Disability Law Information
FREQUENTLY ASKED QUESTIONS ABOUT SOCIAL SECURITY DISABILITY
- If I can’t work because of a medical condition does that mean I am eligible for disability?
- If I do not have a work history or if I never had a job where I paid FICA taxes am I eligible for Social Security Disability?
- How much money will I receive on disability?
- Am I entitled to healthcare coverage under Social Security?
- How do I apply for Social Security Disability?
- How long does it take Social Security to decide my claim?
- What happens if my claim is denied?
- What if I cannot afford an attorney?
- Can I work and still collect Social Security Disability?
- What happens when I reach retirement age?
- Are children entitled to receive Social Security Disability?
Social Security defines “disability” as an ” … inability to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment [or combination of impairments] which can be expected to last for a continuous period of not less than twelve [consecutive months] … taking into account the individual’s age, education and work history. 42 U.S.C. sec 423 et al; 20 C.F.R. 404. Whether you qualify for Social Security disability is as much a legal question as it is a medical one. Having a doctor tell you that you are disabled is not sufficient under the Social Security statutes. Many people will need an attorney to help them apply for and be approved for Social Security disability.
The answer is both “no” and “yes”. To be eligible for Social Security Disability Insurance Benefits (SSDI) of the Social Security Act, 42 U.S.C. sec. 401 et. seq. you must be “insured for disability purposes” and be “disabled.” An attorney can help you determine if you have enough work credits to be eligible. Generally, you need to have worked 5 out of the last 10 years prior to the onset of your disability. If you do not have this work history eligibility, then you may be covered for disability under Supplement Security Income (SSI) if you meet the asset and income requirements. This is a need based program. There are strict Social Security requirements on the amount of income and assets you can have in order to be eligible for SSI.
Your disability payment under SSDI is determined by your earnings record. Social Security uses your Primary Insurance Amount (PIA) which can be found on your Earnings Record with Social Security. SSDI payments are based upon lifetime earnings, not the severity of your disability. It is also important to note that SSDI benefits are reduced by receipt of Workers Compensation payments. If you are entitled to benefits under SSI, the 2012 benefit payment is $698.00 a month for an individual and $1048.00 for a disabled couple.
Yes. Under SSDI, you are entitled to be covered by Medicare within 24 months of entitlement to disability insurance benefits. 42 U.S.C. sec. 426(b). There is a 5 month waiting period from the onset of the disability to entitlement. Under SSI, you should be entitled to Medicaid coverage. This is administered by the state.
The fastest way to apply for SSDI disability is to apply online at www.socialsecurity.gov. You cannot yet apply online for SSI. You may contact Social Security at their toll free number 1-800-772-1213 and apply over the telephone. You may apply directly by going to your local Social Security office and speaking to a representative in person, although you need to be prepared to wait in line. There is no waiting period necessary before filing your claim. You can file at any time upon becoming disabled. However, your disability must be expected to last 12 months or more in order to be eligible.
Part of the claim process involves obtaining your medical records. Social Security may also want to send you to a doctor for an evaluation. A disability examiner will work with a state agency doctor to make the initial decision on your claim. This period may take between 3-5 months.
If denied, the next step will be to file for reconsideration. At reconsideration, the claim is evaluated by a different examiner and state agency physician. If the claim is denied at reconsideration, you may file for a hearing before an administrative law judge. Usually, this is the point at which you will want to hire an attorney. Many claims are denied by Social Security in the initial stages. However, a majority are then approved at the hearing level. You have a good chance of winning at hearing level so it is important not to give up.
Attorneys’ fees are both approved and capped by Social Security. Many attorneys work on a contingency fee. This means that you do not have to pay attorneys fees if you do not recover. Contingency fee percentages are capped at 25 percent of the “past due” benefits with a cap not to exceed $6000.00. Social Security will pay the attorneys’ fees amount to your attorney at the conclusion of your case out of your past- due lump sum benefits. At that time, you may also have to pay your attorney for any out-of-pocket expenses such as ordering medical records; copies and postage.
You cannot be engaged in “substantial gainful activity.” 20 C.F.R. 404.1571. In 2012 there is a presumption that a claimant earning $1010.00 a month is engaged in “substantial gainful activity.” This means that if you are working at this level despite a disabling condition, your claim will be denied. However, an attorney can help you determine if this work constituted an “unsuccessful work attempt” or whether the actual earnings should be reduced due to “impairment related work expenses” or whether it was really “subsidized work.”
Your disability benefits will be automatically converted to retirement benefits by Social Security.
If an adult child becomes disabled before the age of 22, then he or she may be entitled to draw SSDI benefits based upon the Social Security eligibility of his or her mother or father. The parent must be deceased or drawing SSDI disability or retirement benefits. It is not necessary for the adult child to have an earnings record with Social Security as the adult child can utilize the parent’s earning record. However, the disabled adult child cannot be engaged in substantial gainful employment. Children under the age of 18 may be entitled to receive SSI benefits if they meet the criteria for being disabled and their family income and assets meet the eligibility requirements.