Social Security Disability
The Social Security Administration (SSA) administers the social security disability (SSD) and supplemental security income (SSI) programs. These programs have the same definition of disability, but different eligibility requirements.
Social security disability provides monthly disability benefits and Medicare coverage if the claimant has worked a sufficient amount in the last 10 years. Supplemental security income benefits are available to claimants who do not have enough work quarters to qualify for SSD. SSI has the same disability requirements, but also includes a financial needs test.
In order to qualify for SSI you cannot have more than a certain amount of assets and income.
Disabled workers are eligible to apply for SSD benefits if they have earned enough wages over the past 10 years. Applications can be filled out online, https://www.ssa.gov/ or at your local Social Security office or by calling (800) 772-1213.
To be “fully insured” for purposes of eligibility for SSD, a worker must be credited with at least 20 quarters of earnings in the past 10 years, or 40 quarters. Claimants under the age of 31 must have credit for one-half of the quarters since turning age 21 to be insured for SSD purposes. A “quarter” refers to a 3-month period of the calendar year. Each time you earn wages or pay self-employment taxes, the SSA keeps track of these earnings.
The amount necessary to be credited with a quarter changes each year. For example, in order to be credited with a “quarter” for 1982, the worker must have earned $340 in wages or self-employment income.
If your employer did not report your wages to the SSA or pay FICA taxes, you may not be credited with the necessary quarters. If you have worked for cash and did not report those wages or pay taxes on them, you will be disadvantaged in establishing enough quarters of earnings to qualify for SSD.
If you meet the disability requirements but do not have sufficient work quarters to qualify for SSD, you may be eligible for SSI benefits, if you also meet the “needs” tests of SSI.
Meeting the definition of total disability
For SSD or SSI purposes, disability is defined as an inability to perform any “substantial gainful activity” as a result of a medically determinable physical or mental impairment. This means you must be so disabled that you cannot perform any type of full-time employment as a result of physical or mental problems.
The impairment must be expected to last for at least one year or is expected to result in death. A claimant must demonstrate that the severe impairment not only results in an inability to perform their past jobs, but is unable to perform any other types of jobs which the claimant is qualified to perform, based upon their age, education, or past work experience.
In evaluating disability claims, the SSA uses a 5-step process:
- Is the claimant currently engaged in substantial gainful activity?
For disabled workers who are not working, this is easily shown. Substantial gainful activity is work performed for pay which involves the performance of significant mental or physical duties. It does not include sheltered employment or volunteer activities. A worker who makes more than $1,090/month in 2015 is presumed to be engaged in substantial gainful activity.
- Does the claimant have a severe impairment?
A severe impairment is a medical or physical condition that significantly affects the person’s ability to work. In determining whether an impairment is severe, the SSA considers all relevant evidence, including medical signs of diseases, symptoms, and hospital or laboratory test results. Your treating medical records are critical in supplying the basis for the SSA to determine whether your impairment is severe. For pain complaints to be considered, you must establish that severe pain could reasonably be expected to result from your condition, which should be supported by objective hospital or laboratory tests. Pain alone, without some objective medical evidence to support it, will not be sufficient in most cases.
- Does the impairment meet or equal one of the SSA’s listing of impairments?
The SSA regulations contain a “Listing of Impairments” which outline certain symptoms or characteristics of different physical or mental disorders. If your medical evidence meets or exceeds the listing’s requirements for the disorder, the claimant will be presumed to be disabled. If your condition does not meet the listing, you can still prove your disability by other means.
- Does the claimant have any impairment which prevents the performance of her/his past relevant work?
Past relevant work are the jobs performed by the claimant in the past 15 years. If the claimant’s impairments prevent the person from performing all of the past jobs in the last 15 years, then the burden of proof shifts to the SSA to show that there are other jobs that the claimant can perform. If the SSA cannot prove this, then the claimant is considered disabled.
- Does the individual’s impairment prevent all other work?
The SSA first uses a “grid” to determine whether the claimant is capable of some other jobs which would be considered substantial gainful employment. It is important to remember that in determining whether a claimant has the capability of doing other work, it is a theoretical exercise. If the claimant is determined to have the functional capacity and qualifications to do other types of jobs, it does not matter whether any of those jobs are presently available or whether the claimant could realistically be hired for those jobs. If the claimant is determined to be able to perform jobs which exist in substantial numbers in the economy, the claimant is found not disabled.
The grids use tables which classify a claimant according to age (younger individual- under 50, approaching advanced age- 50-55, and advanced age-over 55), level of exertion capable of (sedentary, light, medium, heavy, very heavy), skill level (unskilled, semi-skilled, skilled), and education (illiterate, marginal-6th grade or less, limited- 7th-11th grades, and high school and above).
Once the claimant’s characteristics are placed in the proper grid, it determines whether a claimant will be considered disabled or not. For example, the claimant is 58 years old, has a high school education, and worked as a carpenter. Because of his advanced age and high school education, if he has no transferable skills, then the grids direct a result that he is disabled. If he has skills transferable to other jobs, the grids determine that he is not disabled.
If the claimant has impairments which are considered “non-exertional,” such as a mental disorder, hearing loss, eyesight problems, or breathing disorder, then the grids cannot be used.
The Disability Determination Process
A claimant must first file an application for disability benefits online at www.ssa.gov, with a local social security office, or over the phone at (800) 772-1213. Your quickest way is to apply online. The application is forwarded to the state disability determination service, which gathers the medical evidence and initially determines whether the claimant is disabled.
If this first decision is negative, the claimant must file an appeal with the local social security office within 60 days of the date the decision was received. There is a presumption that the decision was received within 5 days of mailing.
The next level of appeal is the hearing level, where the case is heard by an administrative law judge (ALJ). Although this is not an adversarial hearing, it is important to have legal representation at this stage. You should hire an attorney at the time you appeal the first denial decision. An attorney can assist you in gathering the necessary medical evidence and prepare your testimony for the hearing.
This writer, like most attorneys who handle SSD claims, accept these cases on a contingency fee basis. This means that the attorney only earns a fee is you are successful in winning your claim and getting you benefits. The standard fee agreement used by attorneys in these cases limit attorneys fees to a maximum of 25% of the past-due benefits, up to a maximum of $6,000.
At the hearing, the ALJ will consider all of the medical evidence obtained by the SSA and your attorney. Copies of hospital or laboratory tests and narrative reports from your doctors are important to provide the medical basis for your impairments. You will have the opportunity to testify about your impairments and how they limit your ability to function and prevent you from working.
A vocational expert will be present at the hearing to answer hypothetical questions from the judge about whether there are any jobs which you are capable of performing. Sometimes the judge will have a medical advisor to assist in evaluating the medical evidence. After the hearing, the ALJ will issue a written decision granting or denying benefits.
If you are denied benefits by the ALJ, further appeals are possible, although your chance of success at these higher levels is greatly reduced. The ALJ has the power to decide who or what to believe and only if the ALJ made some legal error or ignored overwhelming evidence will the decision be overturned.
If you are granted SSD benefits, your file will be forwarded to a payment center, where your past-due benefits will be calculated. You will receive a check for the past-due benefits, less the 25% attorney fee, which is withheld and sent directly to the attorney. Each month thereafter, you will receive a monthly check for as long as you remain disabled, until you begin receiving your old-age social security benefits.
If you are on SSD, your benefits will automatically convert to an old-age benefit at your full retirement age. If you have minor dependent children, they will receive a separate check for benefits. Medicare coverage begins 27 months after the onset date of your disability.
If you are receiving or have received workers’ compensation benefits, the SSA will determine whether your SSD benefits should be reduced. SSA will look at your highest yearly earnings in the last 5 years you worked. The total of your workers compensation wage loss benefit plus your SSD benefit cannot be greater than 80% of your highest level of earnings. This is to ensure that the disabled worker is not receiving more money than he or she earned while working.
These are some of the basic principles and procedures involved with Social Security disability cases. This article must, by necessity, oversimplify some of the complicated legal principles and should not be used as a substitute for competent individual legal advice. Contact me if you have questions.