Frequently Asked Questions
Q. Who is considered to be disabled under Social Security regulations?
A. A person may be considered disabled if he has severe medical conditions which are documented by medical treatment and that person can no longer perform the duties of any job he has held in the past; cannot perform any other job, no matter how easy, on a regular basis; and the disability is expected to last for at least a year, or to result in death.
Q. What must a disabled person do in order to apply for Social Security disability benefits?
A. The disabled person can initiate a Social Security disability claim either by visiting his nearest Social Security local office; by calling his local Social Security office and arranging an initial interview by telephone; or by applying online at the website of the Social Security Administration, which is www.socialsecurity.gov/applyfordisability.
Q. What information does Social Security consider when it begins evaluating a disabled person’s disability claim?
A. The Social Security Administration will look at several factors in evaluating a claim, including the type of disability a person may be eligible for; the medical treatment a claimant has received and the medical records documenting that treatment; the work record and work history of the claimant; a claimant’s financial needs if an SSI claim; and any other evidence which may be useful and relevant to evaluating the claim.
Q. I’ve heard that most people get turned down on their disability claims, at least at first. Is this true, and what should the claimant do?
A. Unfortunately, it is much more the norm for a claimant to be turned down for disability at both the initial and reconsideration steps of the claim, especially if the person is under 55 years old. Being turned down initially may not have any bearing on whether the person has a meritorious disability claim or on whether the claimant may ultimately prevail and win his disability case. Many claimants give up and drop their claim when they receive a denial notice, but it is very important to file appeals and keep the claim active if the person is no longer able to work. The vast majority of claimants who are ultimately successful in their Social Security disability claims must proceed to the third step of the claims process, which is a Hearing before an Administrative Law Judge, and in order to get to the Hearing level, the denials at the lower levels must be appealed in a timely fashion.
Q. How does the process work, and how long does it take?
A. Social Security disability is a step-by-step process. After the initial claim is filed as described above and after Social Security has gathered its information about the claim, an initial decision is issued, generally in three to five months after filing. The decision is likely to be a denial letter, and, if so, the claimant then has sixty (60) days to file an appeal to the second level of the process, which is called Reconsideration. At the Reconsideration level review, generally the same process occurs as at the initial level, meaning that updated medical records are ordered and reviewed and another decision is issued, generally within about four to six months. The decision on Reconsideration is also likely to be a denial, and the claimant then has another sixty (60) day window to appeal to the third level of the process, which is the Hearing level. Once a Hearing is requested, the claimant’s file is sent to the Office of Disability Adjudication and Review for the scheduling of the Hearing before an Administrative Law Judge. For Upstate South Carolina Social Security Disability claimants and some areas of western North Carolina, the Hearing office is located in Greenville, South Carolina. Although the staff at Greenville ODAR work very hard to process Hearings, they are currently overwhelmed by a huge caseload and staff hiring freezes, and a claimant may unfortunately expect a wait of up to twenty-four (24) months after filing for a Hearing before it can be scheduled. The wait for a Hearing may be shorter or longer if a claim is to be heard in a different Hearing office.
It is very important for a claimant to pay attention to the date on the letters of denial, both at the initial level and at Reconsideration, if the claimant does not agree with the determination by Social Security that he is not disabled. If the appeal is not filed within the sixty (60) day period which commences on the date of the letter, and unless the claimant has a very good reason for not filing his appeal within that time, Social Security may require that the claimant begin the whole process over again. In addition to making the entire process take even longer when a claimant is required to begin again, there is also the possibility of the loss of past-due benefits, which are explained below.
Q. How long does it take to receive a decision after the Hearing, and what happens if the claim is again denied?
A. Depending upon the complexity of the claim and the workload of the particular Judge who conducts the Hearing, a claimant can sometimes receive a decision within a few weeks or it may take as long as several months. If the claimant receives a Favorable Decision from the Judge, the claim is then forwarded for the calculation of benefits which can then take several more months. If the Judge denies the claim at the Hearing, a claimant has another sixty (60) day window after receiving the Unfavorable Decision to appeal to the Appeals Council, which is located in Falls Church, Virginia. The claimant must submit a request for review of the hearing decision either at the local Social Security office or by mailing the appeal directly to the Appeals Council.
Q. If a disability claim is successful, how are benefits calculated and how long does it take to get paid?
A. The calculation of a successful claimant’s benefits is a somewhat complicated process. In general terms, every claimant must first prove what is called the onset date of disability. This is a specific day in the past after which, due to injury, illness or otherwise, a person is no longer able to work at any job. This date in the past is the beginning point at which benefits are calculated. Benefits by regulation will not be paid for the first five months of the disability onset date. When benefits are awarded, they will only begin to be paid during the sixth month of the disability. However, there is another consideration, which is that benefits cannot be paid starting farther back than one year before the person applies for disability, regardless of when the person became disabled. For example, if a claimant proves that he became disabled in the year 2000, but he did not apply for disability benefits before March, 2005, then the earliest benefits can be paid would be commencing in March, 2004. Therefore, Social Security disability benefits may begin to be paid either five months after the onset date of disability or twelve months before the Social Security application is filed, whichever is the later date.
In calculating the actual amount of benefits to be paid, Social Security considers factors including the earnings of the claimant during his work life; FICA taxes which have been paid in; the age of the claimant; and the date the disability commenced. Because the calculation of benefits is complicated, it is impossible to predict with any accuracy how much in benefits will be payable to a claimant. When Social Security has calculated a claimant’s benefits, generally the past due or back benefits will be paid in a lump sum first, sometimes in installments if the total amount is high. At approximately the same time as the lump sum back benefits, or the first installment of the lump sum, are received, the claimant will also begin to receive a monthly benefits check which will continue so long as the claimant remains disabled and unable to work at any job. Generally, once a claimant receives a Favorable Decision and the claim has been forwarded for payment, another letter will be received which is called a Notice of Award. This letter usually arrives either before, or at the time of, the first payment. The Notice of Award is supposed to explain how the benefits were calculated; how much the claimant may expect to receive, both in past-due benefits and monthly payments; and when those payments will begin.
Q. Is a disabled person eligible for Medicare, and if so, when?
A. A person who has been successful in his disability claim becomes automatically eligible to receive Medicare. The disabled person is considered to become eligible for Medicare twenty-four (24) months after the date he became eligible for disability benefits. Because of the length of time it takes to get a Hearing scheduled and to receive a Favorable Decision, a claimant may frequently already be eligible for Medicare by the time of the Favorable Decision. Medicare premiums are deducted from a claimant’s monthly payments.
Q. Do Workers Compensation benefits have any effect on disability benefits?
A. The receipt by a claimant of Workers Compensation benefits may negatively affect the payment of disability benefits. The formula for comparing Workers Compensation benefits and Social Security disability benefits is also complicated, but in general terms, if the combination of disability benefits and Workers Compensation benefits exceeds eighty (80%) percent of the claimant’s average monthly earnings at the time the disability benefits begin, the disability benefits may be offset, or paid at a lesser rate, until the claimant no longer receives Workers Compensation benefits. A claimant must provide Social Security with Workers Compensation information so that Social Security benefits may be correctly calculated.
Q. Does Social Security pay temporary or partial disability benefits?
A. No. Social Security will only pay benefits for disabling medical conditions which last for a year or more. When benefits are awarded, however, the person is considered permanently disabled unless or until medical improvement occurs which would allow the person to return to the workforce. Social Security also does not pay for a partial disability, as does for example the Veterans Administration. A person must prove that he is totally disabled from engaging in any substantial work in order to prevail in a Social Security disability claim.
Q. What is the difference between Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI)?
A. SSDI and SSI are the two programs which provide benefits based upon the inability to work any longer at any job on a full-time basis. Payments under SSDI are based upon the prior work of a claimant which was reported to the Social Security Administration. In order to be eligible for SSDI, a person must have earned credits based upon the taxable work he has performed. Generally speaking, a worker earns one credit for approximately every $1,000 he earns, but only up to a maximum of four credits per year regardless of total earnings. In order to be eligible for SSDI, a claimant must have earned at least 20 credits over the ten year period prior to becoming disabled. If a person has worked the entire ten years prior to becoming disabled and earned the maximum of 40 credits during that time, that person has more than enough credits, and those excess credits will follow the person for as long as five years after his disability begins. This is important because, in order to be eligible to be paid under the SSDI program once disability is proven, the claimant’s onset date of disability must have occurred prior to the time those credits expire, which is called the “date last insured”. When a claimant has more credits than he needs, the date last insured is pushed forward in time, which can be crucially important versus when onset of disability occurs. (Other credit requirements apply for claimants under age 24, who must have earned six credits over a three year period, and people between the ages of 24 and 31 who must have credits for half of the time between age 21 and the age at which he became disabled.)
SSI is the other disability program. A disability claim under SSI must still be proven medically in the same way as an SSDI claim. However, SSI benefits are payable based upon financial need rather than the prior work record. Even though an SSI claimant may be successful in proving an underlying disability, he must then also prove financial need in order to receive SSI payments. This means that an SSI claimant who cannot satisfy the financial need requirements may not be eligible for benefits even where disability is proven. Benefits payable to SSI claimants, both children and adults, are based upon limited income and resources; living arrangements; and disability.
Q. Does a claimant have to be represented by an attorney in the disability case?
A. No. Any claimant can represent himself through all the stages of the process, including the Hearing before the Judge and any appeals from an Unfavorable Decision. A claimant is also allowed to be represented by a person who is not an attorney.
Q. What are the benefits of being represented by an attorney, and how is the attorney paid?
A. An experienced Social Security disability lawyer will be much more familiar with the disability process than the claimant. A part of the disability lawyer’s job is to complete and file all of the necessary paperwork within the deadlines for appealing and to request and submit all medical evidence which supports the claim. At the time of the Hearing, the disability lawyer meets with the claimant to prepare him for the Hearing, and then of course accompanies the claimant to the Hearing and represents him before the Judge. The attorney fees for Social Security disability claims are paid by what are called contingent fees and in accordance with a representation agreement or contract between the lawyer and the claimant. This means that the claimant does not have to pay the lawyer out of his pocket or by the hour, for example. If the claim is successful, the lawyer gets a part of the money the claimant receives in order to pay the lawyer for his work. If, however, the claim is not successful, generally the lawyer receives no payment for his work other than possibly the reimbursement for out-of-pocket expenses if that is stated in the representation agreement. Social Security disability lawyers generally charge up to twenty-five (25%) percent of a claimant’s past-due benefits for their work. However, even though there is a representation agreement signed by the claimant, any fee an attorney wants to charge a claimant must always be approved by the person issuing the favorable decision in the claim, whether the Judge or someone else.