STILL WORKING BUT CONSIDERING SOCIAL SECURITY DISABILITY?

Here are things that individuals need to consider as they think about Social Security disability while they are still working:

First, there is no disability benefit available from Social Security if you are working and earning more than $1,090 per month. You must have stopped working to apply--or at least be earning less than $1,090 per month if working part-time.

Second, Social Security does not pay a benefit for the first full 5 months of disability.  At a minimum, you must be prepared for at least 6 months of no income after you stop working.  Getting approved within 6 months is, honestly, pretty much of a miracle.  It often takes much longer.

Third, not being able to perform your past work is not enough, in most cases, to qualify for Social Security disability benefits.  If you are under age 50, Social Security will look at your ability to perform other work, including jobs that are unskilled, sedentary and simple, routine jobs.  For example, they may find that you could perform such jobs as a food and beverage order clerk, a sack mender, a garment tagger or a silverware wrapper.

Finally, you must be able to support the functional limitations that prevent you from working with significant medical evidence, preferably from your treating doctor(s), and preferably one of those doctors will be a specialist.

Social Security disability today is a hard row to hoe.  If you are working, I would encourage you to continue working as long as possible.  When you come to the point where you can no longer work because of medical reasons, only then is it time to apply for Social Security disability.

WHAT IS A "PARTIALLY FAVORABLE" DISABILITY DECISION?

You attended a hearing on your Social Security disability claim.  A few weeks later, you receive a Notice of Decision in the mail that says you have received a Partially Favorable decision.  Does this mean that you are only partially disabled, not fully disabled?

ANSWER:  No.  Social Security does not make awards for partial disability.  You are either disabled or not disabled.  There is no such category as "partially disabled" within Social Security law.

A "partially favorable" decision means that the administrative law judge has found you to be disabled.  However, he or she has changed some material fact in your application.  Most often, this change involves the established onset date--the date you were found to have become disabled.  For example, in your application you may have alleged that you became disabled on June 1, 2012.  After reviewing the facts of the case, the judge may have decided that you did not become disabled until September 1, 2012.  Therefore, he will amended the onset date to September 1, a material change in the application. 

This change will affect the amount of your back pay.  In short, you will not be paid for the months June - August, 2012, a loss of 3 months of  benefits.The amount of your monthly benefit will not be affected.  You are still considered disabled, but for not as long a period as you originally claimed.  Since you lost part of your period of disability, thus part of your back pay, the decision is partially favorable.  In other words, it is not as favorable to you as it would have been if the judge had found that you became disabled in June instead of September.

I often encounter well meaning public officials who believe that a "partially favorable" decision means that the claimant is only "partially disabled."  This is not the case because, as I have said, Social Security never makes any award for a "partial disability."  You are either disabled or you are not disabled - nothing in between.  The date on which you became disabled is an example of why a decision might be "partially favorable.:"

The confusion is complicated by the fact that some agencies, such as the Veterans Administration, do make partial disability awards.  A VA claim decision may find that a veteran is 50 percent disabled, or 80 percent disabled, for example.  However, Social Security will never make such an award.  With Social Security, it is all or none.

SOCIAL SECURITY DISABILITY: WHAT YOU WISH YOU HAD KNOWN

You Must File a Timely Application.  You must apply for Social Security disability benefits within 5 years after you stop working.  Your insured status will expire, making a new claim impossible.  If there are gaps in your work history, you may have even less time to file a new claim.  Don't wait too long to file after you stop working.

You Must Have Enough Quarters of Work.  You become an insured person under the Social Security Act by working and paying FICA taxes.  Most adults need 20 quarters of work to be covered.  These 20 quarters generally must have been accumulated within the most recent 10 year period prior to filing a claim.  Very young individuals might need less than 20 quarters of work.

Your Disabling Condition Must Last At Least 12 Months.  Short term disability lasting less than 12 consecutive months is not covered by Social Security.  You must have an impairment that has lasted, or can be reasonably expected to last at least 12 months.

You Cannot Be Working When You Apply.  You may not be working at "substantial gainful activity" during the period you wish to receive disability benefits.  In 2021, Social Security classifies substantial gainful activity as earnings/wages of at least $1,310 per month.

You Must Have Medical Evidence/Treatment.  Under Social Security regulations, a disabling impairment must be medically determinable.  Medical records must be available to support the impairment.  Medical treatment should be consistent and recent.

You Cannot Depend on a Social Security Doctor's Examination.  Social Security may send you to a doctor with whom they contract to perform an examination.  This exam will be brief and superficial.  In our experience, these exams fail to help the claimant 90% of the time.  Social Security will often use this exam to deny your claim.

You Need Support From Your Own Doctor.   Your doctor should provide support and this includes more than just routine medical records. Try to get your doctor to provide you with a Medical Source Statement that lists your functional limitations, such as restrictions in sitting, standing, lifting, bending, kneeling, etc.  Mental restrictions, such as concentration and memory, should also be documented.

You May Need To Be Examined By a Specialist.  20 CFR 404.1527 provides that extra consideration may be given to a doctor who is a specialist practicing in his/her field of medicine.  For instance, if you have a bad back you may need an orthopedic specialist.  For arthritis or fibromyalgia, you would need to consult a rheumatologist.

You Must File An Appeal Within 60 Days If You Are Denied.  Only about 30 percent of applications are approved by Social Security at the initial level.  The other 70 percent must be appealed.  The 60 day deadline is absolute.  If you do not appeal within the 60 days your claim dies and there is no appeal.  Do not wait on medical evidence or anything else.  File your appeal immediately, then work on whatever needs to be done to shore up the case.

Most Appeals Are Handled By a Professional Disability Advocate or Attorney.  Social Security appeals comprise a highly specialized field and require knowledge, skill and experience.  Contact a professional advocate, such as the Forsythe Firm, to help you with the appeal.  We offer free claims evaluation and never charge a fee unless you win.  We will also help insure that you receive maximum benefits, including back payments. Free consultations at (256) 799-0297.

VETERANS MAY GET EXPEDITED DISABILITY PAYMENTS

Veterans may get expedited claim processing for Social Security disability benefits.

To get expedited processing, veterans must self identify and have a 100 percent permanent disability rating from the Veterans Administration.

By "self identify," we mean that the veteran must inform Social Security of their 100 percent VA disability rating at the time the application is filed.  We recommend sending a copy of both your DD-214 form and your VA awards letter that shows the percentage of disability award.

Does a 100% VA disability award guarantee approval of Social Security benefits?  No.  While a VA award does not automatically qualify for Social Security disability benefits, it does qualify for a much faster processing time--that is, a much quicker answer.  And, since the VA disability evaluation is similar to the Social Security evaluation process, the VA award can work in your favor.

If a vet receives Social Security disability benefits, will it reduce the VA benefits?  No.  Veterans paid into the Social Security trust fund during their military careers and may be entitled to Social Security benefits in addition to VA benefits.

What about veterans with a less than 100% VA award?  May they still be eligible for Social Security disability benefits?  Yes, of course.  

What if a veteran is not able to perform military duties but is still on active duty and is receiving full military pay?  He or she may still be eligible for Social Security disability benefits.  The key issue is whether or not the individual is able to perform the job, not whether he or she is receiving military pay.  Thus, a veteran should apply immediately for Social Security disability and not wait for a discharge from military duty, which would waste unnecessary time and lose benefits.

The Forsythe Firm is honored to review disability cases for veterans and help them decide the best course of action to receive Social Security disability benefits.  Consultations are absolutely without cost or obligation.  We only charge a fee if we represent you, win your case, and also recover past due or retroactive benefits (in a lump sum).  Please contact Charles Forsythe in Huntsville at (256) 799-0297.

Our office is located at the intersection of Old Madison Pike and Governors West directly in front of the Bridge Street Town Centre, near Arsenal Gate 2.


 

MAY I GET DISABILITY BENEFITS IF I WORK FULL-TIME?

The general answer to this question is, No.  A person may not receive Social Security disability benefits if he/she is currently working full-time.

According to 20 Code of Federal Regulations 404.1520(b), if an individual engages in Substantial Gainful Activity, she is not disabled regardless of how severe her physical or mental impairments are and regardless of her age, education or work experience.

Social Security defines "substantial gainful activity" as activity that is substantial and gainful.  Work will generally be deemed SGA if it produces gross wages of at least $1,090 per month.

Another question arises:  May I work part-time and receive Social Security disability benefits.  The answer here is not so clear cut.  The boundary line is still earning gross wages of at least $1,090 per month.  It is possible for a person to earn wages below that mark and still be eligible for disability benefits.  For example, I once had a client who earned $350 per month at a part-time job and still received SSDI benefits.  This amount, of course, was far below SGA level and far below full-time work.

It is possible for an individual to meet the medical definition of disability and not be eligible for benefits because of working.  It will prove helpful to speak with a qualified disability representative before making the judgment about how your work affects a potential disability claim.

CONFUSING TERMS & WHAT THEY MEAN

Some important terms stand out in the Social Security disability regulations.  Here is what they mean.

Alleged Onset Date (AOD).  This is the date the claimant alleges to have first become disabled.  If it becomes the Established Onset Date (EOD), meaning that the Social Security Administration agrees that the claimant did indeed become disabled on that date, benefits may be paid back to that date.  So the AOD/EOD affects how many months of back pay or past due benefits the claimant is entitled to receive.

Waiting Period.  The waiting period for all Title 2 (regular disability) claims is 5 full calendar months.  This is really an elimination period.  5 months of benefits will be subtracted from the Established Onset Date.  For example, if you are found to have become disabled on March 15^th, your waiting period will include the months of April –August and your first benefit payment eligibility will be for the month of September.  This does not necessarily mean you would have to wait 5 months from the decision to get a benefit. It depends on when hour established onset date was. You wait 5 months from the ONSET date.

Duration Requirement.  Social Security regulations require a claimant to be disabled for at least 12 consecutive months in order to receive disability benefits.  And the 12 months must be from the same impairment(s).  For example, if a person is disabled for 5 months because of a heart attack, then becomes disabled again for 7 months because of back surgery, the two impairments cannot be combined to satisfy the 12 month duration requirement.  A claimant does not necessarily have to wait 12 months before filing an application for disability benefits, however.  If he/she expects to be disabled for a period of 12 consecutive months by the same condition or combination of conditions, the application can be filed immediately.  The requirement is that the claimant provides medical documentation that he/she can reasonably be expected to be disabled for at least 12 consecutive months.  Disability expected to last less than 12 consecutive months are not covered by Social Security.  Benefits may be awarded before the 12 month period expires.  The duration requirement is intended to eliminate benefits for impairments that are expected to last less than 12 months.

Date Last Insured (DLI).  This is the date the claimant’s Social Security disability insurance expires.  Yes, disability insurance does expire if you stop working and stop paying FICA taxes.  If your DLI is 12/31/17, for instance, you must file a disability claim before 12/31/17 or prove that you became disabled prior to 12/31/17.  Otherwise, you lose the right to file a new claim after 12/31/17.  If you are receiving disability benefits from Social Security, this date has nothing to do with when your payments will stop, when your case will be reviewed again, etc.  It simply means that there was a point in time beyond which you could not file a new disability claim.  That date is called The Date Last insured (DLI).  If you are receiving disability benefits, you obviously filed a claim prior to the DLI, so the date means nothing to you after you file your claim.

COMMON QUESTIONS AT DISABILITY HEARINGS

Disability hearings are presided over by administrative law judges (ALJs).  The judges will ask the claimant questions under oath to try to discover the facts related to why the claimant is (or is not) disabled under Social Security regulations.  There is no list of questions--the judge may ask anything.  However, here are some common questions that come up frequently:

1. Tell me why you believe you are not able to work.
2. Under what circumstances did you leave your last job?
3. Specific functional limitations:  How long can you sit?  Stand?  How long/how far can you walk?  Lift, on a repeated basis?
4. How do you spend your day?  (What kind of activities do you regularly engage in:  shopping, housework, yard work, social events, etc.)?
5. Do you drive?  How often?  (Be sure to explain any limitations).
6. Did you apply for or receive any unemployment after you stopped working?
7. When is the last day you worked, even for one day?
8. Tell me about your past work. 
• Kind of machine(s) you operated. 
• How much you routinely/frequently lifted?
• What is the heaviest weight you ever lifted, even occasionally?
• Out of an 8 hour day, how much of the time were you sitting?  Standing/walking?
• Did you supervise others?  Write reports?  Hire and fire workers?

General advice about answering questions at your hearing:

• Always be truthful.  Don't exaggerate.
•  If you don't understand a question, ask that it be clarified before you answer.
• Questions involving the word "how" should be answered specificially:  use feet, yards, pounds, times per week, times per day, etc.  Avoid generalities like "not very long, not very much, sometimes or once in a while," which mean different things to different people.
•  Use an example if it helps explain your answer.  Use these sparingly.

Please remember that the Social Security act does not cover any form of unemployment or vocational problem, such as getting laid off, fired, conflicts with other workers, business closings, job relocations, family problems, etc.  You must be unable to work based on a severe physical and/or mental impairment.  Any other reason is not covered by the Social Security Act, is not a disability, and will not pay benefits.

In most cases, the administrative law judge will have access to your entire earnings record, including unemployment benefits and self employment income.  He/she may also have information about your legal history, such as arrests, imprisonments, drug use or smoking habits.  If you are asked, for example, "Do you smoke," you should answer truthfully.  Don't say you have quit smoking unless you really have, and unless you quit some time in the past, not a week or two ago.  The judge's next question is likely to be, "When's the last time you smoked a cigarette?"  If you answer "Yesterday," you lose credibility.  Total honesty is always best.

GET AN RFC OR MSS FORM

Medical records from doctors are simply not enough to win federal disability benefits these days.  Why not?

1. The records will not address the severity of your issues in vocational terms.
2. The records will not address specific functional limitations, such as how long you can sit, stand or walk; how many pounds you can lift, how often you must take a break, etc.

There is a simple form that your doctor should complete for you.  It is called a Residual Function Capacity (RFC) form.  Sometimes it is called a Medical Source Statement.  There is an RFC/MSS form for physical impairments and a different RFC/MSS for for mental impairments.

Your doctor probably will not have these forms.  Social Security will probably not be able to provide you with these forms.  You may obtain them (free of charge) from your attorney or representative.  You may also be able to download them off the internet.  Knowing which form to use, however, is important.

A word of caution:  The form must be completed by one of your treating doctors.  The longer the doctor has treated you, the more weight his opinion will be given. You might be able to hire a doctor just to complete the form, but it won't be worth the paper it is written on--because Social Security values the opinions of your doctor because of his/her treating relationship.   OK, two words of caution:  The form must be completed correctly.  Obviously, if your doctor completes the form without any significant functional limitations, it won't help your case.  

Can't your doctor simply write a letter for you stating that you are sick and not able to work?  That would be easier.  But is isn't worth the paper it's written on, because opinions about whether a person is disabled are reserved solely to the Commissioner of Social Security.  Doctors cannot decide who is disabled and who is not.  Did that contradict what I just said about the value of an RFC form? No, not at all.

An RFC form evaluates your ability to perform specific functions, such as sitting, standing, walking, or lifting.  These limitations allow Social Security decision makers to reach their own conclusion that you are not able to work.  But it must be their decision, not your doctor's.  So, get the limitations in writing from your doctor, on an RFC form, and help Social Security to draw the right conclusion about your ability to work.