Nolo's Guide to Social Security Disability
Getting & Keeping Your Benefits
Cash in on the benefits available to you
David Morton, M.D.
March 2012, 6th Edition
Apply for Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) and get the most assistance from the system
Learn how to match the medical details of your disability to existing regulations to make sure you qualify for the benefits you're due when you apply. Plus, Nolo's Guide to Social Security Disability is written by a former Chief Medical Consultant for the Social Security Administration whose expert deciphering of the medical portions of SSA regulations will help you understand all the benefits available to you.
Written both for first-time applicants and existing recipients of Social
Security disability, this guide demystifies the program and tells you
everything you need to know about qualifying and applying for benefits,
maintaining your benefits, and appealing the denial of a claim. Learn about:
- what Social Security disability is
- what benefits are available to disabled children
- how to prove a disability
- how age, education and work experience affect benefits
- whether or not one can work while receiving benefits
- how to appeal a denial of benefits
- how to respond to a Continuing Disability Review
The book provides in-depth medical listings to help you determine whether your condition will qualify you to receive disability payments, including breathing disabilities, heart disease, mental disorders, speech impairments, cancer, immune system disorders -- and much more.
This edition is completely updated with the latest rules, information and medical listings, including updated descriptions of SSA regulations governing immune and digestive system disorders; updated information on the "ticket-to-work" program, which provides new training and opportunities for disabled workers; the latest forms and instructions for filling them out; plus updated figures, fees, and contact information.
“A thorough analysis and discussion of the requirements to qualify for Social Security disability benefits.”-The Wall Street Journal
“The most significant addition in many years to our Continuing Education curriculum for re-certification of RNs, rehabilitation professionals and counselors.”- Carl Dye, President, American Schools Association
“Guides applicants and recipients through one of the world’s largest bureaucracies.”-Reference & Research Book News
David MortonDavid A. Morton has degrees in psychology (B.A.) and medicine (M.D.). For 14 years, he was a disability determination consultant for the Social Security Administration, serving as Chief Medical Consultant for eight years. In his capacity as Chief Medical Consultant, Dr. Morton hired, trained, supervised and evaluated the work of medical doctors and clinical psychologists, and made thousands of disability determinations for both adults and children. Since 1983, Dr. Morton has authored several books on Social Security disability for attorneys and judges, including Nolo's Guide to Social Security Disability.
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Your Social Security Disability Companion
- Medical and Legal Questions
- The New Disability Service Improvement Process (DSIP)
1. What Is Social Security Disability?
- Two Different Programs
- Defining Disabled
- Contacting the Social Security Administration
- Frequently Asked Questions About Social Security Disability
2. Applying for Disability Benefits
- Preparing to Apply
- Applying for Disability Benefits
- Health Care Professionals
- How Other Disability Payments May Affect Social Security Benefits
- Availability and Disclosure of Confidential Records
- Fraud and Other Crimes
3. Disability Benefits for Children
- Three Benefit Programs for Children
- Applying for SSDI or SSI Benefits
- Disability Evaluation
- Continuing Disability Reviews for SSI Children
- Other Health Care Concerns
4. Getting Benefits During the Application Process
- Applying for Presumptive Disability
- Impairments Qualifying for Presumptive Disability by Field Office
- Qualifying for Presumptive Disability Through the DDS
5. Proving You Are Disabled
- Acceptable Medical Sources
- Medical Evidence From Treating Sources
- The Role of Consultative Examinations in Disability Determination
- Evidence of Symptoms
- Other Evidence
6. Who Decides Your Claim?
- DDS Basics
- DDS Claims Examiners
- Other DDS Administrative Personnel
- Medical Consultants
- If Your Claim Is Granted
- If Your Claim Is Denied
- DDS Corruption and Incompetence
- Quick Disability Determination Unit (QDD)
7. How Claims Are Decided
- Step 1. Are You Engaged in Substantial Gainful Activity?
- Step 2. How Severe Are Your Impairments?
- Step 3. Do You Meet the Listing of Impairments?
- Step 4. Can You Do Your Prior Job?
- Step 5. Can You Do Any Other Job?
8. If You Can Do Some Work
- Physical Impairments and Abilities
- Mental Impairments and Abilities
- Claims With Both Physical and Mental RFCs
9. How Age, Education, and Work Experience Matter
- Work Experience
- Use of Vocational Analysts
- Vocational Rehabilitation
10. When Benefits Begin
- Medical Evidence
- Work Experience
- SSDI or SSI Claimant
11. Reasons You May Be Denied Benefits
- You Earn Too Much Income or Have Too Many Assets
- Your Disability Won’t Last Long Enough
- The SSA Cannot Find You
- You Refuse to Cooperate
- You Fail to Follow Prescribed Therapy
- Your Disability Is Based on Drug Addiction or Alcoholism
- You Have Been Convicted of a Crime
- You Commit Fraud
12. Appealing If Your Claim Is Denied
- Deciding Whether to Appeal
- Appeal Basics
- Your Right to Representation
- Five Levels of Appeal
- Reopening of Decisions
- Refiling an Initial Claim
13. Once You Are Approved
- Disability Benefit Payments
- Reporting Changes—SSDI Recipients
- Reporting Changes—SSI Recipients
- Returning to Work
- Passage of the Ticket to Work and Work Incentives Improvement Act
- Participation in the Ticket to Work Program
- The Ticket to Hire Program
14. Continuing Disability Review
- Frequency of Reviews
- How the SSA Contacts You
- Medical Improvement Review Standard
- Children and CDRs
- Appealing a CDR Decision
15. Your Right to Representation
- When Do You Need an Authorized Representative?
- What Can an Authorized Representative Do?
- Who Can Be an Authorized Representative?
- Should Your Authorized Representative Be an Attorney?
- When and How Your Representative Is Paid
- Notifying the SSA of Your Choice for Representative
- Keeping Up on the Law Yourself
Government Forms Explained in This Book:
Form Name/Form Number:
- Application for Disability Insurance Benefits SSA-16-BK
- Application for Supplemental Security Income (SSI) SSA-8000 BK
- Disability Report—Adult SSA-3368-BK
- Disability Report—Child SSA-3820 BK
- Request for Reconsideration SSA-561-U2
- Disability Report—Appeal SSA-3441-BK
- Authorization to Disclose Information to The Social Security Administration (SSA) SSA-827
- Request for Reconsideration—Disability Cessation SSA-789-U4
- Request for Hearing by Administrative Law Judge HA-501-U5
- Continuing Disability Review Report SSA 454 BK
Glossary of Bureaucratic Terms
Examples of Technical Rationales for Denials
- Form SSA-4268 Denials from Initial Application.
- Form SSA-4268 Denials From Continuing Disability Review (CDR)
Protection and Advocacy Organizations
How to Use the CD-ROM
- Installing the Medical Disabilities Sections Onto Your Computer
- Using the PDF Files
- List of Files Included on the CD-ROM
Chapter 1: What Is Social Security Disability?
The Social Security Administration (SSA) decides who is eligible for disability payments under rules established in the Social Security Act by the U.S. Congress. In this chapter we describe the two main SSA programs that administer disability payments. We briefly explain the requirements that any claimant must meet to receive benefits. We also provide a number of tips on how to deal with the SSA bureaucracy, and include answers to some of the most frequently asked questions about Social Security Disability.
A. Two Different Programs
Once you qualify as disabled under the Social Security Act, the SSA makes disability payments under one of two programs:
Social Security Disability Insurance (SSDI), for workers who have paid into the Social Security trust fund (and their dependents), or
Supplemental Security Income (SSI), for disabled individuals with limited incomes and assets.
SSDI claims are also referred to as Title 2 claims because they are authorized under Title 2 of the Social Security Act. SSI claims may be referred to as Title 16 claims because they are authorized under Title 16 of the Social Security Act. A person claiming a disability is called a claimant. Some claimants apply under both Title 2 and Title 16; these are known as concurrent claims.
When the SSA receives your application, it will determine whether you are eligible for disability benefits under SSDI and/or SSI, even if you have not specifically requested both. This means that if you apply only for SSDI benefits, the SSA will automatically process your claim for any SSI disability benefits to which you might be entitled. If your SSDI claim is turned down, you don’t have to file another claim for possible SSI benefits.
Comparing SSDI and SSI
SSDI (Title 2)
SSI (Title 16)
Must have paid Social Security tax to qualify?
Disability benefits for children?
Only adult children at least 18 years of age and disabled before age 22
Children of any age
Waiting period before benefits begin?
Adults: Five months
Health insurance comes with disability award?
Yes, Medicare starts 24 months after waiting period
Yes, Medicaid starts immediately in most states
Can be presumed disabled before actual approval of benefits?
Yes, up to six months before decision. Claimant does not have to return payments if found not disabled.
Yes, up to 12 months
Minimum duration of disability?
12 months (blind claimants are exempt from duration requirement)
What financial factors may prevent eligibility for benefits?
Substantial Gainful Activity: Work earning more than $1,010/month
($1,690/month if blind) as of 2012
a. Substantial Gainful Activity
b. Nonwork income and other resources equivalent to income
Benefits to noncitizens in U.S.?
Generally not, but some exceptions
Possible freeze on earnings?
Benefits for past period of disability (“closed period”), even if not currently disabled?
Auxiliary benefits to others available on the work earnings of a relative or spouse?
Benefits continued during a period of trial work?
Quick reentitlement to benefits if work effort fails after termination of benefits?
Benefits outside of U.S.?
Yes, both U.S. citizens and noncitizens
Generally not for U.S. citizens; never for noncitizens
1. Social Security Disability Insurance
SSDI provides payments to workers who have made contributions to the Social Security trust fund through the Social Security tax on their earnings. SSDI is also available to certain dependents of workers. If you are found eligible for SSDI, you might be entitled to retroactive (past) benefits if you can show that you were disabled before the date of your application. (See Chapter 10 for more details on when benefits begin.)
a. Who Qualifies?
To qualify for SSDI, you must fall into one of the following categories:
i. You are a disabled insured worker under age 65
You must have worked both long enough and recently enough to qualify. It may not be sufficient that you worked for many years and paid Social Security taxes. When you worked is also important. The law requires that you earn a certain number of work credits in a specified time before you are eligible for benefits. You can earn up to four credits per year, each credit representing three months. The amount of earnings required for a credit increases each year as general wage levels rise.
The number of work credits needed for disability benefits depends on your age when you become disabled. Most people need at least 20 credits earned over ten years, ending with the year they become disabled. Younger workers may qualify with fewer credits.
In effect, you count backwards from the year that you became disabled to see whether you have the appropriate number of credits. That means that credits from many years before you became disabled are automatically wiped out, or expire. This can lead to a dangerous situation for people who haven’t worked for many years before becoming disabled. Their credits may dip below the required amount, and they can lose eligibility for SSDI. The date after which they lose their eligibility is called the “date last insured,” or DLI—often a subject of dispute in Social Security cases. If you think your DLI is too far in the past to qualify you for SSDI, talk to your local SSA Field Office to make sure—in certain rare circumstances, you may still qualify.
The rules are as follows. If you are:
Before age 24. You’ll need at least six credits earned in the three-year period ending when your disability started.
Age 24 to 31. You need credits for having worked half the time between age 21 and the time you become disabled. For example, if you become disabled at age 27, you would need credit for three years of work (12 credits) during the six years between ages 21 and 27.
Age 31 or older. In general, you will need the number of work credits shown in the chart below. Unless you are blind (see Part 2 of the Medical Listings on Nolo.com for definitions of legal blindness), at least 20 of the credits must have been earned in the ten years immediately before you became disabled.
31 through 42 20
62 or older 40
You can find out how many credits you have by contacting your local SSA office or, if you have access to the Internet, by filling out a form at www.ssa.gov/mystatement.
ii. You are the family member of an eligible worker
The SSA pays auxiliary benefits to people who qualify based on certain family members’ entitlement to retirement or disability benefits. Benefits are paid based on the earnings records of the insured worker who paid enough Social Security taxes. If you qualify for auxiliary benefits, you do not necessarily have to be disabled; nor do you need the work credits described above.
Spouse’s and divorced spouse’s benefits. To qualify for auxiliary benefits as a spouse or divorced spouse, one of the following must apply (42 U.S.C. § 402(b), (c), (e), (f); 20 CFR §§ 404.330–349):
Older spouse of disabled worker. You are at least 62 years old, have been the spouse of a disabled worker for at least one year, and you are not entitled to a retirement or disability insurance benefit that is half or more of your spouse’s benefit.
Divorced spouse of disabled worker. You are the divorced spouse of a disabled worker who is entitled to benefits, you are 62 years old or older, and you were married to the worker for at least ten years.
Divorced spouse of insured worker. You are the divorced spouse of a worker insured under SSDI who has not filed a claim for benefits, you are age 62 or older, your former spouse is aged 62 or older, you were married for at least ten years, and you have been divorced for at least two years.
Disabled widow or widower. You are a disabled widow or widower, at least 50 years of age but less than 60 years old, and you are the surviving spouse or divorced surviving spouse of a worker who received Social Security disability or retirement benefits.
Older widow or widower. You are the surviving spouse (including a surviving divorced spouse) of a deceased insured worker, and you are age 60 or older.
Parent of minor and surviving spouse. You are the surviving spouse (including a surviving divorced spouse) of a deceased insured worker, and you care for a child of the deceased entitled to benefits who either is under age 16 or has been disabled since before age 22. (These benefits are known as “mother’s or father’s benefits.”)
Child’s benefits. A dependent, unmarried child is entitled to child’s insurance benefits on the Social Security record of an insured parent, or deceased parent who was insured at death, if any of the following apply (42 U.S.C. § 402(d); 20 CFR §§ 404.350–369):
The child is under age 18.
The child is age 18 or 19 and a full-time student, or
The child is an adult and has been disabled since before age 22.
(See Chapter 3 for a more detailed discussion of benefits for children.)
Parent’s benefits. You may qualify for parent’s benefits if all of the following are true (42 U.S.C. § 402(h); 20 CFR §§ 404.370–374):
Your child was an insured worker who died.
You are at least 62 years old.
You are divorced, widowed, or unmarried and have not married since your child’s death.
You were receiving at least one-half of your support from your child at the time of death and
You can provide evidence of this support within two years of the death (you may be exempt from providing evidence if unusual circumstances, such as extended illness, mental or physical incapacity, or language barrier, show that you could not have reasonably known of the two-year rule).
Lump-sum death benefits. A lump-sum death payment of several hundred dollars may be paid to the surviving spouse of an insured worker if the survivor was living in the same household as the deceased at the time of death. You must apply for this benefit within two years of the insured worker’s death. (42 U.S.C. § 402(i); 20 CFR §§ 404.390–395.)
b. Citizenship or Residency Requirements
If you qualify for SSDI based on the criteria listed above, you may receive SSDI payments if you are a U.S. citizen or permanent resident, living in the United States or abroad. If you are neither a citizen nor a permanent resident, you still may be entitled to receive SSDI if you can show that you are lawfully present in the United States and meet certain other criteria. (8 U.S.C. § 1611(b)(2).)
If you are a citizen when you apply for SSDI, you will have to show proof of your citizenship. Acceptable forms of proof include a birth certificate showing birth within the United States (including Washington, DC), Puerto Rico after January 14, 1941, Guam, U.S. Virgin Islands after 1917, American Samoa, Swain’s Island, and Northern Mariana Islands. Any of the following documents will also satisfy the proof of citizenship requirement:
Forms N-550 and N-570 (Certificate of Naturalization issued by U.S. Citizenship and Immigration Services (USCIS) or its predecessor, the Immigration and Naturalization Service (INS))
U.S. passport issued by the U.S. State Department
Form I-197 (U.S. Citizen Identification Card issued by USCIS or the INS)
Form FS-240 (Report of Birth Abroad of a Citizen of the U.S. issued by the U.S. State Department)
Form FS-545 (Certification of Birth issued by a foreign service post)
Forms N-560 and N-561 (Certificate of Citizenship issued by USCIS or the INS)
Form DS-1350 (Certification of Report of Birth issued by the U.S. State Department)
American Indian Card I-872 (DHS for Kickapoo Indian Tribe), or
Northern Mariana Card I-873 (INS card for birth in the Northern Mariana Islands before 1986, obsolete but still valid).
If you are a permanent resident or resident alien, you will have to show that you are lawfully in the United States under one of the following conditions:
lawful admission for permanent residence
admission as a refugee or conditional entrance as a refugee
asylum status or pending application for political asylum
deportation withheld or pending application for withholding of deportation
member of a class of aliens permitted to remain in the United States for humanitarian or other public policy reasons, or
you have been battered or subjected to cruelty by a family member while in the United States.
Most foreign workers in the United States are covered under the U.S. Social Security program and can potentially qualify for disability benefits. If, however, you are neither a citizen nor a permanent resident, you still may be covered under Social Security Disability. Federal law generally requires that all workers should pay Social Security taxes, and therefore be covered under SSDI for services performed in the United States. This is true even if for workers who are nonresident aliens or employees who work here for short periods.
There are a few exceptions, however. Some nonimmigrant foreign students and exchange visitors temporarily working in the United States may be exempt from paying Social Security taxes and therefore would not qualify for disability benefits under SSDI if they became disabled.
Noncitizen or permanent residents of the United States who are entitled to SSDI may be paid benefits while they reside abroad, depending upon their citizenship status and the countries in which they live. However, with some exceptions, an alien beneficiary who leaves the United States must either return to the U.S. at least every 30 days or for 30 consecutive days during each six-month period in order to continue to draw benefits.
One exception is made for alien beneficiaries who are on active military duty for the United States. Another exception exists for alien beneficiaries who live in and are citizens of Germany, Greece, Ireland, Israel, Italy, or Japan. (The United States has treaty obligations with these nations to continue paying benefits regardless of how long beneficiaries are outside the United States.) Citizens of the Netherlands may receive partial benefits. (See Chapter 13 for more information about receiving benefits outside of the United States.)
International Social Security Agreements
The United States has entered into several International Social Security agreements called totalization agreements, which have two major purposes. First, they eliminate dual Social Security taxation, the situation that occurs when a worker from one country works in another country and is required to pay Social Security taxes to both countries on the same earnings. Second, the agreements help fill gaps in benefit protection for workers who have divided their careers between the United States and another country. The United States has totalization agreements with Australia, Austria, Belgium, Canada, Chile, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Norway, Poland, Portugal, South Korea, Spain, Sweden, Switzerland, and the United Kingdom. (42 U.S.C. § 433.) See Chapter 13 for a more complete list and discussion of international agreements.
Be aware of restricted countries. There are a few countries where residents cannot receive benefits even if they otherwise qualify. These include Cuba, North Korea, and Vietnam.
c. SSDI Payments
If you are eligible for Social Security Disability Insurance (SSDI) benefits, the amount you receive each month will be based on your average lifetime earnings. It is not based on how severe your disability is or how much income you have. In addition, if you are receiving disability payments from other sources, as discussed below, your payment may be reduced.
However, federal laws and regulations recognize that your income may have declined between the period when you worked and when you stopped working because of your disability. Because your SSDI benefits depend on your earnings, the SSA recognizes that it is usually to your advantage to have your earning record “frozen” to reflect the higher income, before you were disabled. Therefore, the SSA will exclude from your benefit calculations low-income quarters of earnings resulting from a period of disability, unless it’s to your financial advantage to include those quarters. (42 U.S.C. §§ 423(a), 426(b)(f); 20 CFR § 404.320.)
SSDI payments are discussed in more detail in Chapter 13.
2. Supplemental Security Income (SSI)
The SSI program provides payments to an adult or child who is disabled and has limited income and resources. If your income and resources are too high, you will be turned down for benefits no matter how severe your medical disorders. You will be turned down even if you have not paid enough in Social Security taxes to qualify for SSDI.
The SSI limits on income and resources is one of the most complicated areas handled by the SSA. Although important points are covered here, only SSA representatives can accurately determine your income and resources for purposes of qualifying for SSI.
a. Income Limits
To qualify for SSI, your monthly income (as counted by the SSA) cannot exceed something called the federal benefit rate (FBR). The FBR is set by law. It increases annually as dictated by cost-of-living adjustments. For 2012, a cost of living adjustment (COLA) of 3.6% raised the FBR to $698 per month for individuals and $1,048 for couples.
The FBR for a married couple is approximately double that for an individual. If only one member of a couple is eligible, both spouses’ income is still considered, with some deductions allowed. If a child under age 18 is living with parents, then the parents’ income is considered, with some deductions allowed.
The federal benefit rate sets both the SSI income limit and the maximum federal SSI payment. However, the FBR payment is supplemented with an extra payment by every state except Arizona, Arkansas, Mississippi, North Dakota, Oregon, Tennessee, and West Virginia. Thi means that in all other states, the allowed SSI income level (and the SSI payments) are higher than the federal maximums. In California, Iowa, Massachusetts, and Nevada, the state supplements are higher for blind recipients than for others. Also, the amount of the state supplement depends on whether you are single or married and on your particular living arrangements. Although the amount of the state supplement varies widely, it can be as much as several hundred dollars (or as little as $10).
The SSA does not count the following income and benefits when calculating your income level:
$20 per month of income except wages
$65 per month of wages and
one-half of wages over $65
food stamps, and
home energy or housing assistance.
(See Chapter 13 for more detailed information on income limitations.)
b. Resource Limits
To qualify for SSI, your resources (assets) must also not exceed certain limits. A “resource” is cash or another asset that can be converted to cash and used for your support. If you or your spouse have the right, authority, or power to sell property and keep the proceeds, it will be considered a resource.
Resources are categorized as either liquid or nonliquid. Liquid resources include cash and other assets that could be converted to cash within 20 working days. The most common types of liquid resources are savings and checking accounts, stocks, bonds, mutual funds, promissory notes, and certain types of life insurance. Nonliquid resources cannot be converted to cash within 20 working days. They include both real property (land) and personal property. The SSA may consider some resources to be both liquid and nonliquid (such as an automobile or life insurance policy).
The SSI resource limits are set by law. They are not subject to regular cost-of-living adjustments, but they have increased slowly over the years. For 2012, you will not be eligible for SSI disability payments if your assets exceed:
$2,000 for a single person, or
$3,000 for a married couple (even if only one member is eligible for SSI).
When counting up your assets, the SSA must exclude certain assets, including the following:
your home (including adjacent land and related buildings), regardless of value. The home must be owned by you or your spouse and used as your principal residence.
restricted allotted Indian lands
household goods and personal effects up to $2,000 in value
one wedding ring and one engagement ring of any value
necessary health aids, such as a wheelchair or prosthetic device
one automobile, regardless of value, if used to provide necessary transportation; if not used for that purpose, then one automobile up to $4,500 in value
grants, scholarships, fellowships, or gifts used to pay tuition, fees, or other necessary educational expenses at an educational institution (including vocational or technical institution) for nine months beginning the month after the month the educational assistance was received
nonbusiness property needed for support, up to a reasonable value
resources of a blind or disabled person needed to fulfill an approved plan for achieving self-support (called a PASS plan). (See Chapter 13 for more information.)
life insurance with a face value of $1,500 or less
burial plots and certain burial funds up to $1,500
disaster relief, and
housing assistance paid under the U.S. Housing Act, the National Housing Act, or the Housing and Urban Development Act.
It’s possible that you don’t qualify for SSI benefits, but might be entitled to conditional payments—in essence, a loan. This happens when you are disabled but your resources are above the SSI resource limits, but include nonliquid assets that may take months for you to convert into cash in order to use as support. In that situation, the SSA will make conditional payments until you sell your assets and can support yourself. You will not receive SSI—and at the end of the conditional payment period, you must refund to the SSA the amount you received.
c. Citizenship and Residency Requirements
SSI disability payments are usually available only to U.S. citizens. There are several exceptions, however, under which noncitizens might be eligible, including the following:
During the first seven years after you were admitted to the United States, you are either legally residing in the United States as a refugee, have been granted asylum, satisfy certain conditions of withheld deportation, have been granted status as a Cuban or Haitian entrant, or, under some conditions, entered as an Amerasian immigrant.
(8 U.S.C. § 1612(a)(2)(A)(i)(I-V).)
You legally entered the United States for permanent residence and have worked 40 qualifying quarters under the Social Security Act (see Section A1a, above). In some situations, you may be able to count the qualifying quarters of a parent (for the time you were under age 18) or a current spouse or deceased spouse. (8 U.S.C. § 1612(a)(2)(B).)
You were honorably discharged from the U.S. military, you are on active duty in the U.S. military, or you are the spouse of a veteran or person on active duty, the unmarried dependent child of a veteran or person on active duty, or the surviving spouse of a deceased veteran or person on active duty and you have not remarried.
(8 U.S.C. § 1612(a)(2)(C)(i-iii).)
You were lawfully residing in the United States and receiving SSI benefits on August 22, 1996. (8 U.S.C. § 1612(a)(2)(E).)
You were lawfully residing in the United States on August 22, 1996, and you are blind or otherwise became disabled at any time. (8 U.S.C. § 1612(a)(2)(F).)
You are lawfully residing in the United States and are a Native American born in Canada. (8 U.S.C. § 1612(a)(2)(G).)
You have been battered or subjected to cruelty in the United States by a family member. (See Public Law 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, as amended by P.L.104-208, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and P.L. 105-33, the Balanced Budget Act of 1997.)
see an expert
Exceptions to the residence requirements often involve complex legal issues, and you are probably best off consulting an attorney if you think an exception might apply to you.
d. Receiving Benefits When Outside of the U.S.
SSI payments are generally only available to people residing in the 50 states, District of Columbia, or Northern Mariana Islands. If you receive SSI disability benefits and move, for example, to Mexico or Puerto Rico, you will lose those benefits. There are a few exceptions for some U.S. citizen children and students:
A blind or disabled child may be eligible for SSI benefits while outside the United States if the child is a U.S. citizen, lives with a parent who is a member of the U.S. Armed Forces assigned to permanent duty outside the United States, and was eligible to receive SSI benefits in the month before the parent reported for duty abroad.
A student of any age may be eligible for SSI benefits while temporarily outside the United States for the purpose of engaging in studies not available in the United States, sponsored by an educational institution in the United States, and designed to enhance the student’s ability to engage in gainful employment. The student must have been eligible to receive SSI benefits in the month preceding the first full month abroad.
B. Defining Disabled
For adults applying for disability, being disabled means that you are unable to engage in any substantial gainful activity because of a medically determinable physical or mental impairment. The disability must have lasted or be expected to last for a continuous period of at least 12 months, or be expected to result in death.
For children applying for SSI, being disabled means the child has a medically determinable physical or mental impairment that causes marked and severe functional limitations. The limitations must have lasted or be expected to last for a continuous period of at least 12 months, or be expected to result in death.
Let’s break these concepts down further.
1. Inability to Engage in Substantial Gainful Activity
Inability to engage in substantial gainful activity (referred to as the SGA requirement) means that if you work, you do not earn more than a certain amount of money. For nonblind people, the 2012 amount is $ 1,010 per month. For blind people, the amount is $1,690 per month in 2012. The SGA amount is usually adjusted annually. (If you ever need to find out the SGA income limit for a given year, simply call a local SSA office or check the SSA’s website. See Section C, below.)
Even if you have an impairment that meets the requirements for disability, you won’t qualify for SSDI or SSI if you earn more than the SGA level. In this situation, if you stop working and apply for disability payments, you must be able to show that your medical condition became worse or that special help you required to do your job was no longer available. The SSA is very lenient in this regard, if you make it clear that you had to stop working because of your medical problems. If you say you stopped working without a medical reason, you might not qualify to receive benefits.
SGA refers only to money you obtain from working, not money you obtain from other sources, such as investments or gifts.
2. Medically Determinable Impairment
A medically determinable physical or mental impairment is a disorder (abnormal condition) that results from anatomical (body structure), physiological (body function), or psychological (mental) abnormalities that can be proved by medically acceptable clinical and laboratory diagnostic techniques. The Social Security Act requires that a physical or mental impairment be established by medical evidence consisting of signs (objective findings by a medical provider), symptoms (subjective complaints by you), and laboratory findings.
In other words, the SSA must be able to determine that you have something wrong with you, either physically or mentally. To make such a decision, the government can ask to examine your treating doctor’s records and your hospital records, order X-rays or other tests as needed, or have you examined by a doctor of its choosing if your records are incomplete or too old. Symptoms such as pain are important, but alone cannot get you benefits. They must be linked to some physical or mental problem. In addition, your statement alone that you have symptoms is not sufficient. A doctor must show that you have a physical or mental condition that could cause the symptoms you say you have.
Remember: The medical listings are on Nolo’s website at www.nolo.com/back-of-book/QSS6.html. Parts 1 through 14 contain the Listing of Impairments, which is the medical information the SSA uses to determine whether your impairment meets the requirements to obtain disability benefits.
Pain and Other Symptoms
Your pain and symptoms are important parts of your disability claim. SSA staff frequently hand out forms that allow you to describe your pain and symptoms in your own words. For example, you might be asked to say where you have pain, what it feels like, what activities cause it or make it worse, and how long it lasts. In addition, you might be asked what medications you are taking and what side effects they may be causing. In fact, you should be asked these questions at some point during the claims process because federal law requires that the SSA consider your allegations of pain and other symptoms in reaching a decision. Pain and other symptoms are discussed more fully in Chapter 5.
3. Duration of Disability
Your impairment must be severe enough to disable you (according to the SSA’s medical criteria) for at least 12 continuous months or to result in your death. The 12-month duration requirement does not mean that you must have been severely ill for a year before applying for benefits, just that it is expected to last at least one year. The SSA often presumes that an impairment will last a year when it has not improved after three months.
If an impairment is obviously long-lasting and very severe, the SSA can make an immediate determination. For example, if your spinal cord was cut in half in an automobile accident, you will, at the very least, be unable to walk for the rest of your life. There would no reason for the SSA to wait before approving your claim, assuming you otherwise qualify.
The SSA includes the possibility of death in the definition of disability because death is the most extreme disability possible. Nothing in the Social Security Act specifies how to measure the possibility of death. But the SSA does provide some guidance. If you meet the criteria of any of the cancer listings, the SSA presumes you cannot work, based more on a poor prognosis than on an inability to do work. These cancer prognoses include a median life expectancy of 36 months. (See Part 13 of the Medical Listings on Nolo’s website for more on cancer listings and the definition of median life expectancy.) Sometimes, the SSA uses the same survival probabilities in deciding noncancer disabilities that might result in death. These estimates can be difficult to make, and require medical knowledge.
Many people apply for disability after acute injuries or impairments that won’t produce any long-term effect severe enough to qualify for benefits. If you have any question in your mind about how long your impairment will last, apply for benefits. This is especially true if you are over 50 years old. Older people do not need as severe an impairment as people under 50 to be allowed benefits. You can also ask your doctor’s opinion about how long your illness will last. But it will be up to the SSA to decide whether you meet the minimum duration requirement of 12 months. In some cases, the SSA might think your impairment will last long enough, even if your doctor does not.
There is one exception to the duration of disability requirement: SSI claims based on blindness have no duration requirement.
C. Contacting the Social Security Administration
Local Social Security offices are where you can apply for:
Social Security benefits
SSI, black lung benefits, and hospital insurance protection, and
a Social Security number.
You can also:
check on your earnings record
enroll for medical insurance
receive assistance in applying for food stamps
get information about your rights and obligations under the law, and
obtain forms you need to apply for or maintain benefits or appeal SSA decisions.
There is no charge for these services. Employees of the SSA are public servants paid by your tax dollars. They are obligated to be helpful and courteous. If you encounter someone who is not helpful and courteous, ask to talk to a supervisor. Usually, this will cause an immediate change in attitude, because complaints might affect the employee’s job performance ratings and ultimately his or her promotions or income.
If it is necessary, insist on speaking to the supervisor. Supervisors are usually very interested in working out problems. A request to talk to the supervisor’s supervisor is rarely necessary. If you feel you have been treated really badly, you can contact your local U.S. congressperson or senator. They will send a “Congressional inquiry” to the SSA. The SSA is very sensitive to public relations, and inquiries by Congress often get results if the complaint has merit.
Local Social Security offices exist in large cities of every state, and in bureaucratic language are known as Field Offices. Social Security office staff make regular visits to outlying areas to serve people who live a distance from the city in which the local office is situated. These visits are made to locations called contact stations. You can obtain a schedule of these visits from your local Social Security office. Some contact stations are visited twice a week, while others may be visited only once or twice a month.
The SSA is headed by a commissioner. The commissioner, administrative offices, and computer operations are located in Baltimore. The SSA discourages visits to this central office regarding individual claims because service can be provided by local offices.
If you are denied SSDI or SSI, you can appeal that decision. (Appealing is discussed in Chapter 12.) The Office of Disability Adjudication and Review (ODAR, formerly known as the Office of Hearings and Appeals) administers the entire hearings and appeals program for the SSA. Administrative law judges, located in or traveling to major cities throughout the United States and its territories, hold hearings and issue decisions when a claimant appeals a determination. The Appeals Council, located in Falls Church, Virginia, can review hearing decisions.
You can reach a live service representative by calling the SSA hotline at 800-772-1213, Monday through Friday (except holidays), from 7 a.m. to 7 p.m. If you are deaf or hard of hearing, TTY service representatives are available at the same times at 800-325-0778. All calls are confidential. After hours, you can obtain prerecorded information on a variety of topics.
SSA representatives can direct you to the Social Security office nearest you, as well as answer numerous other questions. Once you have made contact with your local SSA Field Office, you will deal with them rather than using the hotline.
The SSA’s phone lines are busiest early in the week and early in the month; if your business can wait, call at other times.
Have the following items handy when you call:
your Social Security number
a list of questions you want to ask
any recent correspondence you received from the SSA, and
a pencil and paper to write down information and answers to your questions. Always write down the date you called.
On the Internet, information about Social Security is at www.ssa.gov.
D. Frequently Asked Questions About Social Security Disability
Following are some frequently asked questions about SSDI and SSI.
1. How is the disability determination made?
The SSA disability evaluation is made under a procedure known as the sequential evaluation process. For adults, this process requires step-by-step review of your current work activity, the severity of your impairment, your remaining physical and mental abilities, your past work, and your age, education, and work experience.
For children applying for SSI, the process requires sequential review of the child’s current work activity (if any), the severity of his or her impairment, and an assessment of whether the impairment results in marked and severe functional limitations.
The sequential evaluation process is discussed in Chapter 7.
2. When do disability benefits start?
SSDI payments cannot be made until five months after the date of the onset (beginning) of disability. SSDI claimants may be entitled to retroactive (past) benefits, if the SSA finds they were disabled before their application date. Cash benefit payments cannot be paid retroactively to cover more than 12 months before the application date—no matter how severe your disability. There are exceptions to the five-month waiting period requirement. These exceptions, along with more detailed information about the onset of disability, can be found in Chapter 10.
Under SSI, disability payments may begin as early as the first day of the month after an individual files an application, but no earlier. If your claim isn’t approved until months after you apply, you’ll be entitled to back payments to that date. In addition, under the SSI program, you may be found “presumptively disabled” and receive cash payments for up to six months while the formal disability determination is made. The presumptive payment is designed to allow a needy person to meet his or her basic living expenses during the time it takes to process the application. If a claimant is denied SSI benefits, he or she is not required to refund the payments. Presumptive disability is covered in Chapter 4.
3. What if I disagree with the determination?
If you disagree with the SSA’s initial determination, you can appeal the decision. The first appeal of a denial is called a reconsideration, which is a review of your case by a DDS (Disability Determination Services) team that was not involved in the original determination. If your case is denied at the reconsideration stage, you can request a hearing before an administrative law judge. If you are dissatisfied with that decision and wish to continue pursuing the case, you can file a civil lawsuit in federal district court and eventually appeal all the way to the U.S. Supreme Court. (Appeals are covered in Chapter 12.)
4. Can I receive disability benefits or payments while getting Medicare or Medicaid coverage?
Yes. Medicaid and Medicare are our country’s two major government-run health insurance programs. Generally, people on SSI and other people with low incomes qualify for Medicaid, while Medicare coverage is earned by working in jobs covered by Social Security, the Railroad Retirement Act, or for the federal government. Many people qualify for both. In most states, you do not have to do anything special or additional to obtain Medicare or Medicaid coverage once you have qualified for disability. If and when you qualify for such coverage, the federal government will send you any forms you need to fill out. This is not true for Medicaid in all states, however. See SSI and Medicaid, below.
SSDI and Medicare. SSDI claimants granted disability benefits qualify for Medicare coverage. However, the coverage doesn’t start for two years from the onset of disability—and that means two years starting after the initial five-month waiting period. Therefore, you may be left without medical insurance coverage for several years if you don’t have some other type of coverage or are not poor enough to qualify for SSI Medicaid coverage. There are three exceptions to the two-year rule:
If you have end-stage renal disease with kidney failure and you require dialysis or a kidney transplant, coverage by Medicare can begin the third month after the month in which dialysis began.
If you are terminally ill with a life expectancy of six months or less and receive hospice care, coverage by Medicare can begin immediately.
Individuals with amyotrophic lateral sclerosis (ALS) qualify for Medicare as soon as they qualify for disability benefits.
If you get Medicare and have low income and few resources, your state may pay your Medicare premiums and, in some cases, other out-of-pocket Medicare expenses such as deductibles and coinsurance. Only your state can decide if you qualify. Contact your local welfare office or Medicaid agency. For more general information about Medicare, contact a local SSA office or look for Medicare Savings for Qualified Beneficiaries on the SSA’s website, www.ssa.gov, or get Nolo’s book Social Security, Medicare & Government Pensions.
SSI and Medicaid. In most states, SSI recipients who are granted disability benefits automatically qualify for Medicaid coverage. Where SSI recipients automatically qualify, Medicaid coverage starts immediately. In a few states, eligibility for Medicaid is not automatic when you receive SSI, and you will need to apply for Medicaid separately. Your local SSA office can tell you if you need to file a separate application for Medicaid. You can call your state medical assistance office for help applying; call the Centers for Medicare and Medicaid Services at 800-633-4227 to get the telephone number of your state medical assistance office.
5. Can I work and still receive disability benefits?
Social Security rules make it possible for people to test their ability to work without losing their rights to cash benefits and Medicare or Medicaid. These are called work incentives. The rules are different for SSDI and SSI, but under both programs, you can receive:
continued cash benefits
continued help with medical bills
help with work expenses, or
For more information about work incentives, see Chapter 13, Section D. There is more information available in the SSA’s A Summary Guide to Social Security and Supplemental Security Income Work Incentives for People With Disabilities on the SSA’s website, www.ssa.gov.
6. How can I receive vocational training services?
Claimants for SSDI or SSI may be referred to a state vocational rehabilitation agency for rehabilitation services. The referral may be made by the DDS (see Chapter 6), the SSA, a treating source, or personal request. The services may be medical or nonmedical and may include counseling, teaching of new employment skills, training in the use of prostheses, and job placement. In determining whether vocational rehabilitation services would benefit you in returning to work, medical evidence from your treating doctor may be very important. Vocation rehabilitation is discussed more in Chapter 9.
7. I understand that to get disability benefits, my disability must be expected to last at least a year. Does this mean that I must wait a year before I can get benefits?
You do not have to wait a year after the onset of the disability before you can get benefits. File as soon as you can after becoming disabled.
8. I have been receiving Social Security disability benefits for the past four years and my condition has not improved. Is there a time limit on Social Security disability benefits?
No. You will continue to receive a disability benefit as long as your condition keeps you from working. But, your case will be reviewed periodically to see if there has been any improvement in your condition and whether you are still eligible for benefits (see Chapter 14). If you are still eligible when you reach 65, your disability benefits will be automatically converted to retirement benefits.
9. I had a serious back injury four years ago and received disability benefits for about 18 months, until I could return to work. Unfortunately, my back problems have recurred and I don’t know how much longer I will continue working. When I initially applied for benefits, I waited several months before I received my first check. If I reapply for benefits, will my wait be as long as it was the first time?
Maybe not. It depends on what the new medical reports say and whether additional evidence is required. A worker who becomes disabled a second time within five years after benefits stop can have his or her checks start again, beginning with the first full month of disability, if the new claim is approved. (For SSDI, the five-month waiting period can be waived.)
10. My brother had an accident at work last year and is now receiving SSDI disability benefits for himself, his wife, and daughter. Before his accident, he helped support another daughter by a woman to whom he has never been married. Is the second child entitled to some benefits as well?
Yes. Even though your brother was not married to the second child’s mother, Social Security pays benefits to all of his children. Each child is entitled to equal benefits.