Post Disability Benefits!!

You have been found disabled and are currently collecting social security disability benefits (DIB/SSDI). It has been a period of time since the finding of disability. You have been treating with a doctor, physical therapist, etc., and over time your condition has improved and you would like to try to return to a job. Although you have this desire, you are terrified of starting a job, then losing benefits and later finding out you cannot continue to work.

If you have a strong desire to attempt to return to work, successful or not, there is important information you need to understand about social security disability and benefits available to assist you in a return to work.

Social security’s rules allow a trial work period. When you first start working, you get a period of time to try to ease back into the job market. During the trial period, you get full SSDI benefits no matter how much you earn. In 2013, each month that you earn $750 or more counts as a trial work month. After nine trial work months, consecutive or not), your trial work period ends.

Are you left adrift after the nine months? Once your trial work period is up, you can get another 36 months where you can work and still get SSDI benefits. These 36 months are called the extended period of eligibility, or EPE. During the EPE, you get SSDI benefits each month unless your earnings for that month are "substantial", i.e. if you earn over $1,040.00 your earnings are considered “substantial.” (2013 values)

After the extended period of eligibility, you lose your SSDI benefits for any month in which your earnings exceed the 'substantial' amount. If that happens, you get "grace period" benefits for three more months, but then your SSDI benefits stop, and social security will no longer consider you disabled.

At this point in time, your social security SSDI benefits have stopped, and you are no longer considered disabled by social security. There are still benefits available. You have a five year period of time to make sure that you can keep working. If during these five years, you can not work because of your disability, not that you lost your job for some other reason, you can ask social security to reinstate your SSDI benefits.

Aside to just work benefits, another important benefit is the continuation of Medicare coverage. We all know how expensive medical care has become, having Medicare coverage can remove a lot of anxiety.

Most persons with disabilities who work will continue to receive at least 93 consecutive months of Hospital Insurance (Part A); Supplemental Medical Insurance (Part B), if enrolled; and Prescription Drug coverage (Part D), if enrolled, after the 9-month Trial Work Period. You do not pay a premium for Part A.

A Short History of Social Security

Curious about the origins of social security retirement? I was. Here is a little of what I have learned.

Social security is not an American invention. It appears that for the most part, types of social insurance first originated in Europe in the late 19th century.

In the late 19^th and going into the 20th century, the first elements of an organized system of social insurances, state sponsored or authored were introduced in many countries. In 1883 Germany introduced one of the first welfare systems for the working class. Great Britain introduced a social insurance system in 1911, Belgium in 1900, the Netherlands in 1901, Austria in 1906, France in 1910, Italy and Spain in 1919, and Hungary in 1928.

The United States did not have an organized welfare system until the Great Depression. By the time the United States adopted social insurance applicable to a large segment of the working population in the form of Federal old-age benefits (known today as Social Security) in 1935, there may have been as many as 20 nations around the world already with such a program in place. The United States looked at the foreign experiences in drafting our social insurance program.

Thus, the United States embarked in 1935 on the road to providing its working population with old-age pensions, following in many respects the social insurance models adopted by (Social Security Administration 2008). Universal coverage of all wage earners and self-employed persons was not achieved at an early date in these countries; the gradual expansion of programs to cover all categories of workers (such as white-collar workers, clerics, and local government officials) was only completed near the end of the 20^th century. At their inception, most European old-age insurance programs covered only blue-collar workers, reflecting their governments' desire for more stability in the labor markets and to fend off the political threat of national socialism and communism. Even today, France, Italy, and Greece have multiple public old-age pension programs, posing a significant obstacle to advancing coherent and unified national pension policies.

Apparently even in the 30’s there was political concern over giving out benefits versus earning the benefits. President Roosevelt and members of the Committee on Economic Security were in agreement that the Social Security should not be compared to government relief payments to the poor. President Roosevelt took strides when describing social security to make a distinction between social insurance and social assistance; we are putting people on 'the dole'. In pushing for social security his description of the program focused on the American tradition of individual responsibility and self-reliance. Whenever he could, he emphasized that the program was not merely giving out benefits; there was an element of earned benefits in the program. Along with the preference for "earned rights," the social security program would be based on worker/employer contributions rather than general revenue financing.

Under the 1935 law Social Security only paid retirement benefits to the primary worker. A 1939 change in the law added survivors benefits and benefits for the retiree's spouse and children. In 1956 disability benefits were added.

In its formative years between 1956 and 1960, therefore, SSDI paid benefits only to workers who were fifty years of age or older.

So who got the first payment? Ernest Ackerman got a payment for 17 cents in January 1937. This was a one-time, lump-sum pay-out which was the only form of benefits paid during the start-up period January 1937 through December 1939.

Authority Administrative Law Judge

If and when you get to a hearing before an administrative law judge (ALJ), you may wonder what to expect. You have seen TV trials. You have watched crime shows.  You may very well have developed an idea of what might be in your future.

When your disability claim reaches the hearing level, your case will be heard by one person, an administrative law judge. There will be no jury. There will be no opposing counsel.  There most likely will be a vocational expert and a medical expert present. The hearing will be conducted by an administrative law judge who will ask the majority of questions. What the administrative law judge misses, your attorney will most likely inquire.  On the conclusion of the hearing, the Judge will take your case under advisement and make a decision.

This process, how Social Security Administration determines disability claims, has been the subject of study, debate, and critical comment.

Many conservatives are critical of this structure, alleging that it is too generous, and too easy to obtain benefits.  Claimant’s attorneys complain about the process. Congress has investigated.  All of this has time and time again caused changes to be proposed. Some of the proposed changes include; not using administrative law judges to decide these cases rather the decisions be made not after "hearing," but after "examination" by a panel of experts; that a government attorney represent the interest of social security so that the hearing process become fully adversary; and of course, making changes to the substantive standard, or at least make the receipt of benefits more burdensome by the development of regulations or precedent decisions.

Notwithstanding the challenges to the existing procedure, there has not been a critical change in the process. So for the foreseeable future, the ALJ will be the person deciding the issue of whether or not you are disabled at the hearing level.

An administrative law judge, ALJs, are Article I judges under the U.S. Constitution.  Article I vest all legislative power in Congress.  Article I section 8 grants to Congress the power to “constitute Tribunals inferior to the Supreme Court”.  Under the U.S. Constitution, judicial power and authority is placed in Article III – “The judicial power of the United States, shall be vested in one supreme Court…”.  Since ALJ are not Article III judges they do not exercise full judicial power, they are limited in the scope of their work and authority.

 So although the ALJ is sort of a minor judge, the ALJ is “the judge” in your case at the hearing level.  At this level of review, you could not have a Article III judge, you are restricted to an ALJ. After a hearing an ALJ will review of your file, or review a senior attorney’s breakdown of your case.  There will be a review of questions ask of you at the hearing, and the questions asked or posed to the vocational expert and in many cases a medical expert.

In that respect what happens when your treating physician provides evidence that your impairment equals what the regulatory Listing of Impairments requires for a finding of disability?

You would think that the opinion given by your treating physician, the medical person must familiar with your case, would win the day and a finding of disability would issue. This is not always the case.

A reading of 20 CFR 404.1527(d) (1)-(3) lists issues reserved to the ALJ, i.e. the judge decides the issue even if another ‘expert’ has rendered an opinion on the same issue. One of such issues include: Opinions that you are disabled. The determination or decision about whether you meet the statutory definition of disability. Therefore a statement by a medical source that you are “disabled” or “unable to work” does not mean that the judge will be required to adopt that as a finding. The opinion of on whether or not your impairment equals or meets the Listing of Impairments is a decision reserved for the Judge to decide. The opinion if you have the residual functional capacity to return to competitive employment; and in reality the nature and severity of your impairment, reserved.

How does a Judge not accept the treating physician's opinion on your impairment?

Even if your doctor's opinion is well supported in the medical information, the Judge may not adopted it if he/she can articulate facts in the case that are inconsistent with the doctor's opinion. The Judge may find facts from your testimony that conflict with restrictions the doctor has placed on your activities. The Judge may find, conflicting statements made by you to other doctor's in the course of treatment that to the Judge appear to weaken the treating physician's opinion. In any case, such findings may very will be the basis for the Judge not giving controlling weight to your treating physician. (Consider Sparks v. Barnhart, 434 F. Supp. 2d 1128 (ND Ala. 2006))

Suppose that the claimant claims a physical impairment. In his file, a treating physician states that his impairment may include a conversion disorder, but he was not sure. He recommends that claimant be examined to determine if there is a mental component to his disability. The lack of medical insurance prevents the suggested examinations.

Based upon the doctor’s statement claimant's file does not provide adequate evidence for the judge to decide the case.

One difference from most litigation, social security disability adjudications are not adversarial in nature.  Social security administration has a responsibility to collect evidence: Before SSA makes a determination that a claimant is not disabled, it must develop a claimant’s complete medical history for at least 12 months preceding the month in which the application was filed. 20 CFR § 404.1512(a) & (d), 416.912(a).

The ALJ can send the claimant for a consulting examination or if a treating physician or psychologist provides inadequate information, the ALJ can contact the physician to determine whether additional information is readily available. 20 CFR 1512(e)(1-2).

In this arena the ALJ in some manner on your side, in some manner on the side of social security, and ultimately the judge and the jury.

Early Retirement on Social Security and Social Security Disability

A claimant comes into the office.  She is working and is approaching her 62^nd birthday.  The claimant looks healthy, while in fact she is suffering stage four breast cancer.  She wants to retire and try to get social security disability.  What is she to do?

Her appearance - and question, brings up the subject of the relationship between social security disability (SSDI, DIB) and social security retirement.  In the majority of cases, you cannot collect both  i.e. social security disability payments are payable to a worker who is unable to be competitively employed in the national economy because of a disability.  Retirement benefits are for workers (healthy or not) who reach a certain age (depending on their birthday[1]) and decide to apply for retirement benefits. 

There is an exception to the general rule that you cannot collect both benefits.  That exception applies to a worker who takes early retirement i.e. before age 66 years (using the above date of birth) and then applies for and qualifies for disability benefits.

Social security disability benefits pay the disabled worker a benefit that approximates what she would have received at full retirement.  SSDI could be considered as a bridge benefit, benefiting a claimant too young to retire, but disabled.  It would be a worker who has worked and earned benefits from the social security system.  Even though too young for retirement if sufficiently disabled she can get disability benefits that will bridge the period of time from full impairment to full retirement age.

There is some risk to the claimant.  The risk is that by applying for early retirement, she is subject to a permanent reduction in retirement benefits, if she is not found disabled.  In this example, since the claimant retired at age 62, she will experience approximately a 25% reduction in retirement benefits.  This will be a permanent reduction, i.e. at age 66 her full retirement benefit will be 25% less than if she had retired at age 66 years.

If social security finds that the claimant is disabled before full retirement age, here at age 62, social security will make up the difference between the early retirement payments and disability payments for the period of time of the overlap of benefits - up to age 66 years.

If as in this case, early retirement and disability overlap for the full period, disability benefits continue to full retirement with full retirement payments.  If the claimant took early retirement on May 1, XXXX and is found disabled May 1, XXXX the five month waiting period means the first disability payments begin in November XXXX.  When the claimant reaches age 66, she will receive 5 months of reduction in her retirement payments.

 This is a complex area of the law.  It involves retirement issues, medical issues, and financial issues.  If you are in a situation that puts this in question, you need to speak to a financial expert and an experienced attorney working in the area of the law.

Nothing in this blog is intended to establish or create an attorney client relationship.  The blog is conversational and not intended to be taken as legal advice. If any issue in this blog is important to your situation, you need to speak with an attorney and/or a financial specialist.

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[1] In the case of a worker born in 1949, the minimum age to retire is 62 years of age, full retirement age is 66 etc.

Jail, prison, and social security

What about            

What about a client who gets social security disability benefits and later is incarcerated? What about the client who is injured while incarcerated? What about the client, convicted of a crime, goes to a incarceration facility and escapes?

The start of any inquiry starts with SSR 83-21.

“The law (P.L. 96-473) provides that title II benefits and determinations of disability for prisoners and persons convicted of felonies will be restricted as follows:

1. Any physical or mental impairment which arises or is aggravated (but only to the extent of the aggravation) in connection with the commission of an offense after October 19, 1980, which constitutes a felony under applicable law, and for which the individual is subsequently convicted, shall not be considered in determining whether the individual is under a disability. This exclusion applies regardless of whether the individual is incarcerated pursuant to conviction. (The impairment or aggravation of an impairment must be excluded for the lifetime of the individual.)

2. Any physical or mental impairment that arises or is aggravated (but only to the extent of the aggravation) in connection with the individual's confinement in a jail, prison, or other penal institution or correctional facility pursuant to such individual's conviction of an offense committed after October 19, 1980, constituting a felony under applicable law, shall not be considered in determining whether such individual is under a disability for purposes of benefits payable for any month during which such individual is so confined. If client was injured while in prison. The impairment suffered -- or the worsening of an existing impairment -- while the client was in prison cannot be used to obtain benefits. But the client may be able to obtain benefits after being released from prison.

( If a client is in prison and become disabled, the client can apply for Social Security disability benefits while in jail.  If found disabled benefits will not start to accrue until the client has been disabled for five full calendar months or until the first full calendar month after the client is released, whichever is later.  This makes finding an attorney difficult given the lack of back benefits)

NOTE: The foregoing provisions are applicable to title II claimants: applicants for disability insurance benefits (DIB); for childhood disability benefits (CDB); or for disabled widows, widowers, or surviving divorced spouses benefits (DWB).

3. No monthly benefits shall be paid by reason of being under a disability to any individual for any month during which such individual is confined in a jail, prison, or other penal institution or correctional facility pursuant to conviction for an offense consulting a felony under applicable law, unless the prisoner is actively and satisfactorily participating in a rehabilitation program which has been specifically approved for that prisoner by a court of law, and which as determined by the Secretary is expected to result in the individual being able to engage in substantial gainful activity (SGA) upon release and within a reasonable time. This provision applies to a felony which was committed at any time and is effective for benefits payable for months beginning on or after October 1, 1980; it applies only to DIB and CDB (not DWB) claimants and beneficiaries.

When a prisoner's benefits are suspended, payment of auxiliary benefits will continue to be made (as though the prisoner were receiving benefits) to others who are entitled on the basis of the wages and self- employment income of the prisoner “.

Essentially a claimant's SSI benefits will be suspended after one full month incarceration (unless he participates in a rehabilitation program). Of more significances is the situation where the claimant is incarcerated for 12 months or more. If that takes place, benefits that may have been reinstated without a new disability application, will be lost and a new application would be needed. Similarly SSDI benefits will be suspended after 30 days of incarceration (unless the claimant participates in a rehabilitation program). However, the benefits will be reinstated the month following release.

A claimant who has a past conviction and incarceration on their record, who applies for social security is not eligible to receive any back-benefits for the time period in which he were incarcerated. If the claimant who is receiving disability benefits (also applies to receipt of retirement benefits) commits a felony and is later convicted of the offense, will have any disability payments that he was receiving stopped until such a time as he is released.

If claimant is/was receiving SSDI benefits and has dependents, auxiliary benefits, paid to eligible family members- will continue.

What is incarceration? The easy answer is – claimant is in prison/confinement. What if released to halfway house? What if released to his home with an ankle bracelet? As a general rule if the claimant is living in a situation under government control/expense, SSA will not pay benefits until released from the total control of the Department of Corrections. However, if the claimant is living outside of prison and he is paying his own expenses (food, rent, clothing, utilities, medical care, etc., except for the cost of your ankle bracelet monitoring) he can get Social Security benefits.

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