Did you know that Social Security has a special disability benefit rule just for individuals who did not complete high school and who have done hard physical work for most of their lives?

Maine and New Hampshire Social Security Attorney Gordon Gates lets you in on this little know exception:

There is an offbeat little provision in the Social Security regulations that grants benefits for a worker who fits a particular vocational profile. This is the “worn out worker” rule.

The rule has 3 requirements for claimants:

1) a marginal education,

2) 35 years or more of only arduous unskilled physical labor,

3) the claimant is unable to do this kind of work because of a severe impairment(s).

Click through to Gordon’s article for details on what consistutes a “marginal” education and more information on how Social Security applies the “Worn Out Worker Rule” to see if it can help you in your case!

via Social Security Disability Lawyer | Maine Social Security Attorney | New Hampshire ALJ Hearings: The Worn Out Worker Rule.

Social Security classifies work into different exertional levels. You might have heard that somebody was denied  because he was still able to do “light work.”

Does  light work in the Social Security case mean the same thing as light work an a workers’ compensation case?

Or, light work that an employer might give you?

Is anything less than the regular job duties, light work?

Actually,  light work is a description of one of the four exertional levels of work (how physically demanding a job is).

Social Security has very specific definitions for all exertional work levels. Let’s take a look at them:

Sedentary work

Lifting and carrying is limited to 10 pounds or less, standing and walking is limited to under two hours out of an eight hour day. The majority of the time is spent sitting. However, a job can allow you to alternate between sitting and standing, and still be considered a sedentary job.

This is your basic “sitdown job.” Sedentary jobs include receptionist, dispatcher, assembler, packer, sorter,  and the all-time Social Security favorite: surveillance systems monitor.

Here is how the Social Security Ruling describes sedentary work.

The regulations define sedentary work as involving lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although sitting is involved, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. By its very nature, work performed primarily in a seated position entails no significant stooping. Most unskilled sedentary jobs require good use of the hands and fingers for repetitive hand-finger actions.

“Occasionally” means occurring from very little up to one-third of the time. Since being on one’s feet is required “occasionally” at the sedentary level of exertion, periods of standing or walking should generally total no more than about 2 hours of an 8-hour workday, and sitting should generally total approximately 6 hours of an 8-hour workday. Work processes in specific jobs will dictate how often and how long a person will need to be on his or her feet to obtain or return small articles.

Light work

In light work, the standing and sitting maximums are flipped: sitting is limited to 2 hours out of an eight-hour day, and standing is limited to 6 hours out of an eight-hour day.  Lifting increases from 10 pounds to 20 pounds occasionally, and 10 pounds frequently.

Light jobs include cashier, stocker, security, and many jobs that are not too physical, but require a person to stay standing or walking for most of the day.

Here is the definition of “light work” from the ruling:

The regulations define light work as lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted in a particular light job may be very little, a job is in this category when it requires a good deal of walking or standing — the primary difference between sedentary and most light jobs. A job is also in this category when it involves sitting most of the time but with some pushing and pulling of arm-hand or leg-foot controls, which require greater exertion than in sedentary work; e.g., mattress sewing machine operator, motor-grader operator, and road-roller operator (skilled and semiskilled jobs in these particular instances). Relatively few unskilled light jobs are performed in a seated position.

“Frequent” means occurring from one-third to two-thirds of the time. Since frequent lifting or carrying requires being on one’s feet up to two-thirds of a workday, the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday. Sitting may occur intermittently during the remaining time. The lifting requirement for the majority of light jobs can be accomplished with occasional, rather than frequent, stooping. Many unskilled light jobs are performed primarily in one location, with the ability to stand being more critical than the ability to walk. They require use of arms and hands to grasp and to hold and turn objects, and they generally do not require use of the fingers for fine activities to the extent required in much sedentary work.

Medium work

Now we are getting into the more physically demanding jobs including many skilled trades jobs such as plumbing, electrical and some construction work.

Medium work requires almost constant standing or walking, or kneeling, squatting, bending, climbing along with lifting 50 pounds occasionally and up to 25 pounds frequently.

Here is the definition of “medium work” from the ruling:

The regulations define medium work as lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. A full range of medium work requires standing or walking, off and on, for a total of approximately 6 hours in an 8-hour workday in order to meet the requirements of frequent lifting or carrying objects weighing up to 25 pounds. As in light work, sitting may occur intermittently during the remaining time. Use of the arms and hands is necessary to grasp, hold, and turn objects, as opposed to the finer activities in much sedentary work, which require precision use of the fingers as well as use of the hands and arms.

The considerable lifting required for the full range of medium work usually requires frequent bending-stooping. (Stooping is a type of bending in which a person bends his or her body downward and forward by bending the spine at the waist.) Flexibility of the knees as well as the torso is important for this activity. (Crouching is bending both the legs and spine in order to bend the body downward and forward.) However, there are relatively few occupations in the national economy which require exertion in terms of weights that must be lifted at time (or involve equivalent exertion in pushing and pulling), but are performed primarily in a sitting position, e.g., taxi driver, bus driver, and tank-truck driver (semi-skilled jobs). In most medium jobs, being on one’s feet for most of the workday is critical. Being able to do frequent lifting or carrying of objects weighing up to 25 pounds is often more critical than being able to lift up to 50 pounds at a time.

Heavy & very heavy work

Heavy and very heavy work is any work above the median exertional category. It involves jobs lifting up to, or more than, 100 pounds. The heaviest and most difficult construction work, often including construction cleanup, may be characterized as heavy or very heavy work.

For more information about  how Social Security defines the different exertional levels see SSR 83-10. Keep in mind that this is just the exertional levels of a job. Social Security also considers the non-exertional requirements of a job such as personal interaction, but exertional requirements are where the job analysis starts.

What happens to your Social Security case if your condition improves and you can go back to work? If your disability meets the “durational requirement,” you may still qualify for a closed period of disability and still be entitled to Social Security disability benefits.

Most claims for Social Security disability benefits ask for an “open” period of disability: you are disabled now and for the foreseeable future.

A closed period of disability has a definite beginning and ending date for your disability, and has to last at least 12 months. In a closed period of disability case, the date your became unable to work (or your alleged onset date) “opens” the period of disability, and the date you became able to work “closes” the period of disability.

For example:

• The doctors finally got the right dosage of anti-seizure medication and you have been seizure free for 6 months. You had your driver’s license reinstated and can go back to work.
• You have healed from your back surgery and can return to full time, but lighter duty, work.
• With therapy and counseling, your anxiety disorder is controlled and you have gotten your degree and are looking for work.

If you qualify for a closed period of disability, you may still be able to get benefits during the closed period. So, if your condition has improved and you have gone back to work, don’t just drop your case, or you may be giving up on benefits you are entitled to!

However, don’t forget the five month waiting period. I have had a number of clients who have gone back to work after a 12 month disability, but due to the 5 month waiting period, they only receive 7 months of benefits. It is just a wrinkle of the Social Security system to keep in mind.

To qualify for Social Security disability benefits you have to show that your disability prevents you from being able to work. In Social Security’s words, you have to show that you are unable to engage in a substantial gainful activity (SGA). SGA translates into a maximum dollar amount you are allowed to earn and still be potentially eligible for Social Security benefits.

For 2009, the most you can earn is $980 per month (before taxes or deductions).  If you earn more than this, Social Security may say that you are engaging in a substantial gainful activity and, therefore, not eligible for disability benefits.

The SGA issue is so important that it is the very first step of the 5 step sequential evaluation process – the way Social Security evaluates adult disability claims!

What do I do if I earn more than the substantial gainful activity amount? Does than mean I can’t get Social Security disability benefits?!?

Not necessarily. There are exceptions that may allow you to still qualify for Social Security disability benefits even if you are earning more than the SGA amount.

Some of these exceptions include:

1. Impairment Related Work Expenses (IRWE).
2. Subsidized Earnings and/or Sheltered Employment.
3. Unsuccessful Work Attempts (UWA).
4. Trial Work Period (TWP). Note: TWP are a way to test your ability to work if you are already on Social Security while still preserving eligibility for Social Security benefits.

If Social Security has said that you earn too much, it is not the end of your case.

I previously wrote about how Social Security stops benefits for fleeing felons. However, there has been considerable litigation across the country regarding what constitutes a “fleeing felon.”

Social Security changed its definition of “fleeing” due to a settlement in the nationwide class-action lawsuit.

The April 2009 issue of capital NOSSCR Social Security Forum has a lengthy discussion of this:

Under the POMS [a set of regulations which govern Social Security procedures], the mere fact that a warrant is active or outstanding, amounts to a “fleeing” determination by SSA, with no effort to determine the individual’s intent to avoid law enforcement and prosecutors intent to pursue the individual.

….

The settlement provides that SSA will change its policy from April 1, 2009, going forward. Effective immediately, SSA will suspend or deny benefits only if the individuals outstanding felony warrant was issued for one of the following three offenses, which are directly based on the concept of “fleeing”:

• Escape (offense code 4901)
• Flight to avoid prosecution, confinement, etc (offense code 4902)
• Flight-escape  (offense code 4999)

….

Relief will be provided to those whose benefits have previously been suspended or denied.

SSA will cease collecting overpayments based on challenged policy and will repay full retroactive benefits to individuals been suspended or denied as of January 1, 2007, or who had a live administrative claim pending on this issue on August 11, 2008, and who continue to be otherwise eligible for benefits.

SSA will send a notice to anyone who had benefits suspended or denied since January 1, 2000.

…

Note: [This] settlement applies only to nonpayment provisions for “fleeing felons.” Nonpayment provisions will continue to apply to those who violate their probation or parole.

Basically, Social Security is agreeing to consider the  individual’s intent  in determining whether an individual is a “fleeing felon.”

This suggests that simply having an outstanding felony warrant might not be enough for Social Security to discontinue benefits. However, this has been a hotly litigated area of the law. While this is a very favorable determination for anyone who had their benefits stopped due to the “fleeing felon” rule, the issue may not yet be settled.

To qualify for Social Security disability benefits you have to show that your disabilities prevent you from being able to work. In general, you have to show that you are unable to perform a substantial gainful activity (SGA).

However, there are exceptions to this general rule, including Subsidized Wages or Sheltered Work environments.

Social Security can only consider the money you earn in deciding if your work is a substantial gainful activity. Anything over the “reasonable value” of your work, may be a subsidy. Social Security cannot consider a subsidy, basically a “gift,” as earnings in determining if the work is a substantial gainful activity.

A subsidy is any compensation over the fair value of your work.  This often happens if you work for a family member or if you work through an agency like Goodwill.

If you are paid for a 40 hour week but you only work 25 hours, you have a 15 hour subsidy.  Another possibility is if the value of your work is $8.00 an hour, but you are paid $10.00 an hour (a $2.00 an hour subsidy).

If you subtract the subsidy, and your gross income is below the SGA amount, you might still be able to keep your Social Security benefits.

For example, if you are working for a an agency which receives state or federal funding to provide assistance, training or employment for individuals with disabilities, you may be working at a sheltered work environment and your wages may be subsidized.

I have also had many cases where an individual is given a job by a friend or family member and told to, “Watch the phones and take messages.” This may be both a sheltered work environment with subsidized earnings.

Another common example is in the military when a soldier becomes disabled. I have done a number of cases where the soldier was still receiving full pay in the military but whose duties were greatly reduced or eliminated due to disability. Sometimes, the soldier is part of the Warrior Transition Unit. Social Security will frequently consider this a sheltered work environment and allow the disability case to continue even though the earnings would otherwise be SGA.

Here are the regulations on this topic  (20 CFR 404.1574):

(2) We consider only the amounts you earn. When we decide whether your earnings show that you have done substantial gainful activity, we do not consider any income that is not directly related to your productivity.

• When your earnings exceed the reasonable value of the work you perform, we consider only that part of your pay which you actually earn.
• If your earnings are being subsidized, we do not consider the amount of the subsidy when we determine if your earnings show that you have done substantial gainful activity.
• We consider your work to be subsidized if the true value of your work, when compared with the same or similar work done by unimpaired persons, is less than the actual amount of earnings paid to you for your work.
• For example, when a person with a serious impairment does simple tasks under close and continuous supervision, our determination of whether that person has done substantial gainful activity will not be based only on the amount of the wages paid.
• We will first determine whether the person received a subsidy; that is, we will determine whether the person was being paid more than the reasonable value of the actual services performed.
• We will then subtract the value of the subsidy from the person’s gross earnings to determine the earnings we will use to determine if he or she has done substantial gainful activity.

(3) If you are working in a sheltered or special environment. If you are working in a sheltered workshop, you may or may not be earning the amounts you are being paid.

• The fact that the sheltered workshop or similar facility is operating at a loss or is receiving some charitable contributions or governmental aid does not establish that you are not earning all you are being paid.
• Since persons in military service being treated for severe impairments usually continue to receive full pay, we evaluate work activity in a therapy program or while on limited duty by comparing it with similar work in the civilian work force or on the basis of reasonable worth of the work, rather than on the actual amount of the earnings.

Even if you know the definition of a substantial gainful activity (SGA), could you apply it? Can you be sure that the last job you tried before you applied for Social Security disability benefits was SGA?

Charles Hall proposes that substantial gainful activity (SGA) has become just too complicated.

If one is engaging in SGA, one cannot be considered disabled, but SGA is a term of art. Work may not be SGA if low earnings, unsuccessful work attempts, made work, subsidized employment, impairment related work expenses, trial work periods, etc. are taken into consideration. 

…The biggest problem now is that SGA is just too complicated. Claimants have no idea how it works. Even many Social Security employees who should understand how SGA works, don’t.

Read Charles Hall’s original article is by Charles Hall on his Social Security News blog.

I have to give credit to Gordon Gates for bringing Charles Hall’s article to my attention in the first place. Gordon responds:

I also agree with the assessment that SGA is too complicated. There are some very important exceptions and adjustments to the $980 per month SGA amount, including the unsuccessful work attempt. A thorough knowledge of these complicated SGA rules is critical because SGA exceptions can make the difference between winning and losing a claim (the cliff).

Here is one of the exceptions taken from the introductory section of the Substantial Gainful Activity regulations (20 CFR 404.1571):

Even if the work you have done was not substantial gainful activity, it may show that you are able to do more work than you actually did.

Basically, this says that even if you earn less than SGA, you still might have a problem with a disability claim.

To some extent, this makes sense. Let’s say you are able to do construction work, but your disabilities limit you to only part-time work, and you earn less than the SGA amount ($980 per month for 2009).

Non-SGA heavy work may suggest the ability to do SGA work at a lighter level. 

Being able to do part-time construction work might mean you could do full time lighter work, such as a cashier where your earnings would be more than the SGA amount (and potentially make you ineligible for Social Security disability benefits).  

What it all comes down to is that the SGA is complicated. And this is only one issue. See all the articles dealing with substantial gainful activity.

If you are wondering whether you will get Medicare or Medicaid with Social Security, it all depends on the type of Social Security you receive.

• Social Security disability insurance (SSDI) comes with Medicare.
• Social Security Supplemental Security Income (SSI) comes with Medicaid.

What’s the difference between Medicare and Medicaid?

The Colorado Bar Association has a great page discussing the differences. Here is a quick summary:

Medicare provides only partial coverage, and requires beneficiaries to pay premiums, deductibles, and co-payments.

Medicaid provides more complete coverage, without significant payments from the beneficiaries.

Click to read more about the differences.

If you win your claim for Social Security disability insurance (SSDI), you are also eligible to receive Medicare benefits. But, you don’t get Medicaid right away, with some exceptions, you have to be “in pay status” for 24 months before you become eligible for Medicaid.

That means you have to be receiving 24 months of Social Security disability insurance to get Medicare.

Another two years? I just waited two years to get my case approved.

Fortunately, Social Security considers your back benefits when they count the 24 months. So, if Social Security 24 months of back Social Security disability insurance, you are already “in pay status” for 24 months, and you can get Medicare now.

Aren’t there any exceptions to the 24 month Medicare waiting period?

Only two. If you have one of the following conditions, the waiting period does not apply and you can get Medicare immediately:

1. End stage renal disease.
2. Amyotrophic lateral sclerosis (ALS, or Lour Gehrig’s disease).

I previously wrote about the various exceptions which may allow you to keep your Social Security disability benefits even if you return to work. The most common of these is an Unsuccessful Work Attempt (UWA). 

If you work for 6 months or less at a substantial gainful activity (SGA) level, your work may qualify as an Unsuccessful Work Attempt and not affect your application for benefits (or your current Social Security disability benefits if you have already won your case).

Another benefit of the Unsuccessful Work Attempt exception is that it applies for both Social Security Disability Insurance (20 CFE 404.1574) and Supplemental Security Income (SSI) (20 CFR 416.974) cases. This is a major difference between Unsuccessful Work Attempts and Trial Work Periods.

A common misconception about Unsuccessful Work Attempts:

Before we get into what you need to prove to qualify for an Unsuccessful Work Attempt, let’s talk about the biggest mistake people make about Unsuccessful Work Attempts. 

Work lasting longer than 6 months cannot be an Unsuccessful Work Attempt. FALSE!

If the earnings drop to below the SGA level before the end of the 6 month period, the work can still be an Unsuccessful Work Attempt even if it lasts for more than 6 months.

The regulations dealing with Unsuccessful Work Attempts clearly state this (20 CFE 404.1574 & 20 CFR 416.974).

Ordinarily, work you have done will not show that you are able to do substantial gainful activity if, after working for a period of 6 months or less, your impairment forced you to stop working or to reduce the amount of work you do so that your earnings from such work fall below the substantial gainful activity earnings level.

How to qualify for an Unsuccessful Work Attempt

Here is how to prove your work was an Unsuccessful Work Attempt and should not count against you even though it would otherwise count as a substantial gainful activity.

1. A “significant break” between prior work and the Unsuccessful Work Attempt. 

According to SSR 05-02, a “significant break” means the following:

1. You were out of work for at least 30 consecutive days. Or 
2. You were forced to change to another type of work or another employer. 
3. However, on rare occasions a break lasting a few days less than 30 may satisfy this requirement if your subsequent work episode was brief and clearly not successful because of your impairment.

It is even possible to have a significant break without leaving your last job. Again, referring to SSR 05-02:

Such an interruption would occur when, because of your impairment or the removal of special conditions related to your impairment that are essential to your further performance of the work, the work was discontinued or reduced (or limited) to the non-SGA level.

How about that! You could even meet the “significant break” requirement if your earning drops below SGA levels due to a removal of special conditions.  Don’t worry, I will provide examples of “special conditions” in just a bit.

The next requirement changes depending on whether you worked for less than 3 months, or if you worked less than 6 months.

2. If you worked 3 months or less. 

We will consider work of 3 months or less to be an unsuccessful work attempt if you stopped working, or you reduced your work and earnings below the substantial gainful activity earnings level, because of your impairment or because of the removal of special conditions which took into account your impairment and permitted you to work.

This is the easiest way to have work qualify as an Unsuccessful Work Attempt.

If you work for 3 months or less at an SGA level, and had to stop either because of your disability or because the boss took away a special accommodation, it may qualify as an Unsuccessful Work Attempt, and not count against you.

3. If you worked between 3 and 6 months. 

We will consider work that lasted longer than 3 months to be an unsuccessful work attempt if it ended, or was reduced below substantial gainful activity earnings level, within 6 months because of your impairment or because of the removal of special conditions which took into account your impairment and permitted you to work and

(i) You were frequently absent from work because of your impairment;

(ii) Your work was unsatisfactory because of your impairment;

(iii) You worked during a period of temporary remission of your impairment; or

(iv) You worked under special conditions that were essential to your performance and these conditions were removed.

If you worked longer than 3 months, but less than 6 months, Social Security has a few more requirements to prove that the work was an Unsuccessful Work Attempt.

You still have to show that you had to stop either because of your disability. Additionally, you also have to show that you either missed a lot of work, did not do a good job, were working while your condition was better, or you had special accommodations which let you do the job, until the accommodations were taken away.

4. If you worked more than 6 months. 

We will not consider work you performed at the substantial gainful activity earnings level for more than 6 months to be an unsuccessful work attempt regardless of why it ended or was reduced below the substantial gainful activity earnings level.

In short, if you work more than 6 months at a SGA level, it cannot be an Unsuccessful Work Attempt.

You can have more than one UWA:

Did you know that you can have more than one Unsuccessful Work Attempt? 

As long as you meet the requirements of a “significant break” between Unsuccessful Work Attempts, many jobs can qualify as UWA.  This often comes up in bi-polar disorder cases where an individual has a tried to work in a lot of jobs, but has not lasted very long at any of them (often due to problems working with supervisors, co-workers, or the public). 

If you can eliminate each job as an Unsuccessful Work Attempt, you may be able to push the onset date further back and potentially increase your back benefits.

When CAN’T you use an Unsuccessful Work Attempt:

This will not apply for most people, but it is good to keep in mind:

When the UWA is Applicable: The UWA policy explained in this SSR is to be used in initial disability cases. It is also to be used in continuing disability cases in determining whether, because of work activity, your disability continues or ceases. However, the UWA criteria do not apply in determining whether payments should be made to you for a particular month during the reentitlement period after disability has been ceased because you did SGA, or during the initial reinstatement period after you have been reinstated through the expedited reinstatement provision. 

SSR 05-02

Basically, you can use an Unsuccessful Work Attempt to excuse work which is a substantial gainful activity when you are trying to get benefits or during a Social Security review if you have already won your case. However, you cannot use a Unsuccessful Work Attempt during a the Extended Period of Eligibility following a Trial Work Period.

Work under special conditions:

SSR 05-02 provides guidance about what constitutes “work under special condition.”

Performance of Work Under Special Conditions: One situation under which your SGA-level work may have ended, or may have been reduced to the non-SGA level, as set out above, is “the removal of special conditions related to your impairment that are essential to your further performance of work.” That is, you may have worked under conditions especially arranged to accommodate your impairment or you may have worked through an unusual job opportunity, such as in a sheltered workshop. Special or unusual conditions may be evidenced in many ways. For example, you:

a. May have required and received special assistance from other employees in performing the job; or
b. Were allowed to work irregular hours or take frequent rest periods; or
c. Were provided special equipment or were assigned work especially suited to your impairment; or
d. Were able to work only within a framework of especially arranged circumstances, such as where other persons helped you prepare for or get to and from work; or
e. Were permitted to perform at a lower standard of productivity or efficiency than other employees; or
f. Were granted the opportunity to work, despite your medical condition, because of family relationship, past association with the firm, or other altruistic reason.

Remember that these are examples only and other accommodations may also qualify as work performed under special conditions.

Have you ever seen this in a Social Security denial?

While your condition may prevent you from working at the present, we do not feel that your condition will remain disabling for 12 months.

[Claim denied]

First, Social Security says that you are disabled. Then, they deny the claim. What is going on?

To qualify for Social Security disability benefits, you have to be disabled. However, that is only part of the analysis.  Social Security also requires that your disability be expected to last for at least 12 months.

This is called the durational requirement. If your disability is not expected to last for 12 months, or does not actually last for 12 months (or longer), Social Security will deny the claim.

I see often this in car accident or back injury cases. Social Security agrees that you are disabled right now. However, they deny the case because they do not think you will be disabled for 12 months.

What can I do about it?

As you already know, most Social Security cases takes over a year from beginning to end (with many taking more than two years). So, in many cases the durational requirement is met by the time the case goes to hearing because 12 months have passed since the start of the disability.

At that point, it is no longer a matter of predicting whether you will still be disabled for 12 months, but only question of whether you actually have been disabled for 12 months.

So I HAVE TO wait for 12 months to be found disabled?

Not necessarily. You can be found disabled if your condition is expected to last for 12 months or longer.  If you can get a prognosis, a medical statement, that your condition is disabling and that it is expected to last for at least 12 months, you can be found disabled without waiting out the 12 month durational period.

Also check out how the durational requirement fits in the 5 step process Social Security uses to review cases.

We previously discussed Social Security’s Disability Insurance Benefit (DIB) and Supplemental Security Income (SSI) programs.

The big difference between DIB and SSI is type of income which affects eligibility. 

Under the “Disability Insurance” Program, Social Security considers whether you are working and earning money (engaging in a Substantial Gainful Activity – SGA). If you earn too much money as income, you may be denied Social Security DIB benefits.  Of course, there are some exceptions.

In other words, if you are applying for Disability Insurance Benefits, your earnings, if any, may make you ineligible.  But, other sources of money: gifts, prizes, winnings, settlements, and even spouses income, are NOT counted in determining eligibility.

Under Supplemental Security Income, all income: your earnings, your spouse’s earnings, gifts, settlements, and in children’s cases: household income, can make you financially ineligible to receive SSI.  SSI is a ”needs based” program and a program of last resort, if you have another source of income, then your “needs” are viewed as decreased.

In addition to income, SSI also considers your assets in determining eligibility. The plot of land you own, those shares of stock you received, most any assets you have may make you ineligible for SSI.

HOWEVER, the income and asset rules are so complicated and have so many exceptions that you do not want to jump to conclusions about whether or not you may be eligible.  This is something you will want to go over with Social Security.

Is there a difference between Disability Insurance (DIB) and Supplemental Security Income (SSI) benefit amounts?

Yes. The maximum you can receive on SSI is based on the annual Federal Benefit Rate (FBR).  For 2009, the FBR is $674.  That mean the most you can receive on SSI in $674 per month.  

Generally, Disability Insurance Benefits are based on your payroll contribution to Social Security.  The more you have paid into Social Security, the more in monthly benefits you may be entitled to.  

If you want to get an idea of how much you may be entitled if you become disabled, Social Security has online benefit calculators which can estimate benefits amounts.  Social Security also mails you a “Social Security Statement” every year before your birthday which describes your estimated benefits.

If you apply for Social Security Disability Insurance benefits (SSDI or DIB), you may be surprised that Social Security keeps the first 5 months of back benefits.

This is referred to as the “5 month waiting period.”

If you awarded benefits back to January 1st, Social Security actually keeps the benefits for January, February, March… all the way through May.  Your disability insurance benefits will start in June.  

What?!?!  But, it is my money!

I know! But, that is how the system works!

However, there is an exception to the 5 month waiting period.

Bear with me while I go over some basics:  Disability Insurance benefits can only be paid 12 months prior to the Protected Filing Date (PFD). 

If your PFD is January 2009, at most you can get benefits back to January 2008. If your Alleged Onset Date (AOD) is January 2008, Social Security applies the 5 month waiting period (keeping your benefits for January through May) and your benefits begin to paid as of June 2008.  

Here is the exception to the 5 month waiting period: if your Alleged Onset Date (AOD) is 5 months or more BEFORE the 12 month maximum back payment period, you do not lose 5 months of benefits?

What? Go over that part again.

Let me put it another way. If your Alleged Onset Date is 17 (or more) months before the protected filing date (PFD), you are eligible to get the maximum 12 months of back benefits prior to Protected Filing Date.

Just keep in mind that you cannot just pick a date 17 months before you applied as your Alleged Onset Date (AOD) and leave it at that.  You have to prove you were disabled back to the Alleged Onset Date. The further back you have prove your disability, the more difficult your case becomes.

Here is a quick “Term of the Day”

Alleged Onset Date (AOD) - the Alleged Onset Date is the date your disability began. Or, the date you claim entitlement to Social Security disability benefits.

Also see, “what if the Judge wants me to change the date my disability began?“

The Protected Filing Date (PFD) is the date you contacted Social Security and asked to file an application.

What is so special about that?

The PFD is used to determine how far back your benefits can be paid.

What makes it “protected?”

Since the application process takes time, Social Security does not want to penalize you for delay between the time you ask to start an application and the time you actually finish it.

For example: if you contact Social Security on January 2nd to start an application (Social Security is closed on new year’s day), but do not turn in all the paperwork until February 1st, Social Security will use January 2nd as your protected filing date, even though you did not actually turn in your application until February.

This could mean an extra month of benefits for you.

I have written about how Social Security defines disability, work, and a substantial gainful activity.

But, how does Social Security really evaluate a case?

Social Security reviews cases using the five-step sequential evaluation process to decide is a person is disabled.  Here are the 5 questions that make up the sequential evaluation process:

1. Does your impairment keep you from being able to perform a substantial gainful activity (generally full-time, competitive, work)?
2. Is your impairment severe?  AND, is your impairment expected to remain severe for at least 12 months?  
3. Does your impairment “meet or equal” one of Social Security’s “Listing of Impairments?” A listing of medical conditions, acceptable medical evidence, and the severity necessary for an impairment to be considered disabling.  There are separate listings for adults and for children.  
4. Does your impairment prevents you from being able to perform any job you performed over the last 15 years which was also a substantial gainful activity?
5. Does your impairment prevent you from being able to perform any other type of work which exists in substantial numbers of the national economy?

Let’s take these one at a time:

Step 1: Engaging in a Substantial Gainful Activity (SGA)

A.k.a.: Are you working?

Even you have a clearly disabling condition, if you are able to work at a substantial gainful activity level (SGA), you are not disabled.  

Example, you may be limited to crutches or a wheelchair, but you force yourself to work a full time, competitive, job.  Under Social Security regulations, you are not considered disabled.  

Because you are able to work, you do not qualify for Social Security disability benefits.  

There are exceptions to this.  

• If you are working full time, but your medical expense, which let you work, are so high that your pre-tax income is still below SGA threshold, then your Impairment Related Work Expenses (IRWEs) make your work not SGA.  So, you case should not be denied at step 1.
• If you are working at an SGA level, but the work is not competitive: you either got a job through a friend or family member and you not held to the same standards as another worker in the same position, or if you are being paid a “subsidy” — the value of your work is $600 a week, but you are being paid $800 a week.

Step 2: Severity

For an impairment to be severe, it has to cause more than a minimal effect on your ability to perform daily activities? 

Example: many people have asthma.  However, asthma is not always disabling. Asthma is often well controlled with medications. When it is not well controlled, it may be a severe impairment.

As a Colorado lawyer, I do not see Social Security deny a lot of cases because they do not believe a impairment is severe.  However, every once in a while, this comes up.  Having a “severe” condition is a pretty low standard and it is usually fairly easy to show that a condition has more than a minimal effect on daily activities.

The second part of this is more difficult.  The condition has to be expected to remain severe for 12 months or longer.  

If you are denied because Social Security does not think your condition will be disabling for 12 months, it is called a “durational denial.”

I often see a durational denial, where there has been a traumatic accident (such as a car accident) or in cases of disability during the recovery period following serious surgery (such as a back fusion).

Social Security accepts that there will be a healing period where you may not be able to work.  But, unless you can convince Social Security that your condition will remain disabling for 12 months, you may be denied.  

Step 3: Listing Level Impairment

This is the “short-cut” step.  If you have a condition which is contained in the Social Security Listing of Impairments AND the medical findings match what is required for your listing, you may be found disabled without Social Security considering the last two steps.  This is “meeting a listing.”  

You can also be found disabled at this step if your condition “equals a listing.” Equaling a listing means that while your condition may not be mentioned in the Listing of Impairments, it is just a severe AND has the same findings as a listed impairment. 

In my experience with individuals who have already been denied once, the chance of meeting or equaling a listing level impairment is small.  But, it is always worth considering. 

Step 4: Ability to Perform Prior Work

If you are able to perform any of the past work you have done at a substantial gainful activity level, over the last 15 years before your disability began, Social Security can deny you.

Example: If you previously performed very physical work (construction work or nursing), but you also did worked as a manager for a few months, you may be denied based on your ability to still be able to perform the management job.  This may apply even though it is not your most recent work, the employer is no longer in business, or if you cannot get hired for that type of work any more.  

Keep in mind that this is just a general overview.  Every case depends on its specific circumstances. Also, there are a number of issues around this step including whether you worked long enough to learn the job.  

Step 5: Ability to Perform Other Work

Even if you are unable to perform any of your past jobs, you can still be denied if there are other jobs you can still perform which exist in substantial numbers in the national economy.  

This is a very complicated area where many cases are won or lost.   The rules at this step change depending on your age group (18-49, 50-54, and 55-60).

• If you are under 50, the rule of thumb is that you have to prove that there is no work in the national economy that you can still perform.  
• If you are over 50 years old, the rules get a bit easier, but you still have to eliminate most kinds of jobs to win your case. 

This is just a quick rundown of the five-step sequential evaluation process. There are exceptions and corollaries to this but I just want to quickly state the steps that Social Security goes through in evaluating a disability claim.

Social Security encourages you to try to go back to work to see if you can do it. A Trial Work Period (TWP) lets you work and still be considered disabled by Social Security.

A beneficiary receiving Social Security disability benefits may test his or her ability to work and still be considered disabled. We do not consider services performed during the trial work period as showing that the disability has ended until services have been performed in at least 9 months (not necessarily consecutive) in a rolling 60-month period. In 2007, any month in which earnings exceed $640 is considered a month of services for an individual’s trial work period. In 2008, this monthly amount increases to $670.

To sum up, a Trial Work Period lets you work and still be considered disabled by Social Security.  Not only that, but Social Security does not count all the months you work, just the ones where you earn more than a threshold Trial Work Period amount:

• 2009  -  $700 per month.
• 2008  -  $690 per month.
• 2007  -  $630 per month.

However, a Trial Work Period only applies in Disability Insurance Benefit claims under Social Security.  Supplemental Security Income (SSI) claims do not get a Trial Work Period. In other words, if you are only getting SSI, you do not get the 9 months to see if you can work while still being considered disabled by Social Security.  If you are on SSI and return to work, a different set of rules apply.

Also, Trial Work Periods only apply after you have been found disabled. If you return to work while you are applying for benefits, you cannot use a Trial Work Period to excuse Substantial Gainful Activity  level earnings. However, there are other exceptions which may apply.

How the Trial Work Period works:

1. If you earn less than the Trial Work Period amount, you can work and still be disabled.  Your earnings do not trigger a Trial Work Period.
2. You can work up to 9 months and earn the Trial Work Period amount, or more, without losing your disability status or your benefits.
3. The nine months do not have to be consecutive.  You might earn $1,000 in January, but only $400 in February and March, and then $1,100 in April.  January and April count as 2 of your 9 TWP months, but February and March do not.
4. If your gross income is more than the Trial Work Period amount for longer than 9 months (within a rolling 60 month – aka 5 year – period) Social Security will re-evaluate your case and may stop your disability status and stop your benefits.

But, what if I use up my 9 month Trial Work Period, my benefits stop, and then in the 10th month, something happens and I can’t work?  

Am I back to square one? 

Do I have to reapply for benefits?

Social Security has a safety net.  After the 9 month Trial Work Period, you may get a 36 month re-entitlement period, or “Extended Period of Eligibility” (EPE). During the Extended Period of Eligibility, Social Security may continue your benefits in any month that your gross earnings are not at the Substantial Gainful Activity (SGA) level.

Social Security has two different benefit programs for individuals who are disabled.

• Disability Insurance Benefits (DIB, also known as SSDI, or Title 2 benefits); and
• Supplemental Security Income (SSI or Title 16 benefits).

Because of its name, it is a common misconception that must apply for “Disability Insurance” if you are disabled. Actually, both programs provide disability benefits.  

What is Disability Insurance Benefits (DIB)?

Generally, Disability Insurance Benefits are based on your payroll contribution to Social Security.  To qualify for DIB, you have to have earned enough Social Security credits, in the right time frame, by paying into Social Security through payroll taxes.  

There are several circumstances in which you may not have enough credits for Social Security Disability Insurance:

• If you have never worked.
• You worked so long ago that you are past your date last insured.  
• Instead of paying into Social Security, you paid into a state program (such as PERA). 

In each of these cases, you might not be eligible for Disability Insurance (DIB).
Please note that this is just an overview.  There are several circumstances in which you may still be eligible for Social Security Disability Insurance (DIB) even if you do not have not have enough credits under your own earnings, including:  

• Social Security Disability Insurance (DIB) based on a spouse’s, or former spouse’s, earnings.
• Widow/er’s benefits and Children’s benefits when a spouse/parent dies.
• DAC (Disabled Adult Child) benefits.

It is often a good idea to speak with Social Security if you think you may qualify for one of these other types of Social Security Disability Insurance Benefits (DIB).

What is Supplemental Security Income (SSI)?

Even if you are not eligible for DIB, you may still be able to apply for SSI.  

Supplemental Security Income is a Social Security program which provides disability benefits to the following groups:

• Children, 
• Adults who have never worked; and 
• Adults who do not have enough quarters of coverage, or are past their date last insured.

Between a Rock and Hard Place:

Is it possible to not be eligible for either Disability Insurance Benefits (DIB) or Supplemental Security Income (SSI)?

Sadly, yes.

If you cannot prove your disability prior to your date last insured, and your spouse makes too much money (or you have another problematic source of income), it is possible that you may not qualify for either DIB or SSI.  This is the proverbial between a rock and a hard place.

Which Program Should I Apply For?

In my opinion, apply for both.  Do not rule out your eligibility for a particular Social Security program. When you apply, Social Security will determine which benefit program(s) you are eligible for and will help you file the application. However, if you want to know if you will qualify for either program, Social Security has a website where you can see what benefits you may be eligible for.

But, Wait!  There’s More.

Once again, this is just a quick overview of DIB and SSI.  There are differences between Social Security Disability Insurance (DIB) and Supplemental Security Income (SSI) which I will address in other articles.

Social Security a bit like car insurance:  you pay your premiums to obtain insurance covered.  

When it comes to Social Security, your premiums are your payroll taxes and the coverage is disability insurance.  

In order to qualify for Social Security Disability Insurance, you have to have paid enough into the Social Security system through payroll taxes.  Once you have worked long enough, you become insured for Disability Insurance benefits should you become unable to work.

What happens when you stop paying your premiums?

Just like for car insurance, you may be covered for some time after your last payment, but there will be a cut off date for your policy.  If you have an accident before your cut off date, the insurance company will take care of you.  However, if you have an accident after your policy lapses, the insurance company wont give you anything.  

So, how does this apply to Social Security?

If you have stopped working (or have started a job that does not pay into Social Security — one example in Colorado is teachers, who pay into PERA instead), you stop paying the “insurance premium.”  That means that sooner or later you will reach your date last insured.  The last date you are insured for Disability Insurance benefits under Social Security.  

Here is where things get a little tricky:

• The date last insured does not limit when you can file for benefits.  You can still file for Disability Insurance benefits after your date last insured.  Note: there are some exceptions to this which go beyond the scope of this article.
• The date last insured limits when you must prove your disability began.  Just as in a car accident case where you have to prove that the accident happened while you were still insured, in a Social Security case, you have to prove that the disability occurred before the date last insured.  
• If you can prove that your disability began before your DLI, you may be able to receive Disability Insurance benefits (even if you file for benefits after the DLI).  If you cannot prove the disability began before the DLI, you might not be eligible for Disability Insurance.

Here is another important thing to keep in mind:

Date last insured only applies in Disability Insurance cases.  Date last insured is not an issue in the “other” kind of Social Security disability benefits:  Supplemental Security Income (SSI cases).  While date last insured may make you be ineligible for Disability Insurance Benefits, you may still qualify for Supplemental Security Income benefits (SSI).  

 photo credit: wrhowell

A lot of people ask me how Social Security decided if they are disabled.

I can’t do the work I have done for 35 years.  Am I disabled?

I stopped working to take care of a family member, but now I am sick.  Am I disabled?

I got hurt at work, then they fired me.  I keep applying for jobs, but there just isn’t much work around here.  Am I disabled?

The doctor tells me I will probably need serious surgery later on.  Am I disabled?

I will need to be on medication for the rest of my life.  Am I disabled?

Social Security focuses on ability to work to test for disability.

Under the Social Security system, in order to be disabled you have to have a physical or psychological impairment that is expected to keep you from being able to engage in a “substantial gainful activity” (SGA) – typically some type of full time work, for 12 months or longer.  Or, simply put:  do you have a condition that keeps you from being able to work?

Social Security does not consider “hire-ability.”

An impairment which keeps you from being able to work is not the same as being unable to get hired for a job.

• You may be applying for jobs but you do not get any calls.
• There may be no jobs in your area.
• Or, you may have a felony charge which keeps you from getting work.

While these are all examples of an inability to get a job, none of these, by themselves, show that you are physically or psychologically unable to to work.

Being unable to do prior work is usually not enough to prove disability.

What if you have condition that keeps you from doing the work you have done in the past?  Usually, that is not enough to prove disability.  There are some exceptions to this, but generally, if you can still do some other type of full time work (even minimum wage work), you are probably not disabled.

Needing medical care or even surgery in the future is typically not enough to prove disability.

What if your doctor has diagnosed you with a serious medical condition, or told you will need to be on medicine for the rest of your life, or told you that you will need major surgery later on?

In these circumstances, you have to look to the test for disability:  do you have a physical or psychological condition which keeps you from engaging in a substantial gainful activity (such as full time work) for 12 months or longer.

• Does the condition keep you from being able to work? If the answer is, “no,” then the condition might not be enough make you disabled.
• Does the medicine keep you from being able to work? You may respond that without the medication you would be disabled — the medication is the only thing that keeps you from being disabled.  Unfortunatly, this is the catch-22 of Social Security.  If you have a medical condition that is not disabiling with treatment, you are probably not disabled, even though you require the health insurance that comes with Social Security to be able to afford the treatment.
• Does the probability of future surgery keep you from being able to work? You may say, “no, but I will not be able to work after the surgery.”  That may be the case, but you also have to ask whether your period of recovery will be expected to be 12 months or longer.  While Social Security accepts that many surgeries are disabling for a time, the disability from the surgery has to be expected to last for 12 months in order to qualify for Social Security.

There are exceptions which go beyond the scope of this article.  Social Security has Listings of Impairments which discuss various medical and psychological conditions and these Listings do not discuss an inability to work.  However, this is because it is assumed that the level of severity required for any of these listing would automatically preclude any type of substantial gainful activity.

If you think you are disabled, get more information.

This is just a quick review of Social Security’s definition of disability.  There are exceptions and circumstances where these general guidelines would not apply.  Additionally, there are other requirements you must meet to qualify for Social Security benefits.

If you think you may be disabled, speak to Social Security and call a lawyer for a consultation.