Maine Social Security Disability Lawyer

SSA Conducting more "Continuing Disability Reviews"

I have received several calls lately from individuals who are currently receiving Social Security disability benefits, and have just gotten a letter from the SSA saying that their disability status is being reviewed. Obviously, the receipt of such a letter causes a great deal of concern.

Social Security periodically conducts continuing disability reviews (CDRs) of those receiving disabillty or SSI benefits. See 20 C.F.R. 404.1589.

A medical review determines if an individual continues to meet the medical requirements to collect disability benefits. If the person does not meet the medical requirements, the SSA may terminate that person's disability benefits. These reviews are scheduled every few years, depending upon the likelihood of medical improvement in a particular case. However, I believe the current political climate has led the SSA to devote more of its limited resources to CDRs.

If you are notified of a continuing disability review, do not ignore the SSA's request for records and forms. Provide the required information. The worst thing to do is to not respond to the SSA's request. 

Should you receive a notice that your benefits are being terminated, appeal right away - within 10 days. You will then receive ongoing benefits while your appeal is pending.

New SSI and SGA Amounts for 2012

The Social Security Administration recently announced a cost of living adjustment (COLA) of 3.6% for Social Security beneficiaries. The COLA affects several different numbers in the Social Security ecosystem.

The monthly maximum SSI amount will be $698 in 2012. For a married couple on SSI, the "couples rate" will be $1,048.

The monthly amount for substantial gainful activity for employees will also increase in 2012, to $1,010.

The amount that must be earned for a quarter of coverage for disability will be $1,130.

For those receiving disability benefits and testing their ability to work, the monthly earnings amount that triggers a trial work period remains at $720.

The ALJ decision says that I remain insured through December 31, 2013. Do my disability benefits stop then?

A fully favorable ALJ decison usually contains a sentence like this:

The claimant's earnings record shows that the claimant has acquired sufficient quarters of coverage to remain insured through December 31, 2013.

Sometimes the successful claimant will read that sentence and think that it means that the Social Security disability benefits will terminate on December 31, 2013. But that is not what the sentence means at all.

This language in the decision simply refers to the date last insured, which is the date by which disability must be shown, to be eligible for benefits. The date has nothing to do with continuity of benefits once a claim is granted. So please do not worry if you see this language in your fully favorable ALJ decision. 

Occasionally an ALJ's decision will suggest a time frame for review of disability status. Also, Social Security conducts periodic disability reviews of cases in pay status to ensure that the beneficiary remains disabled. Should Social Security determine that there is medical improvement and that disability benefits should be terminated, you have the opportunity to contest that finding.  

In general, if you receive a fully favorable ALJ decision, your disability benefits will continue until you get better, or return to work at the SGA level, or reach retirement age, or die.

Disabled Adult Child (DAC) Benefits

An adult disabled before age 22 may be eligible for child's benefits if a parent is deceased, or receives Social Security retirement or disability benefits. The SSA considers this a "child's" benefit because it is paid on a parent's Social Security earnings record. Here is the DAC page on the SSA website.

The DAC benefit is almost always higher than the disability benefit based upon the claimant's own limited work record. And the DAC benefit is more favorable than SSI. The monthly benefit is likely to be higher, and disability comes with Medicare. Further, disability recipients are not penalized if they are able to earn a little money each month to supplement their disability check (keep it under SGA), unlike SSI recipients. 

To qualify, the "adult child" must be:

• unmarried,
• age 18 or older, and
• have a disability that started before age 22.

The parent must be disabled, retired, or deceased.

The SSA makes the disability determination using the usual adult disabilty process.

Sometimes a change in status of a parent makes the child eligible. Suppose a son has been on SSI since age 20, and is now 25. The parent retires or dies. Now the son is eligible for DAC benefits.

These claims can reward the disability lawyer who digs a little deeper. With younger adults pursuing an SSI or disability claim, be sure to inquire about the status of both parents, and whether the alleged onset date should be amended to allow a DAC claim.

There is No Partial Disability for Social Security

I get inquires regarding partial disability every now and then. Potential claimants believe they may qualify for partial Social Security disability benefits. They could still work a bit, but can no longer do the same job, or earn the same income, they earned before.  Or perhaps, due to their medical condition, their earnings have dropped significantly because of lost time at work.

The Veterans Administration awards partial disability. And often in workmen's compensation claims, you will see a doctor's opinion that the patient has a certain percentage disability. But these are generally medical-based findings. A Social Security disability determination also has a vocational element.

With Social Security disability, it is all or nothing. Either you can work or you can't. If you are working and earning wages more than $1,000 gross pay per month (that's substantial gainful activity for 2010), then you do not qualify for disability (there are some limited exceptions, such as Impairment Related Work Expenses; so if your income is very close to $1,000 per month, do not assume that you can't qualify for disability; talk to a Social Security disability lawyer). There is no partial disability for Social Security.

When Social Security assesses your ability to work, they must assess your ability to work full-time, on a regular and continuing basis. So this "all or nothing" approach can benefit certain claimants, who may retain an ability to work part-time. Those claimants are still eligible for full disability benefits.

Social Security - Early Retirement Benefits or Disability Benefits?

I have written before about Social Security early retirement benefits versus disability, but the issue is worth revisiting. If you are approaching age 62, and are not working, please read this article.

Many people who are approaching the early retirement age of 62 are unable to continue their employment due to a physical or mental condition. Typically, they just take the early retirement, and never consider the possibility of Social Security disability. 

However, disability benefits are preferable to early retirement benefits. Disability benefits are paid at the higher "full retirement age" amount, rather than the "early retirement" amount. For those retiring by the year 2016, there is a 25% difference between early retirement benefits and full retirement age benefits.

As pointed out by Delaware disability attorney Steven Butler, you can pursue Social Security early retirement benefits and disability benefits at the same time. Social Security allows you to take the early retirement benefit, and then undo that choice if the disability claim is granted. A real-life example may help:

Real-life Example

My client had the same job for 30 years, and stopped work in July of 2008 due to the combined effects of several medical conditions. He just turned 62. If he takes early retirement, he would receive $1,165 per month. If he gets Social Security disability, he would receive $1,554 per month (the same amount he would receive if he retired at full retirement age). 

So he applied for both disability and early retirement. The early retirement claim was granted immediately, and the client is receiving an early retirement check while the disability claim is pending. 

When the disability claim is granted, the client will start to receive $1,554 per month in disability benefits instead of $1,165 for early retirement. He also will receive retroactive benefits of $1,554 a month for the 12 months prior to his filing date, since he was disabled during that time. He also will receive the difference between disability benefits and retirement benefits (in this case, $389 per month) for the months that the disability claim is pending.

11/12/10 update: this claim was granted on the initial application.

Applying for disability and early retirement at the same time solves one of the biggest hardships for those claiming Social Security disability benefits, which is surviving financially while the disability claim is pending.

Everyone's situation is different. Social Security benefits vary, depending upon how much you have paid into the system over the years. Check out the Social Security Retirement Planner. Then consider getting some professional, personalized retirement advice. 

If you can no longer do the work you used to do, and you are not working now, consider applying for disability. Please consult a Social Security disability lawyer for your initial disability application, to ensure you get the benefit of Social Security's rules for those over 55 years old.

Benefits for the Disabled Widow or Widower

Every now and then I encounter a case that potentially involves a claim for benefits by a disabled surviving spouse. This is a claim for disability benefits based upon the work record of the deceased spouse.

A claimant without enough quarters of coverage for Social Security disability insurance on his/her own work record could qualify for disability benefits via the spouse's work history. Or, perhaps the deceased spouse was a better earner, and the PIA is higher for that spouse's work record. 

The requirements for a disabled widow or widower claim are very specific, and are set forth in 20 C.F.R. 404.335. The claimant must be: 

• between ages 50 - 59; and
• disabled under Social Security's rules; and
• disabled within 7 years of the death of the spouse; and
• unmarried; or married again after attaining age 50, and met the disability requirements at the time of the remarriage.
• If the marriage lasted 10 years or longer, a divorced spouse still qualifies. See 20 C.F.R. 404.336.

When you have a client who is the right age, and there is a problem with quarters of coverage or a low PIA, remember to inquire about a deceased spouse (or former spouse).

{Update: Be sure to read the comment below, regarding the 7 year requirement, and then look at 20 C.F.R. §404.335(c)(1)}

Social Security Disability Benefits and Income Taxes

It's that time of year, and many successful Social Security disability claimants who received a lump sum of retroactive benefits in 2009 are now assessing the income tax consequences.

I am not a tax lawyer, and you won't be getting tax advice from me. However, there is an excellent web page available from the National Organization of Social Security Claimants' Representatives (NOSSCR) on Social Security and income tax. The page answers most common questions regarding disability benefits and income tax.

I will repeat NOSSCR's caveat: the page provides general quidance only. Consult a tax professional for specific advice.

Five Month Waiting Period - a Reminder

When you are awarded Social Security disability benefits, you do not receive benefits beginning on your onset date.  Rather, there is a 5 month waiting period before benefits begin. As a practical matter, it is often a 6 month waiting period, because the waiting period is 5 full calendar months of disability. So if your first month of disability was a partial month, that month doesn't count towards the 5 month waiting period. 

The waiting period is often a surprise to claimants. It is particularly noticeable for those claimants who apply for disability benefits shortly after stopping work, and have their initial claim for benefits granted. For those claimants, there are often no retroactive benefits at all due to the operation of the 5 month waiting period.

Retroactive Benefits

For Social Security disability, retroactive disability benefits can be paid for up to 12 months prior to the date you filed your claim, if you were disabled during that time. 

Here is a simple example:

Assume that a person filed for Social Security disability benefits today, August 1, 2009.  Disability benefits are available for the past 12 months, depending upon the claimant's onset date. If the claimant became disabled on June 1, 2008, then the retroactive benefits would begin after the 5 month waiting period, on November 1, 2008.

However, if the onset date were earlier, say on March 1, 2008, then the full 12 months of retroactive benefits would be paid, since the 5 month waiting period would be over by August 1, 2008. Benefits would begin on that date. An onset date 17 or more months prior to your filing date maximizes your retroactive disability benefits.

For an SSI claim, benefits simply begin on your filing date if your claim is granted. There is no waiting period for elegibility, and there are no benefits available prior to your filing date for SSI.

Unemployment Insurance and Social Security Disability

 

Unemployment insurance and Social Security disability are two separate programs, with different goals. In general, if you are receiving unemployment insurance benefits you are ready willing and able to work, and are not disabled. However, receiving unemployment compensation after your alleged onset date does not preclude a favorable finding for your Social Security disability claim.

The Social Security Administration recognizes that a claimant should not have to choose between unemployment compensation and Social Security disability. There is even a Memorandum from the Chief Judge on the topic.

It makes sense when you think about it. Able to work for unemployment purposes does not necessarily mean able to work full-time. Under Social Security's rules, a claimant is considered disabled if that person is unable to perform sustained work on a regular and coninuing basis (8 hours per day, 5 days per week, or an equivalent schedule - see Social Security Ruling 96-8p). Further, if you are over 50, you may still be able to work at an unskilled sedentary job, but could still be found disabled under Social Security's Medical-Vocational Guidlelines.

Under these circumstances, there is nothing inconsistent about receiving unemployment insurance benefits and applying for Social Security disability.

Nevertheless, some judges just don't like it. And the judge is entitled to consider receipt of unemployment benefits when deciding your disability claim. So it is important (as always) to know your judge. Also, you should have a good explanation ready for the hearing of the circumstances surrounding your receipt of unemployment benefits.

Check out the article by Colorado Springs Social Security lawyer Tomasz Stasiuk for another discussion of this same topic.

Dear Social Security Payment Center

Dear Social Security Payment Center,

I know how busy you are. And I know how promptly you pay most claims, once there is a favorable determination or an ALJ decision.

Every now and then, however, payment on an approved disability claim gets stalled for no particular reason. I have one of those claims now, and my client is stuck until he receives his disability benefits.

I checked with the local office first. They sent a message to you, but you didn't answer.

So that's why I have been calling you. Part of a disability lawyer's job is to ensure that the benefits are paid. I know you have the claim, because the Social Security automated file locator gave me your telephone number. If you would answer your phone, we could discuss the claim and expedite payment. But until you answer your phone or return my call, I will keep calling and leaving voicemail messages.

I hope to talk with you soon.

Sincerely,

Gordon Gates

Adult Child Disability

There is a little known Social Security benefit called the Adult Child Disability benefit. I took on one such claim this week, for the first time in quite a while.

An adult disabled before age 22 may be eligible for child's benefits if a parent is deceased or receives retirement or disability benefits. The SSA considers this a "child's" benefit because it is paid on a parent's Social Security earnings record. This benefit is usually more favorable for the claimant than SSI payments.

The "adult child" must be unmarried, age 18 or older, and have a disability that started before age 22.

The SSA makes the disability determination using the usual adult disabilty process. 

Reopening a Prior Claim

One of the most important things you can do for a client as a Social Security disability lawyer is to request reopening of a prior claim. In my opinion, the issue of reopening does not get enough attention.

Reopening a prior claim can add substantially to the retroactive benefits payable to your client. At a recent hearing of mine, the judge agreed (based upon new and material evidence) to reopen an SSI claim filed 22 months prior to the current claim. That is a welcome lagniappe for an SSI claimant.

Reopening is governed by 20 C.F.R. 404.988 for disability claims and 20 C.F.R. 416.1488 for SSI claims. 

A prior claim may be reopened within 12 months for any reason. The 12 month period runs from the date of the initial denial of the prior claim.

A prior Social Security disability claim can be reopened within 4 years if there is good cause. An SSI claim can be reopened within 2 years for good cause. In most cases, "new and material" evidence is the basis for a finding of good cause. The 2-year and 4-year time periods run from the date of the initial determination of the prior claim.

As a lawyer, you must check with the SSA for prior claims. You should not rely on the client for this information.

Working while Receiving Disability Benefits

For those who are already receiving Social Security disability benefits, Geri Kahn's California Social Security Lawyer blog has a well written post answering the question "How much money can I earn and still collect SSDI benefits?"

I recommend that you read her post, which weaves together trial work, the 36-month reentitlement period, and impairment-related work expenes. Further, as Geri notes, the SSA's website has an electronic booklet with more information about working while receiving Social Security benefits.

Geri Kahn is a Northern California Social Security disability attorney, with offices in San Francisco and Benicia.

Social Security announces COLA increases

The SSA has issued a press release regarding Social Security's cost of living increase (COLA) for 2009. Several important amounts will be higher for 2009.

The SSI Federal Payment Standard will rise to $674 per month (from $637 per month for 2008).

The threshold for substantial gainful activity in 2009 will be $980 per month (up from $940 per month for 2008).

The threshold for trial work will be an even $700 per month in 2009 (up from $670 per month for 2008).

For those paying Social Security taxes, the maximum taxable earnings for 2009 will be $106,800 (up from $102,000 for 2008). As one might expect, there is a complicated formula to calculate that figure.

Hat tip to Charles T. Hall of Social Security News for the catch.