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The concept of “disability” is as much a term of art as one of semantics. Whether or not someone is “disabled” within the meaning and tenor of the Social Security Act is a complex determination that rises and falls on a claimant’s unique factual and medical situation. No two claims are identical. The general idea of begin “disabled” is that someone, by virtue of their “medically determinable impairments”, is unable to engage is “substantial gainful activity” [SGA], and cannot do so for 12 continuous months, or their medical condition is one that can be reasonably expected to preclude substantial gainful employment for at least 12 continuous months. The concept of “substantial gainful activity’ is a legal term of art and has its own unique definition. The general idea is one of being unable to sustain full time, competitive employment. The real test is one of how much are you able to earn, even if engaged in part time work. The SSA has promulgated regulations which deal with earned income thresholds. They use these to help determine if a claimant is engaged in SGA. The SSA tweaks this threshold from time to time. There are also rules & regulations that talk about unsuccessful work attempts, sheltered work, etc. The point is that this is not always a simple determination and whether someone is engaged in SGA depends upon the facts & circumstances unique to their own case. Again, seek competent legal advice tailored to your own facts. The idea that one must be disabled for 12 months is fairly simple. In years gone by, people would sometimes engage in SGA before the 12 months were up, and depending where you were in the country, sometimes you could get away with this and still received some benefits. This argument stemmed from the language Congress used in the Social Security Act, as opposed to the language the SSA used in its regulations and Rulings , and of course, the various court decisions around the country. However, the Supreme Court sided with the SSA and in very simplistic terms, it ruled that 12 months pretty much means 12 months, and you must be disabled for 12 full months before going back to work at SGA levels. The idea of a “trial work period” before your 12 months of disability has since gone by the wayside. Again, seek competent legal advice tailored to your own circumstances. CAN I GO BACK TO WORK AND APPLY FOR DISABILTY The answer is both yes and no. It depends how much you earn while your application is pending. In my opinion, there is difference as between work activity when applying for benefits and work activity when one is actually drawing benefits.. There are specific rules and regulations on point. They are of course long & complex, and as usual, it just depends on your own circumstances. Please seek competent legal advice unique to your situation. ONCE I AM APPROVED, CAN I GO BACK TO WORK AND STILL DRAW DISABILTY The answer is maybe. I hate to sound like a broken record but the answer depends exclusively on your particular facts, including but not limited to: the hours worked per week, how much you earn per hour, per week, or per month (gross), whether you are drawing Title II benefits and/or Title XVI benefits (SSI), whether your work can fairly be considered “sheltered employment”, whether you ask for a “trial work period”, a “ticket to work” type program is involved, etc. If you are self- employed expect heightened scrutiny and a request for copies of tax returns. And yes, even “cash” wages count and you are supposed to report any and all work activity to the SSA in a very prompt and timely fashion. If you return to work, while drawing benefits, beware of overpayments. I always suggest informing the SSA of any and all post-entitlement work activity in the form of a written letter via certified mail, return receipt requested (so you can prove you sent it & they received it). You should also tell the SSA of a return to work while your application is pending, doing so in a similar fashion. Presumably, your attorney can do this for you while the claim is pending. Again, even work for “cash, under the table” technically counts, and needs to be reported. IS THERE SUCH A THING AS PARTIAL DISABILITY No. The SSA disability program is pretty much an all or none proposition. When all is said and done, “almost” meeting the definition of disability gets your basically nowhere with the SSA in terms of an award of benefits- it is kind of like “almost being pregnant.” DOES THE SSA PAY DISABILITY BENEFITS FOR MENTAL IMPAIRMENTS Yes. In general, just about any physical or mental impairment can qualify you if it has sufficient adverse impact on your ability to sustain work activity (please note we are talking about medically determinable impairments that it can be demonstrated by accepted routine medical diagnostic and imaging techniques. In the case of mental impairments, these are typically demonstrated via medical records from primary care providers, hospital, mental health professionals, consultative examiners, etc. Sometimes special psychometric testing is beneficial as well. Beware however, of substance abuse. That no longer is a valid basis for a disability claim with the SSA. The SSA & Congress did an “about face” years ago, changing the law regarding this type of impairment. At present, substance abuse (ie. Alcoholism & drug addiction) is no longer a valid basis in & of itself for disability. In fact, it can adversely affect your eligibility for benefits in the sense that if someone is currently using/abusing, and the impact of that use is “material” on any other impairments that would otherwise disable someone, then that person may well lose their case. The classic example is someone with a mental impairment (e.g. depression) that continues to abuse alcohol. From cross examining medical advisors at literally hundreds of hearings, the undersigned is routinely told that many alcoholic beverages are well known central nervous system depressants. This ,makes it hard if not impossible to tell whether someone is so depressed such that they are disabled by the underlying mental impairment, or rather, if it is the alcohol that is magnifying the underlying depression and it is the combination that is disabling. If the claimant cannot separate the impact of the substance abuse on their mental state, these claims become difficult. The SSA will ultimately determine if substance use is “ material” [a legal term of art in my opinion] to your disability and make a finding in this regard. Sometimes cases can be paid even in the face of ongoing substance abuse. This is rare but it can happen. Sometimes, a person is otherwise so severely impaired such that substance abuse is really incidental to their overall functioning. In other cases, the substance use is so sporadic that it really does not significantly impact other bodily impairments. These are very complex legal and medical situations, and the ultimate outcome is very fact dependant. Most hearings in these cases include a SSA appointed medical advisor providing expert testimony. So, please get competent legal advice tailored to your own fact scenario and medical situation. Do NOT make your own judgments based solely upon what you read here. WHAT ARE THE TAX IMPLICATIONS First, most attorneys are not CPA’s or tax professionals. This advice is not meant as a substitute for sound tax advice. In general, Social Security retirement benefits and disability benefits are treated the same for income tax purposes. Yes, they are technically taxable, being part of your gross income. In general, SSI benefits are akin to welfare and usually not subject to federal income tax. Social Security is supposed to send each beneficiary a form 1099 by February of the year following the receipt of benefits. The 1099 should specify what was paid, and if a lump sum was paid, if should indicate what period of time was involved. The 1099 is also supposed to list an attorney fee paid out of a lump sum.. In my own limited experience, based on my phone calls in February and March of each year, the SSA 1099’s are almost undecipherable by pay persons. Sometimes they are even inaccurate. Please take your SSA 1099 to a tax professional for proper use on your tax return. You might want to take an award notice and even a letter from the attorney certifying the fee received so that the tax professional can make any accurate and appropriate notations in preparing your taxes. In general, deductions on attorney fees (from a lump sum distribution) are permitted, but only to the extent that the SSA benefits were taxed. This is typical with IRS deductions, meaning deductions are qualified and limited. The income tax that may ultimately be payable is not a simplistic calculation, and there are “tiers” involved depending on your overall income levels. Again, please consult a tax advisor as this is general information not intended as advice specific to your own circumstances and income. HOW DO I APPLY FOR DISABILITY You can contact the SSA directly via their 800 number (1-800-772-1213) or via their WebSite (www.ssa.gov), or even visit your local SSA District Office. Some attorneys offer services that permit you to apply directly from their office. My own office has offered that service for years, and we now utilize high speed internet connections to apply on behalf of our clients where appropriate.. The application process can be mind numbing in terms of the detailed information requested. Also note that a birth certificate is also required, and military discharge papers are required if applicable. If you are applying for children’s benefits, please provide their birth certificate. The SSA is big on electronic deposit, so you will need banking information to (a voided check or deposit slip will usually suffice). The SSA will need details on your work history for the 15 years preceding your onset of disability, and detailed medical information about your disability (including medical providers names, phones, addresses, etc). If a spouse or former spouse is applying, a marriage certificate and possibly a death certificate might be required. The SSI program is really a form of welfare for the disabled. To qualify you need only be poor and disabled. The idea of being “poor” is subject to regulation in the sense that the SSI program has very specific financial qualifications. It is not hard to be “too rich” for SSI. Accordingly, you will need bank records, lease records, insurance policy records, etc. The point is you need to be able to prove you are sufficiently “poor”. A home you own and live in does not necessarily count against you. In general, in Kentucky, if you are single and have over $2000.00 is assets, you are too rich for SSI. If you are married, the threshold is $3000.00 at this time. Again, some assets do not count against you (such as a home you live in), so please secure competent legal advice I APPLIED AND I WAS DENIED- WHAT DO I DO In a word, appeal. You do have appellate rights and should probably exercise them. Most SSA denial give a maximum of 60 days (plus 5 days for mailing) from the date of the denial to file an appeal. Please read your denial carefully regarding the time frame to appeal and act well in advance of the 65 day maximum limit. Also, keep the letter the denial came in, you might need the post mark. This office usually recommends an immediate appeal. At the present time, your first appeal is called a Reconsideration, which involves completing more forms. It eventually results in a new decision from the SSA. If you are denied again upon Reconsideration, then you can appeal that second denial, which at the present time is called a Request for Hearing. At this point, you are asking for a hearing in front of an Administrative Law Judge [ALJ]. The ALJ will hear your case and issue a decision. If you are denied a third time (by the ALJ at this juncture), then you presently have one final appeal inside the SSA, this time to the Appeals Council. There is a special form that is used for this appeal (form HA-520), and a case brief can be filed if warranted.. once this final appeal is timely filed, the Appeals Council will rule on the case and usually ends up issuing the final decision of the SSA. Once the Appeals Council denies your claim (by affirming the decision of the ALJ), then you usually have a right to file a federal lawsuit against the SSA. Most appellate deadlines are 65 days from the date of the SSA denial. The merit of any appeal can only be determined after a close look at the specific facts and medical problems. Please seek competent legal advice unique to your case in a prompt and timely fashion. Do not wait until the 64th day to start calling lawyers.
The answer is “it varies.” It varies depending on how many appeals you ultimately need to file, and what part of the country you are in. Some areas move cases faster than others for whatever reasons. The bottom line is that nothing is quick, and there is no set time regarding the life span of a case. The SSA is continually making adjustments trying to streamline the process yet still manage to protect individual rights. This is a difficult balance. The real lesson here is not to get discouraged by denials or the time frame and just drop everything. The ALJ’s routinely reverse a substantial percentage of the lower level SSA denial notices. On statistics alone, it behooves anyone who feels their case has merit to appeal to at least the Hearing level. Some cases end up going through to a favorable decision in a few months, some cases end up taking years, and some are never going to win. There are no guarantees nor is there a set time. Each case will develop its own course based on the individual facts and particular medical problems as well as the technical issues. This is a cornerstone of what is referred to as Due Process. There are some basic profiles and circumstances that can help get a case fast tracked, but that is very situation specific. In general, cases take longer than we would all like. WHAT IS SSI AS OPPOSED TO SOCIAL SECURITY DISABILITY The SSI program is generally run under Title XVI, and is similar to a form of welfare. One need only be medically disabled and sufficiently “poor” to qualify. The SSI program has the equivalent of Medicaid as the medical benefit. Most people prefer this medical card as opposed to a Medicare card. It seems to have broader coverage and better benefits. Regarding Social Security Disability, the “DIB” program is run under Title II, and it has certain “insured status” requirements in addition to being medically disabled. In a simple sense, one must have paid enough into the SSA system to be eligible, and one must become medically disabled within a certain window of time to draw DIB benefits. In general, one must pay in 40 quarters over their life, and must have paid in 20 quarters over the last 40 quarters. In very simple terms, you need 10 years worth of paying into the system, and you must be able to demonstrate that you became disabled within 5 years of stopping work. The insured status rules change for younger workers, presumably because they have not had decades to pay into the system. There are also some categories of impairments that might qualify you for benefits under a slightly different “insured status” screening (eg. Special blindness rules for certain degrees of visual impairment) Disability under the DIB program provides Medicare benefits. However, there is a 29 month wait for Medicare, and a waiting period of 5 full months for cash benefits. When these waiting periods begin to run depends on the circumstances of your case and when you are found to have become disabled. Again, this is a very simple discussion of what can become a very complex issue. Please seek competent legal advice before making a decision as to whether you may or may not qualify for DIB benefits, SSI benefits, or both. Bear in mind that both programs have a medical qualification and some other type of qualification, be it financial or quarters of coverage I RECEIVED WORKERS COMP AND THE SSA REDUCED MY BENEFIT. CAN THEY DO THAT Yes. There is something referred to as the windfall offset provisions. The easiest way to conceptualize this is to think of it as a “double dip.” In general (in Kentucky), you probably cannot draw full SSA disability benefits and full Workers Comp at the same time. The SSA rules and regulations provide that an offset is applied to the SSA benefits if the claimant also receives a public disability benefits. In Kentucky, Workers Comp benefits are considered a public disability benefit and the SSA will apply offset calculations. This does not mean your benefits will be reduced by the SSA, only that your benefits are subject to the offset calculations, which typically function to reduce your SSA benefits, at least for a period of time. Please note that the offset can be applied to “public disability benefits”, which is not limited to Workers Comp benefits. In general, regarding the offset, the total benefits (i.e. the SSA disability benefit and the other public disability benefits) cannot exceed 80% of your averaged current earnings before you became disabled. Once the 80% threshold is passed, the offset applies. The offset applies first toward auxiliary beneficiaries, and then to the primary wage earner. In very simple terms, if your kids are drawing as dependant minors of a disabled wage earner (e.g. because they are your minor children and you are disabled), the offset applies first to their benefits, and after their benefit is zero’d, if there is any remaining offset, it then applies to you, the disabled wage earner. The offset varies from state to state, and in some states, the offset is even applied in reverse with the state reducing their payout if somebody draws SSA disability benefits. Please consult your SSA disability attorney or Workers Comp attorney regarding the impact of the offset, and you might want to discuss any techniques that can be fairly & ethically used to minimize the impact of the offset. Be advised that the SSA does not always properly calculate the offset, so please pay attention to their award notices, the math they used, and your own appellate rights. I generally recommend sending in your Workers Comp award notices to the payment center, as well as any paperwork regarding attorney fees and costs in those cases. Again, please seek legal advice tailored to your own facts and case, as the results can vary wildly. For example: some Workers Comp ALJ opinions cite medical reports used in the Comp case, but these same reports might not have made it into evidence in the SSA case for whatever reason. This sometimes leads an ALJ hearing the SSA disability case to start asking questions about some “missing evidence” that might be probative to the adjudication of the case before them. We can then get into some interesting legal discussion about a duty to fully inform the ALJ about medical evidence that does not necessarily advance a case, versus an attorney’s duty not to shoot down his own case. The point is that you need to contact a licensed legal professional before making a decision unique to your own case. I WAS APROVED AND DREW FOR YEARS, THEN THE SSA CUT ME OFF, CAN I APPEAL Yes, and do so immediately. Generally, if you appeal within 10 days of the denial, and request that all benefits continue, the SSA will generally continue to pay you while the appeal is pending. If you ultimately lose your appeal, there will probably be an overpayment and a day of reckoning down the road. Please note you usually have a maximum of 65 days to appeal most SSA decisions. In this case, while you can appeal on the 65th day, if you do it within 10 days, benefits can continue. In terms of an appeal of a termination of benefits, you are trying to demonstrate that since the comparison point (some point in time after you were approved) there has not been much in the way of medical improvement that pertains to an ability to work, and you remain medically disabled. The SSA routinely reinvestigates people on the disability payroll to determine whether medical improvement has occurred. Again, seek specific legal advice immediately. DO I REALLY NEED A LAWYER Technically, the answer is a definite no. You are not required to hire a lawyer and are free to represent yourself throughout the entire process, and you can even file a lawsuit pro se if you are so inclined. Hopefully, after reading these general topics, you can understand just how complex these cases can become. Not all cases are as simple as we would like. In general, a skilled attorney can help navigate the mine field of forms, and narrow the issues in your case. He or she can explain the system to you, and give you an idea of what to expect and when. He or she can also assist in general forms preparation, the filing of appeals, properly deal with work attempts after your onset date, develop the medical evidence with an eye towards meeting your specific burden of proof, prepare you for your hearing, etc. Note that only a licensed attorney can file a federal lawsuit on your behalf if he or she deems it appropriate. Yes there are non-attorney reps out there, but only an attorney can file suit. Only attorneys have been to law school and passed a bar exam. This is no small achievement. Just how effective can your advocate be if they cannot even file a lawsuit? BACKTHIS IS AN ADVERTISEMENT Copyright © 2010 by Law Office of Michael P. Sullivan. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement. | |