Social Security

It depends on the type of disability benefit you are applying for.  If you are applying for Disability Insurance (SSDI) then the amount of your monthly benefit payment will be calculated based on your “average indexed monthly earnings.”  In other words, Social Security will calculate your SSDI benefit payment based on the average amount of Social Security taxed earnings you have.  As a result of this, the benefit rates for SSDI can vary widely from less than $100/month up to a maximum of $3627/month in 2023.  Realistically, most SSDI benefit rates are in the range of $1000 to $1500 per month.  If you are applying for Supplemental Security Income (SSI) benefits, the maximum federal benefit rate for an individual is $914/month in 2023.  If you live in California, the federal benefit rate is supplemented by the state so that the maximum SSI benefit rate for an individual is $1133.73/month.  However, SSI benefits are subject to offsets that will reduce the monthly rate if there are other sources of income, including in-kind income. 

In most cases, filing an appeal is the appropriate next step.

Possibly.  To receive SSDI benefits, you must be “insured” for those benefits.  Social Security calculates a “date last insured” based on the last time the person applying for SSDI benefits had Social Security taxed work credits.  To receive SSDI benefits, you must have medical evidence to prove your disability started prior to the date last insured.  For example, if you stopped receiving Social Security taxed earnings in 12/2014 due to your disability and your date last insured is 12/31/2019, but you did not apply for SSDI benefits until 1/2023, you will have to prove that your disability started at least by 12/31/2019.  If you don’t have the necessary medical evidence from 12/31/2019 and prior to prove disability, your claim will be denied even if you have medical evidence of disability starting on 1/1/2020.

You might be able to apply for Supplemental Security Income (SSI).  SSI is a federal disability program for people who are unable to work due to disability who also meet certain income and resource limitations.  In other words, SSI is a “welfare-based program” for disabled individuals with very limited income, assets, and resources.  The SSI non-medical requirements for an unmarried individual in 2023 are (1) $2000 or less in assets or resources (with exceptions for one home and one vehicle, along with some other very limited exceptions), and (2) have less than $934/month in unearned income.

It is possible to receive these benefits for life.  Most individuals will continue to receive disability benefits until they can apply for the higher Social Security retirement benefit amount.  Social Security does conduct periodic “continuing disability reviews,” and it is possible for Social Security to find you have had medical improvement and are no longer disabled during these reviews.  Furthermore, if you are incarcerated for 30 continuous days or more, your SSDI benefits will be cutoff during that time, but can be reinstated upon release. With SSI benefits, if you are incarcerated, your SSI benefits will be cutoff.  You will be able to reinstate your SSI benefits if your incarceration is less than 12 consecutive months.  However, if your incarceration is 12 consecutive months or longer, you will have to reapply for SSI benefits and reprove disability.

Returning to work can result in loss of your SSI or SSDI benefits.  With SSI, income will impact the SSI benefit rate.  Even just $100 in monthly earnings would result in an offset to your SSI benefit rate.  The more work income you have, the lower the SSI rate gets until you no longer qualify for SSI benefits.  With SSDI, you can return to work, but your work income must not exceed Social Security’s definition of “substantial gainful activity.”  In 2023, Social Security set substantial gainful activity at $1470/month gross (pre-tax) earnings.  Once you are engaged in substantial gainful activity, your work can disqualify you from continuing to receive SSDI benefits.  However, Social Security does allow trial work periods, where SSDI recipients can attempt work at levels of substantial gainful activity without losing their SSDI benefits.  You could continue to get SSDI benefits if you had to stop or reduce your work to below substantial gainful activity due to your underlying medical conditions prior to the end of the trial work period.  If you are still working at levels of substantial gainful activity at the end of the trial work period, then you will no longer be able to receive SSDI benefits.

Maybe.  This depends on what type of benefit you are applying for.  If you are applying for SSI, then the unearned income from Workers’ Compensation payments can make you ineligible to apply for those benefits depending on the amount you are receiving in Workers’ Compensation payments.  If you are applying for SSDI, receiving Workers’ Compensation payments will not make you ineligible, however, Workers’ Compensation payments can possibly result in offsets (reductions) to SSDI benefit payments.

The first step is filing an initial application.  If the initial application is denied, you can request reconsideration.  If the reconsideration is denied, you can request a hearing before an Administrative Law Judge.  If the Administrative Law Judge issues an unfavorable decision, you can request that the decision be reviewed by the Appeals Council.  If the Appeals Council denies the request for review of the decision by the Administrative Law Judge, then the last step is filing a complaint in federal court.

Social Security’s disability definition is that “you must not be able to engage in any substantial gainful activity (SGA) because of a medically determinable physical or mental impairment(s) that is either: (1) expected to result in death, or (2) has lasted or is expected to last for a continuous period of at least 12 months.”  The key to meeting this standard is medical evidence.   Maintaining regular medical treatment, being compliant with treatment recommendations, following up on specialist referrals, and making sure to inform your treating medical providers of all symptoms and problems is critical.

Social Security Disability Insurance (aka SSDI or SSD) is for persons who meet Social Security’s definition of disability and who have enough Social Security taxed work credits to be “insured” for disability benefits.  Supplemental Security Income (aka SSI) is for person who meet Social Security’s definition of disability and who have limited income and resources.

Social Security has a 5-step disability determination process.  Step 1 – are you working at levels of “substantial gainful activity”?  If you are, then your claim is denied at this step.  Step 2 – do you have a severe medically determinable impairment or combination of impairments?  By “severe,” Social Security means an impairment or combination of impairments that “affects an individual’s ability to perform basic work-related activities.”  Step 3 – do you meet or equal a listing?  Social Security has listings for specific medically determinable impairments.  If you meet or equal all of the elements of the listing, then Social Security can find you disabled at this step and will not continue to Steps 4 and 5.  If you do not meet or equal all of the elements of one of Social Security’s listing, then you continue to Steps 4 and 5.  Step 4- can you perform your past relevant work?  Social Security’s current definition of past relevant work is work you have done in the past 15 years at levels of substantial gainful activity.  At this step, Social Security must determine your “residual functional capacity” meaning what you are physically and mentally capable of sustaining 8-hours per day and 5-days per week.  Social Security then compares your residual functional capacity to the requirements of your past relevant work to determine if you can or cannot perform that work.  If Social Security finds you can perform your past relevant work either as it is generally performed in the national economy, or as you performed the work, then they will deny your claim at this step.  If Social Security finds you cannot perform your past relevant work, then you proceed to step 5.  Step 5 – can you perform any other work existing in significant numbers in the national economy?  Here, Social Security considers your residual functional capacity, your age, your education level, and any transferable skills you may have from your past relevant work to determine if there are a significant number of jobs in the national economy you can perform.  If Social Security determines there are still a significant amount of jobs in the national economy you can perform, they will deny your claim.  If Social Security determination there are not a significant number of jobs in the national economy you can perform, they will find you are disabled under their rules.

Yes.  However, if applying for SSI benefits, the income can possibly make you ineligible.  If you are applying for SSDI benefits, short-term disability benefits through a public program (such as California State Disability payments from the Employment Development Department) can result in offsets to your SSDI benefits.

The timeframe for a decision on your initial application can vary widely from region to region, and year to year.  In 2023, we are seeing initial applications are taking anywhere from 6-12 months.  There are exceptions for terminal illnesses, and compassionate allowances, that can speed up this process.

You can file a request for reconsideration within 60 days of the decision.  If you miss the 60-day deadline, you can attempt to establish good cause for missing the deadline to request reconsideration. For example, you were hospitalized at the time of the initial decision.

You can file a request for hearing with an Administrative Law Judge within 60 days of the decision.  If you miss the 60-day deadline, you can attempt to establish good cause for missing the deadline request a hearing. For example, you were dealing with the death of close family member.

The wait time for a hearing with an Administrative Law Judge can vary widely from hearing office to hearing office, and from year to year.  In 2023, we are seeing the wait time for your hearing can be anywhere from 6-14 months from the time you file your request for hearing.

Several reasons.  First and foremost, Congress has not allocated adequate administrative funding for Social Security to adjudicate these claims quickly.  Social Security’s administrative budget has simply not kept up with their ever-increasing caseload.  This leads us to our next reason for why the process takes so long, more people are applying for these benefits presently than they did in the past.   With more claims pending but inadequate budgetary resources to effectively deal with these claims, the result has been longer and longer wait times and more and more errors at every level of the process.

This can vary widely from hearing office to hearing office, and from Judge to Judge.  There is no rule that provides a set timeframe for when the Judge must decide.  In 2023, we are seeing that the average wait time for a Judge’s decision is about 6 weeks.

This can vary widely from region to region.  It also depends on the complexity of the benefit calculations and the type of benefits involved (SSDI or SSI).  Typically, it will take about 30-60 days for Social Security to start paying benefits after being found disabled.

Not usually. Having an attorney has proven to increase the likelihood of being found disabled at all stages of the claim from the initial application forward.  However, having an attorney does not speed up the adjudication process.  The main reason you want an attorney is not to speed up the process, but to ensure you have an advocate who knows how to present your case to Social Security to give you the best chance of being found disabled.

Costs are the out-of-pocket expenses your representative must pay to file your claim and prepare your claim for any hearings.  These costs will mostly relate to the expenses of obtaining medical records.  If the claim is successful, the representative can then recuperate these costs from the client.  With our firm, we cap these costs at $250 even if we must pay more than that.  Most of the time, the out-of-pocket costs are less than $100.

Fees are paid to the representative for the work he or she performed on a successful claim.  Fees must be approved by Social Security.  In general, the fee paid to a representative is 25% of the past-due benefits (backpay) with a maximum fee of $7200.  However, if the representative must file an appeal with the Appeals Council or federal court before the claim is awarded, then the representative can file a fee petition with Social Security for more than the $7200 maximum.

Yes, at least most of the time.  For a representative eligible for direct payment of a fee from Social Security, Social Security is supposed to withhold the fee from the past-due benefits and pay the fee directly to the representative.  In some situations, Social Security mistakenly releases the attorney or portion of the attorney fee to the client.  Social Security will then send a letter noting the error and giving the client the option of paying the still-owed fee to the representative, or having Social Security pay the still-owed fee to the representative then collect the overpayment from the client’s monthly benefit payments.

No.  The attorney fee is still 25% with a $7200 maximum.  However, when a claim is awarded earlier in the process, this reduces the amount of backpay owed and therefore also reduces the amount of the attorney fees.

Yes, for SSDI.  Sometimes for SSI.  If the SSI backpay is more than 3-times the maximum SSI monthly benefit rate, then the SSI backpay will be released in no more than 3 installments with each installment paid 6 months apart.  The first and second installment are 3-times the maximum SSI monthly benefit rate, and the 3^rd installment releases any remaining backpay owed.  There are two exceptions to the installment payments where all your SSI benefits are released in a lump sum: (1) if you have a medical condition expected to result in death within 12 months, or (2) you are no longer eligible for SSI benefit payment and determined likely to remain ineligible for the next 12 months.  Likewise, you can ask for an increase in the amount you receive in the first or second installment to help pay debts or expenses relating to food, clothing shelter; or medically necessary services, supplies or equipment, or medicine.