition of disability used by the Social Security Administration? Under the Social Security Act, disability means “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months.”
  
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• What is considered when SSA assesses your application?
• Your age.
• Your educational level.
• Your medical impairments.
• Your past relevant work history. Types of work (unskilled, skilled, semi-skilled). Manual labor, desk work, etc.
• Capable of being retrained? (Less likely the older you are).
• Listings – Specific impairments, that if you meet the criteria you are considered disabled.
• Summary:  Age, Education, work experience, transferable skills.

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• What if I have waited years to apply, is it too late?
  No. You can still apply and the key is to establish that you became disabled while you still had your work credits.
  
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• Can my children recover anything?
  Yes. If they are dependent upon you and under the age of 18, sometimes under 19, then they may also be entitled to benefits. SSA when calculating your Disability Benefit payment, calculates one payment for you and one for a family maximum to your household.
  
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• Can I work if approved?
  You can do some limited work, and currently Social Security holds that if you earn less than $860 a month that you are not engaged in substantial gainful activity. But bear in mind, SSA can always review your file and the issue always remains - not if you ARE performing substantial gainful activity, but if you CAN.
  
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• I am back to work but was out for 12 months can I get benefits?
  Yes.  You can get benefits for a “closed period” of disability. If you were out for 12 months or more consecutively, then you can still get SSD benefits for that time frame.
  
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• I was injured on the job.  I am currently drawing worker’s compensation benefits.  Should I wait until the worker’s compensation claim ends before I file for disability benefits?  
  You should file immediately as long as you expect to be out of work for a period of at least 12 months.  If awarded disability benefits, there will be an offset based on your worker’s compensation benefits that will reduce the Social Security benefits slightly.
  
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• What is a back benefit or back pay?
  If you are approved, Social Security will calculate a back pay that will cover you from the date you became disabled through the date of the first payment of disability. Social Security establishes what date you became disabled. Out of that back pay, assuming you had an attorney; the attorney fee is calculated and withheld by SSA. Then SSA sends that amount to your attorney and the remaining amount to you. (Bear in mind that the first 6 months of disability benefits are not paid by Social Security, as a waiting period.)
  
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• If I am awarded benefits at the hearing, how long will it be before I begin receiving my benefits or back pay? 
  Before benefits may begin, the official award from the Administrative Law Judge has to be written and received.  This generally takes 8-10 weeks after the hearing date.  Once the award letter has been issued, then monthly disability benefits start approximately 6-8 weeks thereafter. The back pay award is normally received once monthly benefits have been started.
  
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• Can I receive other benefits if I am on SSD?
  Yes, Medicare would start 2 ½ years from the date of disability established in your decision. Medicaid should start for you immediately and you can apply for Medicaid prior to your decision.
  
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• Are disability benefits ongoing?
  Yes.  However, the Social Security Administration may review your claim at any time to determine whether or not your condition has improved and if you continue to meet the criteria for disability status.
  
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• Do disability benefits change once I turn full retirement age?
  When you reach full retirement age, nothing will change, except for Social Security purposes; your benefits will be called retirement benefits instead of disability benefits.
  
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• How do they calculate what they owe me?
  Retirement benefit calculations are based on your average earnings during a lifetime of work under the Social Security system. For most current and future retirees, they will average your 35 highest years of earnings.
  
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• Do I need an attorney?
  If you are applying for Social Security you do not need an attorney.  Make an appointment with the Social Security office and they will help you with your application.  If you have been denied, you may need legal counsel. If you have appealed and have been given a hearing date, we recommend that you find legal representation for the hearing. 
  
  An attorney can help you navigate the miles of red tape standing between you and Social Security disability payments. The process of filing your appeals is time consuming and it may be years before you begin receiving any payment for benefits. An attorney can help prepare your case to give you the best opportunity for success. Statistically, applicants who retain an attorney to represent them are much more likely to win than those who do not.
  
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• About Attorney Fees
  We can’t vouch for everyone, but typically the attorney fee is contingent on winning. Meaning if benefits are NOT awarded to you at the conclusion of your case, then there is no attorney fee awarded. The fee is usually 25% of the back benefits owed or $5,300, whichever is less. SSA has currently capped it at $5,300, which is where that figure comes from.
  
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WAYS TO IMPROVE YOUR SOCIAL SECURITY CASE:

• Medical Expert Opinion supporting disability – Nothing helps your claim as much as having clear medical records and a good medical opinion in writing from your treating doctor that you cannot work.

• Testimony from family, friends or relatives that have to assist you with activities, chores, etc…

• Ongoing medical records showing continuing disability. Even if you have a chronic condition that you know the doctor cannot cure/improve, it is still beneficial to keep seeing the doctor and continue to relay your pain, symptoms, problems because it documents your ongoing condition. The judge that oversees your case will want to see that these are ongoing problems, so continue to see a physician.

• Person as a whole. Social Security looks at you as a whole, so you don’t have to be considered disabled from one specific injury/illness. Instead, you can be considered disabled if the “combination of impairments” you have make it so that you cannot work. Therefore, if you are depressed as a result of your condition, for example, then you should seek mental health treatment to document that condition.

The best site for information is the Social Security Administration’s own website at http://www. ssa.gov.

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