Social Security Disability

At the Law Office of Mike Winer, we assist with both: Social Security Disability Insurance and Supplemental Security Income Benefits.

There are two disability programs operated by the Social Security Administration (SSA):

Social Security Disability Insurance (SSDI and/or Title II benefits)
Supplemental Security Income (SSI and/or Title XVI benefits)

You first must determine if you are eligible to apply for SSDI and/or SSI benefits. This determination is based on the qualification criteria and definition of disability under the SSA guidelines.

Social Security Disability (SSDI or Title II Benefits)

SSDI is a payroll-tax funded insurance program that provides monthly income and Medicare insurance benefits to people who can no longer work due to a medical disability that lasts or is expected to last for over twelve months. Benefits are paid out of the Social Security Trust Fund. If you have earned enough “work credits” (also known as quarters of coverage) you may be eligible to receive SSDI benefits. Your age at the date of your disability will determine the amount of credits you will need to be eligible for disability. Generally, you need one quarter of coverage for each calendar year after you turned 21 years of age (See: socialsecurity.gov for more information and exceptions.) Additionally, you will need to have 20 quarters of coverage during the 40 quarters directly prior to your onset of disability. Entitlement to SSDI benefits begin five full (5) months after the onset of disability and SSDI recipients become eligible for Medicare twenty-four (24) months after their date of entitlement. Benefits can be awarded retroactively for up to one year prior to the application.

Supplemental Security Income (SSI or Title XVI)

SSI is another government funded program with benefits available to aged (65 years or older), blind, disabled adults or children. SSI is a “need-based” program that provides benefits to people who have limited income and assets (generally less than $2,000 for an individual or $3,000 for a married couple subject to several exclusions). People who have not earned enough “work credits” to be eligible for SSDI, or have a relatively low SSDI benefit, may be eligible for SSI. SSI recipients may also become eligible for Medicaid insurance benefits. SSI benefits are not paid from the Social Security Trust Fund, but are paid out of the Social Security Administration’s annual budget. Benefits are not paid retroactively, but only begin in the month following the month of application

The Non-Medical Requirements of the Disability Programs

There are two criteria (medical and non-medical) that must be met in order for an individual to qualify for either SSDI or SSI. Both SSDI and SSI utilize the same criteria and procedure to determine if you are medically disabled; however, the non-medical criteria for SSDI and SSI are different. The SSDI non-medical criteria require that you have earned enough “work credits.” This is determined by whether you have paid enough into the system when you were working (through payroll tax (FICA) deductions or self-employment taxes reported in income tax returns) and whether you earned enough of these credits in the five years prior to becoming disabled. The SSI non-medical requirements focus primarily on your monetary need. This is determined by your assets and income. If you meet both of the medical and non-medical criteria of SSDI and/or SSI, you will be awarded benefits.

The Definition of Disability under Social Security Law and the Five Step Sequential Evaluation

The Social Security Act defines “disability” as 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 which has lasted or can be expected to last for a continuous period of not less than 12 months.” (42 U.S.C. §423 (d)(1)(A)) The Social Security Regulations set forth a five step sequential evaluation process to determine whether an individual is in fact disabled. The five Steps listed below are what the Social Security Administration (or eventually the Administrative Law Judge) will use to determine whether an individual is in fact disabled:

Step 1: Is the individual engaging in “substantial gainful activity” (SGA)? This is an evaluation as to whether the claimant is actually working by earning wages or performing self-employment and whether these wages exceed a certain threshold set by the SSA on an annual basis. For 2014 the threshold for SGA is $1,070 for non-blind individuals and $1,800 for blind individuals.
Step 2: Does the claimant have a severe impairment? This is an inquiry into whether the individual has a medically determinable impairment or combination of impairments that is “severe” in that it significantly limits an individual’s ability to perform basic work activities. Has the impairment lasted or is expected to last for 12 months or more?
Step 3: Does the claimant have an impairment that meets or medically equals the “listing of impairments”? The listing of impairments is a list of diseases and medical conditions and criteria of severity for each. If the individual’s medial condition meets the criterion, then the person is found disabled without further inquiry and Steps 4 and 5 are not considered.
Step 4: Considering the claimant’s “residual functional capacity” or RFC (what the person can do despite their medical impairments) are they capable of performing any of their past relevant work. Past relevant work is work that they performed in the last fifteen years.
Step 5: Is the claimant capable of performing other work (that exists in the national economy) that is within the claimant’s RFC given their age, education and transferable work skills. Here the Social Security Regulations make it easier to qualify for benefits if the individual is older, has less education and hasn’t worked in skilled employment in the past.

The Application Process

The first step is to apply for SSDI and/or SSI benefits. This is called the Initial Application stage. The initial application can be completed at the local SSA office, by phone, or online at www.ssa.gov. Information will be needed regarding your medical history, names and addresses of doctors and hospitals, work history and the names of employers for the past fifteen years, resources (assistance, income, assets, etc.), and personal information (including social security numbers of you and your dependents, dates and locations of marriages and divorces) . Once your application is complete and filed with the SSA, it usually takes one to five (1-5) months for a decision to be made or your initial application. The SSA has contracted with the state Disability Determination Service (DDS) (in Florida, the Office of Disability Determinations (under the Dept. of Health) to make the determination as to whether an individual is disabled. During this period, the DDS will collect your medical records, evaluate records that you have provided, have you complete many forms about work history, your pain and ability to function, and may require you to see a physician in order to make their decision. Once DDS makes a decision on your initial application, you will receive a letter stating you have been accepted (favorable) or denied. If you have been accepted, you will receive a Notice of Award detailing the SSDI and/or SSI benefits you have been awarded and the amount of your monthly payments. If you have been denied, you will have sixty (60) days to file an appeal called a “Request a Reconsideration”.

The second step is to formally request a reconsideration of you claim within sixty (60) days of your initial application denial letter. The reconsideration can also be requested at your local SSA office or online at www.ssa.gov. You will need to have your initial application denial letter in order to complete the reconsideration request. The reconsideration process takes two to three (2-3) additional months and again, the disability determination is made by the state Disability Determination Service (DDS). During the reconsideration process, the DDS may also request additional information or require you to see a physician in order to make their decision. Once the DDS makes a decision on your reconsideration, you will receive a letter stating you have been accepted (favorable) or denied. If you have been accepted, you will receive a Notice of Award detailing the SSDI and/or SSI benefits you have been awarded and the amount of your monthly payments. If you have been denied, you will have sixty (60) days to file the second appeal in the process called a “Request for Hearing by Administrative Law Judge”.

When the Request for Hearing is filed, the file gets transferred to the Office of Disability Adjudication and Review (ODAR) which is within the Social Security Administration. It can take anywhere from 6 month to 24 months before a hearing will be held before an Administrative Law Judge depending upon what area of the country you are in. When should an individual seek the assistance of an attorney? An individual seeking disability benefits can hire an attorney at any stage of the process including the initial application. The decision of when to involve an attorney in the claim depends upon the needs and strengths of the individual applying. Although many individuals will be able to handle the lengthy application and forms associated with the initial claim, when the case reaches the reconsideration and hearing level, it is important that the proper evidence is obtained and evaluated early to maximize a favorable outcome. Certainly at the hearing level, it is imperative you seek the advice of a qualified attorney to assist with the case. During this process, you and your attorney will be working together preparing your claim for the hearing.