Social Security Law Social Security Disability

The Basics of Social Security

Overview of the process

Social Security - A Primer for Attorneys
An article by Tracy Tyson Miller


Frequently Asked Questions (FAQs)

1. How do I know if I meet Social Security’s definition of disability?

Under the Social Security Act, disability means "...inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment [or combination of impairments] which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 [consecutive months]...[taking into account the individual’s age, education and work history]." (42 U.S.C. §§ 423(d), 1382c(a)(3)(B); 20 C.F.R. §§ 404/1505, 416.905.)

In layman’s terms, this means that an individual who suffers a serious illness or injury and expects to be unable to work for at least one year or more may file a claim for Social Security disability benefits.
2. How long do I have to wait before filing a claim for disability benefits?
No waiting period is necessary before filing a claim, as long as the illness or injury can be expected to last at least 12 or more months. You may file as soon as the illness or injury occurs.
  3. How do I apply for Social Security disability benefits?
 

You may contact Social Security at their toll-free number: 1-800-772-1213. The "filing date" for your claim will be the day you call, and will later be used by Social Security to calculate when your benefits will start – so the sooner you call to file your claim, the better.

When you call, Social Security will get some information from you: your name, address, birthdate, Social Security number, the last day that you worked, and other basic information. They will also arrange a telephone interview with you, which means that a Social Security representative will call you on the phone at a date and time they set to get more specific information for your application. Do not forget to be near your telephone, waiting for the call, at the date and time of your interview.

You may also go by your local Social Security office and state that you wish to file a claim for disability benefits.

You may also access an online application at www.ssa.gov.

  4. How will I know what type of benefits I qualify for?
 

Social Security Disability Insurance Benefits (SSDI) is a program for disabled individuals who have worked in recent years.It is Also known as a Title II claim, or as SSDI (Social Security Disability), RSDI (Retirement, Survivors and Disability Insurance), or RSDHI (Retirement, Survivors, Disability, and Health Insurance). These benefits are available for the insured worker, and, in many cases, the worker’s dependents or survivors.

To qualify for this type of benefit, the disabled individual must have disability insured status, or enough quarters of coverage (QCs) based on his or her earnings under Social Security. This generally means he or she must have earned income for five out of the last 10 years in most cases. If the disability occurs before the age of 31, the requirements are different, but there must be at least six quarters of coverage. At least six but not more than 40 QCs are required to be fully insured.

To be eligible to receive SSDI benefits, it does not matter if an individual is rich or poor. If a claimant is found disabled, the amount of benefits he will receive is based on how much he has "paid in" to the system, depending on how much he has worked and earned in the past. Benefits cannot begin until five months have passed after the person becomes disabled. Back benefits will not be paid more than one year prior to the date of the claim.

After the claimant has received SSDI benefits for two years, he will qualify for Medicare.

Supplemental Security Income (SSI), also be referred to as SSI Disability, is a Title XVI claim. Benefits are paid to individuals who are aged, blind, disabled, and who have limited income and resources meeting Social Security’s eligibility requirements. It does not matter whether or not an individual has ever worked in the past.

If a claimant is found disabled, back benefits can be paid beginning with the month after the date of the claim. A claimant who is approved for SSI benefits is also eligible for Medicaid coverage as of the date of his SSI application, and possibly for retroactive Medicaid for a limited time before the date of the SSI claim.

Disabled Widow’s and Widower’s Benefits (DIWW) are paid to individuals who meet specific eligibility requirements for this Title II claim. A widow, widower or surviving divorced Spouse must be between the ages of 50-60 and must have become disabled no later than seven years after the death of the spouse. The deceased husband or wife must have worked enough under Social Security to be insured. Claimants who are found disabled may only be paid up to six months prior to the date of the claim, and have a two year waiting period before they are eligible for Medicare benefits.

Disabled Adult Child (DIWC or DAC) benefits is a type of Title II claim. The child must have become disabled before the age of 22, and he or she must draw benefits on the Social Security account of his father or mother. The parent must be deceased or drawing Social Security disability or retirement benefits. If deceased, the parent must have worked enough to have been fully or currently insured as of the date of death. Claimants who are found disabled have a two year waiting period before they are eligible for Medicare benefits.

Most disabled adult child claims are based on developmental disabilities such as cerebral palsy or mental retardation, which have their onset in childhood and which are likely to be substantiated by medical records, or from a debilitating injury that occurs prior to the age of 22.

  5. Who will decide whether I am disabled, and what if they deny my claim?
  A disability examiner at the Disability Determination Service (DDS) will work with a state agency doctor to make the initial decision on your claim. If denied, in some states the next step will be for the claimant to file for reconsideration. At reconsideration, the claim returns to DDS and a different examiner and different state agency physician review the claim. If the claim is denied again, the claimant may file for a hearing before an administrative law judge, who works for Social Security.
  6. What will happen at the hearing?
 

The hearing takes place, usually in a small room, with only the administrative law judge, a clerk operating a tape recorder, the claimant, the claimant’s attorney, and if the claimant is unable to testify on their own behalf, someone the claimant has brought with them. In some cases, the administrative law judge asks a medical doctor or vocational expert to testify at the hearing. No jury is present, and no spectators are allowed in to watch. Social Security will not have an attorney to argue against your case.

The judge will ask the claimant questions about his or her present condition and how it limits him or her. The claimant’s attorney will also ask questions. The judge and the attorney may both question the medical expert or vocational expert if present. The entire hearing is digitally-recorded and typed later to become part of the record on the claimant. After the hearing, the judge weighs both the evidence in the claimant’s records and testimony at the hearing to make a decision.

  7. What if the judge denies my claim?
  If you believe the judge has not fairly evaluated your case, you may appeal your claim to the Appeals Council, which is set up to reevaluate decisions. If the Appeals Council denies your claim, you can then file a lawsuit against Social Security in federal court.
  8. If my doctor says I am disabled, will Social Security approve my claim without my having to hire an attorney?
  Not usually, unless your doctor’s records include very specific details necessary to prove your claim of disability. Social Security has its own set of qualifications to help determine whether you are disabled. What they are looking for from your doctor is not just a statement that you are disabled, but what limitations are caused by your impairments that would affect you in the workplace. An attorney knows what information is needed from your doctor to help prove that you are disabled.
  9. I can’t do my regular job any more, and I made good money at it. The only other jobs I can do are minimum wage jobs. Can I still be found disabled if I can’t do my old job?
  No. In most claims, as long as you can do any work on a full-time basis, no matter what it pays, Social Security will not find you disabled. In fact, as long as there are a significant number of jobs either regionally or in the national economy that you would be capable of performing, Social Security will not find you disabled.
  10. I can’t do the type of work I used to do, but I’m too old to learn a new job now. Will Social Security still deny my claim?
 

Social Security takes several factors into consideration, including your age, education and past work experience. In addition to determining whether you should be able to do a sit-down job or one requiring more exertion, Social Security will look at your age, how far you went through school and whether you could take your job skills and transfer them to a new type of job. They will use a special set of rules for individuals over 50 to determine disability.

  11. My condition is going to keep me from working for over a year, but my doctor says that eventually I can go back to work. Am I eligible for any benefits?
  Yes. As long as you have been or will be disabled for at least 12 months, you are eligible for any benefits for which you are qualified. (See number 4.) If you expect to return to work, you can file for a "closed period" of disability, which must be at least 12 months.
  12. I have a mental illness that prevents me from holding a job. Can Social Security find me disabled based on my mental illness?
  Yes. Mental illness is a frequent basis for awarding Social Security disability benefits. There are many people whose mental limitations are severe enough to keep them from performing or maintaining a full-time job.
  13. What can I do to improve my chances of winning my Social Security disability claim?
 

Be completely honest with Social Security in their requests for information, both financial and medical. If you have a mental illness and fail to mention it, perhaps due to embarrassment, it will be one less impairment that will be considered in the overall determination of your claim. If you had a learning disability in school, this is another factor that could be considered in determining your claim, and Social Security should be made aware of it. If you have a drug addiction or alcohol problem, you must list it along with your other health problems. Chances are that one of your doctors has mentioned it in your records, and it will come to light; failing to mention it, will damage your credibility.

Go to your doctors and treatment providers regularly. The first reason is for your health. The second reason is because Social Security bases its decisions on the medical evidence in your file. If you are not getting treatment, Social Security may assume that your condition is not severe enough to require treatment.

Do not give up. It is common for Social Security to deny claims, and it is easy to become discouraged and believe it is useless to pursue your benefits. You should understand that most claims are denied at the initial levels and reconsideration but approved at higher levels of review. Your greatest chance to win your claim is at the hearing level, when a judge will personally meet with you and hear your complaints.

It is also important to hire an experienced attorney to represent you who understands Social Security’s rules and requirements and to do this at the earliest stage possible in your claim.

  14. I’m not working. How can I afford to pay an attorney to represent me?
 

First of all, your attorney cannot charge a fee unless she wins your case.

Attorney fees are both approved and capped by Social Security, so an attorney will usually not charge you more than 25 percent of any "past due" benefits you receive, not to exceed $6,000.00. (If your case goes to federal court, additional fees may be allowed.) Your "past due" benefits are paid in a lump sum to you by Social Security after you win your case, and the attorney fees are either taken from the lump sum by Social Security and issued directly to her, or you will pay her the fee when you receive your check. At the time you receive your lump sum benefits, you will likely be required to repay the attorney for the out-of-pocket expenses she incurred to help win your case, which are the costs for ordering your medical reports and records, ordering evaluations from specialists, postage, copying, etc.

  Download our sample fee agreement
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