I had a stroke in Oct of 2004 and received priviate disability until ealier this summer. I then took a ‘lump sum’ pay out with the intention of starting a new business that would allow me to work at home and make a living. This disability company was making ‘noises’ that once they started looking into may case, that after 2 years, I could lose everything. So I took the buy out.

Here’s the problem – I took the money and paid off bills and invested in a business (new one) which is not close to being ready to support. Yet I I was diagnosed with kidney cancer and just had my kidney removed last week. I’m no longer battling the depression, stroke remenents (visual and balance problems) but now I have diabetes type 2 becauase of my last of being able to exercise…and now this. No one will give me a straight answer about the chronic pain from my stroke (whether is will go away) but that chronic pain on my left side, visual issues, balances problems and now kideny problems…do I quality for disability?
–Chris

Jonathan Ginsberg responds: Chris, I think you have a good argument for disability. There are two issues that come to mind:

1) a Social Security judge will want to know if there was some period of time when you invested in the new business when you thought that you were in a position to work. Notwithstanding your concerns about the LTD carrier cutting you off, is it reasonable to assume that had the kidney cancer not arisen you would have been able to pursue this new venture. I don’t know the answer, but that is a question you will likely face.

This question is relevant because it affects your onset date. Might there also be an argument that you have a closed period of disability (from the time of your stroke until the time that you began work on the new business) and currently (assuming that your kidney problems in combination with your other issues leave you unable to work).

2) a second issue has to do with your insured status for Title II. As you may know, SSA looks at the last 10 years prior to onset to see if you have paid in to the system for 5 out of the last 10 years. When you stop working, you obviously stop contributing to your account. Eventually, your insured status runs out. I’m not clear about the dates involved here, but generally, I would think you would want to file for SSDI sooner rather than later and use the date of your stroke as the onset date.

3) many LTD policies have a "reimbursement" provision in which you are obligated to repay the carrier if you recover SSDI benefits for the same time period for which you received LTD benefits. It may be moot if you settled, but you might want to look, just the same.

4) as far as your current status, I would think that your stroke related factors plus the kidney cancer should be enough to impact your capacity to function as a reliable employee. If you have any sort of support from your doctor, I think you should be approved.

Jonathan Ginsberg
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[tags] cancer and disability, kidney cancer and social security disability, LTD offsets Social Security, stroke and SSDI [/tags]