Basic Facts and Practical Advice
Most people think of Social Security as benefits received after retirement. Social Security is much more. For example, Social Security provides disability insurance benefits for injured workers, and sometimes their families, if the worker is disabled within the meaning of the Social Security Act.
Who is Eligible to Collect Social Security Disability [“SSD”] Benefits?
Under the Social Security Act, you are disabled (and thus eligible for SSD) if you are unable to work due to a physical or mental impairment which has lasted, or can
be expected to last, for at least 12 months. You will be considered disabled if your impairments are so severe that you cannot perform your usual work AND cannot perform
other work given your age, education, and work experience.
Selected family members also may be eligible for benefits if you are found eligible for benefits. For example, if you have one or more children who are 18 years old or younger (or who are 19 years old or younger AND in high school), they are eligible for benefits as an extension of your own SSD benefit. An unmarried child who is at least 18 years old is eligible for benefits if that child has a disability that began before age 22. Your spouse is eligible for benefits if he or she is at least 62 years old. Finally, if your spouse is caring for your disabled child who is 16 years old or younger, your spouse is eligible.
Not only must you be disabled to qualify for benefits, you must have paid into the Social Security system for the required period of time. As a general rule, you must have worked at least five out of the ten years before your disability began. During this period, you and your employer must have paid required Social Security taxes.
How Much is my SSD Benefit?
The amount of your benefit depends on how long you have worked and how much money you have paid into the Social Security system. The Social Security Administration [“SSA”] no longer sends a statement to you each year showing your estimated SSD benefit; however, you can get this information online.
- Go to http://www.ssa.gov/mystatement and click on “Sign in or Create an Account.”
- New Users will be directed to Create an Account (you must be 18 years old to do so).
- Information Required: (a) an E-mail Address; (b) your Social Security number; and (c) a U.S. Mailing Address. You will be asked for your phone number and can receive a text message anytime your account is logged into.
When Should You Apply for SSD?
You do not have to wait 12 months before applying for SSD benefits. As soon as it becomes evident that you will not return to your regular job, and will not be able to do another job, you should apply for benefits. The process often takes years, so the sooner you apply for benefits the sooner you will be awarded benefits.
What About Other Benefits?
SSD benefits are coordinated with other benefits that you may collect. For example, if you became disabled due to an on-the-job injury, you probably collected workers’
compensation [“WC”] benefits for a period of time. Under federal law, your combined WC benefits and SSD benefits cannot exceed 80% of your annual pre-disability earnings.
This is just one of many complex coordination of benefit rules.
If you are awarded SSD benefits, you are also automatically entitled to participate in Medicare, the government’s health and hospital insurance program. You become eligible for Medicare two years after you start receiving SSD benefits. Eligibility for Medicare is especially important if you do not otherwise have health insurance coverage.
Maintaining health insurance coverage–and getting appropriate medical treatment–is very important until you can transition onto Medicare. We encourage you to explore whether you are eligible for “affordable” health insurance coverage under a federal law known as the Affordable Care Act. Residents of New York can learn more by visiting http://nystateofhealth.ny.gov/.
What if Your Initial Application for Social Security benefits is denied?
Statistically speaking, 63% of people who apply for SSD are denied initially. Some give up at this stage because they believe that they will not prevail if they go
forward. This is not true.
If your initial application is denied, you can request reconsideration; 13% of applications are approved at this stage.
If the SSA denies reconsideration, you can request a hearing before an Administrative Law Judge. Claimants win 45% of cases decided after a hearing. Claimants represented by experienced lawyers win in even greater percentages.
Professional Services in SSD Cases
If your application for SSD is denied, we believe that you should hire an experienced lawyer to assist you. This lawyer will answer your questions about the process,
protect your rights (including your right to appeal), obtain medical and employment records, develop a viable legal theory, and prepare you for your hearing. Thereafter,
the lawyer will deal with issues that can arise after a hearing, including whether you are collecting the appropriate amount of money.
Social Security law is very complex. Proper interpretation requires knowledge in several areas outside the legal field, like medicine, medical terminology, and the description and physical demands of various jobs. Additionally, an experienced lawyer will know how to cross examine the vocational expert that the SSA hires to help the Judge decide your case.
What Do Attorneys Charge for their Services?
Most law firms that represent claimants in SSD cases do so on a contingent fee basis. This means that there is no fee owed to the law firm if you lose your case.
If your case is successful, the usual contingent fee is 25% of the lump sum of back benefits paid to you and your family. This amount cannot exceed $6,000, the maximum fee allowed under the law since June 22, 2009.
No one is paid for the first five months they are disabled; this is known as a “waiting period” under the law. For example, if you were found disabled as of January 1, 2017, the first month that you would be entitled to payment would be June 2017. If your case was resolved in June 2018, you would be entitled to a lump sum of benefits equal to 12 months of your usual monthly benefit. Our fee would be 25% of that amount (but not more than $6,000, as discussed above). This applies to all money paid on your claim, even money paid to your children.
The law prohibits us from paying out-of-pocket expenses incurred to prosecute your claim. In the past, the most significant expense was the cost doctors charged to provide your medical records (75 cents/page). New York law now prohibits doctors from imposing this charge when the records are needed to apply for public benefits like SSD. Thus, we expect to incur virtually no expenses for which you will be responsible.
The law requires the SSA to approve attorneys’ fees before they are paid. In most cases, the attorney’s fee is withheld from the lump sum of benefits owed to you.
A Final Thought
We know that this process is difficult and confusing. We welcome the opportunity to answer your questions.
If you are interested in more information about Social Security, visit their website at http://www.ssa.gov.