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 [“SSA”].
Who is Eligible to Collect Social Security Disability [“SSD”] Benefits?
Under the SSA, 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 the 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. Until recently, Social Security sent a statement to you each year showing your estimated SSD benefit. They stopped doing this to save money.
You can now get this information online. You should go to http://www.ssa.gov/mystatement
- Go to the above link and click on “Sign in or Create an Account.”
- New Users will be directed to Create an Account.
- Information Required: (a) E-mail Address; (b) Social Security number; (c) U.S. Mailing Address; and (d) you must be more than 18 years old. You will be asked for your phone number and will have an option to receive a text message anytime your account is logged into.
When Should You Apply for SSD?
You are NOT required 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. Many times the process can take years, so the sooner an application for benefits is filed the sooner you will be awarded SSD 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, you may not collect more than 80% of your annual pre-disability earnings when you add together the amount of your WC and SSD benefits. 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 the government health and hospital insurance program which is called Medicare. There is a two year waiting period, however, before you can participate in Medicare. 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, the initial application of about sixty-five percent (65%) of the people who apply for SSD is DENIED. Some give up at this stage because they believe that they will be unable to prevail if they go forward. This is not true.
If your initial application is denied, you can request reconsideration. This is a “new” process in New York for those initial applications denied on or after January 1, 2019. Overall, only about 13% of applications are approved through the reconsideration process.
If reconsideration is denied, you can request a hearing before an administrative law judge. At this hearing, you are required to prove that you are entitled to benefits. Statistically speaking, claimants win about fifty-six percent (56%) of the cases that are decided AFTER a hearing (after deducting out cases that are dismissed). 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. An experienced lawyer will answer your many questions about the process, will protect your appeal and other rights, will secure relevant medical and employment records, will develop a viable legal theory and will prepare you thoroughly for your hearing. Thereafter, the lawyer will deal with many 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 other than the law. To illustrate, one must be familiar with medicine, medical terminology and the description and physical demands of various jobs. An experienced lawyer will know how to cross examine a vocational expert hired by Social Security to help the Judge decide your case.
What Do Attorneys Charge for their Services?
Most law firms that represent claimants in SSD cases will represent you 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 twenty-five percent (25%) of the lump sum of benefit that is paid to you AND your family BUT NOT more than the maximum permitted by law. Effective June 22, 2009, the maximum fee permitted by law is $6,000.
You are never paid for the first five months that you are disabled. This is a waiting period that is set forth by 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 payment of a lump sum of benefits equal to 12 months of your usual monthly benefit. Our fee would be 25% of that lump sum of benefit but NOT more than the maximum fee permitted by law. This applies to all money paid on your claim, even money paid to your children.
We are prohibited by law from paying out-of-pocket expenses incurred to prosecute your claim. In the past, the most significant expense was the cost charged by doctors to secure your medical records (75 cents/page). New York passed a law which prohibits doctors from imposing this charge when a person is requesting them to apply for public benefits like SSD. Thus, we expect to incur virtually no expenses for which you will be responsible.
Social Security regulations require that attorneys’ fees be approved by the Social Security Administration prior to payment. In most cases, the attorneys’ 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 web site at http://www.ssa.gov.