Frequently Asked Questions About Social Security Disability Benefits
CHARLES T. HALL http://www.charleshallfirm.com/ composed the following list of frequently asked questions and he has given permission for me to use them.
Mr. Hall, an attorney, is also the author of Social Security Disability Practice, 2008 ed. http://west.thomson.com/productdetail/148590/22035041/productdetail.aspx
1. What is the definition of disability used by Social Security?
Under the Social Security Act, “disability” means “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 not less than 12 months.”
2. What types of Social Security disability benefits are there?
There are five major types of Social Security disability benefits. Disability Insurance Benefits is the most important type of Social Security disability benefits. It goes to individuals who have worked in recent years (five out of the last 10 years in most cases) who are now disabled. Disabled Widows and Widowers Benefits are paid to individuals who are at least 50 and become disabled within a certain amount of time after the death of their husband or wife. The late husband or wife must have worked enough under Social Security to be insured. Disabled Adult Child Benefits go to the children of persons who are deceased or who are drawing Social Security disability or retirement benefits. The child must have become disabled before age 22. For Disability Insurance Benefits, Disabled Widow’s or Widower’s Benefits and Disabled Adult Child benefits, it does not matter whether the disabled individual is rich or poor. Benefits are paid based upon a Social Security earnings record. Supplemental Security Income (SSI) benefits, however, are paid to individuals who are poor and who are disabled. It does not matter for SSI whether an individual has worked in the past or not. SSI child’s disability benefits are a variety of SSI benefits paid to children under the age of 18 who are disabled. Disability is defined differently for children.
3. How do I apply for Social Security disability benefits?
The best way to start the process of filing a Social Security disability claim is to call Social Security at 1-800-772-1213 to schedule an appointment to file the claim. In most cases, the appointment will be done over the telephone. Another way is to go to the nearest Social Security office and wait (often for hours) to see someone to file the claim in person. You can also file online.
4. Should I gather medical or other records before filing my claim?
No. Go ahead and file the claim. Social Security will tell you if they need anything from you. A lot of people waste a lot of time and energy trying to get records that Social Security isn’t even interested in.
5. I am disabled, but I have money in the bank. Do I have to wait until this money is gone before I apply for Social Security disability benefits?
No. If you have worked in recent years or if you are applying for Disabled Widow’s or Widower’s benefits or Disabled Adult Child benefits, it does not matter how much money you have in the bank.
6. I used to work but lately I have been staying home taking care of my kids. I have now become sick. Can I get Social Security disability benefits?
Possibly. If you have worked five out of the 10 years under Social Security before becoming disabled, you will have enough earnings in to potentially qualify for Social Security disability benefits. If you are 31 or younger, the requirements are a little different, since you have not had such a long time to work. Also, you may qualify for Supplemental Security Income (SSI), even if you have never worked, if you are poor enough.
7. How long do I have to wait after becoming disabled before I can file a claim for Social Security disability benefits?
Not even one day. You can file for Social Security disability benefits on the very same day that you become disabled. Many people make the mistake of waiting months or even years after becoming disabled before filing a Social Security disability claim. Still, there is no reason to file a Social Security disability claim if you have only a minor illness or one which is unlikely to last a year or more.
8. I am still on sick leave from my employer. Can I file for Social Security disability now? Do I have to wait until the sick leave is exhausted?
You do not have to wait until the sick leave is exhausted. You can file for Social Security disability benefits now, if you believe that you will be out of work for a year or more. Even active duty military personnel can file a claim for Social Security disability benefits if they have discontinued their regular duties due to illness.
9. I got hurt on the job. I am drawing worker’s compensation. Can I file a claim for Social Security disability benefits now or should I wait until the worker’s compensation ends?
You do not have to wait until the worker’s compensation ends. You can file a claim for Social Security disability benefits while receiving worker’s compensation benefits. It is best to file the Social Security disability claim as soon as possible. If you don’t file the claim as soon as possible, there may be a gap between the time the worker’s compensation ends and the Social Security disability benefits begin.
10. Can I get both workers compensation and Social Security disability benefits at the same time?
Yes. In most states, Social Security disability benefits are offset, or reduced, because of workers compensation benefits paid. In a few states it is the other way around — workers compensation benefits are reduced because of Social Security disability benefits. In almost all cases, there are still some Social Security disability benefits to be paid even if you are receiving workers compensation benefits. As important as workers compensation is, Social Security disability is more important because, unlike workers compensation, Social Security disability can last for the rest of your life.
11. How can I tell if I will be found disabled by Social Security?
Unless your disability is catastrophic (such as terminal cancer, a heart condition so bad that you are on a heart transplant waiting list, etc.), there is no way for you to tell in advance whether you will be found disabled by Social Security. In the end, you should not make the decision of whether to apply for Social Security disability based upon your guess about whether Social Security will find you disabled. You should make the decision about whether to file for Social Security disability based upon you feel. If you feel that you are disabled and will not be able to return to work in the near future, you should file for Social Security disability benefits. If denied, you should consult with an attorney familiar with Social Security disability to get an opinion about your chances of success on appeal.
12. Can you get Social Security disability benefits for _________________ (insert the name of whatever disease you’re interested in)?
In almost every case, no matter what the disease is, the answer is the same — “Maybe. It just depends upon how badly you are affected by the disease.” One example might be cancer. The word “cancer” is scary, but there are many cancers which can be treated and cured quickly, with little or no lasting damage. On the other hand, there are cancers which cause great suffering and death. The question in each case is, “How sick is this particular individual with cancer and how long is this person going to remain sick?” Skin diseases are another example. Most skin diseases, while annoying, are not disabling. On the other hand, there are some uncommon skin problems which are clearly disabling. Almost without exception, the mere fact that you have a disease with a certain name does not guarantee that you either will or will not be found disabled. It all depends upon how sick you are.
13. Do I have to be permanently disabled to get Social Security disability benefits?
No. You have to have been disabled for at least a year or be expected to be disabled for at least a year or have a condition that can be expected to result in death within a year. You do not have to wait until it has been a year. You can apply and be approved if it looks like you will be disabled for at least a year.
14. I have several health problems, but no one of them disables me. It is the combination that disables me. Can I get Social Security disability benefits?
Social Security is supposed to consider them all. Most claimants for Social Security disability benefits have more than one health problem. Each one must be considered, as well as the combined effect of all of the health problems.
15. I got hurt in an automobile accident. I am disabled now, but I expect that I will be able to return to work after I recover. Should I file for Social Security disability benefits?
If you expect to be out of work for a year or more due to your medical condition, or even if you are just not sure if you will be out of work that long, you should file a claim for Social Security disability benefits. Cases take so long that it is best to start the claim as early as possible.
16. How does Social Security determine if I am disabled?
Social Security is supposed to gather your medical records and carefully consider all of your health problems, as well as your age, education and work experience. In general, Social Security is supposed to decide whether you are able to do your past work. If Social Security decides that you are unable to do your past work, they are supposed to consider whether there is any other work which you can do, considering your health problems and your age, education and work experience.
17. Who decides if I am disabled?
After you file a Social Security disability claim, your case is sent to a disability examiner at the Disability Determination Service office in your state. The disability examiner, usually working with a doctor, makes the initial decision on your case. If your claim is denied and you request reconsideration, your case is sent to another disability examiner at the Disability Determination Service office in your state, where it goes through much the same process. If your claim is denied at reconsideration, you may request a hearing. At this point, your case is sent to an Administrative Law Judge who works for Social Security. The Administrative Law Judge holds a hearing and makes an independent decision upon the claim. This is the only level at which you and the decisionmaker get to see each other.
18. Why does Social Security consider my age in determining whether I am disabled?
Social Security has to consider age because that is what the Social Security Act requires. The idea is that as people get older, they become less adaptable, less able to switch to different jobs to cope with health problems. A severe foot injury which might cause a 30-year-old to switch to a job in which he or she can sit down most of the time might disable a 60-year-old person who could not make the adjustment to a different type of work. If you are younger and this make little sense to you, just wait. You will be older eventually and it will make sense to you then.
19. Is there a list of impairments that Social Security considers disabling?
Not really. There is something called the Listing of Impairments, but you may be better off not even looking at it, because you are likely to be confused by it. Because most types of illness can vary from minor to severe, there is no one simple list of illnesses which Social Security considers to be disabling. The Listings are not the only way you can be found disabled.
20. Can I keep working and file a claim for Social Security disability benefits?
Yes, but if you do much work, you will be denied automatically because of the work. If you can keep working full time, then keep working full time and don’t apply for Social Security disability. If you are only able to work part time, go ahead and file a claim for Social Security disability benefits. Social Security will decide whether you are working too much to get disability benefits.
21. Can’t I make up to a certain dollar amount and still be able to get on Social Security disability benefits?
Sort of, but there is so much complexity and so many exceptions that it is best that you not even think about it. Lots of Social Security disability cases are borderline. A real person has to make a decision for Social Security about whether you are disabled. That person might look at your case one way and approve your claim or look at it another way and deny your claim. How would it look to that person if you deliberately work right up to a certain dollar amount? It will look like you are able to work and are just playing games. That may not be your intent, but that is how it would look to someone else. You would probably be denied even though the rules might say, in theory, that the work doesn’t matter. People who try to work right up to some dollar amount usually make a mistake anyway. They forget that Social Security is interested in their earnings before taxes rather than their take home pay or they get tripped up because some months have more paydays than others. The bottom line is simple. Forget about any dollar limits you hear about. Work if you can and let the Social Security chips fall where they may.
22. What can I do to improve my chances of winning my Social Security disability claim?
Get under medical care and stay under medical care as best you can. It is possible to be approved for Social Security disability benefits even if you are not under medical care, but it is harder. If you have trouble paying for medical care, ask around. There are free or reduced cost clinics in most places. Beyond that, the most important thing is simply to file your claim for disability benefits with Social Security. They will definitely not give you the benefits unless you ask for them. When filing the claim, be honest and as complete in giving information as you can, but do not worry too much about it. Your Social Security claim is not a test upon which you are graded. There are no magic words that you can put down that will assure that your claim will be approved, nor anything truthful that you need to avoid saying. After you file your Social Security disability claim, the most important thing that you can do is just keep appealing — and stay under medical care as best you can. Most claims are denied at the initial level, but most cases heard by an Administrative Law Judge are approved. Hiring an attorney to represent you is helpful. Statistically, claimants who employ an attorney to represent them are more likely to win than those who do not have anyone representing them.
23. If I am approved for Social Security disability benefits, how much will I get per month?
For Disability Insurance Benefits, it all depends upon how much you have earned in the past. For Disabled Widows or Widowers benefits, it depends upon how much your late husband or wife earned, as well as your age at the time you go on benefits. For Disabled Adult Child benefits, it all depends upon how much your father or mother earned. For all types of SSI benefits, there is a base amount that an individual with no other income receives. Other income that an individual receives will reduce the amount of SSI paid.
24. How far back will they pay benefits if I am found disabled?
Disability Insurance Benefits cannot begin until five full months have passed after you become disabled. In addition, benefits cannot be paid more than one year prior to the date of your claim. SSI benefits cannot be paid until the beginning of the month after the month in which you file your claim.
25. What do I do if Social Security denies my claim for Social Security disability benefits?
First, do not be surprised. About two-thirds of Social Security disability claims are denied at the initial level. If you are denied at the initial level, unless you have already returned to work or expect to return to work in the near future, you should appeal, that is, file a request for reconsideration. (In a few states there is no reconsideration and the next step is to ask for a hearing.) You should also consider hiring an attorney to represent you.
26. Why does Social Security turn down so many claims for disability benefits?
There is no simple answer for this question. One reason is that there is no easy way to determine whether an individual is disabled. Most people who are disabled suffer from pain or mental illness. There is no way to measure pain, nor any good way to measure the severity of mental illness. A second reason is that Social Security is more concerned with making sure that everyone who is receiving Social Security disability benefits is “truly” disabled than with making sure that everyone who is disabled receives Social Security disability benefits. An underlying reason is that Congress has always believed that, given a chance, many people will fake disability in order to get benefits.
27. I only want to get back the money I put in Social Security. Why do they make it so hard for me to get my own money back?
Actually, when you file a Social Security disability claim, you are not trying just to get “your own money” back. The money that you have paid into Social Security wouldn’t last long. There is no way for you to just get back the money you paid in.
28. What is “reconsideration”?
It is the first level of appeal at Social Security. When a claim for Social Security disability benefits is denied at the initial level, you may request reconsideration. Your case is sent to a different disability examiner for a new decision. Unfortunately, about 85-90% of the time the reconsideration decision is the same as the initial decision — a denial. (In a few states there is no reconsideration and the next step after an initial denial is to ask for a hearing.)
29. Who makes the reconsideration determination?
A disability examiner at the Disability Determination Section makes the reconsideration determination — not the same one, but one working in a very similar job.
30. What are my chances of winning at reconsideration?
Statistically, about 10-15% of the time a claimant wins at reconsideration.
31. Do I have to go through reconsideration?
If you want to appeal a denial of Social Security disability benefits, you have to go through reconsideration, unless you happen to be in one of the few states where there is no reconsideration.
32. How long does it take to get a hearing on a Social Security disability claim?
This can vary from about a year to over two years, depending upon what part of the country you live in.
33. Why does it take so long to get a hearing?
Social Security does not have enough employees to get its work done. In fact, for a long time Social Security has not had enough employees to get its work done. The work has been piling up for years. Social Security and its employees are unhappy that you have to wait so long but until Congress and the White House give Social Security enough money to hire more employees, there is little that the Social Security Administration can do.
34. How can I get my case speeded up so I won’t have to wait so long for a hearing?
You can ask that your case be expedited if you are terminally ill or if you are without and unable to obtain food, medicine or shelter. Your case could also be expedited if the medical evidence in your case is extremely strong, especially if you are 50 or older. The cases of “wounded warriors” are also supposed to be expedited. As a practical matter, you are going to need the help of a lawyer to ask that your case be expedited.
35. What is the Social Security hearing like?
The hearings are informal. The only people certain to be there are the Administrative Law Judge, a hearing reporter who operates the recording equipment, you and your attorney if you have one. In many cases, the Administrative Law Judge has a medical doctor or vocational expert present to testify at the hearing. There is no jury nor are there any spectators at the hearing. There is no attorney at the hearing representing Social Security trying to get the judge to deny you. Most hearings last less than an hour.
36. What are video hearings like?
In a video hearing the Administrative Law Judge is at another location. You see him or her on a television screen. The Administrative Law Judge sees you on a television screen at his or her end. It is not the same as being in the same room, but most people are mostly satisfied with video hearings. If you do not like the idea of a video hearing, you can insist on a live hearing. Insisting on a live hearing may cause further delay, however.
37. What are the chances that an Administrative Law Judge will approve my claim?
Statistically, 60% or more of claimants who request a hearing before an Administrative Law Judge are approved.
38. If the Administrative Law Judge denies my claim, can I appeal any more?
Yes. You can appeal to the Appeals Council which is still within Social Security.
39. What is the Appeals Council?
The Appeals Council exists to review Administrative Law Judge decisions. The Appeals Council headquarters are in Falls Church, Virginia. Neither the claimant, nor the attorney sees the people at the Appeals Council who are working on the case.
40. Can I appeal a case beyond Social Security to the Federal Courts?
Yes. After being denied by the Appeals Council, it is possible for you to file a civil action in the United States District Court, requesting review of Social Security’s decision. It is just about impossible to do this without an attorney.
41. If I get on Social Security disability benefits, get feeling better and want to return to work, can I return to work?
Certainly you can return to work. Social Security wants people drawing disability benefits to return to work and gives them every encouragement. For persons receiving Disability Insurance Benefits, Disabled Widows or Widowers Benefits and Disabled Adult Child Benefits, full benefits continue for a year after you return to work. Even after that, you can get right back on Social Security disability benefits without having to file a new claim for the next three years if you have to stop work. There is even a right to expedited reinstatement for another two years after that. In SSI cases, things work differently, but there is still a strong encouragement to return to work. You should tell Social Security when you return to work. You should make sure that you receive a written receipt that you reported your return to work to Social Security. You should keep that receipt in case there is any problem in the future.
42. Where can I go to get help with my Social Security disability claim?
For help, go to a lawyer who represents Social Security disability claimants on a regular basis.
43. Do I really have to hire a lawyer to represent me in my Social Security disability claim?
No. You can go through all of the levels of review on your own, if you wish, but claimants who are represented by an attorney win a good deal more often than those who are not represented. Most claimants who have a hearing hire an attorney. You also have the option in most areas of the country of hiring a non-attorney representative. The fee will be the same whether you hire an attorney or a non-attorney representative.
44. How do lawyers who represent Social Security disability claimants get paid?
In most cases, the attorney receives one-quarter of the back benefits up to a certain dollar amount if you win and no fee if you lose. You will probably have to pay the lawyer back for anything that he or she had to pay out of pocket to get medical records on you.
45. Can alcoholics and drug addicts really get Social Security disability benefits?
Social Security is prohibited from paying disability benefits on the basis of alcoholism or drug addiction. However, alcoholics and drug addicts have heart attacks, get cancer and get sick in other ways just like everyone else. Alcoholics and drug addicts who become disabled without consideration of their alcoholism or drug addiction are eligible for Social Security disability benefits.
46. I know someone who is on Social Security disability and he does not look a bit disabled. Why do they put these freeloaders on benefits?
When it comes to disability, looks can be deceiving. There are many people who look healthy but who are quite disabled by anyone’s standard. There are also a few people who look quite sick, but actually are fairly healthy. Many individuals who suffer from severe psychiatric illness are physically healthy and able to do things like mow their yards. It’s awfully hard to get on Social Security disability benefits. The vast majority of people drawing Social Security disability benefits really are quite sick.
47. I am disabled, but I have never worked at public work. Can I get Social Security disability benefits?
If you are poor enough and disabled, you can qualify for Supplemental Security Income (SSI) even if you have never worked in the past. It is also possible to qualify for Disabled Adult Child Benefits on the account of a parent if you became disabled before age 22 or for Disabled Widows or Widowers benefits on the account of a late husband or wife.
48. I am a widow. I have not worked at public work in many years. I am disabled. Can I get Social Security disability benefits?
If you are over 50 and became disabled within seven years after your husband or wife died or within seven years after you last drew Mothers or Fathers benefits from Social Security, you can get Disabled Widows or Widowers Benefits. Perhaps more important, if you are poor and disabled, you can draw Supplemental Security Income (SSI) benefits no matter what your age is or when you became disabled.
49. I have a daughter who has been disabled by cerebral palsy since birth. She has never been able to work. Can she get disability benefits from Social Security?
Very possibly. If your child is under 18 and you are poor enough, the child may be able to qualify for SSI child’s disability benefits. If the child is over 18, she may be able to qualify for SSI disability benefits no matter how much money you have. If either the father or mother of the child is drawing Social Security benefits of some type or is deceased, the child may be eligible for Disabled Adult Child benefits.
50. I am already on Social Security disability benefits, but I am worried that my benefits will be stopped in the future. What are the chances of this happening?
Social Security is not supposed to cut off your disability benefits unless your medical condition improves. When Social Security reviews the case of someone already on Social Security disability benefits, they continue benefits the vast majority of the time.
51. If Social Security tries to cut off my disability benefits, what can I do?
You should appeal immediately. If you appeal within 10 days after being notified that your disability benefits are being ceased, you can ask that your disability benefits continue while you appeal the decision. You may also want to talk with an attorney about representation on your case, but do not let that delay you in filing the appeal quickly. You only have 10 days!
52. My doctor says I am disabled, so why is Social Security denying my disability claim?
Social Security’s position is that it is not up to your doctor to decide whether you are disabled. They say it is up to them and they will make their own decision regardless of what your doctor thinks. They are supposed to pay attention to what your doctor says, however.
53. VA says I am disabled, so why is Social Security denying my Social Security disability claim?
Social Security and VA have different standards for approving disability claims. Many people can get VA disability benefits but not Social Security disability benefits. There are some in Congress who are trying to change this.
54. I am 60% disabled. Do I get 60% of my Social Security disability benefits?
No. There are no percentages of disability with Social Security. For purposes of Social Security disability benefits, you are either disabled or not disabled. You get it or you don’t.
55. I am disabled by mental illness. Can mental illness serve as the basis for a Social Security disability claim?
Yes. Mental illness is a common basis for awarding Social Security disability benefits.
56. Will it help if I ask my Congressman to help me get Social Security disability benefits?
Not likely. Most Social Security disability claimants eventually ask their Congressman to help. The Congressman sends a form letter to Social Security and Social Security sends a form letter back to the Congressman, but the exchange of form letters seldom has an effect upon how Social Security handles the case. However, contacting your Congressman may help in a more general way, by keeping Congress informed about how bad things are at Social Security. In unusual cases, Congressional pressure can force Social Security to take action in a particular case.
57. After I file a claim for Social Security disability benefits, how long does it take before Social Security makes an initial decision?
On average about six months, but that is an average. Some cases are decided faster and some slower. Things are slower in some areas of the country than others.
58. How long does it take for Social Security to make a reconsideration determination on my Social Security disability claim?
Again, the average is about six months, but some cases move slower than others and there are differences around the country.
59. How long does it take for Social Security to act on a request for Appeals Council review?
It is highly variable. It can be anywhere from a month to more than two years.
60. I am disabled. I need help with medical bills even more than I need a cash income. How do I get help with medical bills now?
Getting help with medical bills is usually tied up with getting cash benefits, that is, you don’t start getting help with medical bills until after you start getting the cash benefits. This means that you have to keep going with the Social Security disability claim. You can apply for Medicaid separately from Social Security in some states. You apply for Medicaid at the county Welfare Department or Department of Social Services. Social Services sounds like Social Security, but it is a different agency.
61. What is the difference between Medicare and Medicaid?
The short answer is that Medicaid is a poverty program and Medicare isn’t. Most disabled people who get Medicaid get it because they are on SSI. To get SSI and thereby get Medicaid, you have to be poor and disabled. Medicaid pays doctors at low rates. People who have only Medicaid sometimes have a hard time finding a doctor they like. Medicaid does pay for prescription medications. Medicaid can go back up to three months prior to the date of a Medicaid claim. For Medicare, it does not matter whether you are rich or poor. If you have been on Disability Insurance Benefits, Disabled Widows or Widowers Benefits or Disabled Adult Child Benefits for 24 months, you qualify for Medicare. The good thing about Medicare is that it pays doctors at a higher rate than Medicaid. Almost all doctors are happy to take Medicare patients. The bad things about Medicare are that it does not begin until after a person has been on cash disability benefits for two years and there is only a limited prescription drug benefit.
62. If I win, how long will it be before I get paid?
In most cases, you will receive some money within one to two months after a favorable decision. It can take longer to get everything paid if you are approved for two types of disability benefits at the same time or if you have been receiving workers compensation or a state disability benefit.
63. I am already on Social Security retirement benefits. Can I get Social Security disability benefits?
Maybe. You cannot get both at the same time. You cannot get disability benefits at all after full retirement age. However, if you are on early retirement benefits and have not yet reached full retirement age, you can apply for Disability Insurance Benefits. If you are found disabled, you will be switched to Disability Insurance Benefits, which will pay more per month.