Our firm has prepared this guide to explain who is eligible for cash disability benefits from Social Security, and its claims and appeals system. We have tried to answer many of the most common questions about Social Security disability law, and how the system works.
TYPES OF DISABILITY BENEFITS
There are several kinds of disability benefits for which a person can be eligible. Depending on the facts, an applicant may be entitled to one or more categories of benefits. The medical rules are the same for all categories - a person must be just as disabled to qualify for one as for another. The non-medical requirements are different for each category.
- Disability Insurance Benefits (DIB) Someone is eligible for these benefits only if he or she have paid a certain amount of Social Security tax over a period of time, enough to have disability insurance coverage in force. In general, a person must have worked and paid Social Security tax for about five out of the last ten years before the total disability began. There is a different, easier rule for people whose disability started before age 30. Everyone must prove that he or she became disabled while disability insurance coverage was in force or they are not entitled to benefits, no matter how serious the medical condition is now. If a claim is approved, the monthly payment is set by earnings and Social Security tax payments during a person's working career. In many cases, dependent children will also get benefits. People who get disability insurance also get Medicare, at any age, starting 30 months after their legal disability began.
- Supplemental Security Income (SSI) SSI can be paid whether or not a person has paid in enough Social Security tax to get disability insurance benefits. You must be disabled under the same rules as for disability insurance, or be blind, or be over 65. The applicant must also have very little income or property, because this benefit is based on financial need. Social Security looks at all other income and property owned by a husband and wife, not just the applicant's, and also the value of any support (like free room and board) provided by others, to determine whether someone is financially eligible for SSI. Social Security does this in addition to making a medical decision on disability are. Also, some children 18 or younger with a severe disability can get a monthly SSI benefit if their family income is low enough. People who get SSI alone are not eligible for Medicare but they usually qualify for Medicaid.
- Disabled Widow/Widower Benefits (DWB) This is a special disability benefit for certain widows and widowers, based on the Social Security tax paid by his or her deceased spouse. In order to qualify, a person must be between the ages of 50 and 60 and have been married for at least 10 years to the person who was covered under Social Security at the time of his or her death. Also, the disability must have been severe enough to meet these rules within seven years of the spouse's death, with some exceptions for those already receiving other kinds of Social Security benefits. If someone is awarded DWB benefits, the monthly rate is determined by the spouse's income and Social Security tax payments. People receiving this benefit get Medicare after the same waiting period as disability insurance.
- Childhood Disability Benefits (CDB) For this category, someone must be an unmarried child of a person already receiving Disability Insurance or Retirement Benefits, or who died while covered for Social Security. The applicant must be at least 19 years old and must prove that total disability began before the month they turned age 22, and is continuing. The monthly benefit is based on a percentage of the parent's rate. This category comes with Medicare, too.
HOW DO I PROVE I AM DISABLED?
- Social Security's Special Definition of Disability Social Security has its own specific definition of disability. Other agencies' decisions about disability (like VA, the Division of Family Services, or Workers' Compensation) are not binding on Social Security. For most disability claims, an individual must prove that he or she cannot do any substantial gainful work activity because of one or more physical or mental medical problems, backed up with clear medical evidence. This serious disability must last for at least twelve continuous months, or else be expected to result in death. It does not have to be permanent. A person can file a claim before he or she has been disabled for twelve months but must be able to prove that the disability is certain to last that long.
- The Importance of Medical Proof There must be medical evidence of some physical or mental problem, or combination of problems, which keeps someone from working. For this reason, it is very important to be under regular medical care at all times. Social Security must rely on medical information from a doctor, hospital, or clinic to measure how severe a condition is. No matter how disabled someone thinks they are, Social Security cannot pay benefits without medical documentation describing the nature and severity of the disability.
Other Things Social Security Considers
- Age, education and work history. In many cases, Social Security will also look at an applicant's age, education, and past work experience, including any skills acquired from jobs performed over the last fifteen years. Some people think that Social Security will decide that they are disabled if they can't go back to their old job. This is not always true. Social Security will look at the duties of all jobs going back 15 years to see if the applicant learned any skills that could be used in another, easier kind of job, and then decide whether the applicant can physically or mentally do that kind of work. The younger and more educated someone is, the easier the government thinks it would be to adjust to a new job. For this reason, it is somewhat harder for younger people to get disability (although it is certainly not impossible), and somewhat easier for older people to qualify.
- Hiring practices of employers. Social Security will not consider whether an applicant would be hired by an employer, or the fact that he or she has not been hired when they applied for a job. Social Security will not consider whether an employer has light duty available or whether they will re-hire someone. All they look at is whether jobs exist somewhere in the U. S. which could be done by a person of similar age, education, work experience and medical restrictions. If there are jobs that a person could possibly do, the claim will be denied. On the other hand, someone does not have to be in a wheel chair or a nursing home to get benefits; the day just have to be unable to work. To put it another way, Social Security will pay benefits if there is a medical reason why someone cannot do any job for which they might qualify. Whether an applicant can actually get a job does not count.
- Disability Involving Alcohol or Drug Abuse - Special Restrictions There are special rules for disability claims in which alcohol or drug abuse is a contributing factor to a disability. If a person would no longer be disabled if they stopped substance abuse, they cannot receive benefits. A person with a serious alcohol or drug problem can receive benefits only if they remain disabled for some medical reason other that alcohol or drug use itself. For example, an alcoholic with advanced lung disease would probably still be disabled if they stop drinking and can receive benefits. A person whose psychiatric disorder would improve in the absence of drug or alcohol abuse will probably be denied.
STEPS IN APPLYING FOR DISABILITY BENEFITS
- Application. All disability claims begin by filing an application with Social Security. This can be done by you or your representative. A person may call Social Security toll free at 800-772-1213, file online at www.ssa.gov or visit any local offices in person. He or she will need a birth certificate and Social Security card for him or herself and any dependent children, as well as marriage and divorce documentation. They will be asked to give a detailed history of the last 15 years of employment. Social Security requires the details of all medical care regarding the disabling impairments. An applicant is asked to describe how those impairments affect his or her ability to work and do normal daily activities. Once the application is complete, the file is sent to a Disability Determinations office for a decision.
- Initial Determination Disability Determinations, a state government office working with Social Security, does the initial disability review. They will order copies of doctor, clinic or hospital records, and sometimes schedule a medical or psychological examination at their expense. If a person misses this examination, Social Security may deny the claim. A decision is made based on Social Security's own guidelines. In most cases, people are turned down at the first step, and this includes many people with serious disabilities. If an applicant disagrees with the decision, he or she has the right to appeal. This must be done within 60 days after the applicant receives the written notice of denial. People should not give up if they are denied at this step.
Note: Social Security is experimenting with eliminating this step in some states. At the time of this writing it is still required in Illinois. Missouri residents skip this step and file for a hearing after the first denial.
A person files the first appeal, called a Request For Reconsideration, by either calling or visiting any Social Security office, or having a lawyer do it. Disability Determinations will re-examine the file and update the medical evidence on the case. They deny 85 to 90% of appeals at this step. Following this second denial, a person has 60 days to file a Request for Hearing with an Administrative Law Judge. This is done by filing an official form by either calling or visiting any Social Security office, or having a lawyer file. This appeal must be in writing-Social Security or a lawyer will provide the correct form. Once again, no one should give up at this point - everyone with a serious case should go on to at least the next step.
- The Request for Administrative Hearing Once the Request for Hearing is filed, the case is sent to Social Security's Office of Disability Adjudication and Review, (ODAR). This can be a person's best chance to get a fair decision, properly applying Social Security law. ODAR will assign a judge and send a notice stating when and where the hearing will be. At the hearing, the administrative law judge, the official who will hear the case, listens to the applicant's testimony and evaluates the medical evidence. He or she makes an entirely new decision, paying no attention to the earlier denials. The hearing is informal and quite different from what you would expect in a court room. After the hearing, the judge will mail a written decision, either granting or denying the claim. Most people choose to be represented by a lawyer at a hearing, although it is not required. Social Security has severe delays, often a year or more, to get a hearing in many parts of the country.
- Appeals Council If a claim is denied by the administrative law judge, there is one last level of appeal within the Social Security Administration, known as the Appeals Council. Like most other Social Security appeals, this must be filed within 60 days of the date of the judge's decision. The file and any written arguments are considered. However, the Appeals Council generally will not consider new evidence about the disability after the hearing decision was issued. This means that it is very important to be fully prepared and have all possible medical evidence ready at the hearing before the administrative law judge - an applicant cannot just fix problems with the Appeals Council. Once again, the Appeals Council sends a written decision. It may uphold the hearing decision, reverse the local judge's decision outright, or send the case back for a new hearing. Taking a case to the Appeals Council is a requirement for the last possible appeal, filing a lawsuit in United States District Court against the Commissioner of Social Security.
Federal Court Review Within 60 days after the date of the Appeals Council's written decision, a formal lawsuit can be filed with the United States District Court, seeking review of Social Security's final decision. The District Court is only permitted to review the evidence up to the time of the hearing decision. It will not accept new evidence. The applicant does not appear in court-this is all done on paper, or sometimes with just the attorneys making legal arguments in court. The applicant's lawyer and the government's lawyer file legal briefs arguing each side and the District Court issues another written decision. The District Court can do one of three things: it can reverse Social Security's decision outright and order it to pay benefits; it can uphold Social Security's decision denying benefits; or it can remand the case, sending it back to Social Security for a new hearing.
In order to have a case reversed or sent back to Social Security, a person must show that there was no "substantial evidence" for Social Security's decision, or that the government committed a serious legal mistake in deciding the case.
HOW LONG DO BENEFIT PAYMENTS LAST?
Social Security will stop payments if certain things happen. The most common reasons for stopping benefits are: a person's medical condition improves to the point that he or she is able to work again; he or she actually goes back to work and makes over a certain amount of money; or (for people on SSI only) the income or property of the household goes over the limit allowed by SSI.
- Retirement Age Social Security disability payments are not permanent, but they are open ended. Once a person becomes 65 years old, the disability program officially ends but the monthly payment from Social Security remains the same. At that point it becomes normal Social Security retirement benefits. There is an advantage for people who want to work when they receive retirement, as opposed to disability payments. When on disability, working can stop benefits completely if wages or self-employment income go over a certain level, $1,000 a month in 2011. Once a person has reached his or her retirement age, and receiving retirement benefits, he or she can make any amount of money and still receive their benefits.
Return to work. If a person returns to work and is able to stick with it, disability benefits will eventually end. Social Security provides some incentives for returning work, including a trial work period and an extended period of eligibility. If a person returns to work while on disability benefits, he or she must notify Social Security, no matter how small the pay. A person receiving Social Security disability benefits you can work full time for up to 9 months and keep his or her benefits. However, after the 9 months, eligibility will reviewed and benefits may stop.
After a trial work period ends, there is a 36 month extended period of eligibility. During that time, a person can receive disability benefits for any month in which his or her pay drops under the maximum amount allowed for that year.
However, SSI has no incentives to return to work. Almost any money from work will reduce SSI payments or stop them all together.
Continuing Disability Reviews The government is required to review the medical condition of people on disability every few years
. If a person's health is the same or worse as at the time benefits were granted, the payments continue. If Social Security thinks that a person's health has improved to the point that they can do some kind of work, it sends a notice that benefits will stop. Sometimes Social Security cuts off benefits unfairly, just as they do not always approve people who are truly disabled when they first apply. A person who does not agree with Social Security's reasons for stopping benefits has full rights of appeal, including a hearing with an administrative law judge.
Just as when a person first files for benefits, there are strict time limits to appeal if the government tries to end benefits. A person can choose to keep monthly payments, Medicare, or both, while appealing a decision to stop benefits because of medical improvement. To do that, a person must appeal within ten days of the notice from Social Security that they plan to end payments. There is still sixty days just to file an appeal, but to keep benefits while the appeal is going on, it must be filed within ten days. Benefits can continue through a decision by an administrative law judge after a hearing. If the judge rules that a person is still disabled, benefits simply continue. On the other hand, if the judge rules that disability has ended, a person may have to repay the benefits he or she chose to receive during the appeal.
- What An Attorney Can Do For You No one is required to have a lawyer represent them on a Social Security case, but most people do have a lawyer by the time of the hearing before the administrative law judge. People can consult a lawyer at any time, even before filing a claim. The government's own figures show that people who have representation are more likely to win. A lawyer who is familiar with Social Security cases knows all the details of how to appeal. He or she should be skilled in evaluating the disability and giving counsel about how the law applies to a person's particular situation. A lawyer should know what medical proof is needed and how to get it. He or she will prepare the client to testify, describing the disability to the judge in the strongest way possible. A lawyer should also be able to explain all of the government's decisions, and help with any problems that come up about your payments.
- When To Call An Attorney An attorney can help at any point in the case, sometimes even when starting an application. Crowe & Shanahan does not charge for phone consultations or questions. The sooner we talk to someone, the sooner we can advise him or her how to deal with Social Security. If a person starts the claim alone and is denied, it is a good idea to see a lawyer as soon as possible. We strongly advise people who are thinking about having a lawyer represent them at the hearing to contact an attorney before filing the request for hearing, rather than filing the appeal yourself. If a person does not have a lawyer at the hearing and the judge denies the claim, it is sometimes too late for a lawyer to help. However, people in this situation, you should still call a lawyer to get advice on appealing again or filing on a new claim.
How Do Lawyers Charge on Social Security Cases? On most, but not all, Social Security cases, lawyers charge what is called a "contingent fee." This means that the lawyer's fee is a percentage (usually 25%) of any back pay due at the time the claim is approved. Most law firms, including ours, do not charge a fee if the case is unsuccessful. Crowe & Shanahan does not require a retainer fee in most cases. People should not be afraid to ask exactly how any lawyer charges - it's their case and their money.
All lawyer fees are regulated by Social Security. A fee of 25% of any back pay due, up to a limit of $6,000.00, will be automatically approved in many cases. However, an applicant or lawyer may ask for the fee to be individually reviewed. The attorney's fee could be higher or lower than $6,000.00 or 25% in certain cases, but that happens only occasionally. Social Security will hold out the 25% of your back pay, and send your lawyer a check for the fee they approve. On rare occasion, a person may need legal help on a Social Security problem that does not involve back pay. He or she should ask right away how a lawyer charges for such cases.
Crowe & Shanahan, The Social Security Law Group, is a private law firm based in St. Louis practicing only in the area of Social Security claims and appeals. If you have any questions not covered in this booklet please call us at 314-231-6660 or 877-213-7793, for further information. There is no obligation.
Crowe & Shanahan
The Social Security Law Group
500 N. Broadway, Suite 1500
Saint Louis, Missouri 63102-2317
Rev. 2/08. © 1989 - 2008 Robert A. Crowe, P.C.