Q.—What is the definition of disability in social security?
A.—Social Security Regulations defined disability for an adult as follows:
The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months. 20C.F.R. 1505
The key points to the definition are: “Inability to do any substantial gainful activity.” It is not sufficient that you cannot return to your regular job. You must be disabled from all work that you are qualified to do based upon your age, education and previous work experience. It is not relevant if you cannot find work, or no one will employ you. A person will be found not disabled if you can do work but remain unemployed.
1. “Reason of any medically determinable physical or mental impairment.” You must have objective medical evidence that shows you have a severe medical condition that disables you. Subjective complaints alone are insufficient to prove disability.
2. “Has lasted or can be expected to last for a continuous period of not less than 12 months.” You have to be totally disabled for over 12 months in a row to qualify for social security benefits.
3. Social Security does not pay benefits for a partial disability or a short term disability.
There is a different definition for a disabled child.
Q.--What is the difference between Social Security Disability and Supplemental Security Income (SSI)?
A.—Both Social Security Disability and Supplemental Security Income pays a person a monthly benefit when the are disabled as defined by Social Security. Both have a separate requirement that is non-medical.
To be eligible for Social Security Disability you must have earnings credits. For most long term workers, this means that you must have earnings in the 20 quarters (5 years) in the last 40 quarters (10 years) prior to stopping work. This is known as being fully insured.
To be eligible for SSI, you must meet certain asset limitations. This includes having less than $2,000 in assets at any one time.
A person can be eligible for both benefits, but only the higher of the two benefits will be paid.
Q.—Can a person apply for benefits themselves?
A person can apply for social security disability benefits by simply filling out an application. This can be done online at www.socialsecurity.gov , at your local social security office, or by calling social security’s toll free number at 1-800-541-3000 and having the papers mailed to your home. Social Security will render a decision in about 4 months. Determination of disability is made by a state agency, who gathers medical evidence from doctors, hospitals, and clinics and reviews the medical information.
Q.—What is the 5 step sequential process?
A.—Social Security decides if a person is disabled by going through 5 steps.
1. Is a person working? If you are earning more than $1,010 per month, social security law states you are engaging in substantial gainful activity and are not disabled. If your are not working, then go to step 2.
2. Is the medical condition severe? If the medical problem does not limit a person’s ability to do basic work activity, it is considered not severe and a person is not considered disabled. If the condition is severe, then go to step 3.
3. Does the medical condition meet the Listing of Impairments? The Listing of Impairments is specific medical conditions with specific findings. If a person’s objective findings are as severe or worse than those listed in the Listing of Impairment a person is considered disabled. If the medical findings are not as severe as the Listing of Impairment, go to step 4.
4. Can a person perform previous work? If you can do your previous work, then you are not considered disabled. If a person cannot do his past work, the go to step 5.
5. Can a person perform any work that exists in the national economy? If a person can do other work that he would be qualified to perform based upon his age, education and work experience, he is not disabled. If a person cannot do other work, he is disabled.
Q.—What is the appeal process?
A.—A person who has been denied social security disability or SSI can appeal the decision. The appeal is to an Administrative Law Judge, who will conduct a hearing. If you are unhappy with the decision of the Administrative Law Judge there is a further administrative appeal to the Appeals Council. The Appeals Council reviews the decision of the Administrative Law Judge. If you are unhappy with the decision of the Appeals Council, there is an appeal to Federal Court. The Federal Court will review the decision of the Administrative Law Judge and determine if it is based upon substantial evidence.
Q.—If a person is receiving disability, will he get medicare?
A.—A person who is receiving Social Security Disability for two years automatically becomes eligible for medicare. A person, who is collecting only Supplemental Security Income, is eligible for Medicaid.
Q.—What is the attorney fee in social security?
A. At the administrative level, the attorney fee is 25% of past due benefits or $6000, whichever is less. The fee must be approved by social security and is paid directly to the attorney by social security. In Federal Court, the fee is no more than 25% of the past due benefits and must be approved by a federal judge.