Frequently Asked Questions about Social Security Disability
- What types of benefits are available under the Social Security Act if I am found to be disabled? There are several different programs available under the Social Security Act for people who are “disabled” as they define it, and who meet other required conditions. You should consult the Disability Information page for a fuller discussion.The primary distinction for most people will be between “disability ” benefits and “SSI” benefits. “Disability” benefits pay you a monthly amount if you are “disabled” that is the same as the amount you would get if you retired at age 65, and also provides for medical insurance under Medicare after a waiting period. In order to get “disability” benefits you have to have worked and paid taxes for five out of the last ten years before you became “disabled.” It doesn’t matter how much money you have from other sources for these benefits.”SSI,” which stands for Supplemental Security Income, is for people who are also “disabled” but who did not work long enough in the relevant periods to qualify for “disability” benefits, and who currently meet the poverty guidelines in terms of their income and resources.People who qualify for SSI usually also qualify for Medicaid benefits.Sometimes people apply for both types of benefits but if the claim is approved, they will only get the larger of the two amounts.
- How long do I have to be off of work to get Social Security Disability? You have to either be, or expect to be, off of work for a continuous period of not less than 12 months, or be expected to die within that time. You can work for three to four months and, if you leave at or before that time due to the impairment, it may not count against the 12 months (although it may be credited as a “Trial Work Month” later if you are approved for benefits). If you make under “substantial gainful activity” amounts ($800 per month in 2003), it may not count against the 12-month rule, although it will constitute a Trial Work Month and you get only nine Trial Work Months in a five-year period. Under certain circumstances you may be able to work at “sympathetic employment,” such as working for a friend or relative who makes special allowances for you, or at a “sheltered workshop” where similar allowances are made. Each of these options have their risks, however, and you should talk them over with your attorney if you have one.
- What kinds of conditions qualify for Social Security Disability? All physical and mental conditions and combinations of conditions which are “medically determinable” are considered by Social Security, provided that they are also “severe.” “Severe” means that they have a “significant” impact on your ability to do work-related functions on a full-time and reliable basis in competitive employment.
- Are MCS, FMS and CFS recognized by Social Security? All three of these conditions have now been recognized by Social Security as “medically determinable impairments.” The descriptions for them are contained in the “Program Operations Manual” or “POMS.” There is an extensive POMS for CFS and shorter ones for MCS and FMS. They are still, however, considered controversial diagnoses.
- How discouraged should I get if I am turned down the first time? Most people are turned down by Social Security the first time, especially if they have FMS, CFS or MCS. Usually the people approved at the first level with these conditions win due to accompanying mental impairments such as depression. There are three more levels of appeal after the first level, the second being “Reconsideration” where almost everyone is denied, and the third being the “Hearing” where the chances of winning are better than 50%. After that is the “Review” where the chances go down the single digits again. There are also federal court procedures that can be initiated once all avenues of appeal within SSA are exhausted.Therefore, you need to keep appealing after the first denial. If you don’t appeal and simply wait and re-apply, you will just get denied again and again because all of your claims are being decided at the same level. You need to get to the hearing level to have a decent chance of winning your case, unless you want to allege a mental impairment.
- Is it necessary or advisable to go in person to the hearing if I have MCS? I generally do not recommend that people with MCS go in person to their hearings as it may be interpreted as showing an ability to tolerate a normal environment, albeit for a limited time. People with CFS and FMS should always try to go the hearing unless it is a long distance away. If that is the case and they are able to get to the hearing, it may be also interpreted as showing an ability to work. As of 2003, Social Security will be going to a video conferencing format where you will automatically be given an video-conferenced hearing unless you request a live hearing. You should consult with your attorney, if you have one, about going to the hearing versus utilizing the video conferencing.One thing that the video conferencing will allow, however, is for you to have an attorney who is not in your immediate area who may be more specialized in your medical condition as well as just knowledgeable on disability law. In Social Security, attorneys who are licensed in one state can automatically practice in all 50 states before the Social Security Administration. Therefore, it is now possible for the first time for attorneys practicing in disability law to focus their practice on one or a few diseases and become more expert while still being able to have a sufficient number of clients to maintain a practice.
- FMS, CFS and MCS are hard to prove. How do I get the type of medical evidence I need to win my case? FMS, CFS, and MCS are what are referred to by the insurance industry as “self-reported conditions.” In other words, there are no generally-accepted tests that will show, independently of the patient’s account, that the condition exists or how serious it is. The most important thing in trying to prove legally that you have one or more of these conditions and that it or they prevent you from working on a full-time and reliable basis in competitive employment is to see a doctor who has experience in treating patients with these conditions and to see him or her on a regular basis all the way up to the final decision on your disability claim. The main problems we run into in these cases are clients who have seen a doctor who is not sympathetic with their conditions and will not write a good report and/or clients who decide to stop seeing any doctor at some point in the process due to financial considerations or because they don’t think the treatment is helping.You also need to see a doctor with the proper credentials. Social Security does not accept chiropractors, naturopaths, herbalists, and sometimes acupuncturists and Chinese or Ayurvedic treatments as “medical sources” from whom medical evidence can be obtained. You need to be seeing someone with “M.D.” (Medical Doctor), “O.D.” (Osteopathic Doctor) or, in the case of mental impairments, an “M.D.” or “Ph.D.” for it to be counted as medical evidence. If willing, they can then supervise one of the alternative practitioners if you find the other practice more beneficial.There are a group of practitioners, many of whom are M.D.’s or O.D.’s, who specialize in the treatment of chemical sensitivities. They refer to their practices as “Environmental Medicine” or, more recently, “Clinical Ecology.” They are usually members of a group called the American Academy of Environmental Medicine. You can find the name of a practitioner in your area through clicking on the link above.
- Do I have to be completely incapacitated to get Social Security Disability? Not necessarily. It depends on a number of factors. For some older workers who have only problems which affect their ability to do physical work and who do not have much education or job skills, it may be possible to be approved for disability even though they can still do light or sedentary types of jobs. For others, however, it may be necessary to prove that they cannot do any type of work whatsoever.People with MCS, FMS and/or CFS usually fall into the latter category and often must prove an inability to do all forms of work. This would include very simple jobs such as being a security guard or video surveillance monitor, an information person, a receptionist, a cashier at a mini-mart, a factory assembler doing light assembly, or similar unskilled, sedentary jobs.It does not matter what the job pays, whether or not there is a job opening, whether or not you would be hired if you applied, where the job is located, how you would get to work or what the benefits are provided. So long as you can do a job, assuming it was offered to you, you would not be considered “disabled” under Social Security rules in many instances.In these cases we usually focus on such factors as the ability to avoid substances to which there is a sensitivity, to maintain normal levels of attendance and punctuality, to work without taking unscheduled breaks, to concentrate and remain alert, distraction by pain, relating appropriately to members of the public as well as supervisors and co-workers, effects of medications, fatigue, and any mental impairments such as depression, anxiety, etc.
- How does Social Security Disability differ from private and employer sponsored disability plans? As I explain more completely in the Disability Information section on this site, there are vast differences between Social Security disability and various private plans, and also between private plans. In essence, the hardest disability area to deal with is employer-sponsored disability plans, the type of private plan that most people have if they have a private plan at all. This is deceptive because often the employer-sponsored plan will put you on benefits right away and you will think you are in the clear. Then they will tell you to apply for Social Security disability. If you get Social Security disability, the private plan will be able to deduct your Social Security benefits from their payments. Your total amount will remain unchanged. Sounds good so far, right?Wrong! There is a hidden catch in most employer-sponsored plans. This is known as the “two-year rule.” Most of these types of plans change the definition of what they consider to be a “disability ” after two years. Up to that time, you just have to be unable to do your own job. After that time, however, you have to be unable to do “any job for which you are reasonably well-qualified.” On the surface, this sounds remarkably similar to the Social Security definition of “disabled” (“inability to do any job which exists in the national economy considering your age, education and work experience”). Lawyers have attempted to argue many times that if Social Security approves a claim, this ought to be compelling, if not conclusive evidence of continuing disability under the employer-sponsored plan after the two years. Right?Wrong! The employer sponsored plans routinely disregard the Social Security ruling and deny the benefits after the two years are up, saying that things like, “Although you cannot do your former job, you are able to do other jobs for which you are reasonably well qualified” and “We are not bound by the determinations made by the Social Security Administration or any other agency or plan.” In other words, the change in disability definitions is used as an excuse to bail out of further coverage, converting what you thought was a lifetime benefit into a two-year benefit. But they can’t get away with that, right?Wrong! They can and do get away with it because of an obscure federal law known as “ERISA,” which supposedly stands for “Employee Retirement Income Security Act” but which should more plausibly be called something else which I will not mention on a family web site. Basically, under this law, which covers all health, disability and retirement plans provided by employers to employees, you cannot challenge the final decision of the insurance company except in federal court, there is no right to trial by jury, and the court is limited to deciding if the insurance company’s decision was “arbitrary or capricious.” In cases involving FMS, CFS, MCS, getting past the arbitrary and capricious standard is extremely difficult.This may be changing, however. There was a recent 60 Minutes segment where they caught the largest disability carrier admitting that they were paying bonuses to claims people for denying claims and were using doctors who were actually employees of the company for “independent” medical examinations. A lot of heads have rolled at this company, but whether or not that will percolate to the federal court level or to Congress (which could amend the law) remains to be seen as of this writing.
If you had the foresight to buy a your own disability plan, which you usually only do if you are self-employed or own your own company, the above rules do not apply and you have a much better chance of obtaining and keeping your benefits. Some of these plans provide for reductions in benefits if you are approved for Social Security disability and some do not. You will need to carefully read your insurance policy if you have one of these plans.
- My disability insurance carrier wants to get my lawyer for me and says it will not cost me anything. Should I do this? Given what I have just told you about the disability insurance industry do you really want to use their lawyers? Also, this offer may be deceptive. For one thing, they may not give you a licensed attorney at all but refer you to a paralegal. Secondly, if you hire an attorney on your own, any fee he or she collects usually does not have to be included in your reimbursement to the insurance company so it comes out the same to you either way.Another problem can occur with regard to mental impairments. Some insurance policies have exclusions for disability that is “caused in whole or in part” by mental impairments. This can include such things as depression, anxiety, memory problems and other things which can naturally occur with FMS, CFS, and MCS, or which can just be the result of being forced out of your job and having to worry about paying your bills. If the attorney places too much emphasis on the mental impairments to make the Social Security claim easier to prove, this can cause a loss of all benefits under the private plan. An attorney who is provided to you by the insurance company may face a conflict of interest in this situation.
- Should I allege a mental impairment? As discussed above, this can present a quandary if you are applying for Social Security and also have private disability plan. Some people also just don’t want to feel stigmatized by being considered a “mental case” even though the decisions by Social Security are confidential. For cases involving FMS, CFS, and/or MCS, Social Security is often more likely to approve your claim if you also have a mental impairment, or they may regard the mental impairment as being your only problem.If you have a private disability plan, you first of all have to read the plan to see if there are any such exclusions and, if so, how they are worded and at what point they potentially apply. Secondly, you need to know if you have policy governed by ERISA, which will always be the case if it is provided by an employer other than yourself.If it is an ERISA (employer-sponsored) plan, there is a good chance that they will attempt to cut off your benefits anyway after two years, or may refuse to pay them at the outset, and will usually be able to get away with it. You may decide that it is better to go for the Social Security benefits and not rely on the private insurance.You should also bear in mind that FMS, CFS, and MCS are ailments that may primarily affect the nervous system and that problems with thinking, mood, memory, etc. may be the result of the physical processes involved in these conditions. This is a good example of why the distinction between mind and body is probably not accurate, but that distinction is unfortunately embedded in the legal system at this point in time.In any event, this is an area you need to carefully explore with your attorney, if you have one.
- Do I need a lawyer on my case and, if so, who should I get and when should I hire him/her? As you should have been able to discern from the previous questions, all of this is very complicated and well beyond the level of knowledge, training or experience of even the average lawyer, let alone the average claimant. The first thing I did when I became disabled was to hire a lawyer. In my opinion, you should consult with an attorney as soon as possible, even before you contact Social Security or file for private disability benefits. “
- What does a lawyer charge to handle a disability case? For Social Security cases, all fees are done by federal law on a contingency basis, which means that you do not pay anything unless and until you win. The fees are limited to 25% of the retroactive benefits only and are currently capped at $5300 if the case is won at or before the hearing level. If there are further appeals beyond the hearing the fee is still limited to 25% but may go over $5300 if a higher amount can be justified. In other types of disability cases, an hourly fee is usually charged. Even in Social Security cases a small fee may be charged to review medical records to determine if the attorney wants to handle the case. This should be refunded if the case is accepted, or applied to costs (see below discussion).
- Are there any other charges? By law, attorneys are not allowed to pay for living expenses of clients while awaiting the results of their legal claim, but may pay for costs associated with the case such as the costs of obtaining medical records and reports. Since Social Security does not currently withhold additional amounts beyond the 25% or capped fee amount to reimburse for out-of-pocket expenses, I do not advance costs on these cases and my clients have to pay for any such expenses as they occur. Clients have the option of obtaining their own medical records directly from the doctors, which they can often do for a more nominal amount than would be charged to an attorney making the same request.
- How do I know if an attorney is really qualified to handle my case? Although there are no certification procedures for disability attorneys, most lawyers practicing in this area are members of some bar associations that pertain to disability law. The best known and only nationally recognized such group is the National Association of Social Security Claimants’ Representatives (NOSSCR). NOSSCR can make referrals to attorneys in your area but will not give you a list of local attorneys or tell you if your lawyer is a member.Other local and state bar associations may have specialty panels pertaining to disability law. The American Association of Trial Lawyers (“ATLA”) also has such a section, although many Social Security practitioners are not ATLA members. There may or may not be any screening requirements for membership in one of these associations or panels. Many times the only thing requested of the attorney wishing to join is to verify that he or she is licensed to practice law in the particular state, has legal malpractice insurance, and pay an annual fee to the association. You are going to have to do your own detective work to qualify your attorney. See my list of “Ten Questions to Ask Your Lawyer” on this web site for further information.
- How are the attorneys’ fees collected? In the case of Social Security disability the Government pays the attorney directly out of the client’s retroactive benefits, although a “handling fee” is now being charged to the attorney for this service. The handling fee comes out of the attorney’s fee, not the client’s portion. In other types of cases, such as child’s disability, Supplemental Security Income, and overpayment cases, the fee is not withheld and arrangements must be made with the attorney, usually by placing some amount of money in an escrow account, refundable if the case is not successful.
- How long does a disability claim usually take? If you have FMS, CFS, and/or MCS, I would not hold my breath. Unless you are willing to claim a mental impairment right from the start, you are probably going to have to go to the hearing level to have much chance. This will take approximately one year or more. There is not really anything that can be done to speed this up except to try and provide the best possible medical evidence as soon as possible and hope somebody at the administrative level actually reads it. If you really need to speed up the process, you will probably have to allege a mental impairment, such as depression, anxiety, difficulty concentrating or thinking, etc., which are probably present in these conditions to varying degrees anyway. Just be aware that many private insurance plans exclude coverage for mental conditions either completely or after two years. You are advised to consult with an attorney about this situation should it apply to you.
- Are there any other sources of income for me while waiting on my case to be decided, or can I try to work at least part time? There is not much out there. Some states have welfare programs for the disabled but often they are keyed to Social Security so if your claim is denied by SSA, the state will deny it also. When your claim is finally approved at SSA, you may have too much money for welfare. Works out well for the State.You may, however, be able to get health coverage under a state welfare program, and possibly food stamps or even housing assistance, even if you don’t qualify for direct payments. If your state has townships, your local township may be able to provide some temporary assistance (usually only one or two months). If you have children you can get AFDC.If you don’t think this is fair, I couldn’t agree with you more. You should contact your local Congressperson and state representatives about getting the laws changed.You can try to do some part-time work, particularly if you are able to keep the income below the current SGA (“Substantial Gainful Activity”) amount ($800 in 2003). However, even this can raise questions about your ability to work more hours. If you work less than 4 months and have to leave due to your impairments it can be considered an “unsuccessful work attempt” and not count against the 12-month duration requirement. This can even work to your benefit as it shows that you are trying, and have the ability to get a job, but just can’t perform the work over time. Again, you should consult with your attorney if you have one.If your claim is for Disability under Title II of the Act and not for Supplemental Security Income (SSI) under Title XVI of the Act, having a spouse who works or living with friends or relatives who cover your room and board will not count against you. If you are only applying for SSI (because you didn’t work long enough to qualify for the disability program), you may still be able to get benefits but they may be reduced if you are having your living expenses covered by someone else who is not your spouse. If your spouse works and makes any kind of decent salary, you probably won’t be able to get SSI as all of that income will be attributed to you.