Social Security denied his claim in 1975 and again in 1978.  Disheartened, Dr. Frusher and his family gave up.

Fast forward to 2003, Dr. Frusher was approaching age 62 and he applied again, although this time for SSI only since he had long ago run out of SSDI credits.   Noting that there was evidence in the file confirming that his mental health issues dated back to the early 1970′s, Dr. Frusher’s lawyer filed an appeal to the Appeals Council arguing that “good cause” existed for the Appeals Council to reopen his 1978 application on the grounds that Dr. Frusher’s schizophrenic condition prevented him from understanding his appeal rights, and that those rights were still available to him.

After being denied at several more appeals levels the case eventually made it to the 1st Circuit Court of Appeals which found in Dr. Frusher’s favor.  Unfortunately, Dr. Frusher had passed away by the time of the Circuit Court’s ruling, but his wife continued the appeal.  His widow will receive past due benefits amounting to 30 years of past due benefits.  Congratulations to the Rhode Island law firm of Marasco & Nesselbush for its stellar work in this case.

What does this case mean to other claimants?

This case addresses the issue of reopening of claims.  In an SSDI claim, a claimant can reopen for any reason a prior claim if a second claim was filed within 1 year from the date of the notice that the prior claim was denied at the initial application.

Example:  Tom files Claim #1 on March 1, 2008, and it is denied July 12, 2008.  Tom does not appeal, but files a new claim on April 3, 2009.

Tom can move to reopen Claim #1 because it was filed within 1 year of July 12, 2008 (the date of Claim #1 denial).  Tom would have to show some reason to reopen (i.e. there was evidence in existence that was not considered by SSA in claim #1) but he would not have to show “good cause.”

If Tom filed Claim #2 on August 1, 2009, he could not move to reopen “for any reason” since Claim #2 was filed more than 1 year after the initial denial of Claim #1.

Tom could ask SSA to reopen Claim #1 within four (4) years of the initial denial if he can show “good cause” (the time limit is 2 years in an SSI case).  In my experience, Social Security judges consider “good cause” to be a very high standard and they rarely reopen on that basis.

The Frusher case is rare because Claim #1 was reopened well after the 4 year statute of limitation.   SSA does allow a claim to be reopened “at any time” in the case of fraud or similar fault.   The 1st Circuit found that Dr. Frusher’s failure to appeal was both not his fault (because of his mental illness) and that SSA acted wrongfully in denying him the opportunity to appeal.

What should you learn from all of this?

• when you file for disability benefits, you are generally better off pursuing your appeal as opposed to dropping your case and starting over
• if you do drop your appeal, or fail to appeal timely, generally it does not benefit you to wait to reapply
• if you are confused about your insured status for SSDI or about your appeal rights, contact a lawyer sooner rather than later

Recently I received the following question:

i have a 15 yr old son. my ex husband is dying of cancer. he has not applied for ss , so i was told by ss that i cannot apply until my ex does. in the meantime we r struggling. help. -S

Here is my response:  unfortunately, there is nothing that S can do unless and until her ex-husband applies for disability benefits.  Cancer is a listing level impairment and my experience has been that SSA adjudicators and judges are more likely than not willing to grant benefits.   Further, some cancers are included in Social Security’s compassionate allowance program.  Even if the cancer is treatable, the treatment protocol often lasts 12 months or longer, so a cancer claimant can usually get a closed period even if on-going benefits are not awarded.

Since auxiliary benefits are payable in addition to whatever benefits are payable to the claimant, there is no financial dis-incentive for the father to apply.

In short, there is no reason why a cancer patient should not apply for benefits, especially if doing so would provide support to a dependent child.

Sometimes the relationship between divorced parents is so bad that any request, even a reasonable one, is viewed with suspicion and hostility by the other.  Perhaps this is a case where a mutual friend or clergy person could intercede to help persuade S’s husband to apply for benefits – if not for his own sake, for his son’s.

Your onset date (called your Alleged Onset Date or AOD by Social Security) represents that date that you allege that you became disabled.  Usually your AOD will be the day after you last worked, although in some instances I have been able to argue for an AOD that was two or three months prior to my client’s last day of work if my client had changed from full time to part time, if the job had become a “make work” situation or if my client was missing days or parts of days.

Similarly, I have tried cases in which the AOD was several months after the last day of work.  This happens when a person is laid off because his employer is cutting staff and the medical evidence shows that the employee’s disability began at some point after the layoff.

In general, however, as rule of thumb, the last day of work is a good choice for your Alleged Onset Date.

Why, then, would a judge change your onset date?  Usually, a Social Security judge will try to associate your onset date to a specific medical treatment record.  For example, if the basis of your disability is back pain and an MRI showing a herniated disc is dated September 28, the judge may choose September 28 as the onset date.  Obviously in this example, your disc was herniated on September 27 and probably on August 27 and July 27 as well, but September 28 is a date on which there is objective evidence of a medical problem consistent with your testimony.

In other cases, a claimant may choose an onset date going back 5 or more years, sometimes long before that claimant stopped working.  In these cases I recommend to my client that we amend the onset date proactively, at the beginning of the hearing or in a written pre-hearing memo.  I believe that judges appreciate attorneys and claimants who are prepared to narrow the issues and to avoid wasting time.

If the judge was to randomly select another date, such as July 27, the Appeals Council could reverse the decision on the basis of an absence of evidence.  Unfortunately, for some judges a claimant’s testimony is not enough if there is no other evidence supporting that testimony.

More and more often, I am seeing Social Security judges proposing an amended onset date during a hearing.  In such a situation, I will ask to step outside with my client to discuss.  Usually, I can predict when this type of thing may happen and I will discuss a possible onset date change with my client during out pre-hearing conference.

Whenever I sense that a judge wants to amend the onset date, I will take a close look at the exhibit file to identify my client’s “date last insured” (also called his DLI).  The DLI represents that last date that a claimant is insured for Title II disability purposes.  If the onset date is changed to some date after the DLI, then that claimant would not be eligible for SSDI benefits.   SSDI insurance requires (in most cases) work for 5 out of the 10 years prior to onset.  As such, coverage usually extends about 5 years after you stop working.  In any case, SSA calculates the DLI and includes this date in the Exhibit file.

If the judge proposes an amended onset date to some date after the DLI, I will usually not recommend that my client accept the proposed amended onset date, even though I know that by refusing the judge’s offer, the case will most likely be denied and we will have to deal with the Appeals Council.

What happens to an individual’s disability benefits when they are convicted of a felony offense and sentenced to a time of incarceration?

Answer: Under Section 404.468 of the Code of Regulations, “No monthly benefits will be paid to any individual for any month any part of which the individual is confined in a jail, prison, or other penal institution or correctional facility for conviction of a felony.” Thus, if an individual receiving disability benefits commits and is later convicted of a felony offense, any disability payments he/she was receiving at the time of his/her incarceration will stop until such a time as the individual is released.

*Please note: both SSDI and SSI payments are subject to termination if an individual is convicted on a felony offense and as a result is sentenced to a period of incarceration. However, auxiliary benefits, those benefits paid to eligible family members, will continue even if the individual is not receiving benefits at the time because of his/her felony conviction and imprisonment.

Restoring SSI and SSDI Benefits After Being Released from Prison

Although an individual may lose his/her benefits during the time of incarceration, benefits can be restored as soon as the individual is released from prison. The procedures for having disability payments reinstated differ slightly according to the type of benefit that an individual was receiving prior to his/her confinement.

Restoring SSI

Depending on the length that an individual expects to be confined, he/she may be able to begin a “pre-release procedure” while still incarcerated. This is completed through a “Pre-Release Agreement” between the jail and the SSA and applies to inmates that have been or expect to be incarcerated for a period of less than one year. Although felony sentences by law carry a prison sentence of more than one year, it is possible that a defendant could be given credit for any time he/she has already served while awaiting trial and/or disposition in their case. An example of a hypothetical situation is as follows:

“John,” a SSI recipient of five years, is convicted on felony theft, which in the state of Georgia is theft of property in excess of $500.00 and is punishable by a possible term of imprisonment of 1-10 years. John was unable to afford bond and as a result spent six months in jail awaiting trial and/or disposition in his matter. John subsequently entered a guilty plea and was sentenced to 15 months in the state penitentiary. At his discretion, the sentencing judge gave John credit for the time he had already served, meaning that John only had nine months remaining. In this particular case, John was able to start the paperwork necessary to reinstate his benefits while incarcerated. Since John was proactive, it is likely that his benefits will start immediately following his release. If John has chosen to wait until his release to start the reinstatement of his benefits, again he would have received payment for any day that he was eligible, but the probability of his checks being delayed would have significantly increased.

Since any SSI award is based on the recipient’s income, individuals presently confined need to know what his/her income will be upon release and what resources he/she will have available. In addition, the SSA will need to know what other persons, if any, will be residing with the defendant following their release. On the day a disability claimant is released from confinement, they are encouraged to go directly to their Social Security office with personal identification and proof of their release.

Restoring SSDI

If an individual is receiving SSDI at the time of his/her incarceration, he/she will remain on the rolls during their jail or prison term, regardless of the length of their sentence. Like with SSI, SSDI payments will stop when a claimant is incarcerated and recipients will need to request reinstatement of their benefits when the time comes to be released from prison.

Although there is no pre-release procedure for SSDI as there is for SSI, jails or prisons that have Pre-Release Agreements for SSI can also use the same form to help SSDI recipients get the reinstatement process started. Those inmates unable to obtain a Pre-Release Agreement form should inquire as to whether the prison staff knows how SSDI payments can be restarted upon their release. If all else fails, incarcerated individuals should seek the assistance of their family members who can contact their local Social Security office for more information. In addition, the Social Security’s website, http://www.ssa.gov/disability/ contains a wealth of useful information.

In closing, it is against the law for any person convicted of a felony and sentenced to a term of imprisonment to continue to receive social security disability benefits during their period of incarceration. Likewise, it is illegal for someone other than the intended recipient to cash a disability check in the name of another person, specifically under the disguise of the individual in prison.

Since the lump sum payment arises from months in which the claimant was also receiving long term disability, the LTD carrier contractually requires the claimant to turn over his Social Security lump sum payment to the LTD insurance company.

Not surprisingly, folks subject to this type of arrangement are not very happy about it.  Why should the LTD carrier swoop in an grab that $25,000 or $30,000 check?

As I noted in a 2007 blog post about LTD offsets to Social Security claims, the LTD carriers justify this money grab by contending that the price of the group LTD policy reflects an expectation of a Social Security offset.  In other words, the cost of group LTD insurance would, in theory, be higher if there was no offset.

Whether you believe this or not, I think it is safe to say that group LTD policy handbooks do not feature this offset obligation.  Often the first time that SSDI claimants learn that their struggle and stress of pursuing Social Security result in zero dollars is after their SSDI hearings.

Now, apparently, there is a new twist.   A gentleman named Shawn has written me to say that his LTD carrier not only wants his lump sum but they want the lump sum awarded to his kids as auxillaries.   As Shawn points out, his kids (who live with their mother) received nothing in the way of benefits from the LTD carrier – how can the insurance company now claim the lump sums awarded to his kids?

Shawn raises a very good point.  I would first look at the policy handbook, and at the policy itself to see if the auxillary benefits are included in the offset calculation.

If they are I wonder if such a provision might be ripe for  a court challenge.   Is there an enterprising class action lawyer out there who sees an opportunity?

i got an amended date signed by the judge but the  social ser, office only went back to 2005 when i had the hearing  and not the amended date that i was told they would go too. can you help me undersatnd this date stuff.
–Sandra

My reponse: Sandra, for sake of this blog post, I am going to talk mainly about SSDI benefits.  I’ll touch on SSI but I’ll make SSI date calculations the subject of a later post.

So that everyone is on the same page, when I speak about SSDI, I am talking about Title II disability – the kind of disability that you receive if you have worked and paid money into the system.  In order to qualify for SSDI, you have to be “insured” and have enough credits.  I am going to assume that Sandra has enough credits and that there is no issue regarding her eligibility for SSDI.

When you apply for SSDI, you will be asked about the “onset date” for your disability.  Since you are contending that you no longer have the capacity to work, I usually find that a good onset date is the day that you left your last full time job.   You can voluntarily change your onset date – sometimes I discover that my client chose a date that was many months after he was able to work and I amend the onset date to an earlier date.   In other cases, I find that my client used an onset date that was two or three years before she stopped working – in that case I might recommend that we amend the onset date forward as it is hard to argue that my client is disabled when she was still working full time.

If you are not sure what date you used as your onset date, ask your attorney.  He can usually get a copy of your original application for disability.

My point here is that when you walk into your hearing, you and your lawyer should be in agreement as to the onset date you are trying to prove.

Your judge, of course, is not bound to your choice of an onset date.  I have been involved in many hearings where the judge changes the onset date – usually making it later.  The judge will amend the onset date if he believes that the medical evidence does not support a finding of disability until XYZ date.   Some judges will choose a date that relates to a surgery or a definitive diagnosis.

Sometimes judges will propose an amended onset date based on your age.  If you meet a “grid” rule as of your 50th or 55th birthday, for example, your judge may propose amending the onset to that birthday.

In my experience, judges will raise the onset date issue during the hearing and offer you and your attorney an opportunity to amend the onset date.

The onset date, whether amended or not, represents the date that you meet Social Security’s definition of disability.  What does that have to do with payment?  The answer – not much.

Payment issues and onset issues are completely different concepts.  For payment purposes:

1. the first five full months after onset are not payable by SSDI – this is called the “5 month waiting period.”

2. you can get paid up to 12 months prior to your date of application

Examples:

1.  Tom applied for benefits on 3/5/2007, alleging an onset date of 3/3/2007.  He was approved.  His first check will be for September, 2007.   Why?  He does not get paid for the partial month of March, 2007, plus the next five full months – April through August, 2007.

2. Sally applied for benefits on 2/7/06, alleging an onset date of 4/10/05.   She was approved.  Her first check will be for October, 2005.  Why?   She does not get paid for the partial month of April, 2005, plus the next five full months – May through September, 2005.  If Sally is eligible for SSI, she collect SSI for April, 2005 through September, 2005.  There is no 5 month waiting period for SSI benefits.

3. Ralph applied for benefits on 6/15/07, alleging an onset date of 3/17/03.  He was approved.  His first check will be for July, 2006.  Why?  He is eligible to receive benefits up to 12 months prior to filing.  The five month waiting period ran in 2003, before he was eligible for payment.

If you have worked consistently for 10 years then stopped working, therefore, you “insurability” will follow you for approximately 5 years.

One of the pieces of information I always look for is my client’s “date last insured” for SSDI.   If you have not worked regularly or if there is a big gap between dates that you worked, your date last insured could be an issue.  In order to recover SSDI, your onset date has to be earlier than your date last insured.

This, by the way, is why part time work and large gaps between work attempts can create issues.  When you add a lot of zero dollar quarters into the calculation, the date last insured will get closer and closer to the present.

The amount you received from SSDI is a function of what you paid in.  If your annual earnings were in the $75,000 range your monthly SSDI benefit will be in the $2,000 + range.  If your annual earnings were in the $20,000 range you are more likely to be looking at $1,000 or $1,250 per month.

SSI, by contrast, is a welfare program that pays a statutory amount (around $670) to individuals who meet the definition of disability but who are not insured for SSDI.   The problem with SSI – household income serves to reduce the benefit, sometimes dollar for dollar.  So, if your spouse is working and earning $50,000 annually, your SSI benefit will be totally offset.

Here is a question I received from one of my readers:

my husband was recently given a fully favorable decision and is insured and eligible for ssdi. i would like to know what they use to decide whether you get ssdi or ssi considering ssi is so much less than ssdi.do you get ssdi automtically if you’re insured or are there other factors.

My answer: your eligibility for SSDI is solely based on your insured status.  There are some instances where you can get both.  If your SSDI benefit is low (say $500) and you are eligible for your full SSI benefit, you would get $500 from SSDI and $270 from SSI.

Also, SSDI claims are subject to a 5 month “waiting period” whereas SSI claims are not.  In some cases, you can get SSI for the 5 months, then SSDI thereafter.

I see this a lot among self employed people, or salespeople who are paid in cash and do not have money withheld for Social Security taxes.   Here is an email I received from the wife of such a claimant:

I have worked and paid into social security since 1965.  My husband worked on and off for the past 30 years, but has not regularly paid in to social security.  Ten years ago he was diagnosed with MS and he has been unable to work at all.  I went to Social Security to ask if I could get disability payments for him and they told me that I earned too much money ($45,000 annually).  I am now about to retire at age 60 and would like to collect disability for him.  I’ve gone through web searches and there is such a mire of information – I don’t know where to begin.  Can he collect against the money I’ve paid in?  He is completely dependent on me.

Jonathan’s response: unfortunately I think that you are out of luck. If your husband did not earn enough quarter hours of credit, he is not “insured” for Title II disability.  He cannot claim disability based on your earnings record and your earnings will effectively offset any claim he might have for SSI.

You may want to request an earnings and benefit statement (form 7004) to determine if there was every a point where he was insured for Title II disability.  If he was insured at one point and you have medical support to argue that he was unable to work at that point in time, he could collect from SSDI.

Often, Social Security representatives will look to see if a potential claimant is currently insured.   However, this does not take into account that some people wait two, three, four or more years after “becoming disabled” before they apply.  If you know your “date last insured” for Title II and your “onset date” (the date you meet the definition of disability) is prior to your date last insured, you can still collect, even if you are not insured at the time you apply.

Assuming that Social Security will accept an application for disability benefits from a claimant who is incarcerated, I do not believe that the adjudication process actually stops during the incarceration.  I have actually attended hearings held in prison.  The problem – incarcerated claimants often do not get treatment from physicians who are very interested in filling out forms or helping the prisonor/claimant.  Further, judges tend to be somewhat skeptical about the credibility of an imprisoned claimant.  Bottom line – it is an uphill battle for many reasons.

My 11 year old daughter’s father has just been approved for disability. I’m not sure if it is SSI or SSD. He applied 16 months ago, he is now over $4000 behind on child support. Will she be entitled to any of the back pay he will receive? How do I go about applying to see if she is eligible to draw a check off of him now that he is on disability?

***Editor’s Note:  Due to the large number of questions I receive about child support and Social Security disability, I have set up a blog specifically about that topic – please visit my Child Support and Social Security Disability blog**

Jonathan’s response: Auxiliary benefits are payable to the child of an SSDI claimant if:

A.  An application for child’s insurance benefits is filed;
B.  The child is (or was) dependent upon the parent (see below);
C.  The child is not married;
D.  The child meets any of the following conditions:

1. is under age 18;
2. is age 18-19 and a full-time elementary or secondary school student; or
3. Is age 18 or older and under a disability (which must have begun before age 22) ; and

E.  The parent meets any of the following conditions:

1. Is entitled to disability insurance benefits;
2. Is entitled to retirement insurance benefits;
3. Died and was either fully or currently insured at the time of death.

A child is presumed “dependent” upon the worker if
A.  The child has not been legally adopted by someone other than the worker during the worker’s lifetime; and
B.  The child is one of the following:

1. The legitimate child of the worker;
2. A child born out of wedlock who would have the right under applicable State law to inherit intestate property from the worker as a child;
3. The child of a void or voidable marriage;
4. The child of an invalid ceremonial marriage;

In Susan’s case, she needs to find out if her child’s father has been approved for SSDI or SSI.  If he is receiving SSI only, the child will not be eligible for auxiliary benefits.  If the father is drawing SSDI, then the child would be eligible assuming she is a dependent.  Susan would need to file an application for benefits on behalf of her daughter.  Note that the child’s auxiliary benefits are in addition to the disabled father’s benefit and do not reduce his monthly check.

With regard to past due child support, Susan may be able to garnish the back pay or on-going SSDI benefits of the father if he is delinquent in his child support.  I would suggest that Susan speak with her domestic relations lawyer if she has one, or with her case worker at the child support enforcement office to discuss the procedures for seizing this money.