I. Types Of Social Security Disability Benefits
II. The Legal Requirements For A Finding Of Disability
III. The Legal Standards For A Finding of Disability Due To Blindness
IV. My Doctor, Disability Insurer, The Veterans’ Administration, Workers’ Compensation, Or State Or Federal Disability Plans Have Determined That I Am Disabled.
V. How Do I Apply For Social Security Disability Benefits?
VI. The Decision Making Process
VII. Right To A Hearing
VIII. What Happens If I Win?
IX. Terminal Illnesses
X. Obtaining Both Social Security Disability And SSI Benefits
XI. Benefits Available to Dependents Of Claimants Receiving Disability Benefits
XII. Supplemental Security Income (SSI)

Types Of Social Security Disability Benefits

Q.  What kinds of disability benefits are paid by Social Security?

A.  There are five types of Social Security disability benefits:

• Disability Insurance Benefits
• Disabled Widow(er)’s Benefits
• Disabled Adult Child Benefits
• SSI (Supplemental Security Income) Benefits
• SSI Child’s Disability Benefits

Q.  What are Disability Insurance Benefits?

A.   This is the largest of all of the Social Security disability programs. Qualification to participate is dependent upon your having worked long enough to have coverage in force. FICA (federal withholding) taxes or Self-employment taxes, if you were self-employed, must have been paid into the Social Security system for a sufficient period of time for you to obtain coverage.

• If you are older, you must have obtained 20 quarters of work credits in the last ten years, that is, to have worked 5 out of the last 10 years, in order to be covered under the program. If you do not meet the coverage requirement, then, regardless of your medical condition, you will not receive benefits. Medicare benefits become available two years after you commence receiving Social Security disability benefits and your eligibility does not depend upon whether you are rich or poor.
• If you are younger you need not have as many work credits to qualify for disability.       
  • Younger workers under the age of 24 who becomes disabled need only 6 quarters of work credit within the three year period before they become disabled in order to qualify for Social Security disability benefits.
  • Younger workers who are between the ages of 24 and 31 need to have work credits equal to one half of the time period between the date on which they turned the age of 21 and the date on which their disability began.
• The size of the monthly benefit depends upon your earnings record.

Q.  What are Disabled Widow(er)’s Benefits?

A.  If you have a deceased spouse who contributed to the Social Security system for the requisite number of quarters, and you are between the ages of 50 and 60 years old and became disabled, according to Social Security’s standards, either prior to or within 7 years of your spouse’s death, you may apply for Social Security disability benefits upon your deceased spouse’s Social Security account.

Q.  What are Disabled Adult Child Benefits?

A.   A disabled adult child is one who is rendered disabled between the ages of 18 and 22 and who is able to draw Social Security disability benefits on the account of an insured parent who is either retired, disabled, or deceased.  The monthly rate paid to the adult child is based upon a percentage of the benefit payable to the parent.  Disability is determined in the same manner as it would be for the child’s parents.

Q. What are SSI (Supplemental Security Income) Benefits?

A.  You are eligible to receive SSI benefits if you are 65 or older, or are blind or disabled, and you have limited income and financial resources.

• It is not necessary for you to have ever worked.  For 2009, monthly benefits are limited to $674 per individual and $1,011 for couples. 
• There are income limitations that take into account both earned and unearned income.  For a more in depth explanation of how earned and unearned income may reduce your entitlement to SSI benefits go to: http://www.ssa.gov/ssi/text-income-ussi.htm.
• There are also asset limitations to qualify.  For individuals the asset limitation is $2,000.  For couples the limitation is $3,000.
• Medicaid coverage is available to SSI beneficiaries, but does not pay medical benefits as large as those paid for by Medicare.  For that reason, it may be difficult for you to find doctors willing to treat Medicaid patients.  You can qualify for Medicaid without applying for or qualifying for SSI benefits. 
• Also, please see the FAQs below that specifically address other issues pertinent to SSI.

Q.  What are SSI Child’s Disability Benefits?

A.  This type of SSI benefit is paid to children under the age of 18 who are disabled.  Social Security looks at the following factors:

• The child must not be engaging in substantial gainful employment.
• The child has a physical or mental condition (or a combination of conditions) that results in “marked and severe functional limitations.”  This means that the condition(s) very seriously limit his or her activities.
• The condition(s) have lasted, or are expected to last, at least 1 year or are expected to result in death.
• The parents and the child meet the income and asset limitations required to qualify for SSI.

The Legal Requirements For A Finding Of Disability

Q.  What legal standard does Social Security apply in order to determine if an individual is disabled?

A.  The Social Security Act defines the term, “disability,” to mean the “inability to engage in any substantial gainful activity by reason 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 at least 12 months.”

Q.   What does the term “substantial gainful activity” mean?

A.   Not only can you not be able to perform your former employment, but taking into consideration all of your physical and/or mental impairments, age, education, and work history, you cannot perform any other form of meaningful employment within the nation’s economy. In determining whether or not you can engage in substantial gainful employment, Social Security examines job opportunities for alternative employment that are hypothetically available to you in the nation’s economy given your limitations regardless of whether such jobs are actually available to you in your local  job market given the current economic conditions.

Q.    What steps does Social Security follow in order to determine if I am disabled?

A.    Social Security examines the following in order to determine if you are disabled:

• First, it determines whether you are still working. 
  • If you are still working, then you will not be found to be disabled regardless of how severe your medical condition may be.
  • If you are not working, then Social Security next looks at your medical condition.
• Second, if you have met the first requirement, then you must be found to have one or more medical conditions that are severe enough to prevent you from performing work-related activities. 
• Third, if your medical condition(s) are determined to be severe enough to meet one or more of the medical standards set forth in Social Security’s Listing of Impairments, you will be determined to be disabled without the need to take into account your age, work history, or education.  If your medical condition(s) are not contained within the Listing of Impairments, then Social Security will find you disabled only if it finds that your medical condition(s) are equal in severity to those in the Listing of Impairments.
• Fourth, if your medical condition(s) are not in the Listing of Impairments or deemed to be severe enough to equal the severity of those that are, then Social Security will determine whether you are prevented by your medical condition(s) from performing your job. If they do not, then you will not be found to be disabled.  If they do, then Social Security then goes to the next step of the analysis, which examines your age, work history, and education.
• Fifth, if you cannot perform your former job, then Social Security will examine what jobs you might be able to perform that exist within the nation’s economy.  To do that it considers your medical condition(s), age, work history, and education.  If Social Security determines that other occupations exist in sufficient numbers that you can perform given your medical condition(s), physical and mental impairments, age, work history, and education, whether or not such occupations are actually available to you in your local job market given the current economy, then you will not be found to be disabled.  However, if Social Security determines that you cannot perform other occupations after considering all of those factors, then you will be found to be disabled. 

The Legal Standards For A Finding Of Disability Due To Blindness

Q. I am blind.  Do the same standards for determining disability apply?

A.  The rules are somewhat different.

Q.  How are they different?

A.  To meet the legal definition of blindness, you:

• must not have a central visual acuity greater than 20/200 in the better eye with a corrective lense; or
• a field of vision of not more than 20 degrees; and
• there is no opportunity to equal the standards set forth above by some other condition.

Q.  What are the requirements for insured status for a blind person?

A.  The blind person must meet the requirements for insurance coverage under the Social Security Act.  However, there is no requirement of recent work experience.

Q.  Are the rules prohibiting the performance of substantial gainful employment the same for blind persons as they are for other disabled persons?

A.  No.  There are special rules that create more incentive for blind people to work than for other disabled persons.  Their amount of permissible income without exceeding the threshold of substantial gainful employment is higher.

Q.  If I am severely visually impaired, but do not meet the strict standards for blindness, can I still be found to be disabled?

A. Yes.  However, your case will be adjudicated using the Listing of Impairments and the same 5 step procedure used in other Social Security disability cases.

My Doctor, Disability Insurer, The Veterans’ Administration, Workers’ Compensation, Or State Or Federal Disability Plans Have Determined That I Am Disabled.

Q.   My doctor says that I am disabled.  Shouldn’t that qualify me for Social Security disability benefits?

A.    No.  Only Social Security can make that determination after considering your medical condition(s), age, work history, and education.

Q.  I am already drawing disability insurance payments from my disability insurance carrier.  Doesn’t that mean that I automatically qualify for disability benefits under the Social Security Act?

A.  No.  The legal standard for determining disability under the Social Security Act is a very strict and narrow one.  Disability insurance typically pays for disability for an initial period of time for the inability to perform one’s former employment, a more lenient standard than that required by Social Security.  After that initial period has expired, the disability insurance typically imposes a standard for measuring disability that is similar to the more stringent one required by Social Security and at the onset of your disability the disability carrier may, as a condition for receiving disability payments under its policy, require you to immediately apply for Social Security disability benefits.  If you begin receiving Social Security disability benefits you may find that the disability benefits provided under your disability insurance policy are reduced.

Q.   I am a veteran and I am drawing VA disability.  Does that mean that I am automatically qualified for Social Security disability?

A:   No.  The standards for the two programs are different.  The VA oftentimes makes a finding of a percentage of disability.  The degree of disability, whether partial or total, is service related.  Even if there is a finding of less than total disability by the VA, that does not mean that the veteran may not be found to be totally disabled by Social Security. Moreover, the VA typically maintains its medical records electronically and is efficient in transferring medical records to Social Security. A veteran who qualifies for Social Security disability benefits will not have those benefits reduced because he or she is simultaneously receiving VA benefits nor will the VA benefits be reduced by what the veteran may ultimately receive from Social Security.

Q.  I am already receiving permanent total disability benefits either from Workers’ Compensation or from some other state or federal governmental disability fund.  Can I still qualify for Social Security disability benefits and, if so, will my Social Security benefits be reduced from that which I would otherwise be qualified to receive?

A.   The answer to both questions is “yes.”  Your Social Security disability benefits will be reduced by an amount such that the combination of your Social Security disability benefit and your governmental disability benefit cannot exceed 80 percent of your average current earnings prior to your becoming totally disabled.  Bear in mind that the unreduced amount of your Social Security benefits is counted for income tax purposes.

How Do I Apply For Social Security Disability Benefits?

Q.  What must I do to apply for disability benefits and what methods may be available for me to do so?

A.  You will be required to complete the Application for Social Security Disability Benefits and the Disability Report.  You can apply in one of three ways:

• By visiting your local Social Security office and applying in person.  Be prepared for the process to take a matter of hours.  You will be required to complete the Application for Social Security Disability Benefits and the Disability Report.
• By calling Social Security at its toll free number: 1-800-772-1213.  An appointment will be set to complete an interview over the telephone. Forms will then be sent for completion and return. Individuals who may be deaf or hard of hearing may call toll-free “TTY” number: 1-800-325-0778, between 7:00 a.m. and 7:00 p.m. on week days.  
• By completing the Disability Report at Social Security’s website at www.socialsecurity.gov/disability/3368 online or by printing the Disability Report from that website, completing it, and taking it to your local Social Security office and providing any other information that may be required. If you are filing for SSI benefits you will not be able to complete an Application for SSI online, but will be able to complete the Disability Report.  You will be able to access the Disability Starter Kit, which contains a:
  • Fact sheet that answers questions most people ask about applying for disability benefits, and
  • Checklist of documents and information that Social Security will request, and
  • Worksheet to help you gather and organize the information you will need for your disability interview or to complete the online forms.

Q.   When should I apply for benefits?

A.    As soon as you determine that you are unable to work and that you will not be able to return to work for the foreseeable future. It is very important to file the application at the earliest possible time because the legal process moves so slowly.  Social Security grants benefits only for total disability, not short term disability, but if it is foreseeable that you may be disabled for at least 12 months, then you should apply as soon as possible.

Q.  Should I seek the assistance of an attorney in order to apply for benefits?

A.   Many people initiate the process on their own.  And the administrative staff at Social Security are there to help you.  However, an attorney skilled in this area of the law can be of assistance to you at this stage by helping you to build a stronger record by helping you to provide more complete documentation so that your outcome is more likely to be successful at the initial stage or upon reconsideration, or, if the case reaches the hearing level, the record is adequately developed so that a favorable decision can be later rendered by the administrative law judge.  In other words, assistance from an attorney at the initial stage helps you to “get off on the right foot” so to speak.

The Decision Making Process

Q.  If I apply for benefits, how long will it take Social Security to make a decision?

A.  The Ohio Bureau of Disability Determination makes the initial determination. It is the state agency that Social Security has designated as its agent for that purpose. The agency has medical and vocational experts who will contact your doctors and other places where you received treatment to get your medical records. The agency may request that you undergo a medical examination or medical tests in order that it can complete the evaluation of your application. After you have provided all of the information requested on the forms and by way of documentation and any other information that the agency requires has been obtained, it takes about four months.

Q.   What if my application is denied?

A.   That happens in most cases.  If it does, then you may file an application to request that your application be reconsidered at a higher level by the state agency.  Applicants succeed in about ten to twenty percent of the cases at this level.  Those who do, however, are more likely to be represented by an attorney who has reviewed the agency’s denial and the client’s file and supplemented their file with additional, relevant information that enhances the client’s chance of success.  At the reconsideration level your case file is reviewed by a physician who has not previously had contact with your case.  He or she conducts a “paper review” of the file only and does not meet with you or conduct a medical examination.

Q.  How long does it take the Ohio Bureau of Disability Determination to make a decision on reconsideration?

A.  About four months.

Right To A Hearing

Q.  What do I do if my application for reconsideration is denied?

A.  You then have the right to file a Request for Hearing, which will enable you to have a hearing before an administrative law judge that is employed by the Office of Disability Adjudication and Review, the adjudicative division of Social Security, who will take your testimony and that of medical and vocational experts, consider the medical and other evidence in your file, including your age, education, and work experience, and then render a decision.

This is the most critical point in the Social Security legal process for you to have legal representation.  It is at this stage of the proceedings that your attorney will have the chance to represent you in a hearing that is on the record and in which your testimony and the testimony of expert witnesses will be taken.

Q.   Is a hearing always required?

A.  No.  If the administrative law judge determines from a review of the file that the medical evidence and the evidence of your age, work history, and education supports a finding of disability, he or she can make a finding without a hearing.

Q.  If a hearing is held, what function does the medical expert serve?

A.  The medical expert is a physician who is retained by Social Security to review all of the medical evidence and to render an impartial medical opinion regarding whether: (1) your medical condition(s) meet the Listing of Impairments; (2) if they do not, are they as severe as those listed in the Listing of Impairments; and (3) the onset date of your disability.  Typically, he or she will testify after you do in order that your testimony concerning your physical and/or mental impairments can be taken into account in formulating the medical opinion.  If the severity of your medical condition(s) does not meet or equal the severity of those set forth in the Listing of Impairments, then the physician will provide an opinion as to the degree of limitation your physical and/or mental impairments imposes upon your work related activities.  Your attorney will have the opportunity to cross-examine the medical expert about his or her medical opinion.

Q.  If a hearing is held, what function does the vocational expert serve?

A.  The vocational expert is retained by Social Security to render an opinion as to what occupations may be available to you within the nation’s economy given the nature of your medical condition(s), age, work history, and education.  The vocational expert will testify only if your medical condition(s) are found by the medical expert not to meet or equal the severity of the medical conditions set forth in Social Security’s Listing of Impairments.  Your attorney will have the opportunity to cross-examine the vocational expert about his or her vocational opinion?

Q.   From the time that I file a Request for Hearing, how long will it take for the administrative law judge to render a decision?

A.   At the present time, approximately two years. Currently, Social Security’s highest priority is to shorten this time period.

Q.   What is a hearing before an administrative law judge like?

A.   It is a fact finding hearing on the record conducted by the judge.  The experts hired by Social Security are impartial.  You, as the claimant, may present your own medical expert testimony if that is to your advantage, but in most cases it is not necessary.  There is no opposing counsel present.  The judge and your attorney are the only lawyers present in the hearing room that conduct direct and cross-examination of the witnesses, including yourself.  Generally, judges prefer that spouses do not testify.  It may be beneficial for other lay witnesses to testify, but only if they can provide significant factual information that will assist the judge in rendering his or her decision.

What Happens If I Win?

Q.  If I win my case, how far back will Social Security pay me back disability benefits?

A.  There is a five month waiting period following the onset of your disability before the payment of back disability benefits can commence.  Moreover, back disability benefits cannot be paid retroactively more than 12 months prior to the date of the application for benefits.  Thus, if the onset of your disability was 17 months prior to the filing of the application, the commencement date for the payment of back disability benefits would be 12 months prior to the filing of the application.  The period of back disability benefits award would end on the date of the favorable decision, whether rendered at the initial, reconsideration, or hearing levels.  An attorney skilled in this area of the law will be able to confirm the accuracy of the award of back disability benefits.

Q.  If I win a lump sum payment of disability benefits, will I have to pay income taxes on that lump sum payment?

A. No.  However, Social Security will provide you with a Form 1099 that you should provide to your tax preparer that will indicate the amount of your lump sum benefit, the years that it covers, and the amount of attorney fees withheld and paid to your attorney.  Even though the lump sum benefit may represent Social Security benefits covering a number of years, you will not need to amend prior income tax returns.

Q.  Once I begin receiving Social Security disability payments on a monthly basis, will I need to report those to the IRS?

A.  Yes.  Social Security disability benefits received on a monthly basis are reportable and taxable to the same extent that regular Social Security retirement benefits are.

Terminal Illnesses

Q.  Can a person with a terminal illness qualify for Social Security disability benefits?

A.  Persons with terminal illnesses qualify for Social Security disability benefits in the same way as those who have illnesses that are not terminal.  However, Social Security will take special measures to expedite such cases to final adjudication under its Quick Disability Determination Process.  A certain subset of these cases that involve rare and terminal conditions are known as “Compassionate Allowances."  At the initial level, an attorney may be able to be especially helpful to make sure that you receive an expedited consideration of your application.  The same benefit from legal representation would apply at both the reconsideration and hearing levels as well.

Obtaining Both Social Security Disability And SSI Benefits

Q.  Can I qualify for both Social Security disability and SSI?

A. Yes.  To do so your entitlement to Social Security disability benefits must be low enough to qualify for both.

Benefits Available To Dependents Of Claimants Receiving Disability Benefits

Q.  Can my spouse and my children qualify to receive benefits on my account if I qualify  for Social Security disability benefits?

A.  Yes, within certain limitations. 

• Children under the age of 18 can receive benefits even if they are not in school.
• Children under the age of 19 who are in school can receive benefits.
• Spouses may receive benefits subject to certain income limitations.

Supplemental Security Income (SSI)

Q.   If I qualify for SSI, are any retroactive benefits paid?

A.   No.  Benefit payments commence as of the date the application was filed not up to 12 months prior as in the case of Social Security disability benefits.

Q.  Are SSI benefits subject to income taxes?

A.  No.

Q.  If I qualify for SSI, how soon do I qualify for Medicaid?

A.  Typically, on the same date that you qualify for SSI?

Q.  May only persons who are disabled qualify for SSI?

A.  No. Persons who are age 65 and older and who have limited income may qualify.

Q.  You have previously indicated that the resource limitation for persons to qualify for SSI is $2,000 for individuals and $3,000 for couples.  What items are not considered resources for purposes of determining these limitations?

• The home you live in and the land it sits on.
• Your personal effects and household goods.
• Life insurance policies may not count, depending upon their value.
• Your car usually does not count.
• Burial plots for yourself and immediate members of your family.
• Up to $1,500 in burial funds for either you or your spouse.
• Items that you need to work or to earn extra income if you are blind or have a disability.

Q.   How does Social Security define the term “earned income” for purposes of determining eligibility to receive SSI benefits?

A.    The term “earned income” includes any one or all of the following:

• Wages from a job, whether in cash or another form.
• Net earnings from a business, if a person is self-employed.
• Payments for services performed in a sheltered workshop or work activities center.
• Royalties earned in connection with publication of the individual’s work or honoraria received for services rendered.

Q.   How does Social Security define the term “unearned income” for purposes of determining eligibility to receive SSI benefits?

A.  The term “unearned income” includes any one or all of the following:

• The value of food or shelter that someone gives you, or the amount of money they give you to help pay for those items of subsistence.
• Department of Veterans Affairs (VA) benefits.
• Railroad retirement and railroad unemployment benefits.
• Annuities, government or private pensions, workers’ compensation, unemployment compensation, black lung benefits, and Social Security benefits.
• Prizes, lottery winnings, settlements and awards, including court-ordered awards.
• Proceeds of life insurance policies.
• Gifts and contributions.
• Support and alimony payments.
• Inheritance in cash or property.
• Rental income.
• Strike pay and other union benefits.

Q.  Will an inheritance affect my SSI benefits?

A.   Because you cannot have more than $2,000 in resources as an individual or $3,000 as a couple to qualify for SSI, if the inheritance causes the total value of your resources in either case to exceed the limit, then you or you and your spouse will no longer qualify for SSI.

Q.  Can I own my home and still qualify for SSI?

A.  Yes.

Q.  If I dispose of resources, can that make me ineligible for SSI?

A.  Yes. To remain eligible the transfer must be deemed to be valid.  Transfers that are made for less than fair value may count toward the countable resource limit to the extent that the asset was transferred for less than fair value.  If the resource limit is exceeded,  the  SSI beneficiary may be deemed to be ineligible to receive benefits for 36 months.

Q.  What standards for determining disability does Social Security apply in SSI cases?

A.  Generally, the standards that are used to determine if a claimant is disabled for purposes of qualifying for SSI benefits are the same standards as those used to determine if the claimant is disabled for purposes of qualifying for Social Security disability benefits.

Please visit our website exclusively devoted to Social Security at: http://www.lickingcountydisabilityattorney.com