San Diego Social Security Lawyer Ray C. Acosta Answers Your Frequently Asked Questions About Social Security Disability Benefits

1) What is the difference between Social Security Disability Insurance(SSDI) and Supplemental Security Income(SSI)?

 

          Both benefits programs require that you be disabled from working. The main difference is your income level when you apply and your work history.

 

        For SSDI, you must have enough work credits or work history to qualify and this can vary depending on your age and the year you become disabled. Having enough work credits mean you are “insured” for SSDI benefits.  Average SSDI  payments range from $1,000 to $1,200 per month.

 

       For SSI benefits, you must be considered low-income with very limited assets. The income limit ranges from $700 to $1,400 per month. The assets must be less than $2,000 for individuals and $3,000 for couples. SSI benefits are affected by the state you live in, since this is a cooperative program between SSA and your state government. California supplements your monthly SSI benefit above the federal SSI benefit which is $735 for individuals and $1,103 for couples. These amounts are adjusted every year based on the cost of living index.

​

​

​

​

​

​

​

​

           

2) How are SSDI claims evaluated by the Social Security Administration(SSA)?

​

        The evaluation of your SSDI application is based on your inability to engage in any substantial gainful activity due to a medically determinable physical or mental impairment or combination of impairments that can either be expected to result in your death or has or will last for 12 consecutive months. This is called the Five-Step Analysis for determining whether someone is eligible for SSDI benefits.

 

Step 1 - Are you engaged in substantial gainful activity?

 

Step 2 - Do you have a severe impairment or a combination of severe impairments that affects your ability to work and will last more than 12 months or will result in death?

 

Step 3 - Does your impairment meet any of the “Listings” which is essentially a list of medical conditions and the impairments they cause that would automatically qualify you for SSDI benefits?

 

Step 4 - If your condition does not meet any of the “Listings”, can you do your old job or “past relevant work” based on your “residual functional capacity” or impairment? If the answer is yes, you don’t qualify for SSDI. If the answer is no, you go to the final step.

 

Step 5 - If you cannot do your old job, can you do any other work considering your age, education, work experience, and your impairment? If the answer is yes, you do not qualify for SSDI. If the answer is no, you do qualify for benefits.

​

3) What does Substantial Gainful Activity(SGA) Mean to the SSA?

​

        If you are working and earning more than $1,170 monthly or $1,950 if blind, then you are considered to be above the SGA level and you are not eligible for benefits. There are two parts here to  look at: Substantial and Gainful. “Substantial” means significant physical or mental activities even if it’s only part time work or for less pay than before you became disabled. “Gainful” means you get paid to do the activity or someone else would get paid to do it even if you do not. There are some things that are not considered SGA, like household chores, going to school, personal care and hygiene, therapies like occupational, physical and mental and social activities. Also, when it comes to volunteer activities, SSA will look at the amount of time and physical or mental nature of your volunteer work to determine if it qualifies as SGA, even if you don’t get paid for it.

​

4) What does Residual Functional Capacity for Work  mean?

​

        When you apply for disability benefits, the SSA will have a claims examiner fill out a “Residual Functional Capacity" (RFC) assessment form on you. This assessment is based on your medical records and statements from your doctor about your condition. There are two types of RFC’s--physical and mental.

 

       Physical RFC's apply when you claim a physical disability on your application and SSA agrees it is severe. The SSA looks at your exertional level, which is based on how much you can walk or stand and lift, carry, and push or pull objects. There are four categories of work you are considered able to do: sedentary, light, medium, or heavy. Sedentary is considered the least amount of physical work someone can do while heavy is the most. There are non-exertional limitations such as include the inability to do the following: stoop, crouch, crawl, or climb, exposure to high temperatures, dust, fumes, or sunlight, using your hands to write, type, reach or handle objects, and your ability to see, hear, or speak. The SSA uses a grid to determine whether you automatically qualify for benefits based on your age and RFC level. If no grid rules apply to your situation, SSA will look at your past job to see if you can still perform the activity or if you can do other jobs within your RFC level.   

 

        Mental RFCs apply when you claim a mental difficulty or emotional illness on your application and SSA agrees it is severe. A mental RFC will review your ability to understand, remember and follow instructions, pay attention and concentrate for extended periods, perform tasks on a schedule, keep a routine without special supervision, make simple decisions and judgements, interact appropriately with the public, respond appropriately to a supervisor’s criticism and to changes in the workplace, get along with co-workers, maintain neatness and cleanliness, tolerate normal levels of stress, and show up to work regularly and on time. There are no grid rules for mental RFCs. SSA will look at your old job or other jobs to see if you can still work. If you cannot do any simple, unskilled job, you will qualify.

 

        The SSA will look at both your physical and mental limitations before deciding whether you can still work. Therefore, it is very important that you or your attorney get your doctor’s opinion on all of these limitations on your RFC forms in order for the SSA to make a proper decision on your case.  

     

5) What does the Grid mean and how does it work?

​

        The SSA uses a chart or “Grid” to evaluate claims by older workers (50 years or older) in order to account for the difficulty that such  workers may have in learning a new job skill  or going into a new work place. The SSA calls this a “vocational adjustment”. The SSA uses the Grid after it determines you cannot do your old job anymore due to your disability. The grids look at your age, your educational level, your past work experience, whether you have transferable job skills, and your RFC level to determine disability benefits.

​

       

 Let’s look at each factor in more detail:

1) Your age is broken into 4 groups--younger individuals (18-49), closely approaching advanced age(50-54), advanced age (55 and over), and closely approaching retirement age (60 and over). The older you are, the easier it is to get approved using the grids.

 

2) Your educational level is divided into four categories: high school graduate or more (plus recent training for skilled work), high school graduate or more (without recent training for skilled work), limited education (11th grade or below), and illiterate or unable to communicate in English. The lower your education, the more success you will have with the grids since it is more difficult to find a job with little or no formal education.

 

3) Your past work experience is put into three groups: unskilled, semi-skilled, and skilled. Workers with a history of only unskilled work are more likely to qualify using the grids.

 

4) Your transferable job skills apply more when you have had skilled or semi-skilled jobs in the past. The more transferable job skills you have, the less likely you will qualify using the grids.

 

5) You RFC level is broken into the following categories for grid purposes: sedentary work, light work, medium work, heavy work, or very heavy work. The heavier your RFC level, the less likely you will qualify for benefits. In fact, if your RFC level is heavy or very heavy work, the grids will not help you at all.

​

          Let’s look at an example of how the grids are used: A 54 year old worker who has an RFC for sedentary work has a high school diploma with no training for direct entry into skilled work, and worked only at unskilled jobs, will qualify for benefits using the grid system. That same worker would not qualify if he had training for direct entry into skilled work. Every case is different depending on your situation.    

             

6) Why would the SSA deny my claim for benefits?

​

        There are a variety of reasons why the SSA can deny your claim for disability benefits. Some are beyond your control and some may be avoidable. Here are the most common reasons:

 

1) You earn too much income. For SSDI claims, the SGA income limit is $1,170 per month in 2017. For SSI claims, you cannot have more than $1,500 per month in both earned and unearned income, when you apply for benefits.

 

2) Your disability won’t last long enough. Your impairment must be severe and must last at least 12 months or result in your death. Blind SSI applicants are the exception here.

 

3) The SSA cannot find you. In other words, the SSA must be able to communicate with you regarding your application, especially since you may be asked to attend examinations. If you move, you must keep the SSA aware of your new location.

​

4) You refuse to cooperate. Since your medical records are vital to your application, you must provide a medical release so the SSA can obtain those records. Also, if you refuse or fail to attend a medical examination called a consultative examination (CE) scheduled by the SSA, your claim may be denied.

 

5) You fail to follow prescribed therapy. If you being treated by a doctor for your impairment, but you fail to follow the prescribed therapy without a legitimate excuse, the SAA may deny your claim.

 

6) Your disability is based on alcoholism or drug addition. The key factor here is whether you would still be disabled if you stopped using drugs or alcohol. If not, you can be denied.

 

7) You have been convicted of a crime. A felony conviction can prevent you from qualifying  for benefits if you are presently incarcerated or you were injured while committing a felony or you were injured while in prison. You can still apply in order to “freeze” your earnings record.

 

8) You commit fraud.  If you obtain benefits through fraudulent means, your benefits can be terminated and you can be prosecuted for fraud.

 

7) If my claim is denied, should I appeal?

​

        The short answer is YES! It does not cost you anything if you appeal within the SSA system itself. If you don’t agree with the denial of benefits, look at the reasons given by the SSA to make sure the information is accurate.

​

        Look at your impairment and see how it fits in with the Listing of Impairment used by the SSA to evaluate your claim. The Listing is basically a summary of medical conditions and the impairments they cause. The presumption is that if you fit one of the listed medical conditions you cannot perform any substantial work which then qualifies you for disability benefits. If your condition closely matches the "Listing" in some way, an appeal is advisable. Also, is your impairment going to last at least a year? If so, this helps your claim. If your medical condition has not gotten better, or even worse, an appeal may be advisable.

​

        Other reasons to consider an appeal include your age, your education level, and your work experience. The older you are (55 and over), the better your chances are on appeal. If you have limited education or training or limited English language skills, limited work skills or limited transferable job skills, the better your chances are on appeal.

 

       Remember that if you do decide to appeal your denial of benefits, you will have to put some time into the appeal process in terms of reviewing paperwork, including your SSA file. If you decide to hire a lawyer to handle your appeal for you, there will be fees taken out of any back pay that is awarded to you if you win the appeal. Many appeals are successful so you should not be discouraged when you get that denial letter from the SSA.    

​

8) What are the levels of appeal?

​

        There are four levels of appeal, with the first two levels being your best chances of winning and the last two levels having the most unlikely chances of winning.

​

          1) Request for Reconsideration: If your original claim for benefits was denied, you can request reconsideration at the Disability Determination Services (DDS) level. A reconsideration is handled by a different medical consultant and claims examiner so you don’t get the same people who denied your initial claim looking at your appeal. If you win at this level, your benefits will be paid. It can take several weeks or a few months depending on the agency’s caseload.

        If you have an ongoing disability claim that was reviewed through a continuing disability review (CDR) and then terminated based on that periodic review, you can request reconsideration of this CDR before a disability hearing officer (DHO). Since you have already been awarded disability benefits in this situation, the SSA must be able to show that you have had significant work-related medical improvement.

         

          2) Administrative Law Judge(ALJ) Hearing: If your Request for Reconsideration is denied, you can request a hearing before a Social Security ALJ within 60 days from receipt of your denial. However, it can take up to a year or longer to get a hearing due to increasing caseloads. About 2/3 of all appeals heard by these judges are granted.

​

          3) Appeals Council: If you lose at the ALJ Hearing, you can request a review by the Appeals Council. However, very few cases are actually reviewed by the Appeals Council since it looks for flaws in the ALJ decision such as whether there was a legal or procedural error or abuse of discretion by the ALJ, or if the ALJ’s decision was not supported by substantial evidence. It can easily take up to a year to hear back from the Council. However, if you plan to sue the SSA in federal court, you must first exhaust your administrative appeals by requesting an Appeals Council review.

​

          4) Federal Court Review: This last appeal is expensive and time-consuming since you have to pay court costs and filing fees to have your claim reviewed by a federal judge. It can take a year or more to get to this level of appeal. Not all disability lawyers are willing to file a disability case in federal court.       

 

9) Do I need an Attorney to help me with my appeal?

​

        Technically, you do not need to have legal counsel to represent you on your disability case. This is especially true for the first appeal level—Request for Reconsideration. However, many people do decide to retain a disability lawyer to help them with their appeal once it goes to the ALJ Hearing level. A lot of paperwork and medical records are needed to properly build a disability case. Some claimants are not willing or able to spend the time and energy it takes to put a successful appeal together. Given that the best chances of winning an appeal are at the ALJ Hearing level, many claimants decide to hire a lawyer to help them win their appeal.

  

10) How much will it cost me to hire an attorney for my appeal?

​

        Nothing, unless you win your appeal. Generally, Social Security Disability Lawyers are paid on a contingency basis which means that no fee is charged to you by the lawyer unless your appeal is granted. If your appeal is successful and you are awarded benefits, including retroactive benefits, the attorney may request an award of fees for the legal services provided to you on your case. The SSA must award the fees on your case and the fees are paid out of the retroactive benefits awarded to you. The fees are limited to 25% of the benefits awarded to you up to a maximum of $6,000. 

​

11) Are there alternatives to appealing my case? 

  

          Yes. You can request that your claim be reopened, meaning you ask the SSA to take another look at your claim once it has been denied and you did not request an appeal. A request to reopen should be done within a year of the original decision. Or, you can simply file a new claim. You may want to do this if your condition has worsened or you have developed more medical impairments since your initial claim was filed. Otherwise, it is probably better to appeal the decision on your current claim for benefits.

  

12) Should I file for disability benefits if I am over 60 years old?

​

        It depends. If you are between 60 and 66 years of age, you can still apply for disability benefits or you can apply for regular social security retirement benefits (at age 62). Both SSDI and regular social security benefits are based on your work history and earnings. The more earnings you have, the higher your benefits. If you are awarded SSDI benefits at age 60, your benefits will simply convert to regular SS benefits at your full retirement age and at the same rate. In other words, you don’t get penalized for collecting SSDI benefits if you collect before your full retirement age. You also get the benefit of a “disability freeze” which allows the SSA to disregard low earning or zero earning years due to your disability. On the other hand, if you decide to apply for “early” SS benefits at age 62 and above through your full retirement age, your benefit will be lower and locked in at that lower rate.

​

          The other factor to consider whether to apply for disability benefits is that it is generally easier for people age 60 or older, to qualify for disability benefits under the grid evaluation process used by the SSA. This is because the grids assume it is more difficult for older workers to learn new job skills and to enter a new workplace.  

 

           San Diego Social Security Disability Attorney Helping You Maximize your Benefits 

​

To learn more about how the Acosta Law Office can help you, call for a free consultation at 619-391-9933.