Category Archives: Social Security Disability

Can a wife file a disability application for her husband?

Question: I have a close friend whose husband was convicted of a felony in Ohio. After his 3 and 1/2 year sentence was completed, he moved to South Carolina to live with his parents. A few months ago he was the victim of an assault, which left him unable to work. My friend and he are still legally married, and have a 12-year-old daughter together. She has never received child support or SSDI benefits. My question is, can my friend begin the application process for SSDI herself if he is not mentally capable?

Answer: Social Security does allow an individual who is primarily responsible for caring for a mentally disabled person to file for benefits in some circumstances. But it sounds like your friend, while still married, is not living with or taking care of her husband, so she will not be allowed to file for disability benefits on his behalf. However, your friend’s husband’s parents may be able to file for benefits, if your friend can convince them to.

Social Security policy does encourage disability applicants themselves to apply for benefits and sign the application in most cases. But if a person with a mental disability does not understand the meaning of filing for benefits, or has been adjudged mentally incompetent, the person’s primary caretaker may file an application on the person’s behalf.

In deciding whether the person can understand what it means to file for disability benefits, Social Security will consider whether the person is incapable of reasoning properly, has impaired judgment, or is unable to communicate with others. But if the person is able to agree to have someone else file for benefits, Social Security will find that the person is capable of understanding the meaning of filing for benefits and will require that person to sign the application. This is not to say that your friend’s husband’s parents could not assist him with the application, but your friend’s husband would have to sign the application himself in this situation.

If your friend’s husband’s parents agree to file a disability application on his behalf, they might have to submit a statement to Social Security saying that they are the parents of the disability applicant and they are currently caring for him in their home. Social Security would also send a form to your friend’s husband’s doctor to fill out, asking the doctor whether the disability applicant can understand the meaning of filing for benefits. If the doctor answers no, Social Security will notify the disability applicant that a claim has been filed and allow the applicant 10 days to protest the application.

Keep in mind that whoever files the application will have to have a good deal of knowledge about which doctors the applicant has seen and when, along with their contact information, so that Social Security can request the applicant’s medical records. The person filling out the application should also know the applicant’s diagnoses and prognoses, how the applicant’s diminished mental capacity affects his activities of daily living and makes it impossible for him to work, the mental treatments that have been attempted and the medications that have been prescribed, and whether the applicant is complying with the treatment and taking the medication as instructed.

Finally, know that while Social Security will allow a court-appointed guardian to file an application on someone else’s behalf, a person with a power of attorney cannot file an application on someone else’s behalf.

If I recover after surgery, can I still get disability benefits for the two+ years I couldn’t work?

Question: I first applied for Social Security disability in June of 2012. I had a hearing in January 2014. The judge ordered a second hearing scheduled in July 2014. It was cancelled because the judge was unavailable. It is now scheduled for October 2014. I am scheduled for surgery in September 2014. If the surgery is successful obviously I won’t be eligible for disability. Is there any way to petition for the backpay only?

Answer: Yes, you can receive Social Security disability benefits for what’s called a “closed period.” If, at your October 2014 hearing, the administrative law judge (ALJ) finds that you are able to return to work, but that you were disabled before your surgery, you can still get backpay from the beginning of your disability entitlement date (I’ll clarify this below) until the day you are physically able to return to work.

You do not need to file a separate petition for a closed period. While some applicants apply for a closed period of benefits, most of the time, applicants apply for ongoing disability benefits. If a judge finds an applicant was disabled but is no longer, Social Security will simply award the applicant with a closed period of benefits.

Some experts say that’s it’s easier to qualify for a closed period of benefits, since Social Security isn’t committing to pay you benefits for an open-ended period of time. If your surgery is successful, you may want to talk to a disability lawyer about whether it makes sense to inform the judge that you are seeking benefits for a closed period only.

Your disability entitlement date depends on whether you qualify for SSI or SSDI (Social Security disability insurance). If your application was for SSI, you would be entitled to be paid for your entire period of disability – from the month following your application date to the date you are able to return to work. If you applied for SSDI, you would be paid only for five months following the onset of your disability until you’re able to return to work (due to SSDI’s five-month waiting period). Note your entitlement date can be no earlier than one year before your application date.

To learn more about closed periods, see my article on closed periods of disability.

How will getting married affect my SSI payments?

Question: I’m getting married and am over 60 years old. How will this affect my SSI payments? My husband-to-be is 66 years old and is on Social Security disability and has retirement benefits of less than $500 a month.

Answer: If you get married while receiving SSI, your payment is likely to be reduced because of your husband’s income. Why? Because most of your husband’s Social Security income will be “deemed” to belong to you. Social Security uses a complex formula to come up with what your new SSI payment would be – I’ll show you how it works.

First, know that anytime a spouse’s income is more than $361 per month, that income is subject to deeming. ($361 is the amount that Social Security presumes is necessary for your spouse’s own food and shelter needs, believe it or not.) If you have a minor or disabled child, another $361 will be “saved” for that child, meaning your spouse’s income could be as much as $721  per month without any income being deemed to you. But you didn’t mentioned having an adult disabled child at home, so I assume it would just be you and your husband living together after you’re married, making your husband-to-be’s income subject to deeming.

To figure out what your new SSI payment would be, you would take your husband-to-be’s income and add it to any income you get each month (you didn’t mention whether you have any income beyond SSI, so I’ll assume not). Let’s say your joint income is $500, since you mentioned your husband-to-be’s Social Security check is around $500 (I assume your husband’s disability payments have recently converted to retirement payments, since you can’t receive Social Security disability payments after full retirement age). You then subtract $20 from that amount, and what’s left is the spousal income that is deemed to you ($480).

You then subtract $480 from the SSI income limit for a couple (not for an individual) to come up with your monthly benefit. The SSI income limit (and monthly benefit rate) for a couple is $1,082 in 2014. So after subtracting $480, the $602 remainder is what your new monthly benefit would be. This is less than the $721 SSI benefit that you may have been receiving ($721 is the standard federal benefit amount). Note that these calculations would change if you were receiving more money because your state adds a state supplement to the SSI payment.

Or, in case your husband-to-be has income besides Social Security (you didn’t say), your SSI payment would be reduced even more. For instance, if your husband-to-be also was receiving $300 from another source (not counting any money from an IRA or company pension), you would have to subtract that from the couple’s income limit as well, leaving you with an SSI payment of only $302. If your husband-to-be has other unearned income of more than about $600, your SSI payment would probably be eliminated altogether.

Why can’t I get emergency disability payments from Social Security?

Question: Why would Social Security Administration put information on their site about emergency payments if they’re not actually available? My lawyer says I can’t get them and I shouldn’t read this stuff. I suffer from major depression, carpel tunnel, and polyarthritis among other health issues. I’ve been waiting eight months waiting for a disability hearing date.

I am being foreclosed on and I don’t even have a hearing date yet, to negotiate me being allowed to make modified payments to the mortgage company. I was also not approved for a dire need situation even though SSA was sent a foreclosure proceedings letter from the mortgage company. All this just makes the major depression worse, now dealing with homelessness with 3 children.

Answer: I’m so sorry to hear of your struggles. Unfortunately Social Security makes emergency payments to disability applicants only under some very specific circumstances. First, only SSI applicants who are experiencing extreme hardship qualify for emergency payments. If you qualify only for Social Security disability insurance (SSDI) benefits, you can’t receive emergency payments. But it sounds like your income is low and you’ve exhausted your assets, so you will like qualify for SSI.

Second, only those who qualify for presumptive disability benefits are eligible for emergency payments. Presumptive disability benefits are available only for a few specific disabilities that are so severe that Social Security can almost assume you’ll qualify for disability benefits, based on your initial Social Security interview or application alone.

Some illnesses or conditions that often qualify for presumptive disability payments are AIDs, ALS, Down syndrome, amputation of the leg at the hip, total blindness, total deafness, stroke, and severe intellectual disability. Depression, arthritis, and carpel tunnel syndrome, even in combination, will not qualify for presumptive disability payments or emergency payments, though it never hurts to ask when you first apply. Likewise with a dire need letter, which can be helpful in moving up a hearing date, though dire need letters seldom work, as you saw yourself.

Most states do offer interim assistance for disability applicants for those who meet public assistance criteria and are severely disabled. Read more about this in Nolo’s article on state interim assistance and other government assistance.

It sounds like your lawyer didn’t want to explain why you wouldn’t qualify for emergency payments and isn’t interested in helping you learn about disability benefits on your own – or at the least, doesn’t want you to misunderstand information put out by Social Security. If you want an easy-to-understand guide to disability benefits, see if your library has Nolo’s Guide to Social Security Disability, which explains the ins and outs of the process.

Can SSI force someone to apply for early retirement benefits?

Question: My brother just turned 62 and has been on SSI disability for 19 years. He receives $650 a month. Social Security says he has to apply for “early retirement” benefits now and cannot wait until he reaches “full retirement” at age 66. His early retirement benefits will only be $500 a month. Is this accurate? They did not cite any statute.

Answer: It sounds like your brother didn’t qualify for Social Security disability benefits but does qualify for retirement benefits. This can happen when someone didn’t work recently enough in relation to when they filed for disability, but they did work enough years in the past to qualify for a small retirement benefit. In this case, the applicant is stuck with collecting only SSI disability until they turn 62. After they turn 62, they becomes eligible for Social Security retirement.

I’m afraid Social Security is right. One requirement of continuing to receive SSI benefits is that the SSI recipient apply for any other cash benefits that are available, and this includes Social Security retirement benefits. So your brother will have to start collecting his early retirement benefit, even though his retirement benefit would be larger if he were able to wait until full retirement age.

The good news is that he’ll be able to receive both Social Security retirement and SSI at the same time, so his overall monthly benefit won’t decrease. He should receive $500 as the retirement benefit and $150 as the SSI benefit.

A note for those who are receiving both SSI and Social Security disability insurance (SSDI): When these “dual beneficiaries” turn 62, they will continue to receive SSDI until full retirement age, at which time the SSDI will convert to Social Security retirement. (The SSDI and retirement benefit should be the same amount.) In other words, SSDI recipients aren’t forced to apply for early retirement benefits, so their lifetime retirement benefit is not decreased.

How come Social Security didn’t find me disabled under a grid rule?

Question: I recently applied for SSDI and was denied. I sent in over 700 pages of medical records. Social Security did agree that I could no longer return to my past laborious jobs of shipper, receiver, stockroom, etc., but I think they failed to use the grid rules. I am 50 years old. I quit school in 11th grade and later got my GED. I have no skill sets and no formal training for sedentary work, which they said is all I can do now. I told them in records and adult function form that I can only lift 5 pounds and have trouble sitting too long; they ignored that. When I searched the Social Security site and read their grid rules, I found out I should have been found disabled!

Answer:

You may be right about the grid rule, but my guess is that Social Security considered the grid rules and decided that you did not fall into the disabled category. Look at our article on Social Security’s disability grid rules and find the chart for RFCs for sedentary work for 50 year olds. Since you got your GED, you fall under ” High school graduate or more, but no training for direct entry into skilled work.” You will see that, if Social Security agreed you have no skills or no transferable skills, you will be found disabled. BUT, if Social Security found you have skills that could be transferred to another job, you will not be found disabled.

Social Security defines shipping or receiving clerk as a skilled job, because it usually involves clerical work, such as “counting, weighing, or measuring items of incoming and outgoing shipments.” So Social Security probably believes that you have skills that you could use at another type of clerical job where you don’t need to lift anything heavier than a few pounds.

To see if this is the case, you should read the personalized explanation rationale you were sent with your denial notice. It may address the grid rules and why you didn’t fit under a rule(they will probably be called medical-vocational rules).

If the personalized explanation rationale doesn’t cover the medical-vocational rules, you should request your disability file from Social Security, which should include Form SSA-4268: Explanation of Determination, which includes the “technical rationale” that the claims examiner used in making your disability determination. The technical rationale contains more information than the personalized explanation rationale. It should address why Social Security didn’t feel that particular grid rules didn’t apply. Then it will be up to you to argue at your appeal hearing why a certain rule does in fact apply.

For instance, if your actual job didn’t involve any clerical work (in other words, you performed the job of shipping/receiving clerk differently than it is generally performed), then you didn’t gain any job skills, and they can’t be considered transferable. In short, you need to prove that your past work was unskilled to fit into this grid rule (or that the skills you did gain are not transferable). Chances are, you would need the help of a disability lawyer to prove this at your appeal hearing, but you can read our article on proving you don’t have transferable job skills to Social Security to see if you think you could handle it yourself.

Your personalized explanation rationale or technical rationale may also include examples of the sedentary jobs that Social Security says you can do. If so, you can try to prove that your medical limitations prevent you from doing these jobs. For instance, at your hearing you should bring up the fact that your records say you can’t sit for too long. (Try to get an updated medical opinion to support this.) In this case, if your records prove that you can’t even do sedentary work, you must be found disabled. For more information on this argument, see our article on how to get disability benefits if you can’t do sedentary work.

If my injury didn’t happen at work, are any benefits available besides welfare or SSI?

Question: I hurt my back badly and I can’t do my job anymore. Unfortunately the injury was on the weekend and not at work, so I can’t get any compensation or time off work for it. I don’t know what I’m going to do. I’m afraid I won’t be able to feed my family. What happens if I can’t pay my mortgage? I don’t want to have go on welfare or food stamps or SSI; I want to provide for myself. And don’t I have to become destitute and lose my house before I go on SSI anyway?

Answer: I’m sorry to hear of your injury. Your anxiety is natural — most people’s initial reaction to a disabling injury is the fear that they’ll never be able to work again and won’t be able to provide for their family. Fortunately, the Social Security Administration provides insurance against this type of situation. Many people think Social Security just provides retirement benefits, but if you are injured and unable to work for the long-term, you can start getting your Social Security benefits early. You can actually collect the same amount as you would at full retirement age.

This part of Social Security is called Social Security Disability Insurance (SSDI), and everyone who has paid FICA taxes (or self-employment taxes) for a number of years has it. It’s amazing how many people pay for this insurance but don’t know about it; they mistakenly think their only option is SSI, which is only for those with very low income (though to answer your question, SSI recipients can keep their house and car and still receive benefits). You shouldn’t be uncomfortable applying for Social Security Disability; it’s an insurance program you pay for in case something like this happens.

The maximum SSDI benefit this year is $2,640 this year, which is not too shabby, but to earn this amount, you must have worked a number of years earning a fairly good salary. Most people receive much less from SSDI; the average is around $1,200 per month. However, your family may also be able to get benefits if you’re found disabled. If you have a minor child, he or she can receive 50% of your benefit amount, and if your spouse is caring for your child or is of retirement age, he or she can receive 50% of your benefit amount (but if more than one dependent receives benefits, there’s a family maximum benefit that will limit the amount of benefits your family can receive).

The downside is that, unless your injury is very severe and clear cut (easy to prove with objective medical tests), it can take a long time to get a decision from Social Security. While you wait for a decision, you may be able to get a loan modification or forbearance on your mortgage or get other forms of temporary assistance.  And if you eventually get approved, you’ll be paid back benefits to the date you became unable to work, which add up to a significant lump sum. But be forewarned, it’s not easy to qualify for SSDI; Social Security must find that there is no full-time job you can do (even a sit-down job), for at least a year. To find out if your injury may qualify, you may want to read Nolo’s article on getting disability for back problems.

What can I do if Social Security didn’t give me the correct disability start date?

Question: I applied for SSDI in January of 2014 and, although I have been disabled since a major surgery on 01/20/12, SSDI chose 01/20/13 as my effective disability start date. This decision means I cannot receive Medicare benefits until January 2015.This is not a correct decision by SSDI and I cannot find any info on how to appeal the decision. I am hoping you will be able to assist me.   

Answer: Unfortunately, I don’t think Social Security has made a mistake. You may well have met Social Security’s definition of disability in January 2012, but Social Security will pay retroactive benefits going back only so far. In turn, Social Security will assign a disability start date (called an established onset date) going back only so far.

The rule is that Social Security will pay retroactive benefits going back only 12 months before the date you apply. Since you applied in January 2014, you can only receive benefits dating back to January 2013 (your “entitlement date”).  You become eligible for Medicare 24 months after your entitlement date, which in your case means January 2015.

Just to clear up a little confusion, your disability onset date is not the same as the day you become entitled to disability payments. There is a five-month waiting period in between your disability onset date and when you are entitled to be paid benefits, meaning Social Security will set your disability onset date to be five months before your entitlement date. What this means is that your disability onset date can be no earlier than 17 months before the date you apply for Social Security benefits. In your case, your disability onset date should be in August 2012.

I’m sorry that wasn’t the answer you wanted to hear. You may be able to qualify for Medicaid until January 2015, if your medical expenses are very high and your income and assets aren’t.

Do I Have to Pay Taxes on My Lump-Sum Backpayment of Social Security Disability Benefits?

Question: I was finally approved for disability late last year and received a large lump sum payment from Social Security. But half of this money was for the tax year before last year. It makes it look like I had a high income last year. Am I going to have to give half my disability backpay away because of this? Can I amend the last year’s tax return and claim half the disability income on that return instead?

Answer: Disability backpay can bump up your taxable income in the year you receive the lump sum payment from Social Security, which could cause you to pay more in taxes than you should have to. Technically, part of the backpay should have been paid to you last year or even the year before, so Social Security does allow you to attribute part of the backpayment to prior years, if you know how to do it.

First, know that many people won’t owe taxes on their backpay at all because their income is so low. If you file your taxes individually and you received less than $25,000 in disability backpay and income during the year, you won’t owe any taxes on your Social Security disability income. Likewise, if you file your taxes jointly (with your spouse) and you received less than $32,000 in backpay and income during the year, you won’t owe any taxes on your disability income.

If your backpay and income are over these amounts, the IRS will allow you to allocate your past-due disability benefits to the year you should have received them, and you don’t have to “amend” your prior year tax returns to do it. Social Security should have sent you a form called SSA-1099. It will state in Box 3 how much of your disability backpay was owed to you for each of the previous years you accrued back pay.

You’ll still pay any taxes owed on these amounts with your current year’s tax return, but you’ll be able to figure out whether you owe taxes on each year’s disability backpayments using the amount of backpay attributable to the prior years and your other income in those years. In prior years where your income, including the backpay attributable to that year, was below $25,000 (or $32,000 if you’re married), you won’t owe any taxes on the disability backpay. IRS Publication 915: Social Security and Equivalent Railroad Retirement Benefits describes this method in full and provides worksheets, but it can still be difficult to figure out how to do it. You may want to talk to a tax professional or use tax preparation software to make the calculations for you.

Note also that if you hired a disability attorney to help you win your Social Security benefits, you can deduct the cost of the attorney’s fee so you don’t have to pay taxes on this amount. For more information on this, see our article on the taxation of disability backpay.

Does Social Security Often Send You to a Mental Exam After DDS Finds You Disabled?

Question: Is it often that a claim is accepted by DDS, returned by SSA for medical evaluations, then denied based on the DDS contracted evaluator, instead of the claimants’ doctors records and notes? I am asking because this is what happened to me. The evaluator at the DDS field office had granted me disability based on my doctors’ medical records and notes for my fibromyalgia and degenerative disk disease. My doctors had also listed depression and anxiety disorder since my physician has been treating me for those for years, so SSA’s quality assurance returned my claim, stating I needed a psych eval. Then I received the denial based on the recent examination, so they let a five minute exam over rule years of my doctors’ records. I am wondering if this kind of thing is common.

Answer: I’m sorry to hear about what happened. It’s not common that quality control gets involved, and it’s even less common that quality control overturns an approval. Quality control is done by Social Security’s Disability Quality Branches (DQBs). The DQBs look at a random sample of decided disability claims from each Disability Determination Services (DDS) office (about 1% of cases). Your case was unlucky enough to get chosen. Social Security practices this quality control because the DDS offices are run by each state, with state employees’ making decisions. Because Social Security is a federal program, quality control checks the DDS decisions to make sure they conform to federal law. You can read more about it in our article on the disability program’s Quality Assurance Review Board.

Quality control may have sent you for a mental consultative exam to get a psychiatrist’s opinion on the severity of your depression or anxiety, though this shouldn’t have affected DDS’s opinion that your fibromyalgia and DDD were disabling. If it did, you should be able to win on appeal. Or, quality control may have sent you to a mental evaluation to get an opinion on whether you were exaggerating your symptoms or even malingering (faking). If the mental exam came back saying you were exaggerating or malingering, that could explain why quality control overturned DDS.

Either way, you need to find out what the written report from the consultative exam says. You can do this by requesting your disability file from Social Security. Because DDS found you disabled, you probably have a good chance of winning your claim if you appeal. I recommend you talk to a lawyer about your situation.