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.

STAY OFF THE SOCIAL MEDIA!

 "If you are applying for Social Security disability benefits stay off the social media." 

 

As representatives, we have long warned our clients to be careful about what they post on their social media sites.  I advise my clients to stay off the social media sites altogether.

On April 9, 2014 the House Oversight and Government Reform Subcommittee on Energy Policy, Health Care, and Entitlements held a hearing to examine the disability determination and adjudication process.  Chairman Jim Lankford (R-OK) and ranking member Jackie Spoeier (D-CA) told the committee that they had sent a list of recommendations to Carolyn Colvin, then the Acting Commissioner of the Social Security Administration.  One of the recommendations sent to Acting Commissioner Colvin was:

"The Social Security Administration should review each applicant's social media accounts before awarding benefits..."

In the fiscal year 2020 Budget Overview, the Social Security Administration stated:

"In FY [fiscal year] 2019, we are evaluating how social media could be used by disability adjudicators in assessing the consistency and supportability of evidence in the case file." 

There it is--in black and white.  The Congressional Oversight Committee, the "boss" of the Social Security Commissioner, wants Social Security to look at your social media accounts before they make a decision about whether you are entitled to disability benefits or not.  They admit it.  It's not the theme of some movie or "conspiracy plot."  They admit it.

To what purpose?  Obviously, Social Security wants to know what their claimants have been up to.  What type of activities are they engaged in?  Where do they go?  What are their hobbies, pass times and other activities?  Is there any information on their social media posts that conflicts with what is on their disability application?   Is there anything that should be used to deny a disability claim?

 Social media is PUBLIC media.  A lot of social media posts get viewed more than the news on your local TV station.  It's public, it's out there, people read it.  So can Social Security!

While I support being truthful and honest with Social Security, I think a word to the warned is sufficient.  If you are applying for Social Security disability benefits stay off the social media.  Period. There is nothing private about it.  What you post there is open for the whole world to see.  It can and probably will be used against you.  And you may never even know it.

 

 

JUDGES MAY REVIEW YOUR SOCIAL MEDIA

Representatives have long warned our clients to be careful about what they post on Facebook and other social media sites.  I advise my clients to stay off the social media sites altogether.

On April 9m 2014 the House Oversight and Government Reform Subcommittee on Energy Policy, Health Care, and Entitlements held a hearing to examine the disability determination and adjudication process.  Chairman Jim Lankford (R-OK) and ranking member Jackie Spoeier (D-CA) told the committee that they had sent a list of recommendations to Carolyn Colvin, Acting Commissioner of the Social Security Administration.  One of the recommendations sent to Acting Commissioner Colvin was:

"The Social Security Administration should review each applicant's social media accounts before awarding benefits..."

There is is, in your face, and black and white.  The Congressional Oversight Committee, the "boss" of the Social Security Commissioner, wants Social Security to look at your social media accounts before they make a decision about whether you are entitled to disability benefits or not.

To what purpose?  Obviously, Social Security wants to know what their claimants have been up to.  What type of activities are they engaged in?  Where do they go?  What are their hobbies, pass times and other activities?  Is there any information on their social media posts that conflicts with what is on their disability application?   Is there anything that can be used to deny a disability claim?

While I support being truthful and honest with Social Security, I think a word to the warned is sufficient.  If you are applying for Social Security disability benefits stay off the social media.  Period. There is nothing private about it.  What you post there is open for the whole world to see.  It can and probably will be used against you.  And you may never even know it.

WHAT IF YOU DON'T MEET A LISTING?

"Listings" refer to Part 404, Subpart P, Appendix I of the 20 Code of Federal Regulations.

The Listings classify the diseases and impairments of the human body into 13 groups and describe the severity of symptoms required to "meet a listing."  If there is medical evidence that a claimant has a condition that is listed and it is so severe that it meets or equals a listing, then benefits would theoretically be automatic.

For instance, if an individual is blind he can meet a Listing.  For example, if the remaining visual acuity in the better eye after the best correction is 20/200 or less, listing 2.02 is met.  Or, if visual efficiency in the better eye after the best correction is 20 percent or less, Listing 2.04 is met.

Very few individuals who get Social Security disability awards, however, meet or equal a listing.  The severity of impairments must be quite extreme to meet a listing.  Therefore, other factors must be considered; for example, what are the combined effects of all the claimant's symptoms?  How do the combined factors of the claimant's age, education, past work and residual functional capacity limit his or her ability to perform full time work?

I would say that of the hundreds of cases I have had awarded, only a handful of them met a Listing.  So Listings are only one very narrow approach to winning a claim of disability. No one should look up his disability in the Listings and decide that he is not entitled to disability benefits.  Meeting a Listing makes up perhaps 3 percent of all Social Security disability awards (and that number is my own estimate).