Social Security Disability

"You Don't Have To Be 'Half Dead'"
(But it helps)
OR: Can you say: "Would you like fries with that?"

By Michael J. Walkup
Attorney at Law

WHAT IS SOCIAL SECURITY DISABILITY?

Everyone knows that when you retire at age 65, you can collect retirement benefits and Medicare from the Social Security Administration if you have worked enough years and have paid in enough money. You can also get early retirement at age 62 at a lower monthly rate and without Medicare Benefits.

What is less well known, however, is that if you become unable to work because of a disability before age 65, you can receive benefits as disability payments, and also become eligible for Medicare.

These benefits, which are known as "Social Security Disability" are found in Title II of the Social Security Act. These are different from benefits under Title XVI of the Act which are known as Supplemental Security Income, or "SSI". Title II "disability" benefits are payable only if you are "disabled" as defined by Social Security and if you have paid enough taxes in Social Security through withholding from your employer (or payment of FICA taxes by yourself if you are self-employed).

SSI is payable regardless of the payment of taxes but you have to be below the "poverty line" in addition to being "disabled". There is a further section explaining SSI benefits later in this article.

WHAT DO I HAVE TO PROVE TO GET DISABILITY?

Some people will tell you that you have to be "half dead" to get disability benefits under the Social Security Act, but this is not true.

Social Security uses the following definition of "disability":

Disability is the "inability, because of a medically determinable physical or mental impairment, or combination of impairments, to perform either your past relevant work, or any other work which exists in the national economy, considering your age, education, and prior work experience, for a continuous period of not less than twelve months (or in resulting or expected to result in death)."

This definition can best be understood by breaking it down into its various parts.

(1) "inability...to perform..."

Social Security disability is based on the inability to PERFORM WORK, as opposed to the inability to get a job. Most people who apply for disability benefits are unable to find work. No one will hire them because they are not completely healthy or they don't have skills to do less physically demanding work, or are too old.

Social Security calls these considerations "employer hiring preferences" and does not consider them in determining disability.

Social Security looks at whether or not you could PERFORM a job of a certain type IF it were to be offered to you, not whether anyone would offer you the job.

It does not matter if: there are no job openings; the job doesn't pay enough for you to live on; there are no benefits; you have no way to get to work and are too sick to take public transportation (which doesn't run there anyway); you can't move closer to work because you can't afford the neighborhood on what you would make; your spouse and/or children would be inconvenienced by a move; or you consider the job to be demeaning or beneath your capabilities.

A "job" in Social Security parlance really means a job TITLE, such as "policeman, doctor, lawyer, security guard, receptionist, fast food worker", etc., and NOT a job OPENING. So long as more than 500 people are doing a particular type of job in the six county Chicago Metropolitan Area, that "job" exists for disability purposes.

There is NO JOB TRAINING provided by Social Security, although there are state agencies that work with Social Security. The fact that you would have to acquire skills to do a job and would need some way to live until you do is not taken into consideration in determining disability.

THERE IS NO SUCH THING AS A "PARTIAL DISABILITY" under the Social Security Act. You are either "Disabled" as Social Security defines it, and receive benefits, or you are "Not Disabled" and receive nothing. (This differs from other disability programs such as VA disability and private disability plans).

(2) "medically determinable physical or mental impairment or combination of impairments".

To get disability your impairment may be either physical or mental or some combination thereof. All of your impairments are taken into account. However, they must be medically recognized. Some impairments such as "Chronic Fatigue Syndrome", "Fibromyalgia", and "Multiple Chemical Sensitivities" were not originally recognized but are now gaining acceptance.

IMPAIRMENTS WHICH RESULT FROM ALCOHOL OR DRUG ADDICTION ARE NO LONGER RECOGNIZED FOR DISABILITY PURPOSES. If you have an addiction problem, you must show that you would be disabled independent of the addiction.

"Listed Impairments"

Social Security has a list of conditions which it considers to be so severe that no one who has them can do any work at all. These conditions are called "Listed Impairments" or "Listings". If you meet ALL of the criteria of the "Listings" you qualify for disability regardless of anything else.

An example of a "Listed" impairment is if you have both legs, both arms, or a leg and an arm amputated. Having one leg or one arm amputated isn't enough. You must have two amputations to qualify under the "Listing". (You can still be a "greeter" at K Mart with one arm).

There are "Listings" for all of the major body systems and some of them are very complicated and technical so I won't try to cover them here. Usually the evidence of "Listing" is pretty clear and can be decided quickly by Social Security. Many of the people who are approved at the first stage of the process are approved because they meet a "Listing". There are Listings for mental as well as physical impairments.

(3) "past relevant work"

To get disability you have to be: (1) NOT CURRENTLY WORKING and; (2) UNABLE TO DO ANY OF THE JOBS YOU HAVE DONE IN THE PAST 15 YEARS. This is called your "Past Relevant Work".

Even if you are unable to perform the job you have just left, that may not be enough. If you performed a less strenuous or stressful job at some point in the past 15 years (i.e. you did telemarketing for 6 months ten years ago), you have to show that you could not even do the less rigorous job in order to qualify.

The demands of various jobs are determined based on how the job is generally performed in the economy, not how you performed it. Sometimes the way you did the job was more demanding than the way it is usually done or could be done. For example, you may have done reception work but also had to retrieve files. You may have to prove that you couldn't do a reception job today that did not require you to retrieve files but only to answer the phones.

(4) "any other work which exists in the national economy, considering your age, education and prior work experience."

This is the area under which most of the cases we handle fall under.

Vocational Considerations

The rest of the criteria under this section are what are known as "vocational considerations". There are three vocational considerations: Age; Education; and Prior Work Experience.

Age:
Social Security divides up the population in terms of age starting at age 45 and then establishes age categories in 5 year increments, i.e., 45 to 49; 50 to 54; 55 to 59; and 60 to 64. (After age 65 you can collect Retirement).

If you are under 50, or if you can't speak or read and write English and are under 45, you have to be COMPLETELY UNABLE TO DO ANY JOB WHICH EXISTS IN AMERICA, to qualify for disability.

This includes jobs like cashier where you can alternate between sitting and standing or "Information Person" who sits or stands in the lobby of building and gives directions to people when they come in.

If you are over 50 (or over 45 and illiterate or unable to communicate in English), a type of "sliding scale" applies where you may be considered disabled even if there are some types of jobs you can do.

Although this gets very complicated, basically Social Security looks at your education and skill levels.

Education:
The most important distinction here is whether or not you graduated from High School. Except for the oldest age category, you are treated the same whether you dropped out of school in the 3rd grade or the 11th grade on the one hand, or whether you barely managed to get your High School diploma or have a PhD in nuclear physics on the other hand.

Skills:
Skills are divided into "skilled" and "semi-skilled." Social Security looks here at whether or not your skills can be transferred to a less demanding job. For example, if you were a plumber and cannot do that work any more because of the lifting and crawling around involved, but could transfer your plumbing knowledge to a job as a salesman in a hardware store, you might not be considered disabled (so long as you could still walk around all day).

If you were a nurse and can no longer lift patients, but could work as a claims examiner for a health insurance company in a sit down job, you would not be disabled either.

(5) "continuous period of 12 months etc...."

To qualify for benefits you must be disabled, according to the above definition, for 12 continuous months, or have died or be expected to die within that time. If you go back to work or recover sufficiently to have worked under the above definition in 11 months, you get nothing. (You can get a "closed period" if you are disabled over 12 months but then are able to work. There are no benefits payable, however, for the first 5 months of disability).

HOW DO I APPLY FOR DISABILITY?

Locate your local "District Office" by calling 800-772-1213 (IL). Pick up an application for disability benefits there or ask for an application to be sent to you.

You should be sure you have the COMPLETE NAMES, ADDRESSES and PHONE NUMBERS OF ALL OF YOUR DOCTORS AND ALL OF THE HOSPITALS YOU HAVE BEEN TO FOR YOUR CONDITION. You will also be asked to list everywhere you have worked in the past 15 years and describe the type of work you did (addresses are not necessary).

Social Security will order hospital records and will send forms for your doctors to fill out. They may also send you to a doctor for an examination.

The forms that are sent to your doctors tend to focus on whether or not you meet a "Listing" and are not conducive for a full description of your condition. You should ask your doctor to also write out a narrative report indicating the types of things you cannot do because of your impairments and what evidence exists to support your claims. (You may be charged a fee for this).

Although Social Security will order some records for you, they do not have to do this and may not follow up if the records don't come in. It is YOUR RESPONSIBILITY to furnish evidence of your disability so if they don't get something, you are the one who loses. In particular, they do not order your treating doctor's office records so you may want to get them yourself.

Your case will then be reviewed and a decision, which is called the "Initial Determination" will be sent to you. (You may not be able to understand it as it is written on a computer in bureaucratic legalese).

If you lose at this stage you have 60 days to file an appeal. Failure to do so within that time can have serious consequences. You can lose all of the benefits which have accrued up to this time if you fail to appeal and try to re-apply later. In some cases, you could be permanently barred from getting any future benefits!

The next stage of appeal is called "Reconsideration". At this stage your case is sent to an agency of the State which has a contract with the federal government to review denials.

You will again have 60 days to appeal if you lose at this level.

The next stage is to request a Hearing. This must also be done within 60 days. The hearing is before an "Administrative Law Judge", an attorney who is independent of the Social Security Administration and who will make a new decision on your case after listening to what you have to say.

Sometimes a doctor and/or vocational expert will be at the hearing. You can question them if necessary about their opinions concerning your ability to work.

If you lose the hearing, you have 60 days to apply for a review from the Appeals Council, in Baltimore, MD. This is done in writing only.

If you still lose, you can sue the administration in federal court.

WHAT ARE MY CHANCES?

Generally, the Social Security Administration approves about 34 % of the claims filed at the Initial Determination and denies 66%.

Only about half of those denied appeal. Of those who do, 90% lose at Reconsideration.

Again, many gave up and did not request a hearing. This was a big mistake because **** THE MAJORITY OF THE HEARINGS RESULT IN AWARDS OF BENEFITS ****!

SHOULD I HIRE A LAWYER, IF SO, WHEN, AND WHAT WILL IT COST?

About 75% of the people who appear at hearings have attorneys or some other representative (your representative need not be an attorney). Attorneys must limit their fees to 25% of the retroactive benefits you are awarded.. They are not paid unless you win benefits. They cannot charge you an hourly fee ( a small amount can be charged to review the file and decide if they want to take the case). You usually have to pay expenses, such as charges for medical records and reports. The attorney's fee is automatically sent to the attorney by the Social Security Administration and is deducted from your initial award. Future benefits are not subject to fee charges.

Most people who hire a lawyer wait until the hearing request stage to do so. There are benefits to hiring a lawyer earlier, however.

One benefit is that the lawyer can discuss your case with your doctor before he or she writes a report and sends it to Social Security. If the doctor knows what Social Security is looking for, he or she can write a better report for you. Also, some of the opinions asked are really judgement calls, (such as can you lift 25 pounds or just 10 pounds, and if so, how often?). If the doctor is unaware of what you need to prove to establish your case he or she could unwittingly put down a level of work ability that could cause a denial of benefits. It is very difficult to overcome this later.

Secondly, there are enormous delays in getting through the appeals process. Right now it takes about 3 months at Initial Determination and another 3 months at Reconsideration. However, it can take OVER ONE YEAR to get a hearing if you lose at the first two levels. During that time you will have no income. It is therefore to your advantage to do everything you can to maximize your chances at the first level.

Remember, since the majority of the Reconsiderations are denied, if you lose at the first level you are probably looking at over a year to get a real chance to reverse that decision!

WHEN SHOULD I APPLY?

You should apply within one year or less after you become disabled. Although there is no time limit on applications for Social Security disability, there is a limited time that you are "insured" for disability purposes on Title II claims, which ranges from one day to five years depending on how long you have worked. Once the "insured period" has elapsed you can still get benefits but you have to prove that you met disability criteria BEFORE the end of the insured period. This will mean having to settle for whatever medical documentation existed before that date.

Under Title II (disability) you can get retroactive benefits for up to one year before the date that you file your Application.

WHAT IS "SSI"?

SSI or Supplemental Security Income, is another disability program administered by Social Security. It is designed for people who have not worked, or who have not worked in the recent past, and who are also below the poverty line. It pays a minimum amount per month (currently a little over $500).

You may sometimes be able to receive a combination of disability and SSI, depending on the circumstances, but the combined payments cannot exceed the Title II or Title XVI amount, whichever is more . The personnel at Social Security can help you determine if you are eligible for SSI. The definition of "disability" for SSI and disability are essentially identical. SSI is not subject to the five month "waiting period" which applies to disability benefits, but unlike Title II, you can not get benefits for any of the months before you applied.

Medical benefits with SSI are limited to Medicaid, rather than Medicare, but there is no waiting period for the Medicaid (you have to wait 2 years and 5 months from the "onset" date of your disability to get Medicare under Title II disability).

HOW DO OTHER BENEFIT PROGRAMS INTERRELATE WITH SOCIAL SECURITY?

If you are getting workers' compensation benefits under the laws of any state, your disability benefits under Social Security for Title II disability will be reduced according to a formula known as an "offset". This is true also for most settlements for lump sum payments under state workers' compensation laws unless special language is used in your workers' comp. settlement contracts. Samples of this special language can be obtained by writing to our office. Weekly benefits that are paid for temporary disability will always cause an offset. (Florida and a couple of other states apply the offset to the workers' compensation benefits so Social Security pays you the full amount in those states).

If you are receiving Veteran's benefits there is no offset on your Social Security, but your V.A. benefits will be reduced.

Settlements or awards on personal injury claim will have no effect on Title II Social Security benefits, but may make you ineligible for SSI due to SSI's income requirements.

If you are receiving disability benefits under a private insurance plan there is no offset of your Social Security benefits, but your private insurance benefits may be reduced by the amount you receive from Social Security,. If you have been getting private disability payments while awaiting your decision from Social Security, you will have to pay the insurance company with the back (retroactive) Social Security check. If you had an attorney on your Social Security claim who charged you a fee, you will not have to pay that portion of the retroactive benefits to the insurance company.

This is a "thumbnail" sketch of the disability program under the Social Security Act. If you need more detailed information you may wish to contact the Social Security Administration.

COPYRIGHT© 2003 MICHAEL J. WALKUP. All rights reserved. www.walkuplaw.com

Michael J. Walkup is an attorney with over twenty years experience representing clients seeking Social Security Disability benefits. For more information on applying for Social Security Disability, call the Social Security Administration, 800-772-1213 or Michael J. Walkup, 815-459-7090 or 800-984-2846. Or complete our questionnaire and we will contact you.

Since Social Security is a federal program any attorney who is licensed in one state may handle cases in any of the other states. We are in Illinois and generally handle cases throughout Northern Illinois, Wisconsin, and Indiana. We still sometimes go to other states as well. We can also refer you to attorneys in your area who are knowledgeable in Social Security disability law. Feel free to contact us regardless of what state you are currently in. WE ARE ATTORNEYS, NOT PARALEGALS. THERE IS A DIFFERENCE!