SSI is Different than SSDI

I regularly get phone calls or emails from potential clients who tell me that they “want to apply for SSI.” In some respects “filing for SSI” has become a shorthand phrase for someone who wants to file for disability, but, in truth, there is a huge difference between SSI and SSDI.

SSDI stands for “Social Security Disability Insurance” and refers to benefits payable to claimants who have enough credit hours to be considered “insured” for disability. The monthly payment is a function of what you have paid in to the system. In my practice the average SSDI monthly payment is around $1,50o.

SSI stands for “Supplemental Security Income” and refers to welfare benefits payable to claimants who do not have enough credits to be insured for disability. The maximum monthly payment is set out in the law – and for 2011 is $674 per month for an individual.

Last week, for example, I received a long email from a concerned woman who was writing on behalf of her father. Apparently, her father had worked at a very physical job for over 20 years before suffering a stroke in 2002. This gentleman filed for Social Security disability in 2002 and was denied at a hearing, which I will assume was held at some point in 2003.

After being denied, this gentleman did not file anything else. He remained at home, unable to work because of the ongoing complications from the stroke as well as depression and anxiety. Continue reading →

SSI and SSDI During and After Incarceration

Question:

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.

SSI Recipients May Be Eligible for Free Cell Phones and Free Minutes

Jonathan
November 10, 2009

Cell phone user SSI recipients and other low income Americans may be eligible for free cell phone or landline service under a program called Lifeline Across America. Participants can expect to receive discounted or free service for a limited number of wireless minutes, but for those living alone or who want the security of a cell phone for emergencies, the Lifeline program can be very comforting.

In June of this year, the New York Times published an article about the Lifeline program entitled Providing Cell Phones for the Poor.

The program specifications vary from state to state – and associated programs may provide subsidies for electricity and other utilities. You can find out what is available in your state by a simple web search – I typed “Lifeline + cell phones + Georgia” into Google and the search result documented a number of carriers offering the service.

Another service that provides free or low cost cell phones to low income individuals is Assurance Wireless – click on the link to learn more.

Thanks to Wisconsin disability lawyer Don Chewning for blogging about this important benefit to SSI recipients.

If you are interested in learning more about how to get one of these free or low cost cell phones, please visit:

Lifeline Across America

AssuranceWireless.com

What are the Responsibilities of a Representative Payee

Sometimes Social Security judges award benefits but require that benefit payments go to a “representative payee.” The judge may do this if the claimant is a child, is legally incompetant, suffers from mental health or medical problems that would make it difficult for the claimant to manage money or in cases where the claimant requests a payee.

Representative payees assume a great deal of responsibility. They are responsible for handing the claimant’s money and for filing periodic reports with the Social Security Administration. I have seen at least one case in which the rep payee was sued by Social Security because of an overpayment – the claimant went back to work and lost eligibility for benefits but Social Security did not find out for several years.

It has also been my observation that claimants often become angry with their representative payees when the payee refuses to allocate money for an item or service that the claimant deems necessary but the payee does not. If you are thinking about serving as a representative payee I advise you to research and carefully consider the obligations of this position.

I recently received a question from a prospective payee named Celeste that touches on some of the issues faced by rep payees:

My friend just recently won her disability case, but the judge said she had to have a payee, which is me. I have a few questions that I would like for you to answer for me if you don’t mind. Continue reading →

Social Security Disability and Child Support

NOTICE: I received so many comments and questions about the issues of child support and Social Security disability that I set up a separate blog about this topic – www.childsupportandsocialsecuritydisability.com. Please visit this new blog to post comments and ask questions.

–Jonathan

Can you SSDI benefits be seized to pay past due child support? Yes, according to Social Security Ruling 79-4, the Social Security Administration can withhold a percentage of a claimant’s benefits in an amount equal to what SSA could withhold to pay delinquent income tax debt.

No interest or penalties may be withheld, and before the first withholding may commence, SSA must give the claimant 60 days notice.

There is a question in my mind as to whether SSI benefits may be seized to pay delinquent child support. The web site esocialsecurityappeal.com states that a “custodial parent has no right to any of the proceeds from SSI.” Tim Moore, the editor of DisabilitySecrets.com also states that SSI recipients will not have their monthly disability benefits and past due benefits seize. According to Mr. Moore, the rationale to protect SSI from levy relates to the nature of SSI as a welfare benefit: “since SSI is essentially a public welfare benefit and does not derive not from a claimant’s earnings record, SSI benefits cannot be taken for other purposes, just as food stamps and AFDC funds, likewise, cannot be seized.” Continue reading →

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

Jonathan
February 25, 2009
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I regularly get questions from readers of my blog and web site about SSI, SSDI and the differences between the two. The biggest difference: you will be eligible for SSDI if you have worked and paid Social Security taxes into the system. Generally to be fully insured, you need to have worked and paid taxes for 5 out of the last 10 years.

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. Continue reading →

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

Jonathan
February 11, 2009
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I regularly get calls from potential clients who apply for Social Security disability, only to discover that they do not have enough credits to pursue a Title II SSDI claim. In such cases, the only other option would be to pursue a Title XVI SSI claim. However, SSI benefits are usually lower ($674 per month for an individual in 2009) and, more importantly, SSI payments are subject to offset if the claimant has a spouse who works.

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. Continue reading →

Correcting a Rent Offset in an SSI Claim

This morning, I received an email question from a woman named Elena. I’m not sure if Elana is an attorney, a non-attorney rep or a relative of the claimant, but she raises an interesting issue about SSI offsets.

I don’t deal a lot with SSI issues on this blog mainly because I don’t take a lot of SSI cases. If you do not know, there are a number of disability programs administered by Social Security – Title II Social Security Disability (also called SSDI) is one program, and Title XVI Supplemental Security Income (SSI) is the other.

SSDI pays benefits to claimants who are disabled and who have a qualifying earnings record. To oversimplify, you qualify for SSDI if you have worked for five out of the last ten years. There are exceptions to this general rule, but basically SSDI applies if you have worked and paid enough Social Security taxes to be “insured” for the SSDI program.

SSI, by contrast, pays benefits to claimants who are disabled but do not have sufficient earnings or assets to qualify for SSDI. An SSI claimant can be a disabled child, a 20 year old with a serious medical problem and minimal work experience, or a 50 year old housewife who worked for 15 year back in the 1970’s and 80’s but has not worked at all in the last 10 years.

Up until last year, I rarely took SSI cases because Social Security would not withhold attorney’s fees on past due benefits. Unfortunately, when did take SSI cases, we would win, and the claimant would get a lump sum check, but would not pay me the 25% owed. As I got busier, I made the decision not to take SSI cases because they were not worth the risk.

Last year, Social Security finally corrected this glitch in the payment process and now they do issue direct payments to attorneys. However, I am still very careful about taking SSI cases because of the offsets involved.

As noted above, SSI claims are only payable to claimants with limited assets and income. Social Security will count as income something called “in kind” services, which can be room and board, welfare payments, or support from family. Also SSI will reduce your benefits if you are living in a household with a spouse or family member who works. That is why the 50 year old married housewife who lives with her employed husband may qualify medically, but will not recover any benefits because of the “deeming” of household income.

Obviously, SSI claimants have to live somewhere and they need funds for food and transportation as well. Therefore, in many cases there is an offset of benefits. Since SSI benefits are set by law and the maximum monthly SSI benefit (for 2008) is $637, it doesn’t take too much in kind support or deeming to reduce that benefit down to nothing. As a matter of business, I just can’t take on cases where I work for 2 to 3 years, appear at a hearing and expend hours of my time and paralegal time, only to end up with $400 or $500 or, in some cases, nothing.

With that background stated, let me address Elana’s question, which is:

I have a gentleman that lives with daughter and pays $500.00 for rent which he reported to SS. His daughter was asked to complete a form which asked the market value of room. She put $1,000.00 market rent. Now SSI benefits were reduced by the value of the $500.00 as income to the man. How can he correct this. I thought of obtaining an appraisal by a Real Estate Agent of the rental market value of the room. If less than $1,000.00 submit this document to SS along with the request for reconsideration. Do you think this would work? Do you have any other suggestions to try to correct the market value of the room? I appreciate your input. Thank you.

Here is my response: In this situation, the claimant is dealing with an offset of his benefits. Based on the information that the claimant’s daughter provided, she is “giving” her father $500 of value in the form of room and board. Social Security is reducing his benefit by that in kind support. Assuming that the father is getting the maximum $637 from SSI, the $500 reduction leaves him with only $137 per month to live on.

Now, the father and daughter need to argue to Social Security that the actual market value of the father’s room is something less than $500.

I think that Elana is on the right track regarding what to do. I would gather documentation from local real estate professionals. This could take the form of a notarized statement, or documentation of comperable rental units in the area.

The father needs to look carefully at the documentation he has received from SSI. I believe that when SSI computes an offset they provide written notice. He needs to see if that written notice provides for any appeal rights or deadlines.

In any case, I would contact the local SSI office and ask to speak to a supervisor to discuss correcting this error. Hopefully SSI will be cooperative. If not, you may need to file for reconsideration of the deduction – my only question is whether the father has missed any applicable deadlines to do so.

SSI recipient having trouble with Medicaid

Jonathan
March 13, 2006

My nephew has SSI and is having problems with his medical bills being paid. Medicare said he has Medicade and Welfare said no, he has Medicare so no one is paying his medical bill and his bill are getting higher. Who is to pay? They said to get in touch with SSI. Why? –Betty

Jonathan responds: Betty, if your nephew is getting SSI, he is automatically eligible for Medicaid, not Medicare. Medicaid should be paying the bills. I would suggest that you call your local Social Security office as well as the State Medicaid office. Realize that Medicaid is a State operated program that receives funding from the federal government so you will need to call both the State Medicaid office as well as your local SSI (Social Security Administration) office. Sometimes, your federal Senator or Congressional representative can be very helpful in cutting through the red tape.

–Jonathan