By Suzanne Villalon-Hinojosa, Texas Attorney
It has been estimated that about 30% of people entering the workforce today will become temporarily or permanently disabled before they reach retirement age. People who are injured or otherwise become disabled and are unable to continue working in their current job should begin looking into Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) as a means of obtaining short-term, long-term, or even permanent income.
The SSDI and SSI application, appeals, and hearings process can be a bit complicated, so I have outlined some of the most common questions someone new to the programs might ask.
SSDI is a federally funded disability program that pays cash benefits to individuals who cannot work due to medical disabilities. Most of us know that our payroll taxes goes toward our retirement. But many of us don’t realize that those taxes also act as an insurance premium toward coverage for Disability Insurance. These premiums earn us what's called a credit or a quarter of coverage. In general, every three months of work earns us one quarter of coverage, so a full year of work earns us four quarters of coverage. You need to have earned 20 quarters during the last 10 years in order to be insured. (But there are different rules if you are under age 31. For more information, see our article on work credits required for disability.)
SSI pays income benefits to disabled individuals who are poor, whether or not they have worked and paid any payroll taxes. Only individuals with limited income and resources can technically qualify. Certain resources that are valued at $2,000 or more may prevent you from qualifying. If you're married, part of your spouse’s earnings will be considered, and the asset limit is $3,000 for a couple.
Not every income source or resource is counted against you. For example, food stamps are considered income but they are not counted against you. Uncounted resources include the home you live in and the land it is on, as well as life insurance policies with a face value of $1,500 or less. There are other uncounted resources as well.
The actual definition of disability under the Social Security Act evolved in the 1950s. The definition is the same for SSI and SSDI. The law requires that: An individual shall be considered to be disabled if he is unable to engage in any substantially gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of 12 months or more.
This means that the claimant will have to show that their medical conditions will prevent work for at least 12 months or will lead to death.
As soon as you know you will be unable to work, you can apply, even if you are receiving other assistance such as worker’s compensation or private disability benefits through your employer. Disability insurance benefits can go back to one year from the application, so the earlier you apply, the more money you may be able to get. There is an also a five-month waiting period before benefits can begin for disability insurance.
SSI benefits cannot begin any earlier than the date of the application. So every day you wait is a potential day of lost benefits.
An application can be completed at the local Social Security Administration field office. To find out where the closest Social Security District Office is to you call their toll-free number at 800-772-1213 or you look online at www.socialsecurity.gov/locator. Disability benefit applications can be completed on the Internet, but not SSI applications.
Some disabled children can qualify for benefits, if they are from low-income households. The criteria for children are different. While adults have to prove they cannot work, children must show that they are significantly limited in their ability to function. Social Security will consider what normal development at different ages is and compare the applicant to that. For instance, a 3-year-old in diapers during the day may not be functioning much differently than other 2-year-olds. But a 6-year-old in diapers during the day is really out of the norm. That is just one example. Many children have limitations in several areas of functioning, such as cognitive functioning and social functioning. For example, a child with asthma and ADHD will be limited physically and more so at certain times of the year. That child may also have problems paying attention and learning at school. The challenge in a child’s disability case is to prove the child has very significantly limited functioning, and school records are important in showing this.
It takes Social Security several months (usually around four months) to make a decision at each step of the appeal process, but average processing times vary across the country. And if denied, an applicant can appeal the decision, then attend a hearing in front of a Social Security Judge, and then appeal again to the Appeal Council.
The important thing is to stick with it and don’t give up. While only about 20% of those who appeal the initial denial are found disabled at the second stage, which is called reconsideration, over half of those who attend a hearing win their case.
Certain medical conditions (like terminal cancer, waiting on a heart transplant list, or having total paralysis in both legs, etc.) are considered so serious that Social Security will move the case faster if confirmed by your medical records. Also, certain financial hardship conditions can speed up the case, such as homelessness.
We don’t discourage our clients from working or looking for work within their restrictions. Most are unsuccessful in securing full-time employment. That does help to show the Social Security judge that they cannot work.
But before Social Security looks at your medical condition, the claims rep will ask if you are working and may decide that you are not disabled if the work you are doing is "substantial" and "gainful." Of course, if you are able to work full time for an extended time, Social Security will probably decide you are not disabled. Doing only part-time work does not necessarily guarantee that you can get past this first step. It will depend on how many hours you are working, how much you are earning, what you are doing, and so on.
It is difficult to predict exactly how Social Security will evaluate work activity while they are deciding whether you are disabled. But unsuccessful work efforts, especially those lasting three months are less -- or those lasting up to six months but where there is evidence that your medical conditions caused you to leave work or lose the job -- do tend to show that you are disabled, under their guidelines.
The most important evidence to supply to Social Security is your medical records. Social Security will review medical records and consider your statements to determine if you are disabled. They will review the medical records to find severe medical conditions or those that affect your ability to perform basic work activity.
Social Security will consider all medical conditions that affect your ability to perform a full-time job, even if some are episodic in nature. Likewise, a combination of medical conditions that result in different limitations can be considered and may result in a finding of disability.
Social Security does have a "list of impairments" that are disabling if you meet the requirements. For example, if you have a seizure disorder and take medication but continue to have seizures more than once a month, you may meet the listing for epilepsy. Or here is another example, you may have arthritis. If your medical records show deformity in one or more major peripheral joints and you have at least two of the constitutional symptoms associated with the disorder (such as severe fatigue, fever, malaise, or involuntary weight loss), you also probably meet one of the listings for arthritis. (There are actually several ways to meet that particular listing.)
But even if your condition isn’t listed (like fibromyalgia or reflex sympathetic dystrophy, or RSD), the medical records may establish that your health is just as bad as a listed impairment. There are actually lots of ways to argue this. And one of the best ways is to get your doctor’s help. A doctor who comments on the listing criteria or on your abilities and limitations can provide helpful information to Social Security.
An attorney can help you complete the application and other forms, file your appeals on time, collect the medical records that will help you win, and work with your treating doctor to prove you are disabled. The attorney can also get you ready for your Social Security hearing and go with you to argue your case to the Judge. The attorney can also later present written arguments to the Appeals Council.
An experienced Social Security attorney will know how to assist with all these activities and should be especially familiar with the "Listings of Impairment" and the numerous rules regarding your vocational profile.
For more information, please see our section on Disability Lawyers and Advocates.
It’s not like the trials you see on TV. Most hearings last about an hour and all are informal. The Judge will ask you how you feel and why you cannot work. No one will argue that you are not disabled, but your lawyer can argue that you are. Sometimes a doctor and/or a vocational expert will answer questions posed by the Judge about your case. Your lawyer can ask those questions too, to help your case. The Judge will make the decision after the hearing and send you a copy of the decision in the mail.
There are no upfront costs. A lawyer is paid a percentage (no more than 1/4th) of your "back pay" and only if and when you are found disabled (up to a maximum of $6,000). In some states, like Texas, your attorney can acquire your medical records free of charge from your doctors, saving you that cost.
SSDI disability benefits can go back for up to one year from the date you apply. But SSDI disability benefits cannot begin until five months have passed from the date you are found disabled.
SSI benefits can be paid no earlier than a month after the date you apply, even if you were disabled before you applied.
If you are approved for SSDI disability benefits, you will be entitled to Medicare two years after your disability date.
If you are approved for SSI, Medicaid will start right away.
Medicaid is a poverty program run differently in every state while Medicare is a national health insurance program. The premium is deducted from your disability check.
Medicaid is a state-run (but jointly funded) program that pays for hospital and medical coverage for certain individuals with limited income who fit into certain eligibility groups (such as elderly or disabled). While no premium is paid, there can sometimes be a co-pay for services. The rules vary from state to state. Not all doctors accept Medicaid recipients as patients, but Medicaid usually covers more prescription medications than does Medicare.
Some states will assist an SSI recipient with the premiums, deductibles, and coinsurance for Medicare.
If you are approved for disability benefits, other family members (dependents) may also receive an auxiliary benefit. But this is not true for SSI.
If you are on SSDI, examples of family members who can also receive a check are your spouse who cares for your children under the age of 16 (or up to 19 if still in high school) and dependent children. A dependent child is an unmarried child, including an adopted child, or in some cases, a stepchild or grandchild. There is also a benefit for an adult child who is disabled. That person must also be unmarried, 18 or older, have a disability that started before age 22 and be currently disabled using the adult Social Security definition (be unable to work due to severe medical conditions).
Social Security will review your entitlement, and if you improve medically enough to be able to work, your benefits will be taken away. Social Security calls this a "Continuing Disability Review" (CDR). The law requires Social Security to do a review every three years unless they determine that you have a condition that is not expected to improve. It is best to stay under the continuing treatment of a doctor to be able to show that you are still disabled.
If you are on SSI and your financial situation improves, you may no longer be entitled to benefits. Social Security will periodically "redetermine" your income, resource and living arrangements for individuals receiving SSI. Social Security tries to do these reviews (which they call redeterminations) once every one to six years. For a child, the SSI benefit will be “redetermined” the month before the child turns 18. At that point, Social Security will use the adult definition of disability, not the child definition, to determine disability. So once you turn 18, you have to show you are unable to work because of your medical conditions.
SSDI has a trial work program that will ignore a number of months where you make over SGA (substantial gainful activity, which is $1,130 in 2016) while you try to return to work. And even if you are able to work for an extended period and then lose benefits, you may be able to get an "expedited reinstatement" of your benefits if you soon become ill again and unable to work. For SSI, you can work and make over the SGA amount as long as you can still prove you are disabled.
Social Security also offers a "Ticket to Work" Program that provides vocational services, and you don’t risk Social Security reviewing your entitlement while you are using a ticket.
The amount of your Social Security disability benefit will be based on an average of your lifetime earnings. If you have had low paying jobs, your benefit amount will be different than if you had high paying jobs. For more information, see our article on how Social Security disability payments are calculated.
If you haven't worked long enough in a job paying Social Security taxes to qualify for Social Security Disability Insurance, you may qualify for Supplemental Security Income (SSI) if you have low income. SSI is for elderly or disabled people who don't have access to Social Security benefits, but its low-income and low-asset eligibility requirements are strict. If you qualify for SSI, your monthly payment will be based on the federal monthly benefit rate ($733 in 2016), minus certain countable income you make, plus any supplement paid by your state.