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?

Post from: Social Security Disability Blog

Does LTD Carrier Have a Claim on Auxillary Benefits Paid to Your Kids

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.

Post from: Social Security Disability Blog

Am I Getting the Right Amount of Money – Understanding Social Security's Date Calculations

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.

Post from: Social Security Disability Blog

How Does the Judge Decide if You are Approved for SSI or SSDI

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.

Post from: Social Security Disability Blog

Can Claimant With Sporadic Work History Collect on Working Spouse's Earnings Record?

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.

Post from: Social Security Disability Blog

May an Incarcerated Felon Receive Social Security Disability Benefits?

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.

Post from: Social Security Disability Blog

Will Child be Eligible for Dependent's Benefits When "Out of the Picture" Father is Approved

You earn credits based on earnings during the approximately 10 year period prior to filing for disability.  If you wait too file or if you allege disability as of a date where your credits have run out, you cannot recover disability benefits (you could recover SSI, but SSI benefits are usually lower than SSDI and SSI will be offset by household income or assets).

When you file for benefits, Social Security calculates something called your "date last insured."  As long as the judge or adjudicator finds you disabled on or before your date last insured, you will receive disability benefits.  If you are found disabled after your date last insured, you will not qualify for SSDI benefits.

In my law practice, one of my first tasks with any new client is to determine that client's date last insured.  I have learned the hard way that if I am successful in proving disability, but the onset date used by the judge is after the date last insured, my client won't receive any benefits and I won't get paid for my efforts.

My colleague Social Security lawyer Tomasz Stasiuk in Colorado, recently posted a very well written explanation of the date last insured issue.  Take a minute and read Tomasz' post because it clearly discusses and explains the major issues related to your date last insured.

Post from: Social Security Disability Blog

What is my "Date Last Insured?"

I did pay into social security from 1982 to 1989 but from 1988 to 2005 was in the school system that did not pay in.  We did pay in to medicare, etc. however. 

Am I eligible for any benefits?
–Jeff

Jonathan Ginsberg responds:  Jeff, you will need to find out if you are eligible for Title II SSDI.   Eligibility is based on what you have paid into the system.  You will need to show sufficient earnings credits in 20 out of the 40 calendar quarters prior to your disability onset date.  I discuss the Social Security earnings credit requirements here.

You can also call Social Security at 800-772-1213 to ask about your date of eligibility for SSDI and your date last insured for SSDI.  Be aware – sometimes the information given by the SSA operators is not up to date.

You can also request your earnings statement by completing SSA form 7004, which you can download here.

If you have enough earnings, you will then need medical support from a treating doctor or mental health professional that your condition is severe enough to prevent you from performing any type of work.

If you do not have enough credit hours, you can still apply for SSI, but in an SSI case your monthly benefit is capped and your household income and assets may offset your monthly SSI benefit.

Technorati Tags: earnings requirement for SSDI, SSI vs. SSDI

Post from: Social Security Disability Blog

My Work History Has Not Been Consistent – Can I Still Claim SSDI Benefits?

Jonathan Ginsberg responds:  Deb, thanks for your question.  Your SSDI benefit amount is a calculation based on how much tax you paid into the Social Security system.  Your disability benefit is calculated based on something called your Primary Insurance Amount (PIA).  Your PIA calculation is an exercise in fuzzy math.   You can read more about the PIA calculations on the SSA.gov web site.

I wish I could refer you to a reliable resource that could double check SSA's PIA calculations but I know of no such resource.  If any of my readers does know of such a resource, please let me know.

What I would recommend is that you request a copy of your earnings and benefit statement.  This statement, which is available to you free of charge from Social Security will show your estimate benefit payment and it will also identify your earnings and contributions to Social Security during those earnings years.  If you see that SSA has failed to credit you for certain earnings or for Social Security tax contributions, you would have the basis to ask for a review of your account and a correction to your record.

Technorati Tags: SSDI payment, my earnings record, earnings & benefit statement, PIA calculation

Post from: Social Security Disability Blog

How Do I Know if my SSDI Monthly Benefit Payment Amount is Correct?

Jonathan Ginsberg responds:  Ms. B, if the denial was based on your household income, it would appear that your husband is not insured for Title II SSDI.  If you husband has an earnings record, then your income would not impact his right to collect benefits.  If he does not have enough earnings credits to qualify for SSDI, he would only be eligible for SSI.  SSI is a welfare program for indigent claimants who do not have enough credits to qualify for SSDI and an SSI claimant's benefits would be subject to offset based on household income.

I discussed the earnings credit issue on a special page of this blog.   There are also several posts on this blog that discuss SSI and the offset rules.  If you will go to the search box and type in "ssi offset" you will see several posts that discuss SSI.

Technorati Tags: SSI offset, SSDI earnings record, making too much money for SSI

Post from: Social Security Disability Blog

Wife's Income Offset's Husband's SSI Benefit Claim