Social Security Disability

Medicare: A disabled worker is entitled to Medicare benefits after qualifying for and receiving 24 months of SSDI benefits.

Monthly Benefit Payments: SSDI pays a disabled worker what he or she would receive in Social Security benefits at age 65.

Spouse and Children May Also Receive Benefits:

• Your spouse, if he or she is 62 or older;
• Your spouse, at any age, if he or she is caring for a child of yours who is younger than age 16 or disabled;
• Your unmarried child, including an adopted child, or, in some cases, a stepchild or grandchild. The child must be under age 18 or under age 19 if in elementary or secondary school full time; and
• Your unmarried child, age 18 or older, if he or she has a disability that started before age 22 (The child’s disability also must meet the definition of disability for adults).

Primary Question: Is claimant currently engaged in substantial gainful activity?

Substantial gainful activity is work activity which involves doing significant physical and mental activities for pay or profit, whether or not a profit is realized. In other words, the fact your work does not pay well or results in losses does not mean your work is not gainful.

The ability to do part-time work may be the ability to engage in substantial gainful activity. Thus, if a worker is able to work a part-time job, that work may be enough to show the worker is capable of gainful employment. Not all part-time work, however, is disqualifying.

Work which is not considered substantial gainful activity:

• Work in “sheltered” workshops specifically accommodating disabled employees.
• Made up work an employer offers to a disabled worker otherwise unavailable on the open labor market.
• Unsuccessful work attempt (4 months or less) where a worker has tried to return to work, but his or her disability prevented the worker from maintaining employment.

Workers must report all earnings. While a worker is not deemed unable to obtain gainful employment simply because his or her earnings are low, the fact a worker is earning over a certain amount is enough to show he or she is engaged in a substantial gainful activity. Currently, earning more than $980 a month in 2009 or $1,000 a month in 2010 is viewed as gainful employment.

Does the claimant have any severe impairment?

• Physical or mental impairment is defined as an impairment resulting from anatomical, physiological, or psychological abnormalities demonstrable by medically acceptable, clinical, and laboratory diagnostic techniques. In other words, a health care professional must verify the impairment, which can be a physical functional loss or a loss in an individual’s mental capacities and abilities.
• Pain is impairment. It can limit an individual in his or her ability to function in a variety of ways. Inform your medical care providers of the extent of your pain and how it affects you and your ability to function both physically and mentally. Honestly communicate with your care provider about pain. Do not minimize your pain for fear of appearing weak, but also do not exaggerate your pain for fear of it being minimized.

Does the claimant have any impairment which meets or equals those contained in the listing of impairments?

• Conditions must fit within the impairments listed in order to cause a “disability” presumed to qualify the individual. These are conditions which Social Security considers so severe if a person meets or equals a listed impairment, the inquiry stops, and the person is presumed disabled within the meaning of the law. Generally, these conditions greatly impair major life functions.

Does the claimant have any impairment which prevents past relevant work?

• Work performed in the last 15 years is reviewed.
• Functional residual capacity analysis performed to examine what activities the worker is still capable of doing and how the functional abilities relate to a potential to return to a prior job or line of work.

Does the claimant’s impairment prevent him from doing any other work?

• Transferrable skills: What skills does the worker have that are useful in a different line of work? How realistic is the transition for the worker?
• Age or education: Given the worker’s education and training, is it likely the worker could return to gainful employment with further education? Does the worker’s education demonstrate an ability to qualify for other work? At the worker’s age, is it realistic to expect him or her to have further education or gain new skills through additional training?
• Functional capacity: What has the worker lost in terms of his or her ability to function? What is the worker still able to do?
• Vocational testimony: What does a vocational expert believe is the worker’s loss in terms of his or her capacity to return to gainful employment? Vocational experts are educated and trained specifically to assess a worker’s ability to find work on the open labor market after considering the worker’s age, work history, education, functional abilities, and other factors.
• Burden Shifts to the Agency: Once a worker has shown he or she is significantly impaired and unable to return to gainful employment, the burden shifts to the Social Security Administration to prove why the worker should not receive SSDI benefits.

The GRIDs

• A worker’s vocational profile is reviewed to see how it fits into pre-determined categories of disability. This profile examines the worker’s age, education, and work history against his or her ability to perform different levels of physical work (sedentary, light, medium, heavy, or very heavy).

Fill out an initial application at SSA.gov or call 1-800-772-1213.

• Check List: Review the basic checklist on the Social Security Administration website before applying to make sure you have the information you need.
• Denial: Most claims are initially denied. Do not be disappointed if a claim is not accepted at this early stage. The denial is provided to you in writing along with instructions for appeals.
• Reconsideration/Appeal: Appeal must be filed 60 days from date of receipt of initial determination.

Appeal Hearing

• Request for hearing must be made within 60 days.
• Claimant can be represented by a lawyer or a non-lawyer.
• First opportunity to have case heard and determined by the federal government.
• Prior to hearing, you receive a C.D.
• Obtain any records not on the CD related to the disability. Get opinions on the worker’s functional loss from the treating physician in the evidence, as they are given significant attention and weight.
• Obtain statements from employers as to the person’s inability to work.
• Vocational testimony is usually the most critical at this stage.
• Hearings are informal and tape recorded.
• Advised of hearing at least 20 days prior to hearing date.

Appeal Council Review

• Must be made in writing 60 days from date of decision.
• Reviews are de novo, meaning the prior decision is not presumed to be accurate.
• Additional evidence can be submitted.

Appeal to Federal Court

• Petition for judicial review must be filed within 60 days. The matter is decided upon the written brief and argument. Unlike the Appeal Council stage, however, the court will likely defer to the determinations made by the SSA. New evidence is generally not allowed.

Attorney fees before the Agency

• Attorneys may be paid 25% of the past due benefits awarded or $6,000.00, whichever is less. Fees are reviewed and approved by the SSA.
• Workers’ Compensation. If workers’ compensation benefits were received by the disabled employee, there may be an offset of benefits to avoid a worker receiving a double recovery. Be sure your attorney or attorneys are aware of both the workers’ compensation claim and the Social Security claim to avoid what could be unnecessary penalties.
• There is a 5 month waiting period before benefits are paid.

Returning to Work

• Ticket to Work Program – Workers are allowed, even encouraged, to attempt to return to gainful employment whenever possible. A worker can go through a trial work period for up to nine months and still receive full benefits. Beyond trial work periods, a worker can remain qualified for benefits through an extended period of eligibility if he or she is capable of continued work, but his or her earnings are not “substantial” under SSA guidelines. Finally, workers who do make substantial earnings, but whose disability prevents them from working within five years of their benefits being stopped can seek expedited reinstatement of disability benefits by certifying their medical condition is still disabling rather than having to start the application process from step one.
• Continuation of Medicare—If Social Security disability benefits stop because of earnings, but the claimant is still disabled, the free Medicare Part A coverage continues for at least 93 months after the nine-month trial work period. After that, they can buy Medicare Part A coverage by paying a monthly premium. If they have Medicare Part B coverage, they must continue to pay the premium. If they want to end their Part B coverage, they must request it in writing.
• Work Expenses Related to Disability—If working, a claimant may have to pay for certain items and services people without ¬disabilities do not pay for. For example, because of their medical condition, they may need to take a taxi to work instead of public transportation. They may be able to deduct the cost of the taxi from monthly earnings before it is determined if they are still eligible for benefits.