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Category Archives for Eligibility Issues

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

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?

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 →

May an Incarcerated Felon Receive Social Security Disability Benefits?

I recently received an email question from a blog reader about the eligibility of a convicted felon for Social Security disability benefits.  There is a simple answer here – you may not collect disability benefits during the time you are incarcerated.  Social Security ruling 83-28 addresses this situation directly.

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.

Will Child be Eligible for Dependent’s Benefits When “Out of the Picture” Father is Approved

I get a lot of questions from mothers who are caring for the children of fathers who are out of the picture.  Susan’s situation is a fairly common one so I will answer it here:

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.

What is my “Date Last Insured?”

Back in January, I answered a question from a blog reader about Social Security disability credits.  That reader wondered why Social Security had advised her that she had “run out of credits.”

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.

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

I was diagnosed last Thursday by my neurologist with post traumatic stress syndrome resulting from three MVA’s.  I have other related injuries and have tried to do several jobs, after a long career, and cannot do it.  Is there any relief for me?

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.

[tags] earnings requirement for SSDI, SSI vs. SSDI [/tags]

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

I have found your site and have been reading your comments.  I have been on SSDI since 2002.  I was a registered nurse for 15 years- always working with no lapses.  At on point I was working two full time jobs (no sleep). I worked the two full time jobs for about a year and 1/2.  I earned a very decent living.  I saw in one of your posts that SSDI is usually about $1500 a month.  Mine started at $1200/month- now it is up to $1300/month.  Why the difference in amounts?  I would desperately like to go back to work- but it doesn’t look good.  Every penny counts now.  In this situation does a person have any recall?  Thanks.
–Deb

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.

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

My husband had a spinal cord injury and is totally disabled but SS denied his claim because I(his wife) makes too much money.  I make $62,000 a year and we have a child in college. Does this denial make sense?  He made about $25,000 per year before the injury.  We have gone bankrupt and risk losing the house.
Ms. B

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.

[tags] SSI offset, SSDI earnings record, making too much money for SSI [/tags]

 

 

Does Accepting Unemployment Benefits Hurt My SSDI Case?

Should you accept unemployment benefits while your SSDI case is pending?  My experience has been that Social Security judges will have concerns if you accept unemployment compensation during your wait for your Social Security hearing.

Generally, when you apply for unemployment, you are asserting that you are ready, willing and able to work.  You may also be required to report to your local unemployment office with proof that you have looked for work and you may be required to attend vocational rehabilitation or other programs to help you resume employment.

While I think that unsuccessful work attempts can help your Social Security case by demonstrating your motivation and credibility, my sense is that if you accept money from a state unemployment agency, you demonstrate your belief that you have the capacity to work a full time job.  There are enough claimants out there that manage to find a job that they end up losing, that some judges may feel that a person collecting unemployment is looking for a specific type of job as opposed to any work.  Since Social Security disability looks to your capacity to perform any type of job, your receipt of unemployment compensation may muddy the waters.

That being said, I don’t hear judges asking about unemployment as much as I used to, now that the wait for a hearing can be two or three years.   Still, be aware that if you do apply for and receive unemployment compensation you may be asked to reconcile your claim that you cannot perform competitive work with your assertion that you are ready, willing and able to accept employment.

[tags] Social Security disability and unemployment compensation, unsuccessful work attempt [/tags]

Trial Work Period Earnings After Benefits Awarded – Will Benefit Amount Increase?

Dear Jonathan, I had a question posted several months ago concerning working full-time after being granted SSDI, and I had another related question. I’m currently working full-time as a computer programmer, which is the type of job I had previously. If I were to stop working again because of health reasons, and return to SSDI, would the social security taxes I’ve paid in the past year result in an increase to my SSDI benefits, or would the amount remain the same? Thank you.
–Morris

Jonathan Ginsberg responds: Morris, good to hear from your again, and thanks for the question. Here are my thoughts:

  1. if you are working again after being found disabled, you can collect your regular income for 9 months without affecting your disability pay. This is called the 9 month trial work period.

  2. after the nine months, you go into an extended trial work period for 36 months. During any month during that 36 month period where your earnings drop below the substantial gainful activity limit, you will recieve a disability check for that month.

  3. I believe that if you have added earnings to your record, the rolling period of eligibiltiy (date first insured and date last insured) will adjust as would your benefit amount. I am not aware of any provision in the law that prevents additional earnings from increasing your SSDI benefits, but I have not ever seen this question posed. If anyone reading this has a different opinion, or, Morris, if you discover the answer one way or the other, please let me know.

[tags] trial work period, earnings after disability award, extended trial work period, Social Security disability [/tags]

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