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.

W

The ARDUOUS WORK provision i.e.,. 20 CFR § 404.1562; 416.962.

You have a 52 year old worker, disabled and the disability prevents him from working in his prior occupation, which was heavy construction.  He started working when he was 18 years of age and continued until he could no longer work.  This situation brings to mind a seldom used provision of the law.  The  ARDUOUS WORK provision i.e.,. 20 CFR § 404.1562;  416.962.

The foregoing regulations provide that if a claimant has only a marginal education, a work experience of 35 years or more during which the claimant did arduous unskilled physical labor, and the claimant is not working and is no longer able to do the same kind of work because of a severe impairment(s), the SSA will consider the claimant unable to do lighter work and, therefore, disabled.  

What is unique is the provision of law, allows the review to stop at step four, i.e. if he can’t return to prior work, he is disabled without any consideration to lighter work.

There are a number of considerations to the use of this provision of the law.  What is only a marginal education, 20 CFR 404.1564(b)(2).  There is a need for a long work experience (i.e., 35 years or more) and a showing that the claimant only did arduous unskilled physical labor. Does it really apply only to a claimant who has done only unskilled work? (consider SSR 82-63 and Walston v Sullivan, infra)  Lastly, the claimant can no longer do this kind of work in which he was employed in the past 15 years. ( SSA applies § 404.1562 to evaluate whether the claimant is disabled, see 20 C.F.R. §§ 404.1520, 416.920)

In addition to the foregoing there are other considerations.  If you have a hard working individual, suffering but trying to keep food on the table, i.e.  claimant is working or has worked despite the impairment(s) (except where the work is sporadic or is not medically advisable), SSA may review all the facts, and could find that the claimant is not disabled.

Further, the SSA will consider the claimant not disabled if the evidence shows that the claimant has training or past work experience which enables him or her to do substantial gainful activity in another occupation, either on a full-time or a reasonably regular part-time basis.

20 C.F.R. Pt. 404, Subpt. P, App. 2, Medical-Vocational Guidelines, section 202

An individual with a marginal education and long work experience (i.e., 35 years or more) who is limited to the performance of arduous unskilled labor, who is not working and is no longer able to perform such labor because of a severe impairment(s), may still be found disabled even though the individual is able to do medium work.

“ (c) However, for individuals of advanced age who can no longer perform vocationally relevant past work and who have a history of unskilled work experience, or who have only skills that are not readily transferable to a significant range of semi-skilled or skilled work that is within the individual's functional capacity, or who have no work experience, the limitations in vocational adaptability represented by functional restriction to light work warrant a finding of disabled. Ordinarily, even a high school education or more which was completed in the remote past will have little positive impact on effecting a vocational adjustment unless relevant work experience reflects use of such education.

(d) Where the same factors in paragraph (c) of this section regarding education and work experience are present, but where age, though not advanced, is a factor which significantly limits vocational adaptability (i.e., closely approaching advanced age, 50-54) and an individual's vocational scope is further significantly limited by illiteracy or inability to communicate in English, a finding of disabled is warranted.

(e) The presence of acquired skills that are readily transferable to a significant range of semi-skilled or skilled work within an individual's residual functional capacity would ordinarily warrant a finding of not disabled regardless of the adversity of age, or whether the individual's formal education is commensurate with his or her demonstrated skill level. The acquisition of work skills demonstrates the ability to perform work at the level of complexity demonstrated by the skill level attained regardless of the individual's formal educational attainments.”

SSR 82-63 sets forth the required analysis for evaluating whether a claimant meets the requirements of sections 404.1562 and 416.962 of the regulations.

1. An impairment must be severe and prevent the performance of arduous physical labor.
2. An individual’s work history must have lasted for 35 years or more.
3. The work must have been “arduous,” which is defined as primarily physical work requiring a high level of strength or endurance. While arduous work will usually entail physical demands that are classified as heavy, the work need not be described as heavy to be considered arduous. For example, work involving lighter objects may be arduous if it demands a great deal of stamina or activity such as repetitive bending and lifting at a very fast pace.
4. The work must also have been unskilled. Unskilled work consists of simple duties which require little or no judgment and may be learned in a short period of time.
5. The person must have a “marginal education.” A person who has a marginal education may not have attained a level of development in reasoning, arithmetic, and language which would suggest a vocational potential for more than unskilled work. Generally, an individual is considered to have a marginal education if he or she has no more than a sixth grade elementary school education. However, the level of formal education is not conclusive of a person’s vocational competence. The responsibilities and tasks of past employment may demonstrate a higher level of competence than that indicated by his or her formal schooling. Conversely, a person may have attended school beyond the sixth grade, but other evidence may establish capability for reasoning, arithmetic, and language which does not, in fact, exceed the “marginal” criterion.

Note: SSR 82-63 explains that employment in semiskilled or skilled work, which is not isolated, brief and does not result in skill enhancement,  generally would rule out the application of sections 404.1562 and 416.962 of the regulations.

The Eighth Circuit has looked at this issue.  It rejected the claimant’s arguments that he qualified under the ARDUOUS WORK provision under 20 C.F.R. § 404.1562. Smith v. Shalala, 46 F.3d 45, 46-47 (8^th Cir. 1995). The Court reasoned that the claimant completed the eighth grade in school and testified that he could read and do simple calculations, precluding him from being classified as having a “marginal education.” Id. As stated by the Smith court, formal schooling at a sixth grade level or less is a “marginal education” and 7th through 11th grade is termed “limited education.” Id.

The Eighth Circuit rejected the claimant’s argument that the ALJ should have applied the ARDUOUS WORK provision.  Mitchell v. Shalala, 25 F.3d 712, 715 (8^th Cir. 1994).. The court agreed, however, that if newly discovered evidence submitted to the district court supported a finding that the claimant had a “marginal education, the ARDUOUS WORK provision would result in a finding of disability.

The fact that claimant may have performed skilled or semi-skilled work may not preclude the use of the ARDUOUS WORK provision.  Consider Walston v. Sullivan, 956 F.2d 768, 772 (8^th Cir. 1992).Where the record indicated that the skilled and semi-skilled work the claimant performed resulted in no skills which were transferable either to work presently existing in the national economy or to work within the claimant’s present residual functional capacity, the ALJ erred in concluding that the claimant’s previous periods of skilled work precluded a finding of disability under section 404.1562.

Strategies upon Retirement when deciding when to take Social Security Retirement

After much criticism about my short answer to the question on when to take retirement income, I decided to do some research and develop a more detailed answer. I admit that for couples with income available to supplement social security retirement, to simply say taking benefits at full retirement age may have been inadequate. For those people who do not have access to additional income after reaching full retirement age, taking benefits at full retirement age, may still be good advise.

I am focusing only on a strategies that may benefit married couples who have access to additional income upon reaching full retirement age. Strategies that hopefully will maximum the life time income that could be received because of retirement. Keep in mind that even though you may maximize life time income, you may not increase your monthly income for a few years, and as such, may not result in an increase in monthly benefits upon retirement.

You should contact the Social Security Administration to determine your full retirement age, if you are unsure of what age you qualify for full retirement. The first strategy involves one spouse upon reaching full retirement age, to file for social security retirement, and immediately suspend his own or her own benefits. The filing spouse would not claim his or her benefits until a later date, i.e. age 70. The filing spouse would than have his or her non-filing (younger spouse) file and claim dependent benefits. The filing spouse with suspended benefits, would still have his or her benefits increase 8% a year until he or she decides to take retirement benefits. In today economy, an 8% per year increase in any investment is not bad.

This strategy only works if the dependent spouse, in his or her own right would not receive more in his or her own more than dependent benefits based upon the filing spouse. In other words, it is intended for the situation where the non-filing spouse did not work outside of the home, or did not work long enough to qualify for benefits.

What about couples who both earned a good income during their working careers, how does this strategy benefit them?

Both spouse would have to wait until each has attained full retirement age.¹ If one spouse is older than the other, the older spouse would 'file and suspend' benefits. When his or her spouse has attained full retirement age, both are then eligible for either a spouse's benefit and a retirement benefit in her or his own. The lower earning spouse has an option to claim 100% of his or her own retirement or a spousal benefit on the other spouse's record and receive up to half of what the other spouse is entitled to at his age. The spouse with the lower life time earning, may benefit from claiming a spousal benefit and restrict his or her benefit to that amount (maximum being 50% of the other would be entitled if claiming retirement).

Obviously, this leave the couple much less then if both took 100% retirement at each parties full retirement age, the benefit accrues in both of them in waiting, i.e. the 8% yearly growth plus cost of living adjustments. This may not be an option unless the couple has some method to generate income to cover any short fall created by waiting on full benefits. Remember that after reaching full retirement age, the earnings cap is removed, so you can earn as much as you can without any reduction in benefits.

Assume that the wife is 63 and the husband is 65. Also, assume the husband was the higher lifetime earner. If the husband retires at age 66 and suspends benefits, his retirement entitlement will grow by 8% a year (plus cost of living increases). When the wife attains age 66, she files as a dependent, i.e. restricts her benefits to the amount she is entitled under a spousal benefit. The parties receive this lower amount until the husband reaches age 70 when he claims full retirement benefits. The wife can then claim retirement benefits in her own name. During the four years the husband right to benefits has increased, as has the wife's benefits, they each get more then if they had applied for full retirement benefits at each one's respective full retirement age.

I am not an expert in retirement planning nor in the social security retirement system, my work has always been in the disability arena. If you think these are options you would like to try, you should research on your own. I suggest you contact social security and discuss the situation with them. They can give you good information and assist you in deciding how to handle receipt of retirement benefits to best manage your own situation. I suggest AARP who has publish articles on the subject, Money magazine, Kiplinger as some excellent sources of information to help with this subject. Do not overlook talking with Social Security, they can help with a decision.

Disclaimer: Blogs posted herein are intended neither as legal advice, nor do they create nor attempt to create an attorney-client relationship. The person viewing my blogs is admonished that an attorney-client relationship may only be created with the express consent to the parties to it.

1This requires that both spouses reach full retirement age before proceeding with this strategy. The reason is that if a spouse is under full retirement age when he or she takes dependent/spousal benefits, social security will require that the benefit taken be under the record of the younger spouse. It means that he or she is stuck, permanently, with lower benefits as a result of taking benefits before full retirement age.