Social Security Disability

What You Should Know About
Your Social Security Disability Case

1. HOW DO I PROVE I AM DISABLED?

A. Social Security's Special Definition of Disability

B. The Importance of Medical Proof

C. Other Things Social Security Considers

2. WHAT KINDS OF BENEFITS ARE THERE?

A. Disability Insurance Benefits (DIB)

B. Supplemental Security Income (SSI)

C. Disabled Widow/Widower Benefits (DWB)

D. Disabled Adult Child Benefits (DAC)

3. WHAT ARE THE STEPS IN APPLYING FOR DISABILITY BENEFITS?

A. Initial Determination

B. Reconsideration

C. The Administrative Hearing

D. Appeals Council

E. Federal Court Review

4. ARE THERE ANY RESTRICTIONS AFTER BENEFITS ARE APPROVED? HOW LONG DO BENEFIT PAYMENTS LAST?

A. Returning to Work - Continuing Disability Reviews

B. Disability Involving Alcohol or Drug Abuse - Special Restrictions

5. WHAT ABOUT HAVING A LAWYER ON A SOCIAL SECURITY CASE?

A. What A Lawyer Does For You

B. When To Call A Lawyer

C. How Do Lawyers Charge on Social Security Cases?

1. HOW DO I PROVE I AM DISABLED? - Back to Table of Contents

A. Social Security's Special Definition of Disability - Back to Table of Contents
Social Security has its own specific definition of disability. Other agencies' decisions about disability (like VA, the Division of Family Services, or Workers' Compensation) are not binding on Social Security. For most disability claims (there are four different categories of Social Security disability benefits, each a little different), you must prove that you cannot do any substantial gainful work activity because of one or more physical or mental medical problems, backed up with clear medical evidence. This serious disability must last for at least twelve continuous months, or else be expected to result in death. You can file a claim before you have been disabled for twelve months, but you must be able to prove that your disability is certain to last that long, in order to qualify.

B. The Importance of Medical Proof - Back to Table of Contents
You must have hard medical evidence of some physical or mental problem, or combination of problems, which keeps you from working. For this reason, it is very important to be under regular medical care at all times. Social Security must rely on medical information from a doctor, hospital, or clinic to measure how severe your condition is. No matter how sick or hurt you say you are, Social Security is not allowed to pay you benefits without a clear medical explanation of why you are disabled.

C. Other Things Social Security Considers - Back to Table of Contents
In many cases, Social Security will also look at your age, education, and past work experience, including any skills you have learned at jobs you did over the last fifteen years. Some people think that Social Security will decide that they are disabled if they can't go back to their old job. This is not always true. Social Security will look at your duties at your old jobs to see if you learned any skills which you might be able to use in another, easier kind of job, and then decide whether you can physically or mentally do that kind of work. The younger and more educated you are, the easier they think it will be for you to adjust to a new job. For this reason, it is somewhat harder for younger people to get disability (although it is certainly not impossible), and easier for some older people to qualify.

Social Security is not allowed to consider whether you would be hired by someone, or the fact that you have not been hired when you applied for a job. All they can consider is whether jobs exist somewhere in the U. S. which could be done by a person of your age, education, and work experience, and with your medical conditions. If there are jobs that you can possibly do, you will be found not disabled. On the other hand, you do not have to be in a wheel chair or a nursing home to get benefits; you just have to be unable to work. To put it another way, Social Security will pay benefits if there is a medical reason why you cannot do any job for which you might qualify. Whether you can actually get a job does not count.

2. WHAT KINDS OF BENEFITS ARE THERE? - Back to Table of Contents

There are several kinds of disability benefits for which a person can be eligible. Depending on the facts, you may only be entitled to one of these benefits, or you may be entitled to more than one. The medical rules are the same for all categoriesæyou must be just as disabled to qualify for one as for another. The non-medical requirements are different for each category.

A. Disability Insurance Benefits (DIB) - Back to Table of Contents
You are only eligible for these benefits if you have paid a certain amount of Social Security tax over a period of time, enough to have disability insurance coverage in force. In general, you must have paid at least a certain amount of Social Security tax in at least twenty calendar quarters during the forty calendar quarters before your total disability began. In other words, you must have worked and paid Social Security tax for about five out of the last ten years before you became totally disabled. There is a different, easier rule for people whose disability began before age 30. Everyone must prove that he or she became disabled while disability insurance coverage was in force or they are not entitled to benefits, no matter how serious the medical condition is now. If your DIB claim is approved, the monthly payment you will receive is set by your earnings (and Social Security tax payments) during your working career. There is no minimum rate, and the maximum a person can receive at this time is over $1,300 per month. There is a cost-of-living raise in the monthly payment at the start of most years. In many cases, your dependent children will also get benefits in addition to your own.

B. Supplemental Security Income (SSI) - Back to Table of Contents
SSI can be paid whether or not a person has paid in enough Social Security tax to get disability insurance benefits. You must be disabled under the same rules as for disability insurance, or be blind, or be over 65. You must also have very little income or property, because this benefit is based on financial need. Social Security looks at all other income and property in the household you live in, not just your own, and also the value of any support (like free room and board) you may get from others, to determine whether you are financially eligible for SSI. Social Security does this in addition to deciding if you are disabled. Also, some children 18 or younger with a severe disability can get a monthly benefit if their family income is low enough.

C. Disabled Widow/Widower Benefits (DWB) - Back to Table of Contents
This is a special disability benefit for certain widows and widowers, based on the Social Security tax paid by his or her deceased spouse. In order to qualify, you must be between the ages of 50 and 60, and have been married for at least 10 years to the person who was covered under Social Security at the time of his or her death. Also, you must have proof that your disability was severe enough to meet these rules within seven years of your spouse's death, with some exceptions for those already receiving other kinds of Social Security benefits. If you are awarded DWB benefits, your monthly rate is determined by your spouse's income and Social Security tax payments. However, a surviving spouse's pension can usually be paid at the age of 60, regardless of any disability.

D. Disabled Adult Child Benefits (DAC) - Back to Table of Contents
In order to be eligible, you must be a child of a person already receiving Disability Insurance Benefits or Retirement Benefits, or who died while covered for Social Security. You must be at least 19 years old, and you must prove your total disability began before the month you turned age 22, and is continuing. The monthly benefit rate is based on a percentage of your parent's rate. Therefore, it is different in each particular case.

3. WHAT ARE THE STEPS IN APPLYING FOR DISABILITY BENEFITS? - Back to Table of Contents

All disability claims begin by filing an application with Social Security. This can be done by your lawyer, by calling Social Security toll free at (800) 772-1213, or visiting any one of their local offices.

A. Initial Determination - Back to Table of Contents
Disability Determinations, a state government office working with Social Security, does the initial disability review. They will order copies of your doctor, clinic or hospital records, and sometimes send you to see a doctor for an examination at their expense. If you miss this examination scheduled by Social Security, they may deny your claim. A decision is then made based on Social Security's own guidelines. In most cases, a person is turned down at this first step, and this includes many people with serious disabilities. If you think Social Security is wrong, you have the right to request a reconsideration of your claim. This must be done within 60 days after you receive the written notice of your denial. You should not give up if you are denied at this step.

B. Reconsideration - Back to Table of Contents
You can file the first appeal, called a request for reconsideration, by either calling or visiting any Social Security office, or have a lawyer do it for you. Disability Determinations will re-examine your file and update the medical evidence on your case. In recent years, a large majority of disability claims have been denied again at this step. Following this second denial, a person has 60 days to request a hearing with an administrative law judge. This is done by filing a Request for Hearing form by either calling or visiting any Social Security office, or having a lawyer do it for you. This appeal must be in writing-Social Security or your lawyer will provide the correct form. Once again, no one should give up at this point - everyone with a serious case should go on to at least the next step.

C. The Administrative Hearing - Back to Table of Contents
This can be a person's best chance to get a fair decision, properly applying Social Security law. The administrative law judge, the official who will hear the case, listens to your testimony and evaluates the medical evidence. He or she makes an entirely new decision, paying no attention to your earlier denials. The hearing is informal and quite different from what you would expect in a court room. Other people, including your personal doctor, can be present to testify at your hearing, although medical reports and records are usually enough. After your hearing, you will get a written decision in the mail, either granting or denying you benefits. Most people choose to be represented by a lawyer at a hearing, although it is not required.

Social Security has severe delays, up to two years, to get a hearing in some parts of the country. In other areas, the wait can be only a month or two. The government is trying several new programs to cut the backlog, which may not involve a "live" hearing on your case. Consult a local lawyer about conditions in your area.

D. Appeals Council - Back to Table of Contents
If you lose at the hearing, there is one last level of appeal inside Social Security itself, known as the Appeals Council. Like most other Social Security appeals, you must file for this within 60 days of the date of the judge's decision. Your file, any new medical evidence, or any written argument you want to send, are considered. However, the Appeals Council generally will not consider new evidence about your disability regarding the period of time after the hearing decision. This means that it is very important to be fully prepared, and have all possible medical evidence ready, when you appear before the administrative law judge - you cannot just "fix" problems when you file with the Appeals Council. Once again, the Appeals Council will mail you its decision. It may uphold the hearing decision, reverse the local judge's decision outright, or send the case back for a new hearing. Taking your case to the Appeals Council is a requirement if you want to have your case reviewed in United States District Court.

E. Federal Court Review - Back to Table of Contents
Within 60 days after you receive the Appeals Council written decision, a formal law suit can be filed with the United States District Court for your area, seeking review of Social Security's final decision. The District Court is only permitted to review your medical evidence and a written transcript of the hearing. No further evidence can be received. Your lawyer and the government's lawyer file legal briefs arguing each side, and the District Court issues another written decision. In many federal courts, you never appear in court in person-this is all done on paper, or sometimes with just the attorneys making legal arguments in court. In general, the federal court can do one of three things: the judge can reverse Social Security's decision outright and order them to pay you benefits; the judge can uphold Social Security's decision denying you benefits; or your case can be remanded, or sent back to Social Security for a new hearing.

In order to have your case reversed or sent back to Social Security, you must show that there was no "substantial evidence" for Social Security's decision, or that the government committed a serious legal mistake in deciding your case.

4. ARE THERE ANY RESTRICTIONS AFTER BENEFITS ARE APPROVED? HOW LONG DO BENEFIT PAYMENTS LAST? - Back to Table of Contents

A. Returning to Work - Continuing Disability Reviews - Back to Table of Contents
If your disability benefits are approved, you will be paid as long as you still qualify. Social Security will stop your checks if certain things happen. The most common reasons for stopping your benefits are: your medical condition improves to the point that you are able to work again; you actually go back to work and make over a certain amount of money; or (for people on SSI only) the income or property of your household goes over the limit allowed by SSI.

Sometimes Social Security cuts off benefits unfairly, just as they do not always approve people who are truly disabled when they first apply. If you do not agree with Social Security's reasons for stopping your checks, you have full rights to appeal, including a hearing with an administrative law judge. In general, for Social Security to stop your benefits because they say you are no longer disabled, they must have medical proof that your condition has actually gotten better, compared to the time your benefits were awarded, to the point that you can do some kind of work. If you do not agree, you can and should appeal.

Just like when a person first files for benefits, there are strict time limits to file appeals if the government tries to cut you off. You can choose to keep your monthly checks, your Medicare, or both, while you appeal a decision by Social Security to stop your benefits on the grounds that you are no longer disabled. However, to keep your checks, you must appeal within ten days of the notice from Social Security that they plan to cut you off. You still have sixty days just to file an appeal, but to keep your benefits while the appeal is going on, you must file within ten days. Your benefits can continue through a decision by an administrative law judge after a hearing. If the judge rules for you, your benefits will simply continue. On the other hand, if the judge rules that your disability has ended, you may have to repay the benefits you chose to receive while you appealed.

The legal and medical questions involved in stopping your benefits can actually be more complicated than when you first apply for benefits. If Social Security sends you a letter telling you that they are stopping your checks, it is a very good idea to talk to a lawyer right away.

B. Disability Involving Alcohol or Drug Abuse - Special Restrictions - Back to Table of Contents
Congress has passed important changes to the disability insurance and SSI programs for cases in which alcohol or drug dependence is a contributing factor material to the disability. "Contributing factor material to the disability" means that alcohol or drug dependence is such an important part of the reason for granting benefits that the applicant would not be found disabled if they stopped using these substances completely. If a person would still be considered disabled by Social Security for other physical or mental problems even if they completely stopped using drugs or alcohol, these restrictions do not apply.

As of March 29, 1996, no one can be approved for any Social Security or SSI disability benefit if alcohol or drug abuse is a contributing factor material to the disability. A person with a serious alcohol or drug problem can receive these benefits only if they are disabled for some other medical reason. In addition, everyone already receiving Social Security or SSI disability benefits who has alcohol or drug abuse as a material factor contributing to the disability will stop getting benefits after January 1, 1997, unless they can prove that they are still disabled because of other medical problems.

5. WHAT ABOUT HAVING A LAWYER ON A SOCIAL SECURITY CASE? - Back to Table of Contents

A. What A Lawyer Does For You - Back to Table of Contents
No one is required to have a lawyer represent them on a Social Security case, but most people do have a lawyer at least by the time of the hearing before the administrative law judge, and you can consult a lawyer at any time, even before filing a claim. The government's own figures show that people who have a lawyer are more likely to win. A lawyer who is familiar with Social Security cases will know all the details of how to appeal. He or she should be skilled in sizing up your disability and counseling you on how the law applies to your condition. Your lawyer should know how to decide what medical proof is needed for your case, and how to get it. He or she will prepare you before your hearing, so you can explain your disability to the judge in the strongest way possible. Your lawyer should also be able to explain all of the government's decisions, and help you with any problems that come up about your payments if you are approved.

B. When To Call A Lawyer - Back to Table of Contents
Our firm is happy to talk to you on the phone, without charge, before you file if you have any questions about whether you are eligible. We are happy to work with you at any point in the case. The sooner we talk to you, the sooner we can advise you how to deal with Social Security. However, if you are denied a second time (what Social Security calls a "reconsideration"), it is a good idea to see a lawyer as soon as you can. The third step is the hearing with an administrative law judge - that is the time you need a lawyer the most, and when the lawyer can do you the most good. We strongly advise people who are thinking about having a lawyer represent them at the hearing to contact an attorney before filing the request for hearing, rather than filing the appeal yourself. If you do not have a lawyer at the hearing and the judge turns you down, it is then sometimes too late for a lawyer to help. However, if you are in this situation, you should still call a lawyer to get advice on appealing again or filing on a new claim.

C. How Do Lawyers Charge on Social Security Cases? - Back to Table of Contents
On most, but not all, Social Security cases, lawyers charge what is called a "contingent fee." This means that the lawyer's fee is a percentage (usually 25%) of any back pay the government owes you by the time you finally win the case, and if you do not get benefits the lawyer does not charge you anything. Some firms, including Crowe & Shanahan, www.crowe-shanahan.com do not require a retainer fee for most types of cases. Don't be afraid to ask exactly how any lawyer charges - it's your case and your money.

There are some kinds of Social Security problems for which you may need a lawyer, but you will not be due any back pay if you win. A lawyer cannot take this kind of case on a percentage - there is nothing to figure a percentage on. The lawyer may want to charge by the hour (whether you win or lose), or you may make some other arrangement.

Fees should be clearly set out before you decide to hire a particular lawyer. All lawyer fees are regulated by Social Security. In some cases, your attorney must file a written application with Social Security at the end of the case, and the final amount of the fee is then set by the government. For most types of benefits (but not SSI), Social Security will hold out the 25% of your back pay, and send your lawyer a check for the fee they approve. In other cases, you will have to pay the lawyer yourself. SSI claims are the most common kind of case in which you must pay your lawyer directly, but this can also happen in certain other cases which do not involve back pay if you win. Be sure to ask your lawyer how his or her fee will be paid in your particular case.

A fee of 25% of any back pay due, up to a limit of $5,300, will be automatically approved in most cases. However, you, your lawyer, or the administrative law judge may still ask for the fee to be individually reviewed in a given case, if one of you object to a fee of 25%.