FAQsThe disability process is complicated, and we know you have a lot of questions. We hope to answer many of them in this section, but if not, just give us a call at 830.285.9087.
- 1. How does Social Security law define "disabled"?
To be considered disabled under Social Security standards, a person must have a physical or mental impairment that prevents them from doing Substantial Gainful Activity (see below) for at least 12 months.
Substantial Gainful Activity
Substantial Gainful Activity (SGA) is full time work or its financial equivalent, as defined by law. Currently, a person making over $1,010 per month is ineligible. For self-employed people who are not earning an hourly wage or salary, there are other tests to determine whether they have exceeded the threshold. If a person is working at SGA levels when they apply, they will be denied automatically without their medical condition being considered. Increasing work hours and income after filing a claim also may end a person's eligibility.
Medical requirement for disability are decided based on medical evidence - which is why it is so important for a claimant to continue seeing their doctor throughout the process. A person may be so ill that they meet an Impairment Listing, which is a strict agency definition of a certain medical condition that includes proof of severity through certain laboratory, imaging, or other testing. However, relatively few people meet those strict medical qualifications.
Instead, in most cases the agency must decide whether the claimant is unable to work under the Medical-Vocationa Rules for disability. To do this, the agency uses a claimant's medical records, physician statements, and personal statements (whether submitted by form or in testimony before a Administrative Law Judge) to determine Residual Functional Capacity - the ability to do certain types of work activity. It then determines whether the claimant can do any of their past work, and if not, any other work. Depending on a claimant's age, education, and skills, the rules may restrict the type of related work the claimant may be expected to do with transferable skills, or to learn. If the agency can not expect the person to do SGA under its rules, the person is considered disabled.
- 2. Do I need to be seeing a doctor to get disability?
In virtually all cases, yes. Medical records are the foundation of proving your disability. Cases are determined in large part by records showing the state of your condition over time until the present. Old medical records, your written comments, and testimony are not enough legally sufficient to prove that you are disabled.
Many people seeking disability have only poor access to medical care, or have had none for some time. In many cases, there are medical resources available through government and charity programs which will both assist you with managing your health and building evidence for your case. Many people are unaware of these resources because they are poorly publicized. We are happy to help our clients locate resources in their area.
- 3. Do I have to wait a certain amount of time before applying for benefits?
- It's a common myth that a sick or injured person must wait at least 12 months after they are no longer able to work to file for disability. What is required is that you be unable (or expected to be unable) to work for at least 12 months. Once you and your doctors determine that it is likely you will be unable to work for at least a year, you should file immediately. The longer you delay filing, the longer you may be without income or medical care while your claim is pending. Currently, the average length of a case from filing to a hearing before an Administrative Law Judge is around 18 months in our area. Another important factor in filing as soon as possible are rules for retroactive benefits ("Back Pay" - see our article on how this is calculated) and potential loss of Title II (SSDI) benefit eligibility (see our article on SSDI and SSI eligibility and work credits).
- 4. Can I get disability benefits based on my deceased spouse's earnings?
It is not unusual for one spouse to be ineligible for Social Security Disability (SSDI) benefits based on their own earning record, or to be eligible for a much smaller amount of benefit than their spouse, for a variety of reasons. However, under certain circumstances, a widow, widower, or surviving divorced spouse may qualify for survivor benefits based on their spouse's record.
At age 60, a surviving spouse may be automatically eligible for survivor benefits. At age 50, a disabled surviving spouse may qualify if their condition otherwise meets the requirements for SSDI, and the condition began before or within 7 years of the spouse's death. If a disabled surviving spouse remarries before age 50, they become ineligible for the survivor's benefits. If the surviving spouse receives a pension based on their earnings from a government job in which they did not pay Social Security taxes, some or all of the survivor's benefits will be offset by the pension benefits.
- 5. Will I be eligible for SSDI or SSI, and why does it matter?
SSI stands for Supplemental Security Income, and SSDI stands for Social Security Disability. Both these programs are managed by the Social Security Administration, and provide income and medical coverage for disabled individuals. Medical eligibility is identical for both programs, but the key difference is in the area of financial eligibility. SSDI is a program for disabled adult workers who have earned a sufficient number of work credits to qualify, while SSI is available for low-income individuals, adults and children, who do not have sufficient credits to qualify for SSDI.
Receiving SSDI benefits is much like receiving one's full Social Security Retirement benefits at an earlier age, due to a medical disability. SSDI recipients are considered "insured" by virtue of having worked and paid FICA Social Security taxes for a sufficient number of quarter credits. (As of 2013, a worker earning at least $1,160 per three-month quarter would earn one credit. No matter how high a person's earnings, no more than 4 credits can be earned in one year.) A good rule of thumb to guess whether a person has enough credits to likely qualify for SSDI is to ask whether they have worked and paid FICA taxes for at least a cumulative 5 years out of the last 10. However, the actual formula is much more comlex and is based on age - the Social Security Administration provides detailed information on this topic, and individuals can now check their eligibility status online at the Social Security Administration's website. What most people don't know is that for every quarter they don't earn a credit, they lose a credit. This is how a disabled worker who has paid into the system for decades may still wind up uninsured for SSDI over time - a good reason to file for SSDI in a timely manner even if the worker has other sources of savings or income to pay for a prolonged period of treatment or recovery.
SSDI recipients receive a set amount of benefit based on their own payments into the system. As long as the worker remains disabled, this amount will not change due to non-work-related income such as a spouse's income, investment income, or an inheritance, except through cost of living adjustments. There is a 5 month waiting period from the date the worker is declared to have become disabled until they begin receiving SSDI monthly benefits. Two years after the monthly benefits become due, the disabled worker will become eligible for Medicare. A disabled person's dependent spouse and children also are eligible to receive partial benefits, called Auxilliary Benefits, based on the disabled person's benefit.
The SSI program is strictly needs-based, determined by a person's income and assets. An individual may have no more than $2,000 in assets, and a couple may have no more than $3,000. The amount based on a recipient's income (which may include anything from financial support or the value of living quarters provided by another person, to benefits under a life insurance policy) is deducted from the maximum possible benefit to determine a person's monthly payment.
SSI recipients will be eligible to receive Medicaid. Many will also be eligible for food stamps.
- 6. How do I apply for benefits?
Both SSI and SSDI can be applied for by telephone, by calling the Social Security Administration at 1-800-772-1213, or 1-800-325-0778 for TTY. The numbers are staffed from 7 a.m. to 7 p.m., Monday through Friday. Please keep in mind that you will be given a set appointment time for the application. If you do not answer the phone when the agency representative calls, you will lose your appointment and will have to call the agency again to set a new one. Missing appointments can substantially delay your application.
In most areas, you can also apply in person at the local Social Security office. However, some offices are understaffed and may require you to apply by phone or online (for SSDI only).
SSDI applicants may apply online at the agency's website at www.ssa.gov. SSI applications are much more extensive due to the financial information that must be provided, so at this time a personal appointment by phone or at the local office is required.
- 7. What is the process and timeline for a disability case?
The disability process is complicated and, for most applicants, time consuming. At this time, it is common for the process to take 18-24 months, resolving at a hearing phase, in many parts of the country.
The initial application phase of the case begins with the application. Your local Social Security office forwards the application materials to Disability Determination Services (DDS) in your state. There, a representative to which your case has been assigned will make a medical record request to your doctors, and your records and information you provide about your ability to function will be reviewed. You may be asked to attend an independent medical examination, a Consultative Evaluation (CE), by one or more doctors of the agency's choosing. This process currently usually takes between 4 and 6 months. Only a very small percentage of applications are approved at this stage - most claimants will receive a denial and appeal.
The next phase is called reconsideration. In this stage, the application is reviewed a second time by a different representative at DDS. If very little has happened since the initial application, particularly if there are no changes in the severity of a person's condition or the applicant has not been treated since the last medical records were submitted, this phase can conclude very quickly, sometimes in as short a period as 1 month. If an applicant's condition has changed considerably, or appropriate medical records demonstrating disability were not acquired in the initial phase, reconsideration may take as long or longer than the initial application phase. The claimant may again be sent for one or more CEs. Unfortunately, an applicant has even a smaller percentage chance of approval in the reconsideration phase than in the initial phase. If denied, the claimant must appeal again, requesting a hearing.
The hearing phase is the longest in the process, but also the phase in which a claimant is most likely to recieve a favorable decision. It takes so long because of the long cue of applicants waiting to be scheduled for a hearing. Currently, it takes about 1 year from the hearing request for a hearing to be scheduled and held. The reason more applicants are approved at this phase is that their case is brought before an Administrative Law Judge (ALJ) at the Office of Disability Adjudication and Review (ODAR). The ALJ is an independent decision maker who takes a fresh look at all the evidence, and may request the assistance of a Medical Expert (ME) in doing so. The claimant has the opportunity to present a case in person before the ALJ, and would be foolhardy not to do so. If an ALJ approves the claim, a written decision is generally made within 3-4 months. ALJs generally do not issue decisions at the hearing, though in relatively few circumstances certain ALJs may issue a Bench Decision. If a claimant is denied at hearing, an important decision must be made.
At one time, a claimant could reapply after a denial AND appeal to the Appeals Council (AC), making the appeal relatively risk-free for most. But currently, the claimant must choose between these options. If the claimant reapplies, they may still claim that their disability began before the ALJ's denial date, but if approved thereafter the disability may not be held to have begun before the date of the ALJ's decision. This can be disastrous for some applicants, if their Date Last Insured for SSDI falls beforehand, and they are not eligible for SSI. On the other hand, choosing to appeal before the AC has significant drawbacks. Unlike earlier phases, new evidence is not permitted except under narrow circumstances. No hearing will be held. The Claimant may only submit a short legal brief that explains technical legal errors - they may not allege simply a disagreement with the ALJ's finding of facts. The process often takes a year. If the AC finds that the ALJ has made an error, it may, but rarely will, reverse the decision. Rather, in the vast majority of cases it will remand (send back) the case for a rehearing to the same judge who made the earlier decision. The case goes back into the cue again to wait for a new hearing to be scheduled.
If the AC denies an appeal, the case has ended unless a civil case is filed at the federal court level. Few attorneys will handle these appeals. In many jurisdictions, such as the 5th District in Texas, the federal court is unlikely to overturn a decision of the Social Security administrative court.
- 8. Do you have an office near me?
For social security cases we are not bound by state lines. However, we focus our efforts on cases which will be heard at SSA Office of Disability and Review in the following locations;
Rio Grande Valley
For more information go to our locations page.