SocialSecurity

SOCIAL SECURITY DISABILITY

SOCIAL SECURITY QUICK LINK CENTER
Types of Claims	When or Should I Hire a Lawyer?
Determining Disability	What is My Attorney Doing?
Procedural Steps of a Disability Case	Forms and Publications

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TYPES OF CLAIMS: There are two different types of disability benefit plans under social security: SSI (Supplemental Security Income) and SSDI (Social Security Disability Insurance).

SUPPLEMENTAL SECURITY INCOME (SSI): SSI requires a claimant be determined disabled and have assets and income below a certain level. It is a fall-through benefit plan designed to help disabled persons who have no other way to support themselves. An SSI check will usually be a little over $500.00 a month unless reduced because of assets or income. In determining assets or income, Social Security not only looks at any income or assets of the claimant, but will also impute income to the claimant for the income of a spouse and the value of food and shelter provided by friends or family members. SSI is also lowered by any SSDI claimant may receive.

SOCIAL SECURITY DISABILITY INSURANCE (SSDI): SSDI requires a claimant be determined disabled and be insured. SSDI is an insurance benefit plan. If you have paid enough premiums, you are covered. In the case of SSDI, FICA taxes are your premiums. In general, to be considered covered, you must have paid in 20 quarters worth of coverage out of the last 40 quarters. In other words, you must have 5 years of coverage out of the last 10 years. However, this amount is different for those under 30. It takes approximately $500.00 of yearly income for one quarter of coverage and approximately $5000.00 of yearly income for a full four quarters of coverage for a year. Like insurance, the larger the premiums you pay (i.e. the larger your FICA taxes are), the larger the amount of SSDI income a claimant will receive upon being found disabled. An SSDI check usually ranges from $300.00 up to $1200.00. Your income and assets are not considered. If you have enough quarters of coverage and are found disabled, you will receive SSDI benefits even if you are a millionaire.

DETERMINING DISABILITY

Previously, I have discussed the differences between SSI benefits and SSDI benefits. A key element in being awarded either benefit program is being found "disabled". Determining if a claimant is disabled for SSI or SSDI is the same and is made at the same time if a claimant is eligible for both SSI and SSDI.

Disability is defined by Social Security different than other governmental programs, different than most private insurance policies, and different than you or I may define it. Social Security defines disability as the inability to obtain substantial gainful employment due to a severe impairment that will last for a period of 12 months or longer. What this means is the Social Security Administration is defining disability by whether or not you can theoretically do a job. The key word here is theoretically. It doesn't mater that no one will hire you. It doesn't matter that no jobs you could theoretically do exist or have openings in your area. In making this decision, the Social Security Administration follows a 5 step process.

FIVE (5) STEP PROCESS DETERMINING DISABILITY

STEP 1: Are you working?

If you are working, you are not disabled. If someone

is paying a quadriplegic, obviously someone we would all consider disabled, to do a job, then that quadriplegic is not disabled for the purpose of social security disability. The job must be substantial. Working only a few hours a week or for a nominal amount is not substantial.

STEP 2: Do you have a severe impairment?

You must have a medical condition, physical or mental

or both, that is severe. Your condition must in some way effect your ability to function and live your life. In most cases, the Social Security Administration usually admits a claimant has a severe impairment.

STEP 3: Does the impairment equal or exceed an impairment listed in the guidelines?

Social Security Administration has a long list of impairments, and if your impairment meets or exceeds one on the list, then you are found disabled. This is how most claimants get benefits awarded immediately.

STEP 4: Are you able to do your past employment?

Social Security Administration will look at the jobs you have performed over the past 15 years and whether you can still perform any of these jobs or similiar types of jobs. You have the burden of proving you can no longer do your past employment.

STEP 5: Is there any other, lighter work you can do?

This is where a majority of claimants are denied. Okay, so you can no longer do that construction job or factory job, but you can do that minimum wage, no benefits job, such as a cashier, light janitorial or parking garage attendant. The Social Security Administration has the burden of proving there is other lighter work that you could do and typically does this through the questioning a V.E. (Vocational Expert) who will testify about what jobs exists that a claimant with a particular residual functional capacity can perform. The jobs must exist in substantial numbers in the national economy. There does not have to be job openings. There does not have to be that job in your town or near your town.

PROCEDURAL STEPS OF A DISABILITY CASE

The following is designed to not only give you an idea of the steps in order, but also to give you a rough idea of time frames. While Social Security Disability is a federal program, time frames and my advice apply to Arkansas, and may or may not apply to other jurisdictions.

STEPS INSIDE THE SOCIAL SECURITY ADMINISTRATION

STEP 1: Application for Social Security Disability.

Applications are currently taken over the telephone. You call the local office of social security and they will set up a time for this telephone application interview. Often, this appointment will be approximately 2 weeks away. For SSI applicants, the date of application is important because SSI will not go back and pay before the first full month after the application. What this means is if your application date is June 2nd, Social Security will not go back and pay benefits prior to July 1st. However, if the application was filed May 30th, backpay of SSI will go back to June 1st. After the telephone interview, social security will send numerous forms to the applicant to sign and fill out for additional information. This step takes approximately 60-120 days.

STEP 2: Request for Reconsideration.

If your application is denied, you have 60 days to appeal. The appeal of the application is known as the Request For Reconsideration. This appeal process typically takes 60-120 days for a decision. In Arkansas, 95%-97% of Request For Reconsideration appeals are denied.

STEP 3: Request for a Hearing in front of an Administrative Law Judge.

At the denial of your Request For Reconsideration, you have 60 days to appeal to request a hearing. In Arkansas because of the large backlog of cases, it is currently taking 12-15 months to receive a hearing date, and said hearing date will probably be 30-60 days away. Further, a decision will not be made at the hearing. You will have to wait 1-6 months from the hearing to receive a decision. In total, this step will probably take 1½ years to 2 years for completion. In Arkansas, approximately 50% of claimants are awarded benefits at the hearing level.

STEP 4: Appeals Council.

If your SSI/SSDI benefits are denied at the hearing level, you have 60 days to appeal. The Appeals Council will review your case to see if the Administrative Law Judge properly applied the law to the facts as the Judge found the facts to be. This step takes approximately 1-2 years. Often, the appeals council does not award benefits if it finds the judge did not follow the law, but remands the case for a new hearing and the case goes back to Step 3. This is the last step inside the Social Security Administration.

FEDERAL COURT (STEPS OUTSIDE OF THE SOCIAL SECURITY ADMINISTRATION)

STEP 5: Complaint Filed In Federal District Court

STEP 6: Appeal to 8th Circuit Court of Appeals

STEP 7: Appeal to the United States Supreme Court

WHEN OR SHOULD I HIRE A LAWYER?

This is a hard question in that it varies on a case by case basis to some extent because each client is different. Some claimants want their hand held through everything, others do not want an attorney until their claim absolutely requires one. I, like most attorneys who routinely handle social security disability cases, charge clients 25% of their backpay. If the claim is not successful, the client owes no attorney fee. My advice is to get an attorney at the very beginning or at the Request For Reconsideration level. The downside to obtaining a lawyer at the application step is the attorney does little work, but will get 25% of backpay if you get right on. The upside is you get advice up front to help you in putting a successful claim together and your attorney will have a copy of all forms from the beginning so he or she knows everything about your case. I feel you definitely need an attorney at the hearing. Is the attorney going to do anything that you could not do yourself. No. However, the problem is you do not know the questions you need to ask and it is hard to ask questions of yourself. Additionally, appealing your claim after the hearing level becomes increasingly difficult to the point of requiring a lawyer. Many attorneys will not handle cases they did not handle at the hearing. And even if you do find an attorney who will handle your case after the hearing, the attorney is behind in your case because at this time, the attorney does not know what occurred at the hearing which is necessary for the appeal's process.

WHAT IS MY ATTORNEY DOING ON MY CASE?

In the beginning of your case, the attorney's role is primarily one of advice. Advising you on how to fill out forms and reviewing said forms. Advising you on what to do to strengthen your claim. Making sure social security does what it is supposed to do. The attorney’s primary role in the case will be at the hearing. Social Security Disability is a governmental operation, and as such, it is a "hurry up and wait" type operation. You must hurry up and get things done, but then the rest of the time you are waiting on social security to get to your case. What this means is that most of the time your attorney is doing absolutely nothing on your case. There is nothing for him or her to do until social security gets to your case.

FORMS

SAMPLE APPLICATION FOR DISABILITY (PDF Format)

REQUEST SOCIAL SECURITY STATEMENT FORM 7004 (PDF Format)

REQUEST SOCIAL SECURITY EARNINGS RECORD FORM 7050 (PDF Format)

APPLICATION FOR MEDICARE FORM 40b (PDF Format)

DISABILITY REPORT FORM 3368 (PDF Format)

WORK HISTORY REPORT FORM 3369(PDF Format)

WORK BACKGROUND REPORT FORM 4633 (PDF Format)

WORK ACTIVITY REPORT FORM 821 (PDF Format)

RECENT MEDICAL PROVIDER REPORT FORM 4631(PDF Format)

RECENT MEDICATION REPORT FORM 4632(PDF Format)

REQUEST FOR RECONSIDERATION FORM 561 (PDF Format)