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Types of Benefits
Do I Qualify? Explanation of Process Do I Need a Lawyer?
Kenneth Hiller has been handling Social Security Disability cases for over 15 years, and has handled literally thousands of cases. Drawing on
his experience and expertise in this area, he has compiled the following guide to answer the most common questions about Social Security Disability benefits and how the system works.
WHAT TYPES OF BENEFITS ARE THERE?A. Disability Insurance Benefits.
B. Supplemental Security Income (SSI).
C. Children's SSI.
D. Disabled Widow/Widower Benefits
E. Adult Child's Benefits. 2. WHAT CONDITIONS QUALIFY FOR DISABILITY BENEFITS. A. Legal Definition of Disability.
B. How Do I know if I Meet the Definition of Disability?
1.) The Listings of Impairments.
2.) The Medical Vocational Guidelines.
3.) Other Ways to Prove Disability.
4.) What About Mental Impairments.
C. Typical Medical Conditions That Qualify For Benefits.
D. Some Common Misconceptions about Social Security Disability. 3. WHAT ARE THE STEPS IN APPLYING FOR AND OBTAINING DISABILITY BENEFITS.
A. Application.
B. Request For Hearing before an Administrative Law Judge.
C. Appeals Council.
D. Federal Court Review.
E. Payment of Benefits after an Award of Benefits. 4. WHY SHOULD I HIRE A LAWYER? A. Pitfalls of Representing Yourself.
B. What a Lawyer Can Do For You.
C. How Do You Choose a Lawyer.
D. What About Non-Lawyers Who Handle Cases?
E. How Does A Lawyer Charge?
1. WHAT TYPES OF BENEFITS ARE THERE?
A. Disability Insurance Benefits. Back to Table of Contents
When you pay FICA taxes, one of the things you are paying for is disability insurance benefits. Disability Insurance provides you with a monthly
check equal to what you would receive if you retired at age 65, if you meet the definition of disability? The general rule of thumb is that you must have worked at least 5 out of the 10 years
prior to you becoming disabled to be eligible for benefits. Thus, if you worked steadily for many years, and then stopped working, you would be eligible for benefits if you became disabled
within 5 years of your stopping working. Importantly, it is not required that you apply within 5 years of stopping working. You could apply years later (although that is not advisable). The
requirement is that you become disabled within the 5-year period. If you have not paid enough into the system, you are not eligible for Disability Insurance Benefits. However, you could be
eligible for the other types of benefits that immediately follow. B. Supplemental Security Income (SSI). Back to Table of Contents
SSI is basically a welfare program for the disabled.
There is no requirement that you have ever worked. The medical requirements to obtain these benefits are exactly the same as they are for Disability Insurance Benefits. You must meet the
definition of disability to obtain SSI. In addition, you must meet financial criteria to be eligible for SSI. Basically, you have to be poor. For more details on the financial criteria, press
the following link http://www.ssa.gov/pubs/11000.htmC. Children's SSI.
Back to Table of Contents
Children's SSI are benefits available to a disabled child 18 or under. Benefits are normally
payable to the parent(s) or legal guardian of the child. The rules for eligibility for Children's SSI are extremely complex. Unlike adult benefits, since we are dealing with children in these
cases, there is no requirement that the child not be able to work. Instead, the cases are determined solely based on the severity of the child's medical condition. For more information, press
this link http://www.ssa.gov/pubs/10026.html.D. Disabled Widow/Widower Benefits.
Back to Table of Contents
These benefits are available to the widow or widower of a working spouse. In order to
be eligible for these benefits, four criteria must be met: 1) The widow or widower must be disabled under Social Security's rules; 2) The widow or widower must have become disabled within 7
years of the date of death of his or her spouse; 3) The widow or widower must have been married at least two years prior to the deceased spouse's death; and 4) The widow or widower must be at
least 50 years of age. Thus, the widow or widower must be at least 43 years of age on the date of death of the deceased spouse. E. Adult Child's Benefits. Back to Table of Contents
Despite the name, these
benefits are not for children. They are for adults who became disabled on or before their 22nd birthday, and were continuously disabled thereafter. If such an adult has a parent who paid into
the system, the disabled adult can receive benefits on the parents earnings record if that parent is either disabled, is receiving Social Security Retirement benefits, or is deceased.2. WHAT CONDITIONS QUALIFY FOR BENEFITS? Back to Table of Contents
A. Legal Definition of Disability.
Back to Table of Contents
In lay terms, the definition of disability is the inability to do any work due to a medical
condition where the inability to work lasts for at least twelve months, or is expected to result in death. Contrary to popular belief, you do not have to wait for that year to expire to
apply, and it is almost always a mistake to do so. Like many laws, there is more to this definition than meets the eye. For example, despite the fact that the legal definition states that one
is only eligible for benefits if they are unable to work, there are many instances where an individual over age 50 can be eligible for benefits even if they can perform some sort of work (
See 2B below). There are other nuances to this definition as well. You should consult a lawyer before drawing any conclusions as to whether you are eligible for benefits.
B. How Do I know if I Meet the Definition of Disability? Back to Table of Contents
The short answer to this question is that you don't unless you consult a lawyer. Social Security law is contained in statutes, regulations and in
cases decided by the courts. There are literally thousands of pages that one would have to read to understand Social Security law. It is so complex that many lawyers and judges do not fully
understand all aspects of Social Security law. With that in mind, I have provided some elements of the law relating to the definition of disability.
1) The Listings of Impairments.
The Social Security Administration has a list of medical conditions that they have determined can be disabling. You simply look up your condition on the list, and see if you meet the criteria. If you do, then you are disabled. It sounds simple, but the criteria necessary to "meet or equal the Listings" is extremely harsh. In the vast majority of cases, an individual does not meet or equal a Listing, and must find some other basis to establish disability. Importantly, the fact that you do not meet or equal a listing does not mean you are not eligible for benefits. Press this link to read the listings.
hhttp://www.ssa.gov/pubs/11000.html
2) The Medical-Vocational Guidelines. The Medical-Vocational Guidelines (or "Grids") are a group of charts contained in
Social Security's regulations. The chart contains certain variables, including age, level of education, physical abilities, and the job skill level of the individual. You simply plug all
of your characteristics into the chart, and the chart tells you whether you are disabled or not. The general rule is that if you are over age 50, and your past work required you to be on
your feet for the majority of the work day, and required you to lift up to 20 pounds, that you will be found disabled even if, theoretically you are able to do a desk job. The exception
to this rule would be if you have work skills that could be easily transferred to use in a desk job. Remember, this is just a generalization. As with any legal rule, there are exceptions,
and there are rare instances in which the Grids can be applied to individuals between 45 and 50 years of ages.
3) Other Ways to Prove Disability. The Listings and Grids are
shortcuts to proving disability. You can always obtain disability benefits if you can prove that you cannot perform any work. The lightest type of work recognized by Social Security is
sedentary work, such as a desk job. If you can prove you cannot perform a desk job because of a medical problem, you will generally be awarded benefits. Ideally, proof of this would come
from your treating physician. Your doctor's records or even better, a report establishing that you cannot perform sedentary employment can go a long way towards winning your case. There
are other ways to prove you are disabled. However, documentation of your disability from your treating physician is the best way.
4) What About Mental Impairments. A mental
condition will often qualify an individual for disability benefits. I would estimate that 30% of my clients are disabled due to mental impairments such as depression, anxiety, bipolar
disorder, etc. People with these conditions often have difficulty dealing with supervisors or co-workers, have low energy levels or severe fatigue, have an inability to concentrate, or
have an inability to handle mental stress. These problems can be quite disabling, and as long as they can be documented by a mental health professional, they can be a basis for disability.
C. Typical Conditions That Qualify For Disability. Back to Table of Contents
Virtually any medical condition can qualify you for disability benefits if it prevents you from working. It doesn't matter how rare the
condition is. I have won cases for clients with narcolepsy, learning disabilities, writer's cramp, and lyme disease. The following conditions are more common:
Aneurysm |
Emphysema |
Lupus |
Arthritis |
Epilepsy |
Meniere's Disease |
Back or neck pain, due to any cause |
Fibromyalgia |
Multiple Sclerosis |
Bipolar Disorder |
Headaches |
Myofacial Pain Syndrome |
Blindness, or other vision problems |
Heart Disease |
Obsessive Compulsive Disorder |
Cancer |
Hearing Loss |
Pancreatitis |
Carpal Tunnel Syndrome |
Hepatitis |
Panic Attacks |
Crones Disease |
HIV/AIDS |
Post Traumatic Stress Disorder |
Chronic Obstructive Lung Disease |
Lung Disease |
Reflex Sympathetic Dystrophy |
Chronic Fatigue Syndrome |
Kidney Disease |
Shoulder problems |
Depression and/or anxiety |
Knee problems |
Stroke |
Diabetes |
Lung Disease |
Ulcerative Colitis |
This is by no means an exhaustive list. Again, any condition can qualify you for disability
benefits if it prevents you from working.D. Some Common Misconceptions About Social Security Disability.
Back to Table of Contents
1) You have to be over age 50 to qualify. This is incorrect. The average age of my clients is 47,
and I frequently win cases for clients in their 20's. It is easier to win if you are over age 50, but it is not a requirement.
2) You cannot win for mental illness. This is absolutely incorrect. Approximately 30% of my clients qualify for Social Security Benefits on the basis of a mental disability.
3) If I cannot do my type of work, I am eligible. It is not enough to prove that you cannot do your past work. You must prove that you cannot do any work, even if it pays less. My client's
often ask me: "Does that mean they can make me flip hamburgers at McDonald's?" The answer is that they cannot force you to do that, but they can deny your claim for disability
benefits if you are able to perform that type of work. 4) They can't deny me on the grounds that I can do sedentary work because I have no training
to do that type of work. The Department of Labor has determined that there are unskilled sedentary jobs available. Thus, the claim that you do not have any training to perform
sedentary work will not help you obtain Social Security benefits. 5) Nobody would hire me with my condition, so I am eligible for benefits. My clients will often
tell me: "Who's going to hire someone with a bad back?" What that client is really saying to
me is that employers will discriminate against him because of his back condition. This may well be true, but discrimination is not a basis to obtain disability benefits. You must show that
you are unable to do work even if it was offered to you. In other words, Social Security assumes we live in a perfect world in which no one discriminates against anybody. 3. WHAT ARE THE STEPS IN APPLYING FOR AND OBTAINING DISABILITY BENEFITS.
Back to Table of Contents
The following are the steps in a Social Security Disability claim. The vast majority of my cases are won at the hearing stage. At each level, you have 60 days from the date you receive a
denial notice to appeal to the next level. All of the time frames noted below are approximations. The time at any level of a Social Security Disability claim can vary widely.
A. Application. The first step in obtaining Social Security Disability benefits is to file an
application with the Social Security Administration. Usually, the Social Security Administration
will send you to a doctor or doctors for an examination. The average time to receive a decision on an application is five months.
B. Request For Hearing before an Administrative Law Judge. If your application is denied, you can appeal by filing a Request for a Hearing before an Administrative Law Judge.
(Note: in most places outside of Western New York, there is an intermediary step call "Reconsideration"). It generally takes a full year for your hearing to be held. A decision is
generally issued approximately 6 weeks after the hearing. C. Appeals Council. If you lose at the hearing level, you can appeal to the Appeals Council.
The Appeals Council is the highest level of appeal within the Social Security Administration. There is no hearing at this level. Their decision is based upon a review of the record. The
Appeals Council takes approximately 2 years to render its' decision. D. Federal Court Review. If the Appeals Council denies your claim, that is the final decision
of the Social Security Administration. The next step is to file a lawsuit against them seeking
judicial review of their decision by a federal district court judge. A district court judge's decision
can be appealed as well. In fact, a case could be appealed all the way to the United States Supreme Court. It generally takes one to two years to obtain a decision from the federal district
court. E. Payment of Benefits after an Award of Benefits. Payment of benefits normally occurs
six weeks after a favorable decision. Cases that have gone to federal court take longer. Benefits can be paid retroactively up to one year prior to the date of application if you are found
to have been disabled that long. Regardless of when you apply, you cannot collect benefits for
the first five months you were disabled. In other words, there is a five-month waiting period for disability insurance benefits. 4. WHY SHOULD I HIRE A LAWYER?
Back to Table of Contents
A. Pitfalls of Representing Yourself. A Social Security claim starts by filling out lengthy
forms. I have seen countless cases where a person has filled out the forms on their own that later came back to haunt them. By hiring a lawyer at an early stage, you gain the benefit of
having his review of these forms before they are submitted to Social Security and become part of the official record. At the hearing level, representing yourself is even more hazardous. The
hearing is similar to a trial, though not as formal. It is tape-recorded. You also cannot tell what the Judge is thinking by what you observe. I have seen countless cases in which the Judge
seemed very friendly and sympathetic at the hearing, but the decision was not so friendly. Once the hearing decision is issued, you are limited in your ability to submit new evidence and
arguments, and of course, you are now destined to wait the two years it takes the Appeals Council to decide your case. Finally, Social Security law is very complex. Handling your own
case is not much different than deciding to handle your own surgery. B. What Can a Lawyer Do for You. A lawyer will make sure all the appeal deadlines are
met, that all the forms required by Social Security are filled out in a manner that is beneficial to you, and that all medical records and reports necessary to win your case are obtained and
submitted to Social Security. A good lawyer will also take care to devise a strategy for winning your case, and prepare you for the hearing. Of course, a lawyer attends your hearing, and will
take care of any legal issues that arise. If you lose at the hearing level, a good lawyer will have made sure that a good record has been established so that the prospects on appeal of as
favorable as possible. C. How Do You Choose a Lawyer? Obviously, you want a lawyer who has handled a large
number of Social Security cases in the past, and who devotes a large portion of his or her practice to that area of law. It is also important to know if your lawyer is going to stick with
your case should you lose. It is a common practice among some lawyers to drop a client if they lose at the hearing level. You might want to ask a prospective lawyer what percentage of
hearing level denials do they appeal (for me it is approximately 70%), and how many federal court cases they have handled (for me it is over 100). Ask the lawyer what professional groups
he or she belongs to and whether they attend and/or speak at seminars regarding Social Security law. Ask if you will have access. Will you be able to call your lawyer on the phone
and if they will return your phone calls. Ask if your primary contact will be with a paralegal, or
with the attorney. Finally, ask who will be handling your hearing, and if that individual is a lawyer. D. What About Non-Lawyers Who Handle Cases?
I have found that many non-lawyers who handle Social Security cases do not even tell their clients they are not lawyers. They generally
charge the same as an attorney, so why not get an attorney if the cost is the same. Also, a non-attorney cannot take your case to federal court, and is not trained in the law.
Non-attorney's are not bound by the strict ethics laws that govern attorneys. Finally, if a non-attorney mishandles your case, you cannot sue him or her for malpractice. A lawyer can
be liable for malpractice if they mishandle your case. E. How Does a Lawyer Charge? Social Security cases are handled on a contingency basis.
That is, there is no fee charged unless you win your case and you receive benefits. The standard fee is 25% of the retroactive benefits you are awarded. For example, if you won at a
hearing and you were found eligible for two years of back benefits, the lawyer's fee would be 25% of that sum. A lawyer does not take any portion of your future benefits. Back to Table of Contents
* By New York law, clients must pay disbursements.
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