What is the difference between SSI and Disability?
For disability purposes, what you have to prove at a hearing is the same regardless of whether the case concerns SSI or Disability: you still have to go through the five-step sequential evaluation process. The programs differ in their technical requirements for disability.
Supplemental Security Income benefits (SSI) is a disability program for those who have little or no income or resources, except for an automobile, a home and furnishings, and are disabled. It pays a flat rate called the Federal Benefit Amount (FBA) which in 2009 is $674 per month. It pays nothing for dependents of the disabled. If you receive either money (earned or unearned) from any source, or assistance in the form of food, clothing or shelter, that amount may be reduced.
Disability Insurance benefits (DIB) is a disability program for persons who have worked and paid Social Security Taxes for 20 out of the last 40 quarters, generally speaking, and are disabled. It also pays for dependents of the disabled to a certain extent. The amount of DIB is computed based upon average monthly earnings according to a computer program created by Social Security, and is unaffected by any other income you might get. If you are eligible for both types of Disability benefits—as some of my clients are—your payments will be subject to a complicated formula called the Windfall Offset, which reduces your SSI payments by the amount that should have been paid had the DIB been paid first.
What is Social Security’s definition of disability?
The “inability to engage in any substantial gainful activity because of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months.” Unlike Worker Compensation, or VA Disability, under Social Security you are either completely disabled, or not disabled. There is no such thing as partial, or percentage, of disability.
What will happen at my Social Security hearing?
The hearings are not like any court proceeding, in that the normal rules of evidence do not apply, although you will be sworn (or affirmed) as a witness for testimony, and medical evidence will be admitted formally to a written record referred to as your official file for purposes of the hearing. Typically attending are the Administrative Law Judge (ALJ), a court reporter and you and your representative. In some cases, the ALJ has a medical doctor (a medical expert or “ME”) or vocational expert (“VE”) present to testify at the hearing. In some cases (where a client alleges that they have seizures, for example), there may be other witnesses your attorney will want to have present to testify on your behalf, but this is rare.
Do I have to wait to file for benefits?
No, you can file as soon as you become disabled. Most people make the mistake of waiting too long to file for benefits. If you and your doctor believe that you won’t be able to return to work for at least a year, or your doctor or therapist advises you to seek disability benefits, or you have been to Vocational Rehabilitation and they have said you are too sick to be able to benefit from their services, it is time to file for disability. In fact, if you wait more than a year after becoming disabled before filing for benefits, you may be losing valuable months of past-due benefits.
Do I have to wait until I don’t have any money in the bank before I can apply for Social Security disability benefits?
There is no reason to wait to file your claim. If you have some money in the bank, that may disqualify you from receiving Supplemental Security Income Benefits (SSI), but not from receiving Disability Insurance Benefits (DIB). By the time your case gets to a hearing, chances are you will have spent that money in the bank and you will be eligible for receiving SSI based upon the resource limits. You still have to prove that you are disabled, however. See, above, regarding SSI and DIB.
Can I file for Social Security disability while on sick leave from my employer?
Yes; and military personnel can file for disability if they are on medical hold status with a physical evaluation board pending, provided that they are not performing any actual work.
Do you have to be permanently disabled to get Social Security disability benefits?
No. You have to be disabled or expect to be disabled for at least a year or have a condition that is expected to result in death.
How do I apply for disability benefits?
Unless you are homebound, go to your local Social Security office and apply in person. Even if you have an appointment, you may have to wait several hours before you actually meet with a claims representative who will take your application. If you cannot appear in person, call 1-800-772-1213 and schedule a telephone interview with a claims representative who can take your claim over the phone. This is not as satisfactory as actually sitting in front of a claims representative, but will get the job of filing done.WHEN YOU FILE YOUR CLAIM, BE SURE TO BRING ALL THE INFORMATION SOCIAL SECURITY NEEDS, INCLUDING THE NAMES AND CONTACT NUMBERS FOR YOUR TREATING DOCTORS AND MEDICAL CLINICS. ALSO, ANSWER SOCIAL SECURITY’S QUESTIONS THOROUGHLY AND COMPLETELY SO AS NOT TO MISLEAD THE EXAMINERS. See “giving incomplete information,” under “Mistakes Claimants Make,” above.
What should I do if Social Security denies my claim for disability benefits?
When denied, always remember: appeal. This applies also to Medicaid denials from the N.C. Department of Health and Human Services. You are also entitled to hearings from a N.C. State Hearing Officer on your Medicaid. See below under “WHAT DO I DO DURING THESE LONG WAITS BETWEEN STEPS?”
How long will it take for my claim to be decided?
The short answer is that it is impossible to tell how long your case may take to decide. You can expect that, if you have to go to a hearing, your case will take two to three years from when you first apply to be resolved. Sometimes the wait is longer. The reason cases take so long to be decided, in most instances, have nothing to do with you or your attorney. They have everything to do with Social Security’s backlogs, which are more than 500 days in most North Carolina hearing offices. There are things you can do, however, to make it possible for your attorney to submit proposals for a favorable decision without a hearing, such as get more frequent and better quality medical care, and seek more extensive support from your treating doctor.
Can I collect unemployment while I wait for my disability hearing?
You can, but you are risking having to amend your onset date to after you last received unemployment, or having to pay back the State of North Carolina for any benefits you may have received during the same time you received Disability Insurance Benefits. It is a violation of the North Carolina Statutes to receive unemployment insurance while applying for or receiving Social Security Disability benefits. Some Administrative Law Judges (ALJ’s) view acceptance of unemployment benefits as an implied statement that you are “ready, willing and able to work,” although the Employment Security Commission sometimes does not make this clear to persons filing for unemployment.
Can I return to work while I wait for my disability hearing?
Yes. As long as you have been out of work for at least 12 consecutive months because of your disability, the impact on your claim should be minimal, and the knowledge you might gain about your own abilities may actually prove valuable to your claim. Attempting to work also shows that you are desirous of getting back to work and are not simply trying to get disability. On the other hand, if you are able to go back to work, it may show the judge that you are, in fact, capable of performing substantial gainful activity and, therefore, not disabled. AS SOON AS YOU RETURN TO WORK, OR EVEN PREPARE TO RETURN TO WORK, YOU SHOULD CALL ME AND DISCUSS HOW IT MIGHT AFFECT YOUR CLAIM.
Can an attorney “speed up” the process or get my benefits faster?
ometimes, if your doctors are willing to be helpful by writing letters or completing and returning forms, and the medical records are readable and of good quality, it may be possible to get a favorable decision without a hearing, but, generally speaking, these are few and far between. Particularly if you are a relatively younger person (i.e., under 50 years of age at the time you claimed to be disabled), or if there are unfavorable facts in my file, it will be likely that the ALJ will have to see you at a hearing before he or she can make a decision on whether or not you are disabled. You can help your attorney move your case along by following up on treatment as soon as possible, and by letting your attorney know about new and continuing medical treatment as soon as it happens.
What do you mean about “unfavorable facts in my file?”
These refer generally to statements by medical providers that you are not complying with treatment, missing appointments, not taking your medications, or that you are abusing alcohol or drugs. They can also be statements you make to Social Security or Disability Determination Services that are incorrect or misleading, such as that you stopped working because a plant shut down, which may imply that you could have continued working if the plant had continued to operate, and that your disability had nothing to do with your stopping work. Sometimes a condition becomes disabling at about the same time a plant closes, and it just becomes impossible for a person to return to work to another job because, medically, they are now disabled.
Do I have to have a lawyer to represent me in my disability claim?
Social Security must advise you that you can choose to get a lawyer or other person to represent you, but you can always choose to represent yourself. The percentages show that represented claimants are more likely to win their cases than those who represent themselves.
As my lawyer, how will you be paid?
In most cases, most lawyers charge a contingent fee which is the lesser of $6000 or 25% percent of your back benefits. A contingent fee means that if your claim is denied, or no past due benefits are owed, no attorney’s fees are owed. Many attorneys also charge for costs, as do I, for copying and paying for medical records, but these, too, are only payable if you receive a favorable decision. Every attorney fee must be approved by the Social Security Administration. It is a criminal offense for an attorney to charge a fee that is not approved by Social Security or by a United States District Court.