WORKERS' COMPENSATION • SOCIAL SECURITY DISABILITY • PERSONAL INJURY
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Frequently Asked Questions: Social Security

Right now, you’re bound to have quite a few questions. That’s normal! Here are some helpful answers that will begin to put things into perspective. Keep in mind that every case is different, so please call us for all the answers regarding your unique situation.

Am I eligible for Social Security disability?
If you have been out of work or expect to be out of work for 12 months consecutively, then you are eligible for disability benefits. The key here is "expect to be" and you should not wait to apply. The process is LONG and often from start to finish will take more than 2 years. Don’t delay, and don’t wait for the 12 months to expire.

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What are work credits?
As you pay into Social Security, while you work, you earn work credits. Generally, you must have must have 40 work credits and have earned 20 of them in the last ten years, to still be eligible for Social Security disability. 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). Naturally, if you are out of work you are NOT earning work credits. Again this means you should apply as soon as you can because your date of disability must have occurred at a time when you still had credits.

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Where do I apply for Social Security disability?
You will do your initial application at your local Social Security office. We always encourage people to apply on their own at 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. The time frame for an initial decision is usually 3 – 6 months.

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Denied Social Security disability (SSD)?
If you get denied, don’t be discouraged. Keep in mind that most claimants are denied at initial application. Remember the person who decides if you get SSD benefits is just an employee of the Social Security Administration, not a judge. Therefore, they are likely to only approve those claims where there is absolutely no doubt of disability. Otherwise the claim will be denied and you must appeal the matter to continue your pursuit of benefits. Here are some things 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 and file a new application.

. An attorney or representative will be glad to help you with the appeal process, and you should contact an attorney as soon as you have received a denial.

. You don’t have to have an attorney to appeal the decision. Again you can go back to your local SSA 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. Again, the case is reviewed by a worker for Social Security, not a Judge. And consequently, as at initial application, there are few cases that get approved at this stage of the claims process. The majority of cases are again denied. And if you are denied, you still have only 60 days, to file and appeal for a hearing. The reconsideration phase normally takes 6 – 9 months.

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Social Security disability Hearing
This is where things can turn in your favor. A Judge will preside over your case. The judge will advise that they are NOT bound to the prior decisions in your case and can deliver a NEW decision based on your testimony and evidence. It takes about 12-14 months for a hearing date to be assigned, after you have appealed your reconsideration denial. (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 your local member of Congress. In order to meet “critical need” status one would have to show, for example, documentation of a home being in foreclosure, an eviction notice, or a life-threatening disease. In our experience a hearing is your best chance at winning. However, even an unfavorable decision at this level may be appealed to the Appeals Council. So even at this stage, it’s not over if you are denied. The same 60-day time frame to appeal applies.

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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, a large percentage of claims are denied at both of these levels and do require attending a hearing. On occasion, an On the Record decision may also be issued. This occurs once a claimant has filed for hearing and the case 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 conducting a formal hearing.

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Once a hearing date has been assigned, do I have to be present?
Yes. The applicant does have to be present on the day of hearing. The hearing itself is very informal. Also present will be the Administrative law judge, court reporter and the applicant’s attorney. Occasionally a vocational or medical expert will be present as well. However, the attorney or claimant 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). Remember, it is not just a question of IF YOU ARE actually performing substantial gainful activity, but if you are CAPABLE of performing it. For Social Security, that is any job that you can do on a regular basis and substantial gainful activity currently is defined as earning $860 a month.

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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 Social Security 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.

. Your capabilityof being retrained? (less likely the older you are).

. Listings: you must meet the criteria and then 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. When Social Security calculates your disability benefit payment, one figure is obtained for payment to 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 perform substantial gainful activity. Naturally, if you return to work in any capacity you are obligated to notify the Social Security Administration.



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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 SSDI benefits for that time frame.

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I was injured on the job. I am currently drawing workers' compensation benefits. Should I wait until the workers' compensation claim ends before I file for disability benefits?
If you are represented by an attorney for your workers’ compensation claim you should discuss this issue with them. But, in general, 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 workers' compensation benefits that will reduce the Social Security benefits slightly.

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What is Social Security 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 your 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 your 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 if 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, there should be no 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. But 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 (see below) owed or $5,300, whichever is less. SSA has currently capped attorney fees 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…

. On-going medical records showing continuing disability. Even if you have a chronic condition, which you know the doctor cannot cure/improve. It is still beneficial to keep seeing the doctor and continue to relay your pain, symptoms, and ongoing or new problems. This is because it documents your ongoing condition. The Judge that oversees your case will want to see that these are ongoing problems and that you take them seriously. 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 your “combination of impairments” 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, http:www.ssa.gov.


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TIPS FOR SOCIAL SECURITY

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., can be very powerful.

On-going medical records showing continuing disability. Even if you have a chronic condition, which you know the doctor cannot cure/improve. It is still beneficial to keep seeing the doctor and continue to relay your pain, symptoms, and ongoing or new problems. This is because it documents your ongoing condition. The Judge that oversees your case will want to know that these are ongoing problems and that you take them seriously. 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 as a result of one specific injury or illness. Instead you can be considered disabled if your “combination of impairments” make it so that you cannot work. Therefore, if you are depressed because of your condition, for example, you should seek mental health treatment to document that condition.

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