SOCIAL SECURITY DISABILITY
Social Security Disability Insurance (SSDI) is a work history-based program. Eligibility requires that an individual be under 65 years old and accumulate 20 social security credits in the 10 years prior to the onset of disability (one credit is awarded per quarter year worked). One additional credit is required for every year the worker's age exceeds 42. Benefits are paid on the sixth full month after the date that the disability began and are wholly based on your lifetime average earnings. The average SSDI benefit in 2021 is $1,277 per month, but a beneficiary can receive either less than this or up to $3,148.
Supplemental Security Income (SSI), is a needs-based program that provides assistance to persons who are blind, elderly, or have a disability. SSI is designed for disabled people who haven't worked or paid taxes into the Social Security system. SSI is not based on an individual's work history. Instead, it's based solely on an individual's financial need. For individuals to qualify for SSI, they need to meet general income requirements. The SSA determines an applicant's income by calculating his or her resources, such as cash or property. Benefits are generally paid the month following the month in which your claim was filed.
Important SSI factors include:
•An individual adult must have $2,000 or less in cash or combined bank accounts ($3,000 for a married couple).
•The value of an individual's home is considered separately and will not disqualify an applicant from receiving SSI.
•Automobiles with a fair market value of up to $4,500 will not be counted in an individual's resources.
For adults, the medical conditions that qualify for
•Musculoskeletal problems, such as back conditions and other dysfunctions of the joints and bones
•Senses and speech issues, such as vision and hearing loss
•Respiratory illnesses, such as asthma and cystic fibrosis
•Cardiovascular conditions, such as chronic heart failure or coronary artery disease
•Digestive tract problems, such as liver disease and inflammatory bowel disease (IBD)
•Neurological disorders, such as multiple sclerosis, cerebral palsy, Parkinson's disease, and epilepsy
•Blood disorders, such as sickle cell disease or hemophilia
•Mental disorders, such as depression, anxiety, schizophrenia, autism, or intellectual disability
•Immune system disorders, such as HIV/AIDS, lupus, rheumatoid arthritis, and kidney disease
The Social Security Administration (SSA) determines whether you're eligible for disability benefits based on your inability to work because of an actual disability. The SSA defines "disability" as something more than just a temporary or short-term illness. An SSA disability is a physical or medical condition that has lasted or can be expected to last for a continuous period of not less than 12 months, or which is expected to result in death. The individual must not only be unable to work at his or her current position, but must also be unable to perform substantial work at other types of employment. The worker's disability must be the principal reason he or she cannot work.
Moreover, when determining eligibility for SSA disability benefits, primary consideration is given to the severity of the individual's impairment. A medical impairment may be any type of physical or psychological condition or injury that can be shown through medical evidence. In making its determination, the SSA will consider a person's ability to perform basic work activities--including sitting, standing, walking, lifting, reaching, communicating, using judgment, and responding to supervision.
Proving Your Disability
An individual seeking benefits must prove the existence of a recognized impairment through diagnosis by a physician and the reporting of symptoms, clinical signs, and laboratory findings that match those of the corresponding condition in the listings. If an applicant has not received medical attention for the impairment, or evidence is not available, the SSA will be responsible for securing such evidence. Medical evidence should include a report from a licensed physician, a copy of the medical records from a hospital or clinic, and/or laboratory findings. The SSA will also consider the effectiveness of treatment upon the applicant's symptoms. Taken together, the evidence considered by the SSA will be more persuasive if it describes the individual's ability to perform work-related functions.
Besides medical impairment, an applicant must also demonstrate that he or she
is unable to engage in "substantial gainful activity" in the following
•If the person's impairment is not "listed," or the functional equivalent of a listed impairment, or;
•If his or her history indicates that he or she is able to perform substantial work.
The term "substantial gainful activity" means employment for profit, whether full or part time. In deciding whether the applicant has the ability to perform useful work, the SSA will examine his or her work history, age, education, and daily activities. The amount of pay the applicant earned from working during the period of alleged disability may also be considered by the SSA as evidence of ability to perform substantial gainful activity.
Both programs utilize the same denial and appeal process. If you apply and are denied (most claims are initially denied), you will need to appeal. In New York, you must request a hearing within 60 days after you receive notice of the initial unfavorable determination. The appeals process for SSI benefits is divided into four distinct levels. The initial appeal is called "reconsideration" and involves a review of the original claim. Only a small percentage of disability claims are approved upon reconsideration. The reconsideration step is required in most states, including New York, before you have an Administrative Law Judge (ALJ) hearing.
Administrative Law Judge (ALJ) Hearing
The average wait time for a disability hearing in New York is 350 days. Hearings are held at the closest Office of Disability Adjudication and Review (ODAR) office in the state (There are ten in New York). An ALJ, who had no part in the initial decision about your case, will conduct the hearing. These hearings are relatively short, lasting from 15 minutes to an hour. You will be asked about your education, training, work experience, symptoms, limitations, and daily activities. The judge will consider the medical evidence you have provided, your testimony and the testimony of other witnesses, to decide if you are disabled. Objective medical evidence is the most important component at the disability hearing level. The SSA will want to see medical records dating back to the time at which you state you first became disabled. Your medical records must show that your condition is severe enough to prevent you from performing your standard work-related duties. The ALJ uses the medical records to assess your testimony about your disability, and to formulate questions to pose to the Vocational Expert (VE). A VE testifies about job availability in the current labor market and the skills needed to perform certain jobs. The vocational expert usually answers hypothetical questions about the types of work someone with a similar disability as yours could perform. You will have the opportunity to ask any witness questions and to present new evidence. The ALJ will mail you a copy of the hearing decision.
If, after reviewing the evidence, the ALJ issues an unfavorable decision, you can continue the appeals process by requesting a review by the SSA Appeals Council.
Appeals Council Review
If you disagree with the ALJ's decision, the next step is review by the Appeals Council. The Appeals Council considers every request it receives, but doesn't always grant review. If the Council feels that the ALJ made the right decision, it may decline your request.
If the Council does decide to hear your case, it can either decide the issues itself or refer the matter back to an ALJ for a resolution.
To overturn the ALJ's decision, the Appeals Council must find clear evidence that the decision made by the ALJ was incorrect. For example, if the ALJ reached a denial of benefits decision because he or she did not properly consider medical records from the applicant's treating physician, the Appeals Council will likely reconsider the case. However, if the medical evidence on record could support a decision in either direction (denial or approval of benefits), the Appeals Council will not consider that case even if the AC judge does not personally agree with the decision the ALJ made.
If the Appeals Council decides that the ALJ incorrectly decided your case, one of two things will happen: the Appeals Council will send the case back to the ALJ to reconsider (called "remanding" the case) or the Appeals Council will decide the case themselves. If the Council declines to review your case, or if you disagree with its decision, the next step in the appeals process occurs in federal district court.
The state of New York pays a supplemental payment to those receiving SSI from the federal government. For example, for a single person living alone, the federal government typically pays $794 per month and New York state pays an additional $87 (in 2021). However, this amount varies depending on how much income you have, whether you live with others, whether you are married, whether your spouse receives SSI benefits and whether you live in a nursing home, group home or assisted living. The county or borough where you reside may also affect the amount you receive from New York state.
1. Attorneys fees for disability cases are regulated by the SSA under federal law. The fee is limited to the lessor of 25% of the past-due benefits or $6,000. (Benefits are calculated from the date you are approved back to the month after you applied.) If no back-dated benefits are awarded, the attorney will not receive a fee. Lawyers are, however, allowed to be reimbursed from clients for expenses incurred (such as copying and postage) at the conclusion of the case, regardless the outcome.
Frequently Asked Questions
Can I work part-time and be eligible for SSDI?
You can generally work part-time while you apply for SSDI benefits as long as your earnings don't exceed a certain amount set by the Social Security Administration each year. If you earn more than this amount, called the "Substantial Gainful Activity" (SGA) limit, the SSA assumes you can do a substantial amount of work, and you won't be eligible for disability benefits. In 2021, the SGA limit is $1,310 per month. In addition to the amount of money you make, the SSA may look at the number of hours you're able to work. For example, if you don't earn more than $1,310 per month but you're able to work 32 hours a week, it will be harder to convince the SSA you're disabled.
Can I work part-time and retain SSI benefits?
You can begin to work and continue to receive SSI benefits as long as your wages and other resources do not exceed the SSA’s income limit for SSI; however, your monthly benefit amount will be reduced in proportion to your income. The federal income limit is $794 (in 2021). The SSA will reduce your benefit by the amount of your countable income. The SSA does not include the first $85 you earn toward your countable income. After taking the $85 adjustment, the SSA will deduct, from your monthly benefits, 50 cents for every dollar you earn.
Does the income of my spouse affect my disability eligibility?
A husband's or wife's income does not affect SSDI benefits, but can affect SSI benefits. If you are married and your husband or wife makes an income, the SSI program might "deem" part of your spouse's income to be yours. If your spouse has a sizeable income, if deemed to you, it can lower your SSI payment or even make you ineligible for SSI.
In 2021, if you and your spouse have no children and your spouse makes more than $392 per month, his or her income is subject to deeming. Or, if you have one child, your spouse’s income is subject to deeming if he or she earns more than $784 per month. If you have two children, your spouse’s income is subject to deeming if he or she makes more than $1,176. (And so on, adding $392 for each child.)
To estimate how much of your husband or wife’s income will be deemed to you, you can follow this formula. First, deduct living expenses of $392 for each child from your spouse’s income. Next add your spouse’s income to any income you have. Do not include income from a spouse's IRA or company pension. Then take certain deductions to give you your countable income for SSI, just as you would if you weren't married. Generally, for earned income, you are allowed to subtract $85 and then divide the remainder in half to come up with your countable earned income. You then add that to any unearned income.
What’s left after you've made these deductions is the spousal income that is deemed to you. You then subtract this amount from the SSI income limit for a couple (as if you were both disabled), not for an individual. The income limit (and monthly benefit rate) for a couple is $1,191 in 2021. What remains, if anything, will be your monthly benefit. If the remainder is zero or less, you aren’t eligible for SSI. If the remainder is more than the maximum federal SSI rate for an individual, $794, then you will receive only $794.
Here is an example when the spouse’s salary is $30,000 per year and you have two children. That is, your wife makes $2,500 per month at her job and has no other income. You have no other income but you have two children (without an income of their own). About $815.50 of your wife's income will be deemed to you ([$2,500-$392-$392-$85]/2). Subtracting this amount, $815.50, from the couple’s maximum SSI payment of $1,191 would give you about $375.50 in SSI benefits.
I receive VA disability benefits. Do I automatically qualify for Social Security disability?
While both Social Security and VA pay disability benefits, their programs, processes, and criteria for receiving benefits are very different. Even a VA compensation rating of 100% Permanent and Total (P&T) does not guarantee that you will receive Social Security disability benefits. To be approved for Social Security benefits, you must meet Social Security’s definition of "disability." Veterans who have a VA compensation rating of 100% P&T may, however, receive expedited processing of applications for Social Security disability benefits.
An attorney can greatly improve your chances of winning your claim. Statistics show that an applicant who is represented at the hearing level is more likely to be approved than an unrepresented claimant.
An attorney can evaluate whether your case needs additional medical evidence and help obtain it.
Moreover, the lawyer can effectively cross-examine the vocational expert with hypotheticals that indicate you are unable to perform any jobs.