Demystifying

A hearing? A Judge? Sounds scary. At the hearing stage of the disability determination process, a claimant goes before an administrative law judge to explain why they are disabled. This may seem scary or intimidating, but it’s not like going to criminal court. This is actually your best chance to be awarded benefits, because you become a real person rather than just a name on the computer or in the stack of medical records and forms. The actual hearing is not meant be intimidating. However, unless you have an attorney who understands not only the structure of the hearing, but also the underlying rules and regulations surrounding disability, the hearing can be like being lost in the woods without a map. At the hearing, the judge and your attorney will ask questions about your conditions, your limitations, your medical history, and your work history. There might also be a doctor or job expert there for the judge or your attorney to get information from. This is a good thing. The hearing is a chance to become a person to go in and say “this is me, and this is why I can not work.” Claimants should look at this as an opportunity rather than a challenge. Talk to your attorney and then go and tell the Judge what it’s like.

Social Security operates several different programs for people with disabilities. The programs have identical standards for medical eligibility, but different standards for financial eligibility. Retired Survivors and Disability Insurance (DIB) is based upon workers’ earnings history and FICA taxes. On the other hand, the Supplemental Security Income (SSI) program (which covers children, those with low-incomes, and those with insufficient work histories to qualify for DIB) is a needs-based program intended to provide minimal sustenance to keep disabled persons from becoming destitute. SSI payments are not considered by most programs to be “wages.” DIB payments are funded by the FICA taxes that are paid by employees and their employers. The amount that you receive in DIB is directly tied to the amount that you paid into the system. DIB payments are intended to substitute for the earnings that the employee would have received if they had not become disabled. Because DIB payments are considered to be a replacement for wages, DIB payments can be garnished to repay other federal programs. This includes: IRS levies for past-due taxes (up to 15% of benefits) Child support or alimony obligations. The maximum amount that be garnished for child support depends on the state where you live. Valid garnishment for court-ordered victim restitution. Federal student loans Also, at the state level, DIB payments can be garnished to pay child support payments. In general, private creditors cannot garnish your benefits to repay debts.  

If the Social Security Administration (SSA) denies your disability claim, you have 60 days to file an appeal, plus five days to allow for mailing of the document. If you miss this deadline and still file the appeal, SSA may deny your claim because the appeal was filed late. There are some circumstances in which SSA will accept an untimely appeal. If you have good cause for missing the deadline SSA may accept the late filing. Here are a few examples of what constitutes good cause: Illnesses, injuries or conditions prevented you from contacting SSA Conditions prevented understanding or knowing about the need to file a timely request for appeal. You did not receive a notice of the determination or decision Unusual or unavoidable circumstances prevented you from filing a timely appeal If you miss the appeal deadline and wish to continue your claim, you must submit your good cause statement in writing to the local SSA district office handling your claim. The SSA office will determine whether or not your reason meets the good cause standards.  If the good cause is accepted you will be able to continue with your claim. If SSA denies your good cause statement and you wish to continue to pursue a claim, you must start a new application. The good cause statement that was submitted will be considered as protective filing for your new claim, meaning that the date of the statement will be your new application date. For more information regarding SSA’s rules on good cause, please click here.  

If you are successful in obtaining Social Security Disability Insurance (SSDI) benefits you may think that you are not entitled to any other types of Social Security benefits, but your dependents may be. Disabled workers who are awarded SSDI benefits are eligible to receive additional benefits for their dependent children if their monthly benefit is high enough and the children meet certain requirements. To qualify for auxiliary benefits the disabled worker’s children must be under 18 years old, be enrolled in school fulltime, and not married. When a disabled worker is awarded SSDI that worker is entitled to ongoing monthly benefits as well as back pay, which is determined by the established onset date of disability. Auxiliary benefits are also awarded to children on a monthly basis and back pay is owed to the children going back to the disabled worker’s established disability date. One important fact to know about auxiliary benefits is that these benefits are calculated based on how much the disabled worker’s monthly benefits will be. The auxiliary benefit amount is not determined by how many children a disabled worker has and is the same no matter how many dependents the disabled worker has. Children who are legally adopted by the disabled worker and children who do not live with the disabled worker are also eligible for auxiliary benefits. Here is how the auxiliary benefit amount is determined by the Social Security Administration: Dependents are eligible for up to 50 percent of the benefit amount awarded to the disabled worker. For example, if a disabled worker qualifies for $ 1,000 a month in SSDI benefits, the disabled worker’s child or children would qualify for $500 total per month in auxiliary benefits. Social Security has set a limit on the entire amount that can be awarded to dependents and will only pay 150 to 180 percent of the disabled worker’s benefit for dependents, no matter how many dependents they have. For more information visit: http://www.socialsecuritydisability.tv/glossary/auxiliary-benefits

If you receive SSI or could qualify for SSI after setting aside some income or resources, you could benefit from a PASS. A PASS allows you to set aside income besides your SSI for a specified period of time so that you may pursue a work goal that will reduce or eliminate the SSI or SSDI benefits you currently receive. For example, if you receive SSDI, wages, or other income, you could set aside some of that money to pay expenses for education, vocational training, or starting a business. Social Security does not count the income you set aside under a PASS when figuring your SSI payment amount. Also, Social Security does not count the resources you set aside under a PASS when determining your initial and continuing eligibility for SSI.  As a result, a PASS can help you establish or maintain SSI eligibility and may increase your SSI payment amount. For example, if you receive $800 per month in SSDI, you have too much income to be eligible for SSI. But if you otherwise qualify for SSI and have a work goal, you could use some of your SSDI to pay for PASS expenses to help you reach your work goal. Because we would not count the portion of your SSDI you are using toward your PASS, this could reduce your countable income enough so you could be eligible for SSI. A PASS must be (1) designed for you; (2) in writing; (3) have a specific work goal you are capable of performing; (4) have a specific timeframe for reaching that goal; (5) show what income you receive and/or resources you have that you will use to reach your goal; (6) show how you will use your income and resources to reach your goal; and (7) show how the money set aside will be kept separate from other funds.  A PASS must be approved by Social Security and will be reviewed periodically. Social Security has created a form, SSA-545-BK, for PASS applications that will assist you in compiling all the necessary information and presenting your goal in an organized way.  Here is a link to the form: http://www.ssa.gov/online/ssa-545.html.  Also, here’s a link to a website run by Cornell University’s Employment and Disability Institute that discusses PASS in more detail, provides sample answers for the application, and lists possible considerations for deciding whether a PASS might be right for you:  http://www.ilr.cornell.edu/edi/pass/ .

The most important aspect of meeting the rules for either Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) benefits is medical evidence. Medical evidence consists of all reports, notes, tests and opinions from a claimant’s medical provider. At Greeman Toomey Law Office we use a document known as a Medical Source Statement (MSS), which is sent to our clients’ medical providers, to help prove that our clients are disabled. An MSS is either a physical or mental health questionnaire that asks our clients’medical providers to answer specifically tailored questions about our clients’ability to perform work-related activities. Before an MSS is sent to a claimant’s medical provider it is important for the claimant to discuss all of their disabilities with their doctor and inform doctors how those disabilities impact their daily lives. A doctor who is willing to write statements addressing the claimant’s inability to work at a full-time level can be a valuable tool in helping meet the rules for Social Security disability.Below are some things to do before a Medical Source Statement is sent to your provider: Ask your medical provider whether they would agree that you are either unable to work or have the inability to work fulltime because of your disabilities.  Ask your medical provider if they would be willing to complete the MSS in support of your Social Security Disability claim. And, be sure to tell your doctors about all of your disabilities and how the impact your life. It’s important that your medical providers have a good understanding of ALL of your disabilities. Sometimes medical providers will choose not to complete Medical Source statements, or will charge a fee to work on the questionnaires. Some medical providers will require a Functional Capacity Evaluation to be administered (at a cost to the client) before they are willing to complete the MSS.