1. Why do I need an attorney and how much do they cost? 2. My Claim was denied. What do I do? 3. What happens at the hearing? 4. What happens if I have been receiving workers' compensation benefits? 5. How is Social Security Retirement related to Social Security Disability? 6. What is the difference between Social Security Disability Insurance benefits (SSDI) and Supplemental Security Income (SSI)? 7. How does obesity affect the disability analysis? 8. What must an Administrative Law Judge evaluate? 9. How does special education impact Social Security Disability?
Why do I need an attorney and how much do they cost?
Actually, you don't need a lawyer at all to get benefits. However, the current Federal Social Security Disability Program is rather complicated. If you need to present your case to a Federal Judge, then often an attorney can be helpful in preparing your claim for the court. All attorney fees must be approved by the Judge. The fee for our office is simply 25% of any past benefits you may be entitled to or $6,000.00 (whichever is less). This fee is typical for attorneys handling Social Security Cases. The fee is paid directly by the Social Security Administration from the past benefits your attorney is able to get. If your case is lost, then you owe the attorney nothing.
My Claim was denied. What do I do?
Many claimants are denied multiple times before they are successful in obtaining benefits. It is very important that you continue to pursue your claim. If you are initially denied, then you should apply for reconsideration. If you are denied reconsideration, then you should request a hearing with an Administrative Law Judge (ALJ) in Federal Court. Typically, your best chance of obtaining benefits is in court before a Judge. Unfortunately due to the large back log of cases, it often takes many months for your hearing to be scheduled.
What happens at the hearing?
At the hearing you will testify about the nature and extent of your disability, your past work, and your education. There is no jury present for your hearing. An administrative law judge will conduct the hearing which typically lasts about an hour. The hearings are rather informal and you will not be cross-examined by any lawyer for the government or the Social Security Administration. Some administrative law judges ask questions while others let your attorney ask all the questions. On occasion the administrative law judge may also ask a doctor or vocational expert to testify as well. If a doctor is asked to testify, they will typically do so by telephone. If requested by the administrative law judge, any vocational expert would testify in person at the hearing. You are also entitled to present witnesses at your hearing. Sometimes a family member or close friend would testify about their observations of your condition.
What happens if I have been receiving workers' compensation benefits?
If you are awarded social security disability benefits, the law requires that the Social Security Administration consider all other disability benefits you have received (including workers' compensation benefits). If your workers' compensation case is planned very carefully by your lawyer, then there is a chance that the credit or offset in the Social Security case could be reduced or eliminated. You should specifically consult with your lawyer if you have been receiving workers' compensation benefits.
The current Social Security law allows the SSA to reduce disability payments to people who are also receiving Workers’ Compensation Benefits. The reduction occurs when the combined total of the disability benefits paid under both Workers’ Compensation and Social Security exceeds 80% of the individuals pre-disability earnings. When this occurs, Social Security is entitled to make a dollar-for-dollar offset or reduction for the amount that exceeds the 80%. For the calculation, your monthly Social Security disability benefits, including benefits payable to your family members, are added together with your monthly workers’ compensation payment.
If the total amount of these benefits exceeds 80 percent of your average current earnings, the excess amount is deducted from your Social Security benefit. The SSA provides the following example: Before you became disabled, your average current earnings were $4,000 a month. You, your spouse and your two children would be eligible to receive a total of $2,200 a month in Social Security disability benefits. However, you also receive $2,000 a month from workers’ compensation. Because the total amount of benefits you would receive ($4,200) is more than 80 percent of your average current earnings ($3,200), your family’s Social Security benefits will be reduced by $1,000.
Your Social Security benefit will be reduced until the month you reach age 65 or the month your other benefits stop, whichever comes first. Please note that the unreduced benefit amount is counted for income tax purposes.
How is Social Security Retirement related to Social Security Disability?
To receive Social Security Retirement or Social Security Disability you must have worked and paid into the Social Security System. To qualify, you must have earned 40 credits or quarters of employment during your life. Your retirement benefit amount depends on the amount you paid into the system and the age at which you retire. You can opt to retire at your Full Retirement Age (65 if you were born before 1937, 66 if you were born between 1943 and 1954, 67 if you were born in 1960 or later) then you receive your full benefit (called Primary Insurance Amount - PIA). If you retire at your Full Retirement Age, then you start to receive a check the month you reach that age.
You may opt for Early Retirement starting at age 62. However you will receive a permanent reduction in benefits. The reductions vary with each month you retire early, but, for example if your full retirement age is 66, then they are approximated as follows: 25% at age 62, 20% at age 63, 13.5% at age 64 and 6.66% at age 65. If you retire early, you will be penalized if you keep working, however Medicare will automatically start when you turn 65.
You may also consider Delayed Retirement. If you delay taking retirement benefits, then your benefit amount will increase by 8% per year up to age 70. That increase remains in place forever. Delayed retirement is important for your spouse when you pass away as your spouse will receive the increased amount if you opt for Delayed Retirement. People who opt for delayed retirement should also remember to apply for Medicare on their own at age 65 (this will avoid lifelong penalties that attach for each month they delay applying at age 65).
If you become disabled before you reach full retirement age, then your benefit is the same amount as if you had retired at full retirement age. You will get the same COLA increases that retirees get. When you reach full retirement age, your benefit is automatically converted to that of a retiree (with no change in benefit amount). Once you reach full retirement age, you can work without penalty. This is not true for anyone on early retirement or on disability before full retirement age.
What is the difference between Social Security Disability Insurance benefits (SSDI) and Supplemental Security Income (SSI)?
SSDI claims are called Title II claims and SSI claims are called Title XVI claims. Title II claims involve people who work and who have paid into the Social Security System. They have an insured status and their benefits would be the same as if they had reached full retirement age. Title XVI claims involve people who have not worked and have not paid into the Social Security system. To qualify for SSI, you must have very limited assets. A single person can have resources worth up to $2,000.00 and still get SSI, or a couple can have resources worth up to $3,000.00 - it is essentially a Federal welfare program for disabled people. Title XVI claims are typically paid at a lower rate than insured Title II claims. For both SSDI and SSI you must be found disabled. The rules for determining disability are the same for SSDI and SSI.If you get SSI, then you can usually get food stamps also. You can get a food stamp application at your local Social Security office.
How does obesity affect the disability analysis?
Obesity is a complex, chronic disease characterized by excessive accumulation of body fat. The guidelines for classifying obesity in adults are done according to the Body Mass Index (BMI). The BMI is simply the ratio of an individual's weight in kilograms to the square of his or her height in meters. You can calculate your BMI here - www.nhlbisupport.com/bmi. For adults, both men and women, a BMI of 30.0 or above is considered obese. There are three levels or grades of obesity. Level I includes BMIs of 30.0-34.9. Level II includes BMIs of 35.0 to 39.9. Level III, termed "extreme" obesity and representing the greatest risk for developing obesity-related impairments, includes BMIs greater than or equal to 40.
Obesity will often cause or contribute to other medical impairments. This is especially true with musculoskeletal, respiratory, and cardiovascular body systems. It is also often true that the combined effects of obesity with other impairments can be greater than the effects of each of the impairments considered separately. Obesity may affect exertional functions such as sitting, standing, walking, lifting, carrying, pushing and pulling. It may also affect postural functions such as climbing, balance, stooping, and crouching. The ability to tolerate extreme heat, humidity, or hazards may also be affected. Some people with obesity may also have sleep apnea. This can lead to drowsiness and lack of mental clarity during the day. The fatigue this causes may affect an individual's physical and mental ability to sustain work activity.
There is no longer a direct social security listing for obesity, but the listings do state that the combined effects of obesity with musculoskeletal impairments can be greater than the effects of each of the impairments considered separately. The listings state that when assessing the residual functional capacity (RFC), "adjudicators must consider any additional and cumulative effects of obesity".
Listing 1.00Q requires consideration of the combined effects of obesity with musculoskeletal impairments. POMS section DI 24570.001 contains the evaluation of obesity that will be done by Social Security. SSR 02-1P requires an ALJ to evaluate the severity of a claimant's obesity.
What must an Administrative Law Judge evaluate?
In addition to the standard issues discussed earlier, it is critical that you let your attorney know about the following:
1. Any Veteran's Administration determinations of disability. The ALJ must evaluate any VA disability determination per SSR 06-3p. 2. Any Nurse Practitioner's opinions. The ALJ must discuss any weight they give to the nurse's opinion per SSR 06-03p. 3. Obesity. The ALJ is required to evaluate the severity of a claimant's obesity per SSR 02-1p. 4. Statements from family and friends. The ALJ must consider whether these statements are consistent with the objective medical evidence per SSR 06-03p.
How does special education impact Social Security Disability?
The Social Security Disability Law considers your education. If you were enrolled in special education classes, had poor performance in school, or did not finish high school because of a learning disability, then the analysis about your entitlement to benefits becomes a little more complex. As part of a school's analysis to put a student in special education, they will often perform a psycho-educational assessment. If appropriate, then an Individualized Education Program (IEP) is developed. The IEP is created through a team effort and reviewed at least once a year. Before an IEP is written, the child must be eligible for special education. By federal law, a multidisciplinary team must determine that (1) the child has a disability and (2) the child requires special education and related services to benefit from the general education program.
The Individuals with Disabilities Education Act (IDEA) requires the school to include certain information in the IEP.
Obtaining the IEP or other special education records is very important in a Social Security Disability case. The records are fairly simple to acquire in California. Pursuant to California Education Code Sections 49069 and 56504, the school must provide all special education records including any IEPs within 5 days. The IEP will often contain information about verbal IQ scores, performance IQ scores and full scale IQ scores. These may be critical to a Social Security Disability Case. For example Social Security Listing 12.05(C) states that SSA will find you disabled if you have "A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function".
If you were in special education or had an IEP, make sure that Social Security has that information as it may significantly help your disability case.
To apply for your Social Security Disability Benefits, please contact one of our staff. We will assist in scheduling your appointment with Social Security. Our staff will accompany you and attend your first meeting with the Social Security Administration. If you are denied benefits, we will request reconsideration of that denial on your behalf. If reconsideration is denied, then we will request a hearing before a Social Security Administrative Law Judge. There is no jury system for Social Security Benefits.
DISCLAIMER: The information presented on this web site is for general informational purposes only. Nothing contained in this site is considered legal advise nor the formation of an attorney/client relationship. You should speak to an attorney to address any specific questions about your particular legal matter.
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