I was recently asked the following question:

I need my job to survive. I can’t quit. I have some vacation days and sick time, but it is not enough to go without pay until they tell me I qualified.

How do I still work and file for SS Disability without loosing any income?

I have previously discussed working while applying for disability benefits. However, this question presents some new issues. Generally, I consider transferring from work to Social Security disability with no loss of income as an unrealistic goal. Here is why:

• The processing time on an initial claim is about 4-6 months (in Colorado).
• The test of disability under Social Security is an inability to perform work (at a substantial gainful activity level). So, working at SGA, after considering the exceptions) is a problem. Note: if an individual works below SGA level, it would not be a bar to receiving disability benefits. However, any work is still be an issue.
• Social Security requires that a disability be expected to last 12 months or longer. This is the “durational requirement.” While Social Security does not require that a person is out of work  (or working below the SGA level) for 12 months, Social Security can deny cases if it feels that while a person is currently disabled, but is unlikely to remain disabled for 12 months.
• There is also the 5 month waiting period (on SSDI claims), during which SSA withholds the first 5 months of benefits. If the alleged onset date is the last date an individual worked, Social Security would still keep the first 5 months of benefits. So, even if an individual is approved within 30 days of applying, there may still be a waiting period in which no benefits are paid. Note: this only applies in SSDI case (there is no waiting period in SSI cases). However, SSI cases do not pay benefits before the filing date.

If you have read all that and digested the information in the links, you have a pretty good idea of what you are up against. Theoretically, if an individual’s impairments limited him/her to work below the SGA threshold, they could continue to work and apply for benefits.

Conceivably, it is possible to document a declining ability to work and build up the case before the individual stops working to try to minimize the time without income.

However, you also have to be aware of the unintended consequences. Lawyers (and non-lawyer representatives) typically work on a percentage of back benefits. Since you are asking a lawyer to keep your back benefits to an absolute minimum, because you want a smooth transition from work income to disability benefits, a standard fee agreement may not work. If an individual asked my office to do something like this, I would probably require a fee petition based fee agreement along with a sizable deposit toward fees. This is because if successful, there wont be back benefits to take a percentage out of. AND, trying to prove inability to work, while an individual continues to work (!), is particularly difficult.

So, it is difficult, potentially do-able (or at least try-able), but costly.

UPDATE 10/13/11: If you have a condition described in the Compassionate Allowance list, it may be possible to get a very quick decision. So it would be worthwhile to review that list. The most up to date list is available here.

Disabled children can apply for Social Security benefits under the Title 16 children’s Supplemental Security Income (child SSI) program. Children’s cases are considered differently than adult disability claims. However, after a child turns 18, Social Security applies the adult standard to decide disability. Note: children between 18 and 22 may be eligible for Disabled Adult Child benefits based on their parents’ contribution to Social Security.

What happens if a child turns 18 before Social Security decides if the child is disabled?

Here is what Social Security says on this (20 CFR 406.924):

If you attain age 18 after you file your disability application but before we make a determination or decision. For the period during which you are under age 18, we will use the rules in this section. For the period starting with the day you attain age 18, we will use the disability rules we use for adults who file new claims, in §416.920.

Put another way, Social Security will consider disability under the child standard for the portion of time the individual was under 18, and use the adult standard for the portion of time the individual was 18 or over. That means you, in effect, have to prove the case twice: once under the child standard and again under the adult standard.

This can get tricky as an individual can be disabled under the one standard but not the other.

Also, when a child was under 18 for only a short part of the total claim, there is an issue of whether it is worth doubling the analysis for the amount of amount of benefits potentially due.

Keep in mind that SSI back benefits can only be paid back to the protected filing date. Also, unless the claim was protectedly filed on the first day of the month, the benefits are rounded up to the next full month.

If a claim was filed on anything other than the first day of the month the child turns 18, there are no additional benefits available. However, the case will still be considered under both the child and adult standards of disability.

If the case was filed on the first day of the month in which the child turns 18, there is only one additional month of benefits. However, the case will be evaluated under both the adult and child standards. The same applies if the child was only under 18 for only a short period of time.

As a result, it is sometimes worthwhile to move the onset date to the date of the child’s 18th birthday. Of course I cannot give you a hard and fast rule describing when to amend the onset date. However, you should be aware of the costs and benefits so you can make an informed decision. In my Colorado disability practice, there have been times where the onset date was amended to age 18, and other times not.

What’s the next thing to review in the Social Security exhibit file after the medical records? Check these critical dates: Alleged Onset Date (AOD) & Date Last Insured (DLI)!

The E section usually contains for two documents that provide this information:

• “Disability Report – Field Office”
• “Disability Report – Appeal”

These reports also tells you whether Social Security thinks there should be a later (or earlier) alleged onset date and Social Security also discussed whether work after the alleged onset day was an unsuccessful work activity or not a substantial gainful activity.

I have been in a number of hearings where being able to point out that Social Security previously noted a claimant’s past work as an unsuccessful work attempt made all the difference.

SSDI and SSI provide different medical benefits:

• Supplemental Security Income provides Medicaid benefits which can pay for treatment, specialists and surgeries.
• Social Security disability insurance provides Medicare benefits, including Medicare Part D, which pays for prescription drugs.

If you get both SSDI and SSI, you may be able to get both Medicare and Medicaid.

Getting both SSDI and SSI is also helpful in mitigating the 5 month waiting period in SSDI cases. While you may not be able to get your Disability Insurance during the first 5 months, you may still be able to get SSI benefits during that time.

Keep in mind that this requires the alleged onset date to be the same as the protected filing date because of the limits on back benefits in SSI cases.

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?“

How do unemployment insurance benefits affect a claim for Social Security disability benefits?

Receiving unemployment benefits can be a problem if you have a claim for Social Security disability insurance (SSDI) or Supplemental Security Income (SSI) because you are making two inconsistent statements:

• To get unemployment benefits, you are claiming that you are able to work, but you cannot find a job.
• But, to get Social Security disability benefits, you are claiming that you cannot perform any type of work at a substantial gainful activity level (generally full time work).

So, you are saying that you are ABLE and UNABLE to work at the same time.

In my experience, Judges do not like this and you are less likely to be found disabled under these circumstances.

I even recommend that my clients amend the Alleged Onset Date to some time after the unemployment benefits end. I do this by writing a short letter to the Judge noting that I wish to amend the alleged onset date to date “x.” Then, at the hearing, I mention the change to the alleged onset date again.

However, strictly speaking, Social Security does permit you to receive disability benefits and unemployment insurance.

The November 15, 2006 Memorandum from Chief Judge Frank Cristaudo states:

… the receipt of unemployment insurance benefits does not preclude the receipt of Social Security disability benefits. The receipt of unemployment benefits is only one of many factors that must be considered in determining whether a claimant is disabled.

….

Therefore, it is SSA’s position that individuals need not choose between applying for unemployment insurance and Social Security disability benefits.

However, application for unemployment benefits is evidence that the ALJ must consider together with all of the medical and other evidence.

A second memo was issued on August 9, 2010 on how Social Security should treat applications for individuals receiving unemployment benefits.

This is a reminder of the policy concerning receipt of unemployment insurance benefits. Receipt of unemployment benefits does not preclude the receipt of Social Security disability benefits. The receipt of unemployment benefits is only one of many factors that must be considered in determining whether the claimant is disabled. See 20 CFR 404.1512(b) and 416.912(b).

In considering claims of individuals who have applied for unemployment benefits, Administrative Law Judges (ALJs) should be mindful of the principles discussed in Social Security Ruling 00-1c, which incorporates Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999). In that case, the Supreme Court held, in a unanimous decision, that a claim for Social Security disability benefits is often consistent with a claim for relief under the Americans with Disabilities Act (ADA) even though there must be an ability to work in order to obtain relief under the ADA. The Court noted that, under the presumptions embodied in our five-step sequential evaluation process, a person can qualify for Social Security disability benefits even though he or she remains capable of performing some work. Similar logic applies to applications for unemployment benefits.

In addition, it is often uncertain whether we will find a person who applies for unemployment benefits ultimately to be disabled under our rules, and our decision making process can be quite lengthy. Therefore, it is SSA’s position that individuals need not choose between applying for unemployment insurance and Social Security disability benefits.

However, application for unemployment benefits is evidence that the ALJ must consider together with all of the medical and other evidence. Often, the underlying circumstances will be of greater relevance than the mere application for and receipt of the benefits. For instance, the fact that a person has, during his or her alleged period of disability, sought employment at jobs with physical demands in excess of the person’s alleged limitations would be a relevant factor that an ALl should take into account, particularly if the ALJ inquired about an explanation for this apparent inconsistency.

Accordingly, ALJs should look at the totality of the circumstances in determining the significance of the application for unemployment benefits and related efforts to obtain employment.

So, applying for, or receiving, unemployment benefits does not prevent you from getting Social Security, BUT it is a factor Social Security considers in deciding your case.

I have seen Judges react badly when an individual is claiming unemployment benefits and Social Security disability at the same time. Personally, I caution against it. However, if unemployment benefits are the only way you have to make ends meet, it is not (necessarily) the end of your Social Security case.

My thanks to Maine Social Security attorney Gordon Gates for bringing the first memorandum to my attention.

Updated 02/14/11.

Nate Craig of Truth of the Matter Asserted has a great article about what it means if a judge wants you to change the date you became disabled, or in Social Security parlance “amend your alleged onset date (AOD).”

Often, by the time the claimant’s hearing comes to be scheduled, the ALJ will review the file for the first time. During this review, the ALJ will determine if the onset date is established by the medical records. Most factors of a proposal to amend an onset date will be either a specific medical finding that seems to correlate with the claimant’s limitations or the claimant has earning posted to their earnings record, including unemployment benefits.

Long story short, if the Judge is asking you to amend the onset date, they essentially are going to award benefits.

Nate makes a great point, but there is one exception to this general rule of thumb: SSI cases.

In a SSI (Supplemental Security Income) case, you can only get benefits back to the Protected Filing Date (PFD), the date you requested to file an application.  However, in many SSI cases I see, people (understandably and correctly) claim that their disability began when they stopped being able to work. Normally this is months before they ever filed for Social Security. 

I regularly see Judges asking claimants to change their Alleged Onset Date (AOD) to the Protected Filing Date (PFD).  However, this is just a streamlining measure and does not necessarily mean the judge will approve the case. At least, not in my experience.

However, with this one exception, if the ALJ asks to amend the AOD to any other date, that is usually a good sign!

Read the rest of Nate’s excellent article here.  

Getting a Partly Favorable or Partially Favorable decision in a Social Security disability claim is confusing for a lot of people.

First, lets go over what it does not mean.  Under the Social Security system, there is no partly or partially disabled. Either your impairments keep you from being able to work (and therefore disabled) or not. There is no half disabled. Disability determinations under the Social Security system are all or nothing.  Comment:  This is also one reason it is so hard to get on Social Security.

So, the judge has to either find you disabled or not disabled.  However, even if the judge finds you disabled, the judge may not be able to give you everything you asked for.  In those cases, you get a partly favorable decision.

If you get a partly favorable decision, it usually means one of three things:

• Social Security disagrees with the date you became disabled.
• Social Security disagrees that your disability continues.
• Social Security disagrees with the beginning and/or ending dates of your disability.

Lets take these one at a time:

Social Security disagrees with the date you became disabled.

Lets say you claim your disability began on December 2003. If you kept working (at a substantial gainful activity level – i.e. full time) after December 2003, or if the medical records do not support that you were disabled back to that date, the Judge may only be able to find you disabled as of a later date.

Social Security disagrees that your disability continues.

The judge may agree that you were disabled, but may not think that your disability continues. Using the prior example, the Judge may agree that you were disabled in 2003, but feels that your condition improved to the point that you were able to return to full-time employment in June 2007. In this instance, the judge might grant you a closed period of disability, that is he may find that your disability period began in December 2003 but you were no longer disabled as of June 2007.

Social Security disagrees with the beginning and/or ending dates of your disability.

This is the surf and turf combo of the prior two examples. The Judge may disagree with either the date your disability began or may disagree with the ending date (if you were requesting a closed period of disability).

In any of these cases, the judge will issue a partly favorable decision.

A partly favorable decision is still a win!

But, you need to review the decision to see where the judge disagreed with you about your disability. Is the judge choosing a later disability onset date? Is the judge disagreeing that your disability continues and choosing an ending date for your disability? Or is there some combination of those options occurring.