PERSONAL INJURY IN GENERAL
It's only natural that when we suffer bodily injury, no matter how severe, we want to blame someone and possibly even be compensated if someone else was at fault... but how far will the law allow us to go? It depends on the type and nature of the injury. To make it easier, I'll break it down by topics. This one is devoted to Social Security Disability.
SOCIAL SECURITY (SSDI AND SSI)
We pay into the system with every paycheck we get. They take out taxes, they take out retirement benefits and they take out social security. So, the question is when do we get it all (or some of it) back? We know the answer to that question for the first two, but what about social security? “Oh, I’m not old enough to start receiving social security,” or “I haven’t worked long enough to collect it,” you may say. BUT, you probably are not aware that you could be entitled to begin collecting social security sooner than you think!
This post will provide you with the information you need to determine if you are eligible now, rather than later. Although this information is available to you on the Social Security Administration website (www.ssa.gov), if you ever visit that site, you will notice it is not necessarily user friendly, even for attorneys. That is why I’m doing this post, to highlight the relevant information from that website, and explain it better for you. Like my workers’ compensation post, you will see that the social security process is also governed and very strictly enforced by federal law, so it works the same no matter what state you live.
Social Security Disability (SSDI) v. Supplemental Security Income (SSI)
While you believe these benefits are one and the same, the fact is that they are somewhat different. You become medically qualified for them exactly the same (which I will discuss below), but based on your financial and work background, you will only qualify for one and not the other.
SSDI benefits are available when you've worked long enough and paid enough into the system (although it varies, generally, you have to have worked at least 5 of the 10 years directly before you first became disabled). When you receive SSDI benefits, you are also eligible for medical assistance, although that does not occur until two years after you receive your benefits. SSI benefits, on the other hand, are for people who are disabled but either have not worked at all, have worked very little, haven't worked in a long time, or do not currently have more than $2,000 in resources (assets such as cash, real property, etc.). When an application is made for social security benefits, the Social Security Administration (SSA) will determine which type of benefit you are entitled to receive, if you are medically qualified, that is.
Medical Eligibility to Receive Benefits
Once SSA determines which type of benefit (SSDI or SSI) you are entitled to receive, it must then be determined whether you are medically qualified to receive benefits- that is, whether you are medically "disabled." How does SSA do so? This is a 5-step process, which I will explain.
Step 1: First it must be determined that you are not working or performing a substantial gainful activity (SGA). If you are working, generally you are not entitled to Social Security benefits. (Although you are entitled to earn partial wages up to $810.00 per month and still may be eligible to receive Social Security). As long as you are not working, then the analysis proceeds to Step 2.
Step 2: Second, it must be determined whether you have a severe medical or psychological impairment which prevents you from working or performing an SGA.
Step 3: If you have a severe impairment, then it will be determined whether your impairment meets the criteria or description of one of many of the SSA's Medical Listings. These listings basically contain various medical and psychological injuries/conditions with specific requirements which must be strictly met. If you meet one of these listings, then you are automatically considered disabled by definition and the analysis goes no further. If you do not meet one of these criteria, the analysis continues to step 4.
Step 4: At this step, it is determined whether you are capable of performing your past relevant work (if you have any). This is generally determined by looking at the physical demand of your past relevant work (if you have any), and determining your current physical work capacity, or your residual functional capacity (RFC). There are 5 levels of RFC from least to most physical demands- Sedentary (basically desk or office work with little or no physical component), Light duty, Medium Duty, Heavy Duty, and Very Heavy Duty. Generally, the lower your RFC level, the more difficult it is to do your prior work. Your treating or evaluating medical doctors, and other professionals, such as vocational experts, will render opinions as to your RFC level, but ultimately SSA will make the final decision based on all of your medical documentation regarding your injuries/illnesses/conditions, and how they prevent you from working and/or performing everyday activities.
STEP 5: The final step in the analysis is to determine if you are capable of performing any other substantial work (SGA) based on your RFC level, your age, education, and prior work experience. Generally, the theory is that the older you are, the less education you have, and the less transferrable work skills you have, the harder it is for you to find work. Add to that your physical or psychological limitations, and you may be found to be disabled. There are federal regulations, generally known as GRID RULES, which can determine whether you will be found disabled based on your age, education, work experience, and RFC level.
CLAIM PROCESS
So you believe you are entitled to benefits, what do you do now? The first step is to file the initial application for benefits. This may be accompanied by medical documentation, which you can submit, or which SSA will request. The most important thing to note is this: DO NOT be discouraged if you are initially denied on your first application. This is very very common, and happens in almost all cases.
After the initial denial, you have 60 days to file a Request for Reconsideration, which is basically a request to have the application reviewed a second time, and to submit new medical documentation or other bases for your claim. Your attorney may get involved at this stage, where you will file a Disability Report form to detail your medical or psychological impairments, and your limitations and restrictions as a result of your conditions/injuries. Once again, DO NOT be discouraged if you are again denied at this stage of the application. This is also very common, and happens often.
After the second denial, you have another 60 days to file a Request for a Hearing before an Administrative Law Judge (ALJ) who will hear your case, allowing testimony and submitting of medical documentation. The ALJ will listen to and decide your case without regard to the prior denials. If your attorney has not gotten involved prior to now, then your attorney will definitely get involved at this stage as the process will get more involved and overwhelming. With an experienced attorney at your side, you will have a much greater chance for receiving benefits. Your attorney will not only prepare your testimony and the medical documentation, but he/she will also make sure your doctor's reports contain the appropriate findings to help support your claim for disability. Many cases are won or lost on the strength of your medical records and your Disability Report. The hearings are very informal and unlike court proceedings, so you will feel much more relaxed and at ease.
If you are still denied by the ALJ, you will still have opportunities to appeal to the Social Security Appeals Council and then possibly to the United States District Court. Your attorney can explain this to you better if you need to take your claim that far.
AWARD OF BENEFITS/ATTORNEYS
When you are awarded benefits, you will likely be entitled to past due benefits, or back benefits, from some time before they were awarded to you. Because many social security claims can take years before you are awarded benefits (yes I said years), you may have been entitled to benefits long before they are actually awarded. For SSDI claims, you are entitled to back benefits either 5 months from the date you are actually found to have been first disabled, or 12 months prior to your first application date, whichever date is later. For SSI claims, you are only entitled to benefits from the date of your first application, no earlier.
As for attorneys, your attorney will only collect a fee if you are awarded past due benefits. If you are awarded past due benefits, your attorney will be entitled to collect 25% of your past due benefits, up to a maximum of $5,300.00, and this fee cannot be changed because it is set by Federal Law. If you do not collect benefits, or if you are not entitled to any past due benefits, you will not owe any fees to your attorney.
The most important thing to keep in mind is that you are entitled to social security benefits if you are disabled from work, regardless of how it happened. So, if you believe you are entitled, take action now.
Regardless of content, the information contained in this blog is intended for educational purposes only and shall not operate to bind the writer or any associated or referenced business, law firm, or other entity to any order or other contract unless pursuant to explicit written agreement or government initiative expressly permitting the use of such blog for such purpose. The reader hereby expressly agrees to save and hold harmless from liability the writer or any associated or referenced business, law firm, or other entity for the information provided in this blog, and further acknowledges that the information contained in this blog does not constitute legal advice or counsel, and shall merely be construed as informational, and not binding advice. The reader further acknowledges and agrees that this information does not serve to create a lawyer-client or other legal relationship between the reader and the writer or any associated or referenced business, law firm, or other entity.
No comments:
Post a Comment