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Disability & Legal Assistance:  Frequently Asked Questions

1.  What Is Social Security Disability Insurance (“SSDI”)?
“SSDI” stands for “Social Security Disability Insurance”, an insurance program for workers who become unable to work. It is administered by the Social Security Administration (“SSA”), funded by “FICA” tax withheld from workers’ pay and by employer contributions, and pays qualifying disabled workers both cash and health care benefits. Workers who have worked and paid FICA tax for at least 5 of the 10 years prior to onset of their disability generally will be covered by SSDI. Younger workers can qualify with fewer years of work. You can apply for SSDI benefits (and learn whether your are covered for SSDI) at any SSA office or by calling SSA toll-free at 800-772-1213.

2.  Is “SSDI” the same as “SSI”?
“SSI” or “Supplemental Security Income” is similar to SSDI: both programs are administered by SSA, both offer disability benefits, and both use the same legal definition of “disability.” However, the programs differ significantly in how a person financially qualifies for benefits. For example:
BENEFIT AMOUNTS. The SSDI benefit is calculated on a disabled worker’s past earnings, which means that different workers may receive different monthly payment amounts. SSI pays a standard monthly benefit of $500 for an individual (in 1999). (Exception: Even though the SSI benefit is fixed, individual checks may vary because of deductions required by law.) Some states pay a supplement to SSI recipients.
HEALTHCARE BENEFITS. Recipients of SSDI qualify for Medicare benefits 24 months after their first monthly check. SSI recipients receive Medicaid benefits immediately, without a waiting period.
EFFECT OF INCOME AND RESOURCES OF OTHER PEOPLE. Benefits of SSDI recipients are not affected by the income of others, or by their own income that is not earned from current work. For example, one’s investment income does not affect his or her SSDI benefits. But benefits of SSI recipients may be reduced (or end) because of income and resources received by the beneficiary, or the income and resources of others who contribute to the beneficiary’s support.
When you apply for either SSDI and/or SSI disability benefits, SSA should automatically check to see whether you qualify for either one or both.

 3.  Why might I need SSDI?
People who become disabled typically have a large decrease in income, which can be financially devastating. SSDI can partially replace this decrease. This helps to cover living expenses and it also protects a disabled person’s earnings record so he or she can receive their Social Security retirement check usually without any reduction.

4.  Can people qualify for SSDI after age 65?

SSDI benefits end at age 65, and ordinary Social Security retirement and Medicare benefits take over. In general, the monthly retirement benefit will be the same as the disability benefit.

5.  If I have been self-employed, can I get SSDI if I become disabled?

Self-employed people who become disabled can receive SSDI if they have paid the federal government a sufficient amount of self-employment tax and/or FICA tax to qualify for SSDI coverage. Unfortunately, many self-employed people neglect to pay the tax and therefore do not qualify for benefits.

6.  Will my spouse’s income affect my SSDI?

Your spouse’s income will not affect your SSDI benefits. SSA only considers your ability to work - not the income or resources of your spouse. Your savings and investments also will not disqualify you.
However, a spouse’s income could disqualify you from SSI or reduce your SSI benefits. SSI is not insurance like SSDI; it is a welfare program limited to people with very little income and few resources. The government may reduce SSI benefits a certain amount or end them if the beneficiary, the spouse, or anyone contributing to their support has income or resources.

7.  How does SSDI differ from workers’ compensation, state Disability Insurance, and private Disability Insurance coverage?
WORKERS’ COMPENSATION: Workers’ compensation statutes typically require that your illness or injury be work-related before you can receive workers’ compensation benefits; however, SSDI does not require a causal connection between your medical condition and your work. You may receive workers’ compensation benefits for partial incapacity; but SSDI requires that you be totally incapacitated from substantial gainful work. Workers’ compensation may pay benefits for periods of disability shorter than a year; but SSDI requires that your disability last or be expected to last at least a year. In many instances, a person may be eligible for both Workers’ compensation and SSDI.

STATE DISABILITY INSURANCE: Five states and the Commonwealth of Puerto Rico have disability benefit programs for illnesses and injuries not caused by work. The states are California, Hawaii, New Jersey, New York and Rhode Island. These programs may provide state disability benefits to people before SSDI benefits become payable. State disability benefits generally are paid only for short period of time, while Social Security Disability Insurance benefits can be long term (SSDI benefits may continue indefinitely, until Social Security retirement benefits become payable at age 65). State benefits continue to a maximum of 26 weeks in Hawaii, New Jersey, New York, and Puerto Rico; 30 weeks in Rhode Island; and 52 weeks in California. For more information contact the appropriate state agencies, (CALFIORNIA: Employment Development Department, 916-654-8198; HAWAII: Disability Compensation Division for TDI, 808-586-9188; NEW JERSEY: Temporary Disability Insurance information, 609-292-7060; NEW YORK: Toll-free information in NY, 800-887-7695 or Workers’ Compensation Board, Albany District, 518-474-6681; PUERTO RICO: Industrial Commissioner, 787-783-3808; RHODE ISLAND: Temporary Disability Insurance, 401-222-3625).

PRIVATE DISABILITY INSURANCE: Many people obtain private disability insurance as an employee benefit through their employer. Other people purchase their own private policy. Private disability policies may start paying benefits sooner than SSDI. Some private policies do not reduce their monthly checks if a person receives disability benefits from SSA. Other private policies do reduce their monthly checks in an amount equal to any benefit that SSA pays. Because the insurance company receives this reduction, it will usually require their insured to apply for SSDI and make a reasonable effort to obtain SSDI benefits.

8.  What does the Social Security Administration (“SSA”) mean by the term, “disabled?”
SSA considers a person “disabled” if he or she: (1) lacks the ability to engage in any substantial gainful activity; (2) the incapacity is due to one or more medically determinable physical or mental impairments; and (3) the incapacity has lasted or can be expected to last for a continuous period of at least 12 months or to result in death. (Other guidelines govern blindness and claims of disabled children.)

“Substantial gainful activity” is defined as working on a regular and continuing basis and earning at least $700 a month. If you are working and earning $700 a month or more, SSA may not accept your disability claim because it will presume you are engaged in substantial gainful activity.

9.  How do I apply for SSDI and/or SSI benefits?
You can apply for SSDI and/or SSI benefits in-person at any SSA office, or by telephone toll free at (800) 772-1213, and mail. By going in-person for your disability interview you will receive free advice from the claims representative, an examination of your papers for errors and oversights, an opportunity to correct them before the papers are filed, and the opportunity to demonstrate your honesty and credibility to a representative of SSA. However, please realize that if you do go in person the claims representative may make and document personal observations about your appearance that may not be helpful to your claim.

However, to save time, SSA may try to persuade you not to come to the office and may instead propose a telephone interview. You have the right to an in-person interview. If SSA does not allow you one, ask the office of your U.S. Senator or Member of Congress how to obtain one. SSA typically makes an initial claim decision within 60 to 120 days and approves only one-third of the claims at that level. Any claim denial by SSA must be appealed within 60 days after you receive the notice of decision otherwise that particular claim may be closed.

The key in pursuing SSA disability benefits is to not quit and persevere! Nationwide over half of the claimants who appeal their claim and appear before a judge eventually win their case and obtain benefits.

10.  What do I do if I filed a SSA claim several years ago, it was denied, and I never appealed the denial?
If in the past you filed a claim that was denied and you never appealed it - don’t lose hope! You may be able to reopen the prior claim which will allow you to pursue your benefits. In addition, if it has been less than five (5) years since you worked, you may still be covered for SSDI and can file a new application for benefits. Do not assume your claim is forever lost - file a new application and let SSA tell you that you are no longer covered for SSDI.

11.  What information do I submit with my SSDI claim?
SSA will require the following information after your claim is filed:
The Social Security numbers and proof of age for each person applying for benefits. This includes your spouse and children, if they are applying for benefits.
Names, addresses, and phone numbers of doctors, hospitals, clinics, and institutions that treated you and dates of treatment.
Names of all medications you are taking.
Medical records from your doctors, therapists, hospitals, clinics, and caseworkers.
Laboratory and test results.
A summary of where you have worked in the past 15 years and the type of work you did.
A copy of your W-2 Form (Wage and Tax Statement), or if you are self-employed, your federal tax return for the past year.
Dates of prior marriages if your spouse is applying.
A certified copy of your birth certificate.

12.  My doctor says he or she will not write a report; he or she will only fill out the SSA forms; is that okay?
Very few doctors in private practice know how to write disability reports that satisfy the exacting standards that SSA applies in evaluating medical evidence. This is not surprising, because SSA typically does not furnish treating doctors with a full set of evaluation criteria. However, SSA evaluates their reports as if treating doctors are aware of the criteria.

In addition, many treating doctors believe they know whether a patient is disabled and may apply a different standard that SSA uses; unfortunately, if the doctor is very conservative with his or her opinions, this could actually be harmful to a claim. It is important the doctor understands SSA’s definition of disability when rendering opinions about what a patient can do on a sustained basis.

Treating doctors typically fill out an SSA form that has 10 questions. Government doctors then evaluate these SSA treating doctors’ forms, using other SSA forms that have more than 100 questions and multiple choices on physical function and another 100 on mental function. Therefore, it is not surprising that SSA often finds treating doctor reports inadequate; the agency looks for answers to questions it did not ask. Because SSA usually will not try too hard to obtain the opinions of a treating physician, the system seems designed to promote inadequate reports.

13.  What does SSA do after I file my claim?
APPLYING FOR BENEFITS. You apply for SSDI benefits at an SSA office, or by telephone and mail. A claims representative interviews you and identifies sources of medical evidence. The representative also confirms that you meet the SSDI insured status requirements, and sends the case to a state disability determination service (“DDS”). The DDS, operating as an agent of SSA, makes the initial determination of disability or non disability.

REQUESTING RECONSIDERATION: If SSA denies the claim initially or makes a serious error in an otherwise favorable decision, you must request reconsideration within 60 days after receiving the notice of decision or your claim may be closed. The state agency will reconsider the claim and assign a different decision-maker than the one who decided the claim initially.

If you are denied benefits on your initial application by the SSA, do not lose hope! It is important to realize that although this may appear to be a final decision by the SSA regarding your disability, it is really the first step in the disability determination process. At this time, it is important that you do not give up!

The biggest mistake claimants make when trying to obtain disability benefits is failing to appeal! More than half of the claimants who are initially denied benefits fail to request reconsideration. Additionally, many claimants fail to maintain a consistent treating relationship with their treating physicians. Medical treatment records provide the most important evidence of disability in a social security disability case.

REQUESTING A HEARING. If SSA reconsiders the claim and denies it again, you must request a hearing before an Administrative Law Judge (“ALJ”) within 60 days of receiving the notice of decision. An ALJ hearing is like a court hearing or trial, but less formal. You normally testify under oath and submit additional evidence. You can and should have an attorney represent you at the hearing. The greatest, and most likely last chance for success in winning a claim is at the hearing stage. Therefore, case preparation and representation by an attorney at this point is crucial.

REQUESTING REVIEW BY THE APPEALS COUNCIL. If the ALJ denies your appeal, you must request a review by the Appeals Council within 60 days. The Appeals Council also may review and ALJ decision on its own initiative within 60 days after the date of the decision.
If your claim is denied by the Appeals Council, the last opportunity for review is to file a lawsuit in federal court within 60 days of the Appeals Council denial.

14.  Where can I find out about other federal or state assistance for my disability?
To learn about federal or state assistance that my be available to people with disabilities, check with the social services department of your clinic or hospital; state and local social services agencies; private nonprofit health groups; and your state vocational rehabilitation agency.

15.  Do I Need an Attorney To Represent me in my Case?
Although it is not required that an attorney represent you, studies confirm that claimants who are represented by an attorney win their case at a significantly higher rate than those claimant’s who do not have representation.

16.  When Should I Contact an Attorney about Representing Me?
Although you can retain an attorney at any stage of the disability determination process, the best advice is to consult with and retain one as soon possible after filing your claim.
By retaining an attorney early in your case, he or she can help you protect the record, develop a case strategy and provide information on what to expect at each step of the appeals process. You will find this information to be very helpful, comforting and beneficial to your case. Also, this information could be critical because unfortunately, oftentimes SSA develops a case in such a way that it may be harmful to your case. An attorney may be able to prevent this from occurring which should increase your chances of success.

17.  If I Retain an Attorney, What Should I Expect Their Fees To Be?
Most disability cases are handled by an attorney on a contingency fee basis. That means you only pay an attorney’s fee if you win your case. In Social Security disability cases, attorney’s fees are set by federal law. The federal statute provides that fees are limited to 25% (one-quarter) of the back disability benefits up to a maximum of $4,000. You will be responsible for any out of pocket costs the attorney may have in pursuing your claim (i.e. to obtain medical records, medical opinions, etc.); however, this is usually a nominal amount of money.  The attorney’s fee is usually a very small percentage of the total benefits that a claimant is entitled to. A 45-year-old claimant with a monthly payment of $1,000 will be entitled to benefits of $240,000 to age 65 if they never return to work. This amount does not include the amount of healthcare benefits the claimant is entitled to. Thus, most claimants have a tremendous amount of benefits at stake and their future depends on obtaining disability benefits. When one considers the fact that they will only pay an attorney’s fee if they win their case it seems prudent to retain an attorney as soon as possible after filing the claim.