Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI)

After suffering serious injuries such as a traumatic brain injury, you may find that you can no longer work. You are then faced with how to survive and pay your bills.  Two sets of government programs administered by the Social Security Administration (SSA) provide a safety net if your disabilities keep you from working for at least one year.  One program is for people with disabilities who have an established work record; the other program is for people who are disabled and needy.  Here is a simplified comparison of some of the important features of the two programs.

Social Security Disability Insurance (SSDI) Medicare

  • Have paid Social Security tax and have an established work record
  • No work record required but you must be poor. There are limits on the assets that you can own and the monthly income you receive
  • Your disability will prevent you from working for at least 12 continuous months

Supplemental Security Income (SSI) Medicaid

  • Your disability will prevent you from working for at least 12 continuous months
  • Medical insurance available through Medicare 24 months after the waiting period
  • Medical assistance through Medicaid starts immediately in most states
  • No benefits available for first five months of disability
  • No waiting period.  You are eligible for benefits starting the month after you apply
  • Retroactive benefits available for up to 12 months before your file for benefits
  • No retroactive benefits available
  • Available for qualifying non-citizens
  • Generally not available to non-citizens

The Social Security Administration uses complicated rules to determine whether you have an established work record based on your age. The system requires you to have a minimum number of credits of work. One credit is given for each three months that you receive work income above a minimum level. The minimum level of income required for a credit increases from year to year as the general level of wages in the country increases.  Generally, the Social Administration counts backward from the year in which you become disabled to determine whether you have the required number of credits:

  • Under 24…..6 credits in the 3 year period ending when your disability started
  • 24 to 31…….Credits for ½ the time you worked between 21 & when you became disabled
  • 31 to 42…….20 credits
  • 44……………22 credits
  • 46……………24 credits
  • 48……………26 credits
  • 50……………28 credits
  • 52……………30 credits
  • 54……………32 credits
  • 56……………34 credits
  • 58……………36 credits
  • 60……………38 credits
  • 62 or older…40 credits

You can get a statement of your work credits by contacting your local SSA field office or online at www.ssa.gov/mystatement.

Benefits

Social Security Disability Insurance Payments

The Social Security Administration bases the amount of your monthly disability payment on your average lifetime earnings, rather than on the type or seriousness of your disability. The base amount of your payment is called your Primary Insurance Amount (PIA). The amount of your monthly payment may be reduced if you are already receiving other types of disability payments.

Medicare

Qualifying for Social Security Disability Insurance benefits makes you eligible for Medicare twenty-four months after your five month waiting period.  The premium for Medicare Insurance is deducted from your Social Security Disability payment.

Supplemental Security Income

Although your right to benefits depends on your income and resources, only your income affects the amount of SSI benefits that you receive. In 2013, the maximum amount of monthly benefits is $710 for a disabled adult and  $1,066 for a couple.   Most states, including Nebraska, provide a supplementary SSI payment on top of the federal SSI payment.

Medicaid

Normally, if you qualify for SSI, you also qualify for Medicaid. In Nebraska, claimants are required to submit a separate Medicaid application to Nebraska’s Department of Health and Human Services, which will then apply SSI eligibility rules to determine Medicaid coverage.

Proving You Are Disabled

You will need to prove that you are unable to engage in Substantial Gainful Activity (SGA) because of medically determinable mental or physical impairments.  The Social Security Administration requires proof of your disorder by medically acceptable clinical or laboratory diagnostic techniques.  The Social Security Administration makes this determination by examining your medical records, ordering tests as needed, and ordering exams by their doctors.

The Social Security Administration uses a five-step process to determine whether you are disabled.

  1. Are you engaged in substantial gainful activity?  For 2013 if you earn $1,040 per month, the Social Security Administration considers you to be engaged in substantial gainful activity.  For a person who is blind, the figure is $1,740.  If you are engaged in substantial gainful activity, you do not qualify for benefits.
  2. Are your impairments severe enough to significantly limit the work you could do?  If your impairments do not significantly limit the work that you could do, you are not entitled to benefits. 
  3. Do you meet a listing of impairments?  The Social Security Administration compares your disability to its Listing of Impairments.  If your disability is included on the Medical Listings and the degree of its severity meets or exceeds the level described in the listings, the SSA presumes that you are unable to function well enough to perform any substantial work.  If your impairments are not on the Medical Listings, the Social Security Administration determines whether your impairments are equivalent in severity to one of the listed impairments. If they are, then you are entitled to benefits.
  4. Can you do one of your previous jobs?  If you do not meet a listed impairment, the Social Security Administration determines whether you are able to do your previous jobs.  If you are able to do one of your previous jobs, then you are not entitled to benefits.
  5. Can you do any other job?  If you are unable to do any of your previous jobs, then the Social Security Administration determines whether you have gained transferable skills that would allow you to do other jobs that are available in the national economy.  If you do not have transferable skills that would enable you to get another job, then you are entitled to benefits.  This test does not apply to persons who are 55 or older. These older workers are entitled to benefits just by showing that they cannot do any of their previous jobs.

Claims Process

Initial Claim.  The Disability Determination Service (DDS), which is funded by the federal government and run by your state, decides your initial claim.  DDS assigns your file to a disability claims examiner who obtains the medical records listed on your application, maintains contact with you, and administers your file.  The claims examiner evaluates nonmedical aspects of your claim other than eligibility issues, which are handled by the Social Security Administration Field Office.   The claims examiner refers your file to medical consultants.  The consultants review the medical aspects of your claim, give opinions on the nature and severity of your medical impairments, and give advice on what additional evidence is needed to decide your claim. An examiner may also ask a vocational analyst to assess your ability to work based on the severity of your medical impairments.  The claims examiner approves or disapproves the nonmedical part of your claim; the medical consultant approves or disapproves the medical part of your claim.

Request for Reconsideration.  If you are not satisfied with the initial claims decision, you may file a Request for Reconsideration.  Reconsideration involves the Disability Determination Service conducting a complete review of your claim.  A claims examiner and medical consultant who were not involved in the initial claim look at all the evidence and any new evidence that you submitted with your Request for Reconsideration.

Hearing before Administration Law Judge (ALJ).  If you are not satisfied with the Reconsideration decision, you may request a hearing before an Administrative Law Judge (ALJ). A judge holds a hearing at which at which you will be questioned about your: 

  • Background:
  • Education;
  • Job history;
  • Medical conditions;
  • Pain;
  • Physical and mental limitations and restrictions;
  • Physical and emotional endurance;
  • Medications that you are taking and their effects on your; and 
  • Ability to perform various activities of daily living. 

The ALJ may also ask a vocational expert or medical expert to testify about your case.   You may ask friends or family members to testify.  If you have an attorney help you, your attorney will ask questions and may also hire a vocational expert to answer questions.  Many judges pay relatively little attention to the determinations made by DDS.  The judges tend to focus on the medical evidence available in your file, vocational evidence, and your credibility.  A successful outcome before a judge requires you or your attorney to point the judge in the direction of the medical and vocational evidence that supports your claim. The favorable decision rate for most judges is much higher than the favorable decision rate of DDS.

Appeals Council Review.  If you are dissatisfied with the decision of the ALJ, you may appeal for an Appeals Council Review.  The Council may grant, deny, or dismiss your request.  The Council may review any decision, favorable or unfavorable, made by an Administrative Law Judge.  The success rate for claimants before the Council is not high.

Federal District Court Judge.  After the Appeals Council Review has made its decision, you may appeal its decision to the United States Federal District Court. The federal judge is supposed to review your case on the record (no new evidence) and examine it only for legal errors made by the Social Security Administration. Judges reverse the Social Security Administration in about 30% of the cases, often with the rationale that the ALJ did not give sufficient weight to the opinions of treating doctors.

Appealing when you disagree with a decision.  The Social Security Administration will send you a written notice of all decisions.  If you disagree with a decision, you have 60 days from the date you receive the notice to appeal.  The Social Security Administration assumes that you receive its notices five days after they are mailed.  In effect, this means that you have 65 days from the date a notice was mailed to appeal.  The appeal must be filed on Social Security Administration forms, except for the appeal to a federal district court, which is done by filing a complaint in the federal district court.  

CAUTION:  If you decide to appeal, make sure that you do so within the 65-day period. If you don’t, you will most likely have to start the process over and will forever lose retroactive benefits that you might otherwise have received.

Right to Appoint a Representative

You have the right to appoint a representative to deal with the Social Security Administration.  Most people choose to apply for benefits on their own.  If you are going to handle your case, you need to have the time and ability to complete paperwork, meet with the claims examiner, contact your treating doctors and hospitals, get medical records and reports, and follow up requests from SSA and its medical consultants.  If you choose to appoint a representative it probably will because of one or more of the following reasons:

  • You simply don’t want the hassle of handling your own claim.
  • Your condition prevents you from effectively handling your claim.
  • You don’t have the time.
  • Your education or English is limited.
  • You are at the stage of your claim where it has been denied initially and on reconsideration, so your next step is to file a request for a hearing before an administrative law judge.  

The standard fee agreement with attorney representatives is the lesser of 25% of your retroactive benefits or $6000.  Typically you will also be asked to pay the costs that your attorney advances to present your case.  Costs typically include fees charged by doctors for records and reports and fees charged by a vocational expert to prepare a report or testify on your behalf.

In choosing a representative, you may want to consider a number of factors including:

  • Familiarity with the medicine.
  • Familiarity with the medical and vocational issues most typically involved in Social Security cases.
  • Knowledge about Social Security procedures.
  • Experience in handling Social Security cases. 
  • Success rate in handling Social Security cases.

What if You Also Have A Workers’ Compensation Claim?

Coordination is particularly important if you have a workers’ compensation claim and a Social Security Disability claim.  Social Security law limits the combined amount of your Social Security benefit and your worker’s compensation benefits (and other public disability benefits) to 80% of your average current earnings.  Your average current earnings is the highest of the following:

  • Average monthly earnings that the SSA used to calculate your Social Security Disability benefit.
  • Your average monthly earnings from any work you did that was covered by Social Security during the five highest years in a row.
  • Your average monthly earnings from the year you became disabled.
  • Your average monthly earnings during the highest year of earnings you had in the five years before you became disabled.

If your combined benefits are more than 80% of your average current earnings, the SSA reduces your Social Security benefits to bring down the combined amount of all benefits to 80%. This reduction is called the workers’ compensation offset.  The good news is that in calculating your net workers’ compensation benefit, the SSA deducts the costs and fee that you paid to your workers’ compensation attorney.  Competent workers’ compensation attorneys are aware of the workers’ compensation offset and options that are often available to structure settlement of your workers’ compensation claim to reduce or eliminate the offset.  

Benefits for Children

Three programs are available for children.

  • SSDI Auxiliary Benefits for Children who are under 18.  These benefits are available for children who are under 18 based on the record of a parent who collects Social Security retirement or disability benefits.  They are also available to children under 18 based on the record of a deceased parent who received Social Security retirement or disability benefits.  A child does not have to be disabled to receive these benefits. These benefits normally end when a child turns 18, or 19 if the child is a full-time high school student.
  • SSDI Benefits for Adults Disabled Since Childhood.  These benefits are available to a child whose disability began before age 22.  Additionally, the person must be the child of someone who is receiving Social Security retirement or disability benefits or of a parent who was receiving these benefits but is now deceased.  The benefits are based on a parent’s earnings record.  Often the child does not start receiving these benefits until middle age because eligibility is not triggered until the parent dies or starts receiving Social Security retirement or disability benefits.
  • SSI Benefits for Children.  Children under the age of 18 qualify for these benefits if they are disabled and if they and usually their parents meet the income and asset restrictions.  The asset income and asset restrictions apply because this program is available only to children who are disabled and poor.

Helpful Links

Social Security Administration: www.ssa.gov

Benefit Eligibility Screening Tool: www.benefits.gov/ssa/home

Disability Benefits – SSA E-Booklet: http://www.ssa.gov/pubs/10029.html

Apply for SSDI online: http://www.ssa.gov/dibplan/dapply.htm

SSI Publications – SSA E-Booklets: 

http://www.ssa.gov/pubs/index.html?topic=Supplemental%20Security%20Income%20(SSI)

Contact Steve Gerdes

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