The Social Security system provides a monthly disability check to certain individuals who have worked long enough under the Social Security system and are totally disabled as per the definition in the Social Security Act. The disability must last or be expected to last at least 12 months or to result in death.

The Social Security Act defines “disability” as “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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 months.”

The concept of disability under Social Security is based on your inability vs. ability to perform work. You are disabled if you are not able to do work that you have done over your previous 15 years and if you are unable to perform any other work that exists in significant numbers in the economy. This disability must last or be expected to last for at least 12 months or to result in death. There is no such thing as partial disability under Social Security. Either you are disabled from all full-time work or you’re not.

To qualify for Social Security Disability benefits, you must have worked and paid into the Social Security system long enough and recently enough to have earned a necessary amount of work credits. The number of work credits you need to be qualified depends upon your age and when you became disabled.

The general rule of thumb is that a worker must have worked under the Social Security system five (5) out of the ten (10) years prior to the onset of disability. There are exceptions to this general rule for individuals 31 years of age or younger and for individuals who have previously been on Social Security Disability benefits. You can find out if you have “insured status” by contacting your local Social Security office.

To start the process you should contact your local Social Security office and advise them that you want to file for Social Security Disability benefits. It does not cost any money to file an application. The application process is generally the same throughout local offices; however, each office might have slightly different procedures than the other. You can file over the Internet, by telephone, mail or by visiting your local office.

You have the right to consult with an attorney to help with filing your application. There may be an advantage to having an attorney help you file the initial application. The attorney understands what information is most important to the disability process.

You should apply for disability benefits as soon as you determine or believe that you are disabled and that the disability will or is expected to last 12 months. If your condition should improve within 12 months, you can always dismiss your claim. If your injury is minor and the disability will clearly not last 12 months, there is no reason to apply. A common mistake is for people to wait months or even years to apply. If you wait more than one year you will begin losing back due benefits as they will only pay you back one year from when you apply. If your injury is severe and it looks like the disability will go on for a while, you should file immediately.

Yes, and you should do so as soon as you think your total disability will last 12 months. In certain cases the disability check would be reduced because you’re receiving a workers’ compensation check. However, you would still be receiving money above the work comp checks. When your work comp checks stop, you would then receive your full Social Security Disability check without a very substantial gap in payment.

Special care should be taken if an individual decides to enter into a lump sum settlement of their workers’ compensation case so as to reduce and possibly eliminate any future offset. These matters are very complex and it is suggested that you consult with an attorney if this circumstance should arise.

Yes, sick leave payments are not “earned income,” and are not used against you for Social Security Disability purposes. You should file without delay if you think you will be unable to work for 12 months.

This varies from case to case. If you are clearly disabled and your medical records support it, you could win a favorable decision within 60 to 120 days of when you filed your application. Other cases that are not “clear cut” can take several months and in many cases two (2) to three (3) years.

No, your disability does not have to be permanent, it only has to last or be expected to last 12 months.

Social Security will consider all of your conditions and limitations in combination. It’s very important that you list all of your conditions and the limitations that result.

Yes, if a mental condition prevents you from working, that can be the basis of disability.

Yes, especially when you apply for benefits. When you apply for benefits, you should be prepared to provide them the names, addresses and phone numbers of all the doctors and hospitals that have treated you as well as a summary of all medication you are taking. If you can provide them a complete copy of your medical records that will speed things up. You should also be prepared to provide them your birth certificate. Finally, it would be of great benefit if you could provide them a letter from your primary treating physician that summarizes your diagnoses. The letter should state the specific physical or mental limitations that you suffer as a result of these conditions and a statement as to why the doctor believes you’re unable to work. You must understand that such a statement from a doctor might only establish that you are disabled from certain types of work but that you are able to perform less physically or mentally demanding work. Remember, you must prove you’re unable to perform all work. You may want a qualified attorney to evaluate any such letter before you submit it to the Social Security Administration. If the letter from the doctor provides a diagnosis and limitations that totally disable you, the letter should speed the process along.

Another way to speed things along is to appeal any denials promptly. If you are denied, you have 60 days to appeal. Obviously the sooner you file your appeal the sooner the matter will proceed through the system. More specific information regarding your appeal rights and the processes involved are provided later in this document.

You must be able to prove that you are unable to perform substantial gainful work activity that exists in significant numbers in the economy. Social Security will consider all of your health problems, your age, education and work experience to arrive at their decision. Each case is determined on an individual basis. In general, the burden is on you to prove that you cannot perform any of the jobs you’ve had in the last 15 years. If you can prove that, the burden then shifts to Social Security to prove or determine if you can perform any other work.

There are several levels of appeals involved in a Social Security Disability claim. The initial determination is made by the Disability Determination Services which is part of the Social Security Administration. If the initial examiner denies you, you have 60 days to file an appeal which is called a Request for Reconsideration.

At the reconsideration level, Disability Determination Services will again make the decision. It will be someone else within that system “reconsidering” your claim. If you are again denied disability benefits, you have 60 days to file an appeal which is called a Request for Hearing.

When you are at the hearing level, your case will be decided by an Administrative Law Judge. At this level of the system you are provided an opportunity to appear in front of the ALJ and provide testimony as to your disability as well as any other relevant evidence. If you are denied by the ALJ, you have 60 days to file a Request for Review by the Appeals Council.

The Appeals Council is the final adjudicator within the Social Security system. The Appeals Council reviews the specific decision of the Administrative Law Judge. The Appeals Council can affirm or agree with the ALJ’s denial, they can refuse your appeal, they can reverse the ALJ’s decision and grant benefits, or they can send it back to the ALJ for further development. If you are denied at the Appeals Council level, you have 60 days to file a lawsuit in Federal Court.

If you file a Federal Court lawsuit, your case is decided by the Federal District Court Judge. The Federal Court can deny your appeal, affirm the Social Security Administration’s denial, reverse their decision and grant benefits, or remand the case back to the Social Security system for further development. If you are successful in your Federal Court action, you would have an opportunity to seek attorneys’ fees against the Social Security Administration for the work that the lawyer had to do in the Federal Court lawsuit. If you are denied by the Federal District Court Judge, you have an opportunity to appeal to the 10th Circuit Court of Appeals and to the Supreme Court of the United States.

The most important evidence other than your own testimony is the input from your primary treating physicians. If you can get your doctor to document severe restrictions/limitations, this would help in proving your case. What is needed from the doctor regarding limitations and restrictions varies in each case. In many cases it is very important that you be represented by someone who understands the concept of disability and how to prove it. Attorneys at the law firm of McCullough, Wareheim & LaBunker are always available to provide free initial consultations to summarize and evaluate case situations such as yours.

The Social Security Administration does not accept a conclusion from a physician that someone is disabled. They view the doctors as medical experts only and not vocational experts. They believe that the only input the doctors can give are things such as what is a person’s diagnosis, what are the tests that result in that diagnosis, and what are the restrictions or limitations that result from the condition.

As explained above, you have 60 days to appeal a denial of Social Security Disability benefits. The sooner you get your claim appealed, the sooner you will get to the resolution of your claim. If you are denied disability benefits, you should take the opportunity to consult with a lawyer regarding your claim. Again, the law firm of McCullough, Wareheim & LaBunker provides free initial consultations on Social Security Disability matters.

The formula for calculating a monthly Social Security Disability benefit is rather complicated. Suffice it to say that the monthly benefit is based upon your lifetime earnings covered by the Social Security system. You can obtain an estimate of your disability benefit by requesting a Social Security Statement from your local Social Security office. This will provide you your earnings record as well as an estimate of your disability and retirement benefits. It would also provide you estimates of any additional benefits that your family may be eligible to receive based on your disability.

There is a five (5) month waiting period before benefits begin. In other words, benefits will not begin until the sixth full month following the onset date of your disability. In addition, Social Security will only pay benefits back to one (1) year prior to the date that you applied.

Normally, if Social Security Disability is the only income that you have, the amount of those benefits alone would not result in tax liability. If you have other income that raises your total income to a higher level, there may be more tax ramifications. If you would like more information about this, you should ask the Internal Revenue Service for Publication 915 which explains the taxation of Social Security Disability in detail.

Yes, there are three parts to Medicare insurance. There is hospital insurance, medical insurance and prescription coverage. The hospital insurance pays part of inpatient hospital bills and certain follow-up care after an admission. This type of coverage is free. The other two types of Medicare are medical insurance and prescription insurance. You are not entitled to these until you have been on disability benefits for two years. They will help pay a portion of doctors’ bills and prescriptions. You must pay a monthly premium for this coverage if you decide to enroll in it. The Social Security Administration will provide you a detailed booklet on this subject.

Yes, there is a process called Continuing Disability Review. How often they will review your case depends upon each case situation. If the medical condition that caused your disability is likely to improve within a year, they would likely set it up for review in a year. If it is probable that your disability is permanent, they may review your case every three or five years, and sometimes not at all. The system is set up to review all cases; however, the system is backlogged and it seems that many of the claims involving a clearly permanently totally disabled person are not reviewed. The Social Security Administration is improving their review processes at this time, but the results have not yet been realized.

There are many things that could result in termination of your benefits. The most common is when the individual’s medical condition improves to a degree that the person becomes able to perform substantial gainful work activity. Another situation is when an individual actually returns to substantial gainful work activity. A disabled person might obtain some additional education or training that would allow them to return to work in a less physically demanding job. Finally, a disabled worker receives disability benefits until their 65th birthday or their full retirement age, at which time the benefits automatically convert to retirement benefits.

If you continue to be disabled, you should appeal immediately. You will have 60 days to file your appeal. However, if you want your disability checks to continue through the appeal process, you must file the appeal within ten (10) days of the termination notice.

Yes, if you would like to try to return to work, there are several work incentive programs within the Social Security system. You should contact the Social Security Administration and/or a competent representative/attorney and ask about the work incentive or employment support programs. These involve programs such as a “trial work period” and “work incentives.” If you attempt to return to work but your condition does not allow you to continue, your benefits would continue in most circumstances.

In certain circumstances the spouse, divorced spouse, children, adopted children and stepchildren can receive a monthly benefit as a consequence of a worker’s entitlement to disability.

A spouse is eligible to be paid one-half (½) of her husband’s monthly disability benefit if she files for spouses’ insurance benefits, has attained the age of 62, or has in her care at the time of her application a child entitled to a child’s insurance benefit based on the income record of the insured disabled worker.

Children of a disabled worker are entitled to a monthly benefit as long as the child is dependent upon the disabled worker, and 1) the child is under the age of 18, 2) the child is a high school student under the age of 19 or 3) the child is disabled before the age of age 22 for full-time students. Children adopted before the disabled parent was found disabled are also entitled to children’s benefits. Children adopted after the worker became disabled may be entitled to benefits in certain circumstances. Certain stepchildren who receive at least one-half (½) of their support from the disabled stepparent at the time the stepparent became disabled are also entitled to benefits.

Spouses’ and children’s benefits are paid up to the maximum of one-half (½) of the disabled worker’s monthly benefit. There is also another cap on the benefits for the spouse and children. Through various formulas, the disabled worker’s earning history under Social Security establishes what is called the Primary Insurance Amount and Family Maximum Amount. The Primary Insurance Amount is the amount of the disabled worker’s monthly benefit. The Family Maximum Amount is the most that can be paid on account of the disabled worker to family members, regardless of how many family members qualify for benefits.

For example, assume the disabled worker’s primary insurance amount is $800.00 and his Family Maximum Amount is $1,200.00. The disabled worker would receive $800.00 a month and any eligible spouse or children would split $400.00, which is the amount remaining up to the Family Maximum Amount of $1,200.00. Certain workers have the same Primary Insurance Amount as their Family Maximum Amount. If that is the case, the disabled worker receives his check but there is no additional money paid to any eligible spouse or children.

The Supplemental Security Income (SSI) program is set up in Title XVI of the Social Security Act. The individual does not have to have “insured status” under Title II of the Social Security Act to be eligible for benefits under Title XVI (SSI). The individual must be disabled or blind as defined by the Social Security Act and must have income and resources below specified amounts.

At any point in the process that you are questioning whether you should consult with an attorney, you probably should. Attorneys Jan Fisher and Mitch Wulfekoetter at the law firm of McCullough, Wareheim & LaBunker provide free initial one-hour consultations regarding Social Security Disability matters. It seems only logical that at any time during the course of your claim or before you file an application, a free individual education and evaluation by a qualified attorney can only help you in the process.

The Social Security Act controls what attorneys can charge disabled workers. In general, the Social Security Act states that attorney’s fees must be reasonable. To insure that this is the case, attorneys cannot charge a fee until it has been approved by either the proper component of the Social Security Administration or the Federal Court system.

There are two general ways that attorneys take cases. The most common attorney/client contract involves a contingency fee. The contingency fee that is allowed by the Social Security system is that an attorney can charge 25% of back due benefits not to exceed a maximum of $7,200.00. In other words, if the attorney wins your case and you are paid $16,000.00 for back due benefits, the attorney would be paid a fee of $4,000.00. There are no fees charged on future benefits. This fee agreement must be approved by the Social Security system or the Federal Court.

The other common fee agreement involves an hourly rate contract which normally involves an hourly rate in the approximate range of $175.00. If this is the type of contract the attorney and client enter into, the attorney must file a Fee Petition with the Social Security Administration or the Federal Court. The attorney must itemize all of the time that they are billing and give a description of the services provided. The Social Security Administration and/or the Federal Court would give the client an opportunity to object to the fees. If there are no objections, a decision is made as to whether the fee requested is reasonable and fair, and if so, an Order is entered allowing the attorney to charge the fee.

When a disabled worker wins a claim, they are usually entitled to back due benefits. If the disabled worker was represented by an attorney, the Social Security Administration will send 75% of the back due benefits directly to the disabled worker. They will retain the remaining 25% of the back due benefits to pay toward the attorneys’ fees that are ultimately approved. If there is money left above and beyond the attorneys’ fees, that amount is paid directly to the disabled worker. If the attorneys’ fees amount to more that what was withheld, it is the responsibility of the disabled worker to pay the attorney.

In either case the contract with the attorney requires that the client be responsible for any reasonable and necessary expenses advanced or paid for by the attorney. Normal expenses include the cost of medical records, paying doctors for their time giving statements, travel and long distance telephone. The client is responsible to the attorney for said expenses whether the case is won or lost.