If you have been working and suddenly find yourself disabled and unable to work, you might be entitled to Social Security Disability benefits, often referred to as SSD or SSDI (Social Security Disability Insurance). SSD is available for those who 1) have worked 5 of the last 10 years, 2) have a disability that has lasted (or is expected to last) one full year or more, and 3) are incapable of making more than $1,130 per month (2016 amount).
Differences between SSD and SSI
Many people do not realize that there are two types of Social Security Disability claims: Social Security Disability Insurance (SSD or SSDI) and Supplemental Security Income (SSI). The topic of this article is SSD, but it is important to note the basic differences between the two. SSI is asset-based, in addition to disability- and income-based. While SSD will look at your personal income to determine if you meet the disability requirements, SSI looks at the entire household income and assets. SSI is typically applied for by individuals who do not meet the work requirements of SSD. Thus, children will receive SSI benefits, rather than SSD.
How Social Security Will Analyze the Claim:
There are certain eligibility requirements for Social Security Disability benefits. First, because the benefits are a form of insurance provided by the federal government through the Social Security Administration, you must have paid your premiums. The “premiums” here are your FICA taxes deducted from your paycheck. If you have not worked for a certain period of time (generally 5 of the last 10 years), you have not paid enough into the insurance program, and so would not be eligible for SSD (although you might be eligible for SSI, depending on your circumstances).
Second, you must be incapable of holding a job that would provide $1,130 per month (referred to as Substantial Gainful Activity, or “SGA”), according to 2016 rules (this number generally increases each year). If you can earn (or are currently earning) more than $1,130 per month, you are not considered disabled under Social Security’s rules (even though a state agency or physician may consider you disabled). Unlike SSI, the SSD analysis is only concerned with your ability to earn income – your savings, assets, and household income is not included in the SGA eligibility requirement.
Finally, your disability must be expected to last (or actually have lasted) 12 months or more. Thus, a temporary disability determination by a state agency may be important evidence, but is not going to be a “smoking gun” in your SSD case, as many clients believe at the outset.
The other important aspect of the SSD analysis involves your actual condition. There are two ways to prove disability to Social Security. First, you can demonstrate that you meet a “listing,” which refers to a particular diagnosis in the appendices of the Social Security regulations, frequently referred to as the “Blue Book.” These “listings” consist of very specific diagnoses and symptoms. If these criteria are not met precisely, you will not be considered to have met the listing.
However, most SSD cases are won by the alternate analysis. This looks at an additional two step process: can you perform your past work, or can you perform other work? These steps involve looking at your entire circumstances, your daily activities, the effects of medication, treatment, etc. Under this analysis, you must demonstrate that you are incapable of working in any job in which you could earn the SGA amount. (This is really the overall evaluation in either scenario, but if you meet a listing, Social Security presumes that you cannot work in any job that would provide SGA).
SSD Step One: Filing the Initial Claim
You should be able to file the claim yourself, but there are a few tips to help your claim’s success at the outset. First, make sure you bring a list of all doctors and medical providers you have been seeing, whether those doctors have treated you for your disabilities directly or not. Second, bring your entire medication list with you, including any side effects you may suffer from. Finally, bringing as many records as you have available with you to ensure that Social Security gets the proper records. (Thompson Law Offices offers free consultations to individuals at any stage of their Social Security Disability Insurance claim, and can offer more specific guidance to your particular case during a phone call).
Claims may be completed online, on the telephone, or at your local Social Security Agency office, although it is recommended that you go in person. The claims generally take a month or two to process. If you are awarded benefits, you will begin to receive them on the sixth month after you are entitled to them.
SSD Step Two: Reconsideration and Appeal
If, on the other hand, you are denied, you will receive a denial letter called the Notice of Disapproved Claim. This letter will have a date on the top right corner. You have 60 days from this date to file the appeal. Therefore, it is imperative that you contact an attorney immediately and schedule an appointment if you desire representation throughout the process. Note that in New Jersey, you are required to file a reconsideration of the denial prior to filing the request for a disability hearing before the Administrative Law Judge.
Once you have been denied on your initial claim (or your reconsideration if you are in New Jersey) you can request a hearing before an Administrative Law Judge, or ALJ. The ALJ will hear your side of the story, along with any witnesses you care to bring. Witnesses are generally a spouse or close friend or relative who frequently interacts with you and has observed your disability. That way, they can inform the ALJ of your disability, as well. Because credibility is often an issue in SSD cases, having another individual who can verify what you are saying can be very helpful.
Unfortunately, it take a very long time to appear before the ALJ. In Pennsylvania, the wait is typically well over a year, and often more than a year and a half. In New Jersey, due to the reconsideration period, it is often longer than two years. While this waiting period can be trying and frustrating, it can also be helpful, as it allows us to build your case over a period of time. By continuing treatment and keeping your attorney informed of your doctors and treatments, the attorney not only has more information with which to present to the ALJ, but sometimes evidence emerges that demonstrates you meet Social Security’s requirements on paper, foregoing the need for a hearing.
SSD Step Three: The ALJ Hearing
Your hearing is designed for the ALJ to meet you and hear how your conditions affect you. He or she will have viewed and studied the medical record, but needs to know the particular effects the conditions have upon you. While important to the outcome of your claim, the hearing is not adversarial, meaning that there is no Social Security attorney to cross-examine you. Generally speaking, the hearing consists of you, your representative, a court reporter, the judge, and perhaps a vocational expert (VE) and a medical expert (ME). The VE and ME are there to assist the judge for independent job and medical analysis and will generally not ask you any questions.
Thompson Law Offices has experience in all aspects of Social Security Disability, from guidance on the initial claim, to the appeal process, expediting hearings (where appropriate), seeking decisions on the record without the need to wait for a hearing (also where appropriate), and appeals beyond the ALJ. If you have been denied and need to file an appeal, please call and set up an appointment, so Thompson Law Offices can analyze your claim. Or, if you are just getting started, or thinking about filing a claim, Thompson Law Offices can assist and advise you.