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What if you cannot get a job because a criminal record?  If no one will hire you, does that affect how Social Security will view your disability case?

I have a felony record from a stupid thing I did years ago. I did my time and I have not gotten in trouble since. When I was younger I did jobs that did not require a background check. Now, I’m older and I can’t do construction work any more. But I can’t get lighter work because I can’t get hired because of my record.

This is truly a “between a rock and a hard place” situation. There is no doubt that a criminal record affects an individual’s ability to get hired for jobs. Many jobs are completely foreclosed. Other jobs are at the discretion of a hiring supervisor – who may not want to hire someone with a criminal record.

These issues fall into the category of “hire-ability”– a way of describing the likelihood that an individual will actually get hired for a job they are physically and psychologically capable of performing.

The problem is that in disability cases, Social Security does not consider hire-ability into consideration when deciding if an individual is disabled. In Social Security disability and Supplemental Security Income (SSI) cases, Social Security only looks at whether an individual is able to perform the duties of the job. Social Security does not consider whether an individual is actually likely to be hired for a job.

That means that all of the issues of hire-ability: a person’s looks, their age, and any criminal status, are not considered by Social Security in deciding whether an individual is disabled.

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Even though you cannot receive Social Security benefits during incarceration, can you get disability if you are out of jail or prison and residing in a half-way house?

Under the Social Security regulations, the answer is “no.”

“I was transferred from prison to a halfway house that is under the control of my state’s Department of Corrections. Can I have my benefits started again since I am no longer in prison?”

No. Social Security will not pay benefits while you reside in any facility under the authority of your state’s Department of Corrections.  Even though you are no longer in prison, you are still under the control and custody of your state’s Department of Corrections until you complete your court-ordered sentence and you are officially released, or until the Department of Corrections places you on parole.

Click here for more information.

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Will your Social Security benefits (Social Security disability insurance – SSDI, or Supplemental Security Income – SSI) stop if you have to wear an ankle bracelet or other type of home monitor?

The answer is no. Social Security does not consider in home detention as “incarceration” which would normally stop payment of Social Security benefits to the disabled individual.

So, having a home ankle monitor will not stop your Social Security benefits.

As a general rule, you are not entitled to Social Security disability benefits if you are incarcerated in jail or prison. However, Social Security benefits do not end immediately with incarceration:

If you are on SSI (Title 16 – Supplemental Security Income benefits), your Social Security disability benefits do not stop until you are incarcerated for 30 days:

If you get a monthly SSI check and you are in jail, your SSI check will stop after you are in jail for a full calendar month.

For example, if you were in jail on 3/21/01 and you will stay there to serve a three-month sentence, SSA will stop your SSI check beginning with April 2001.

If you are receiving SSDI (Title 2 – Social Security Disability Insurance benefits) Social Security will stop benefits after you are incarcerated for 30 days after your conviction:

If you get Title II benefits and you are in jail and were convicted of a crime, your monthly benefits will stop after you remain in jail more than 30 continuous days following your conviction. Your checks will stop with the month you entered jail and were convicted.

For example, if you were sent to jail on 3/21/01, convicted of a crime on 3/29/01, and the court ordered you to serve a 6-months sentence, your benefits would stop beginning with your March 2001 Title II check, the check you receive in April 2001.

Click for more information from Social Security on when benefits stop after incarceration.

Did you notice the difference there. It looks like SSI benefits are stopped 30 days after incarceration starts. However, SSDI benefits stop 30 days after conviction - which could be quite some time after incarceration if you are arrested and cannot make bond. Note: I am not 100% sure that this interpretation is correct. If you have information on this, tell me in the comments.

Also, you can lose 3 months of benefits if you sentenced to just over 30 days:

The law states that you cannot get payments for any month, any part of which you spend in jail, following your conviction and confinement of more than 30 continuous days.

For example, if the court convicts you on March 29th for 30 days you would go to jail that same day and remain in jail until May 2nd, you would not get benefits for March, April, or May.

In other words, a sentence of just over 30 days beginning at the end of one month and ending at the very beginning of the third month would mean you lose benefits for all three months! Check out this Social Security Answer for more information.

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Social Security may be able to restart your benefits after you are released from incarceration (jail or prison). Click here for more information on whether you may be able to resume benefits vs having to start a new claim for benefits.

If you are eligible to resume your benefits, here are Social Security’s recommendations to get your Social Security disability or SSI benefits as quickly as possible:

If possible, you or the prison should contact Social Security before you are released. As soon as you know your scheduled release date, ask if the prison has a pre-release agreement with Social Security. If so, the prison may be able to contact Social Security for you.

If they do not have a prerelease agreement, contact Social Security at 1-800-772-1213 Monday through Friday, 7 a.m. to 7 p.m. and give them your Social Security number and your expected release date. A Social Security representative can provide further instructions and make an appointment for you at the local Social Security office if necessary.

After you are released, you will need to furnish Social Security with proof of your release and the date of release. Depending on the circumstances, Social Security may be able to have your checks started effective with the month after the month of your release.

Click here, for more information, or contact your local Social Security office.

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After you are released from jail or prison, will Social Security let you restart your benefits or will you have to start a new application?

The answer depends on the kind of benefits you received (Social Security Disability Insurance – SSDI, or Supplemental Security Income – SSI) and how long you were incarcerated in jail or prison.

Restarting SSI after incarceration:

It is possible to restart SSI benefits if you were incarcerated for less than 12 months.

After you are incarcerated for a year or longer though, you have to start a new claim for benefits:

For SSI beneficiaries, benefits are terminated when the individual is incarcerated for a year or more.

Restarting SSDI after incarceration:

Social Security Disability Insurance (SSDI) benefits are suspended during incarceration.

For Social Security beneficiaries, benefits remain suspended until the inmate is released.

As far as I can tell, there is no time limit on restarting a SSDI claim after incarceration.

For more information directly from Social Security, click here. If I missed something, let me know in the comments. Thanks!

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.

If an individual is disabled and receives Title 2 Social Security Disability Insurance benefits (SSDI aka DIB), their spouse (husband or wife) and minor children can also receive benefits because of the spouse’s / parent’s disability. These are called auxiliary benefits.

I previously coved how Social Security benefits stop if a disabled person is goes to jail / prison.  

So, what happens to the children’s or spouse’s benefits if the disabled individual is incarcerated: goes to jail or prison?  

Do the wife or husband’s auxiliary benefits stop?

Do the children’s auxiliary benefits stop?

The best answer I have been able to find to this question is in the Social Security Online Handbook. Part 501. Entitlement to Disabled Worker’s Benefits says,

“Auxiliary benefits” are additional monthly benefits (see Chapter 3). These benefits may be payable to other family members on your earnings record if you are entitled to disabled worker’s benefits. They are payable to your family members even when you are not receiving benefits because of imprisonment.

So, it looks like, yes, auxiliary benefits to spouses or children are payable even thought the disabled individual is incarcerated and cannot receive Social Security benefits him/herself.

However, keep in mind that the Social Security Handbook is a guide explaining to how Social Security is supposed to work.  The Social Security Handbook has no binding legal authority. So take this answer with a bit of caution.

Even though it often takes a year or even two years to get your Social Security hearing, you may find that you are not ready when the big day finally comes.

Is there any way to continue, postpone, or delay my Social Security hearing?

Yes. You can request a continuance to postpone your hearing.

Lets look at how to do this.

Fortunately, there is no formal motion that has to be submitted to request a continuance. In my office, I usually send the judge a letter explaining my reasons for requesting the continuance.

Then I follow up with the judge’s clerk to see if the motion has been granted or denied, by calling the Office of Disability Adjudication and Review (the Notice of Hearing lists the phone number to use) and asking to speak to the judge’s “pre-hearing” clerk.

Common reasons for a continuance include:

1. You are sick or hospitalized. This normally means physical illness, but it could include psychological problems such as not being able to interact with anyone that day.  However, it might be best for your case for the judge to see you on a bad day.
2. A close family member is sick, hospitalized, or has recently died.
3. You are looking for a lawyer.
4. You just hired a lawyer and your attorney needs time to review the file. Note:  if you have a lawyer, the attorney will normally make this request.
5. You have an upcoming medical test scheduled that is expected to shed light on your disability. Note: it is best if the test is actually scheduled; not that you merely hope that you might somehow be able to get some kind of test done.
6. You will be out of town or out of the state on the hearing date.
7. You are in school and the hearing is during or just before finals.
8. You are or will be incarcerated during the hearing. Note: if you are or will be in prison, Social Security may move your case to a prison docket. Many appeals offices have at least one judge who travels between the prisons to hold hearings there.  As discussed before, you cannot receive Social Security benefits while incarcerated for a felony, BUT Social Security may hold a hearing in prison to address your eligibility for benefits for the time before you were incarcerated or to address eligibility for spouses or children of incarcerated individuals.

This is by no means a complete list.  Any good reason why the hearing should be continued will be considered by Social Security.

However, keep in mind, requesting a continuance does not mean you will be granted a continuance.

Are there bad reasons to request a continuance?

Sure.  While I won’t say that Social Security will never approve one of these reasons, I think the chances of success are pretty low:

1. You don’t want to go. You can request that Social Security simply make a decision on the evidence in your file.  However, this usually does not produce the best results.
2. You have already had 2 or more continuances. If a Judge has already postponed your case even one time before, the judge may be unwilling to grant you another continuance without a darn good explanation of why you need another one.

What were your experiences requesting a continuance? Tell me in the comments!

I previously wrote about how Social Security can stop benefits if a person is a fleeing or fugitive felon.

The courts have been wrestling with the question of whether an outstanding arrest warrant (not a conviction, just the arrest warrant) is enough to make a person a “fleeing felon.”

NSCLC Website writes about a court’s rejection of Social Security claiming a person was “fleeing” in order to stop their benefits.  

Another court, this time in Tennessee, has rejected the Social Security Administration’s (SSA) position that it can suspend Supplemental Security Income (SSI) benefits by relying on the existence of an outstanding arrest warrant alone to conclude that a person falls within the statutory prohibition on payment of benefits to a person who is “fleeing to avoid prosecution” for a felony. Caldwell v. Astrue, 2008 WL 2713714 (E.D. Tenn. July 10, 2008). The court relied on the SSI regulation, 20 CFR 416.1339(b)(1), which “requires a court finding that the person is fleeing,” as well as on Sixth Circuit caselaw interpreting the similar language in the federal criminal law provision for tolling the statute of limitations when someone is “fleeing justice.”  18 U.S.C. 3290. Mr. Caldwell said he left California after being questioned by police, not because he was fleeing to avoid prosecution, but rather out of fear for his safety because of threats made by the individuals involved in the criminal matter.

Keep in mind that this case is just in the 6th District and is not “the law of the land.” 

Via Yet Another Court Rejects SSA’s ‘Fleeing’ Rule.

Note: there is a lot of litigation concerning what constitutes a “fleeing felon.” Check with a lawyer if you, or someone you love, has had the benefit stopped by Social Security because they are a, “fleeing felon.”

We have previously discussed that an individual is not eligible to receive Social Security disability benefits while incarcerated.  This issue frequently comes up when an individual already on Social Security is incarcerated.

However, it is important to remember that the prohibition on receiving Social Security benefits may also impact your application for Social Security benefits, if you were in jail or prison during the time you are alleging entitlement to Social Security disability benefits. 

For example:

• Let’s say you applied two years ago and that you are waiting for a hearing.  
• But, one year ago (during the period of alleged disability), you were in jail for a month.
• Social Security will not pay you benefits during that periods of incarceration.

Here is the problem that comes up:

Because you cannot get benefits during that incarceration, the judge may ask you for the exact dates of entry and release.  If you were incarcerated more than once, it may be difficult to figure out the dates for each one.

If you do not know the exact dates of your incarceration, your benefits may be delayed if you win, or the judge may not make a decision until you provide this information!

If you have any periods of incarceration during the time you claim you were disabled, have a list of the beginning and end dates of your incarceration ready before your hearing!

I previously wrote about how Social Security disability benefits stop during incarceration.

However, your Social Security disability benefits can also stop if you labeled a “Fugitive Felon.”

Fugitive felons is anyone who is

• Fleeing to avoid prosecution for a crime which is a felony; or
• Fleeing to avoid custody or confinement after conviction for a crime which is a felony; or
• Individuals receiving Title XVI payments or Title II benefits who are violating a condition of probation or parole imposed under Federal or State law.

Read more at Social Security (link removed – Social Security took down the page).

The second part of Gordon Gates’ article on whether you can receive Social Security disability benefits while incarcerated, talks about hearings in prison.  

The problem – incarcerated claimants often do not get treatment from physicians who are very interested in filling out forms or helping the prisonor/claimant. Further, judges tend to be somewhat skeptical about the credibility of an imprisoned claimant.

I have done hearings in prisons and I agree with his concerns.  

It is much harder to prove a case for someone who is incarcerated.

• You do not get to see your own doctor.
• You can wait weeks or months to get medical care.
• You may not get the medical care you need.
• Medical providers may doubt that you have a particular condition or its severity even if the condition was well documented before the incarceration.
• Just documenting the impairment can be next to impossible in some cases.

If you are close to your release date, it can be useful to try request a continuance until you are out and can see your own doctor.  Also, if there is a question about the severity of your medical condition, Social Security may want to send you for a consultative examination – which also requires you to be out of jail or prison.  

If you cannot continue your case, don’t worry about it. Just because you have your hearing while incarcerated does not mean you wont win.  Just put on the best case you can.  

May an Incarcerated Felon Receive Social Security Disability Benefits?.

I saw this question in the comments on Jonathan Ginsberg’s site, Social Security Disability Blog:

I would like to know if a convicted felon, who is not incarcerated, can receive Title 16 SSI disability?

This is a great wrinkle on our current discussion on the effect of incarceration on Social Security disability benefits, including SSI.  I encourage anyone interested in this topic to bookmark this link and check back as I will be adding articles to the subject in the days and weeks to come.

As a Social Security lawyer in Colorado, I have worked with a number of individuals with felonies and helped them get their Social Security benefits including Title 16 SSI benefits.

I am not aware of any circumstance where the fact of a prior felony prevents someone from receiving Social Security disability benefits as a result of the charge being a felony rather than a misdemeanor.

Keep in mind that we are talking about a past conviction. You cannot receive Social Security  benefits while you are incarcerated.

There may be some circumstances which would change this, but I cannot think of one.  So, “yes,” you can get SSI benefits even if you have been convicted of a felony in the past. However, you still have to qualify for SSI and there has to be no other problem that might keep you from getting benefits.

Jonathan Ginsberg of the Social Security Disability Blog writes about what happens to your Social Security benefits if you are in jail/prison.

I recently received an email question from a blog reader about the eligibility of a convicted felon for Social Security disability benefits.  There is a simple answer here – you may not collect disability benefits during the time you are incarcerated.  Social Security ruling 83-28 addresses this situation directly.

Via May an Incarcerated Felon Receive Social Security Disability Benefits?.

SSR 83-28 notes that Congress intended to deny prisoners Social Security disability benefits during incarceration because, “prisoners … do not need a continuing source of income because their basic needs are already furnished at public expense.”

This seems pretty cut and dried.  However, the more I look at this issue, the more I wonder if benefits can be paid to an incarcerated individual while incarcerated, but before a conviction, or while incarcerated for a misdemeanor.

The Social Security regulation on this topic 20 CFR 404.468 states:

(a) General. No monthly benefits will be paid to any individual for any month any part of which the individual is confined in a jail, prison, or other penal institution or correctional facility for conviction of a felony. This rule applies to disability benefits (§404.315) and child’s benefits based on disability (§404.350) effective with benefits payable for months beginning on or after October 1, 1980. For all other monthly benefits, this rule is effective with benefits payable for months beginning on or after May 1, 1983. However, it applies only to the prisoner; benefit payments to any other person who is entitled on the basis of the prisoner’s wages and self-employment income are payable as though the prisoner were receiving benefits.

(b) Felonious offenses. An offense will be considered a felony if-
(1) It is a felony under applicable law: or
(2) In a jurisdiction which does not classify any crime as a felony, it is an offense punishable by death or imprisonment for a term exceeding one year.

(c) Confinement. In general, a jail, prison, or other penal institution or correctional facility is a facility which is under the control and jurisdiction of the agency in charge of the penal system or in which convicted criminals can be incarcerated. Confinement in such a facility continues as long as the individual is under a sentence of confinement and has not been released due to parole or pardon. An individual is considered confined even though he or she is temporarily or intermittently outside of that facility (e.g., on work release, attending school, or hospitalized).

(d) Vocational rehabilitation exception. The nonpayment provision of paragraph (a) of this section does not apply if a prisoner who is entitled to benefits on the basis of disability is actively and satisfactorily participating in a rehabilitation program which has been specifically approved for the individual by court of law. In addition, the Commissioner must determine that the program is expected to result in the individual being able to do substantial gainful activity upon release and within a reasonable time. No benefits will be paid to the prisoner for any month prior to the approval of the program.

In summary, this regulation says:

1. A disabled individual’s Disability Insurance benefits are stopped while incarcerated for a felony conviction.
2. Benefits remain stopped during intermittent release such as work release, school or hospitalization.
3. Auxiliary benefits (benefits to spouse or children) continue during the incarceration.
4. Benefits can continue during parole.

But what about benefits during incarceration, but prior to conviction for a felony?

What if the conviction is for a misdemeanor?

20 CFR 404.468 only stops SSDI benefits for a felony conviction.  This suggests that benefits could possibly continue before the conviction (despite incarceration) or if the conviction is only for a misdemeanor.

So, does SSR 83-28 trump 20 CFR 404.468 and stop benefits in these instances?

Here is another interesting wrinkle: 20 CFR 416.1339 deals with suspension of Supplemental Security Income (SSI) benefits (note: not SSDI benefits) for fugitive felons:

(a) Basis for suspension. An individual is ineligible for SSI benefits for any month during which he or she is—

1) Fleeing to avoid prosecution for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which the individual flees (or which, in the case of the State of New Jersey, is a high misdemeanor under the laws of that State); or

2) Fleeing to avoid custody or confinement after conviction for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which the individual flees (or which, in the case of the State of New Jersey, is a high misdemeanor under the laws of that State); or

2) Violating a condition of probation or parole imposed under Federal or State law.

Basically, your SSI benefits are stopped while avoiding arrest for a felony warrant (before conviction) or for a felony conviction, or while violating probation or parole.

Do your benefits stop and return between arrest and conviction?

How about this fact pattern: let’s say you pick up a felony charge on January 1. You are arrested on February 1. And you are convicted on March 1.

Does this mean your benefits stop between January 1 – January 31 for fleeing to avoid prosecution for a felony crime? It looks that way.

Once you are in custody, do your benefits resume between February 1 – February 28 because 1) you are no longer fleeing, and 2) even though you are in custody, you have not been convicted of a felony?

Finally, are benefits stopped at all, regardless of conviction or incarceration, if the charge/conviction is for a misdemeanor?

Updated 09/10/10: The general rule of thumb is that an individual is not eligible to receive Social Security disability benefits (SSDI or SSI) during incarceration. It does not matter if the conviction is for a misdemeanor or a felony.

However, when benefits stop differs depending on whether you are receiving SSDI or SSI. As a result, individuals may receive Social Security benefits for a short time after incarceration. Click here for more information.