by Leslie Ruth Stallknecht,
Esquire
Rice & Stallknecht, P.C.
Disclaimer: This web site is intended to provide basic information about selected legal topics; it does not contain legal advice. Each person's legal needs are unique. The information contained at this site is provided solely for informational purposes and does not create a business or professional relationship. You should consult with an attorney licensed to practice law in your jurisdiction before making specific legal decisions.
What is "Disability" under Social Security?
Do I have to wait until I have been disabled for one year before I can apply for benefits?
What do I have to do to apply for disability?
What happens if Social Security denies my claim?
Do I have to go to a Social Security doctor to get approved?
How long can I receive Social Security disability benefits?
What kinds of benefits would I be eligible to receive?
When should I get an attorney?
Q. What is "Disability" under Social Security?
A. "Disability" means the inability to engage
in substantial gainful activity because of a physical and/or mental impairment
which has lasted or could be expected to last twelve months or result in death.
It means that you must be unable to work in any form of employment on a
full-time basis. This inability to work must be due to a physical, mental or
combination of impairments which has lasted or could be expected to last twelve
months or result in death.
Q. Do I have to wait
until I have been disabled for one year before I can apply for benefits?
A. Absolutely not! Your impairment need only be expected
to last one year. You should apply for benefits as soon as you believe you will
be unable to work for a total of one year. If you have any doubts about how long
your disability will last, talk with your doctor. If you still have any doubts,
go ahead and apply.
Social Security will frequently deny a claim because they don't believe the
disability will last a year. However, your physician's opinion about the
probable length of disability in the early stages of your claim can be very
helpful.
Q. What do I have to
do to apply for disability?
A. Call your local Social Security office. They can either
set an appointment to take your application over the phone or set an appointment
to see you in person in their office. While they would prefer that you file the
application by phone, they will send you many forms to complete. These forms may
raise questions needing explanation or help which would be better provided in
their office.
You will need to provide them with an original or certified copy of your birth certificate, earnings documents from the past twelve months (W-2, last pay stub, statement of your employer, etc) and any medical records you might be able to obtain.
Q. What happens if Social
Security denies my claim?
A. If Social Security denies your claim, do not get
discouraged. Well over 50% of all claims that are appealed can be reversed. Any
denial of benefits must be appealed within sixty days of the date of the denial
notice. There are several steps which can be taken after an initial denial,
including (in order); Reconsideration, Hearing before an Administrative Law
Judge, Review by the Social Security Appeals Council and Review by the Federal
Court System.
Obtaining Social Security disability benefits involves an enormous amount of
processing time by the Social Security Administration. If you get discouraged
and give up, you will not receive benefits.
Q. How is disability evaluated?
A. The evaluation of disability under Social Security
follows a very definite pattern of questions:
If you work and earn more than an average of $780.00 per month you are presumed to be able to work.
If you are not working but there are no medical impairments, you will not be considered disabled by Social Security.
Social Security maintains a list of medically diagnosed conditions which are presumed disabling if objective test results show certain, severe levels of abnormalities. These conditions and test requirements are highly technical and require very complex medical judgments. If your medical records document all the required test results at the required level of severity, Social Security will automatically presume you are unable to work. Your physician's opinions about the significance of these test results and physical examination findings can be very important.
If the test results are not severe enough to allow Social Security to presume you are unable to work, they will have to determine how severe your limitations are and how they impact or preclude your ability to do tasks which are basic to the work process such as walking, standing, sitting, lifting, carrying, pushing, pulling, concentrating, remembering, dealing with pressure, etc. Your doctor's opinions about your capabilities and limitations are important. If you still have enough capability to perform the work that you have done in the last 15 years, you will not be considered disabled.
If you are unable to perform your past work, Social Security may still
determine that you are not disabled if they find that you can perform some other
type of work. They will consider your age, education, skills you may have
acquired in your past work, and the severity of the physical or mental
limitations you may have because of your condition.
Social Security does not have to consider that you may not be hired for the job
or that the job is not readily available. The only thing they will consider is
whether you are physically and mentally capable of performing the job on a
full-time basis.
Q. Do
I have to go to a Social Security doctor to get approved?
A. No. There really are no "Social Security
doctors." Social Security does have doctors on contract to perform
consultative examinations. Contrary to popular belief, these doctors do not
determine whether a person is disabled. They only report the result of their
examinations and testing to Social Security. Social Security makes the decision
about whether these findings will support disability.
Social Security will not send you to a consultative examination unless they are
unable to obtain detailed information about your condition from all other
sources. If you have not had treatment for your condition, or if the doctor is
unable to provide the information they need, Social Security will schedule and
pay for a consultative examination.
Q. How long can I
receive Social Security disability benefits?
A. You will receive Social Security disability benefits as
long as you remain disabled. Your benefits do not "run out" because
you did not "put enough in."
In order for Social Security to determine that your benefits have ceased, they
must obtain specific medical information about your current health condition and
compare that information to the findings which were present when you were first
found to be disabled. If the findings are essentially the same, they may not
terminate your benefits.
Your doctor can help protect your disability benefits by keeping records which
consistently record the types of abnormalities which continue to exist since the
onset of disability. If those abnormalities are not recorded in the doctor's
records, Social Security might interpret their absence to mean that those
abnormalities don't exist any more.
Your dependents' benefits terminate as each child turns 18. When the last child
turns 18, your spouse's benefits will also stop.
Q. How can my physician help?
A. Your physician can help in a number of different ways.
Social Security places a great deal of importance on the medical records your
physician keeps. When Social Security asks for those medical records, the faster
they can be sent, the better.
Social Security is very limited in what they are allowed to pay your doctor for
copies of records ($14.00). Usually, it costs your doctor more than that just to
copy and send the many pages of records in the chart.
Social Security can ask your doctor to perform a comprehensive examination,
including tests they would like to see performed. However, again, Social
Security is very limited in what they can pay your doctor to perform such a
comprehensive examination. Typically, it costs your doctor more than Social
Security is willing to pay.
A simple statement by your doctor to the effect that you are
"disabled", is not useful to Social Security. In order for your
doctor's opinions about the extent of your disability to be persuasive, they
must be well documented and supported by objective clinical test results. The
more detail and explanation your doctor can provide about the significance of
test results and physical examination abnormalities, the more persuasive the
opinion will be.
Remember, your doctor is there to treat you, not necessarily to help on your
Social Security disability. You should recognize that this process can be very
frustrating to your doctor, as well.
Q. What kinds of
benefits would I be eligible to receive?
A. If Social Security finds that you are disabled, you
will receive a monthly cash benefit. The amount of the cash benefit is geared to
how long you have been working and the amount of money you made during your
work. It can be as low as $100.00 and as high as $1,660.00 per month. An average
benefit, nationwide, is about $874.00.
In addition, if you have children under 18 years of age, your dependents can be
eligible to receive "auxiliary benefits." Typically, your dependents
will split a total benefit of 50% of the amount of your check.
You are eligible to receive retroactive, lump-sum benefits depending on when you
applied for benefits and when you became disabled. Social Security cannot pay
you more than one year prior to the date you applied. With very limited
exception, Social Security cannot ever pay you for the first five full calendar
months that you are disabled, even if they are within the year prior to the date
you applied for benefits.
If you are found disabled, you are entitled to receive Medicare Health Insurance
beginning after you have received 24 months' worth of disability benefits.
Q. Do I need an attorney?
A. Not necessarily, but Social Security's rules for evaluating disability and your past work activities are very technical and complicated. It's easy to get discouraged if you are trying to deal with Social Security alone. Evaluating medical records and identifying the critical information which may be necessary for you to receive benefits can be very complicated and difficult. A qualified attorney will know how to work together with you, your physicians, and your past employers to present the most complete information possible to Social Security. A qualified attorney will understand and explain the process to you. We feel that in most cases an attorney can be a great help in applying for Social Security Disability.
Q. When should I get an attorney?
A. Some people wait until they apply for a hearing before an Administrative Law Judge before they get an attorney. This is often months after they have filed their disability application. We feel that this can be a serious mistake. A qualified attorney can help even before you file an application by explaining Social Security's rules to you and how they relate to your particular situation, showing you what you will have to prove to win disability benefits. The sooner a qualified attorney can begin to work with you and your doctors and past employers to develop your evidence, the better.
Disclaimer: This web site is intended to provide basic information about selected legal topics; it does not contain legal advice. Each person's legal needs are unique. The information contained at this site is provided solely for informational purposes and does not create a business or professional relationship. You should consult with an attorney licensed to practice law in your jurisdiction before making specific legal decisions.
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