Category Archives: Social Security Disability

I’m 55 and can’t lift 20 pounds because of a bad back. Why was I denied Social Security disability?

Question: I applied for Social Security disability benefits for back problems (a herniated disk and degenerative disc disease) and was denied. I’m 55 and I’ve been working as a forklift operator for 20 years, but I can no longer do my job because I can’t lift 20 pounds. My friend who is on disability told me that since I’m 55 and my doctor limited me to light work, I’m guaranteed disability benefits.

 Answer: Your friend must be referring to the Social Security’s medical-vocational rules, also known as the “grid rules,” which do say that in some cases you should be found disabled if you are 55 or older and have the capacity for light work only (meaning that you can frequently lift or carry up to ten pounds and occasionally lift up to 20 pounds). However, for Social Security to get to the point in the disability analysis to use the grid rules, the agency first must find that you can’t physically do your old job.

Since you’ve been denied, Social Security may have decided that you can do your old job, in which case you’ll have to appeal the denial and convince a Social Security judge otherwise. Perhaps your claims examiner thought you could do the job because he or she mistakenly believed that a forklift operator doesn’t have to be able to regularly lift 20 pounds. Or, maybe Social Security didn’t agree that your RFC should be for light work even though your doctor thought so. If this is the case – say, Social Security gave you an RFC for medium work — you’ll need to appeal and prove that your RFC should actually be for light work.

First, find out exactly why Social Security denied you so you can decide what arguments you can use. If your denial notice doesn’t include a “technical rationale” (which includes an explanation of your residual functional capacity (RFC) and why you were denied), you should request your file from Social Security so that you can review it. Maybe Social Security agreed you couldn’t do the job of forklift operator but thinks your job skills as a machine operator could be used in other work that doesn’t require lifting. (In that case, the grid rule saying that a 55-year-old restricted to light work should be considered disabled doesn’t apply and you’ll probably need to hire a lawyer to get benefits.)

But let’s assume the explanation in your denial letter or file states you have a light RFC but that you can do your old job. You’ll need to request an appeal and prove that you can’t in fact do your old job. At your appeal hearing, the administrative law judge (ALJ) will ask you what was required of you at your old job and how your impairment limits you from doing it. The ALJ must compare each requirement of your forklift operator job with the limitations in your RFC. If there is a limitation in your RFC (such as not regularly lifting 20 pounds) that conflicts with even one of the demands of your job (such as needing to lift 20 pounds routinely), the ALJ should find that you can’t do the work. 

The judge will probably request that a vocational expert (VE) attend your hearing to testify whether he or she thinks you can still do your old job. If the expert thinks you can do your past work despite your impairment, and the ALJ agrees, your claim will be denied. If this happens, beware: the VE may have used an inaccurate job title or description to decide you didn’t need to routinely lift 20 pounds as a forklift operator. If so, you’ll need to politely inform the ALJ that you were required to lift 20 pounds, and offer proof of this. (For the vocational expert to be able to say you can do your past job, it must have required only light work, meaning regularly lifting only 10 pounds or less, since you have a light RFC.) To learn more about correcting the VE or judge, see this article on correcting the details of your past work.

If you decide to hire legal representation for your hearing, your disability attorney will know to ask you important details about your work at the hearing, such as how many pounds you had to lift frequently, whether you had to stoop or bend, and whether you were able to a rest when necessary. This way the VE and ALJ will understand your job as you did it as opposed to how “forklift operator” or a similar job title may be listed in the Dictionary of Occupational Titles (DOT). Once the ALJ and VE know that your job actually required you to lift 20 pounds throughout the day, they will likely agree that you can no longer do your past work. (For more help on this, see this article on proving you can’t do your past work.) Then, your next step will be to get Social Security to agree that the grid rules for advanced age call for you to be found disabled, as your friend indicated.

Did my state labor department stop my unemployment checks because I filed for disability?

Question: I am collecting California unemployment and have been since March.  I am a disabled vet with bipolar.  I have seen a psychiatrist for years and his recommendation is to stop working now at 50 years old or find something smaller that maybe I can handle.  My wife filled out the SS disability application and about the same time, California missed an unemployment payment.  Can California see I have applied for SSDI and stop my unemployment payments? I have a family of 5 and need to work until I can get disability.  
Answer: You are in a tough but unfortunately common situation. I don’t know whether Social Security reports disability payments to the California Employment Development Department (EDD), but in some circumstances, you can legally collect SSDI and unemployment insurance at the same time. In California, you can receive unemployment benefits even if you are able to do part-time work only, and for SSDI, you can get disability if you aren’t able to do full-time work. So, the program rules aren’t necessarily incompatible. However, if the jobs you’ve been applying for are full-time jobs and you submit them to the EDD, this may cause a problem, since you are telling EDD that you are willing and able to work full time but you’re telling Social Security you are not able to work full time. (For more on this, see my blog post on unemployment and disability.) I would call EDD and ask why a payment was skipped. If the agency did terminate your benefits, you can appeal its decision.
Keep in mind that you will be immediately denied SSDI if you start to work before being approved for benefits and you earn more than $1,070 per month (unemployment benefits are not counted toward this limit) at any time after you apply for disability. (This is different from VA disability compensation, where you can still work and collect benefits. By the way, if it’s possible that the time you served aggravated your bipolar disorder, you could be eligible for VA service-connected compensation.)
There is one exception to the Social Security rule that you can’t work after you apply for benefits — if you attempt to work for a short period of time and fail because of your disability (called an unsuccessful work attempt, or UWA), you can still receive disability benefits for this time period. (For more information on what qualifies as a UWA, see my blog post on unsuccessful work attempts.)
Finally, you should know that it’s not easy to get Social Security disability benefits for bipolar disorder. It’s not unlikely you’ll be denied benefits the first time and you’ll have to appeal Social Security’s decision. So you may need to plan to be without income for longer than three to six months. For help on how to win benefits for your condition, see Nolo’s article on getting disability for bipolar.

My medical condition has gotten worse. Can my monthly disability benefit be increased?

Question: Social Security approved me for disability benefits due to arthritis and spinal stenosis. I receive a meager amount per month, but I have been able to work a few hours a month to supplement the SSDI. Now my back has gotten worse and I can’t work at all. Can I get my monthly benefit amount increased?

Answer: Unlike other benefits programs like veterans disability compensation and workers’ compensation, the amount of Social Security disability you’re paid doesn’t depend on how disabled you are, or how much your illness or injury limits you. Your monthly Social Security disability benefit is based on your earnings record (or your spouse’s earnings record, if you qualify for disability based on your spouse’s work). Your disability amount is the same amount of what your retirement benefit would be if you retire at full retirement age. Nor is your SSDI amount dependent on your income or your assets. You can be wealthy and still receive your full Social Security disability benefit.

If you receive SSI, it’s also not tied to the extent of your disability, but it is affected by the amount of your income. SSI is based on a set federal amount, but it’s reduced by the part of your income that’s countable. (Social Security doesn’t count the first $85 of your wages or one-half of the remaining income that you earn every month.) So if you stop working the few hours you’ve been working, your monthly SSI payment should go up.

Does someone on Social Security disability get free Medicare?

Question: I was approved for SSDI because of multiple sclerosis almost two years ago. I should become eligible for Medicare in early 2014.  Is Medicare free for disability recipients, or will I have to pay premiums? If so, how much?

Answer: You are eligible for Medicare two years after your entitlement date for Social Security Disability Insurance (this is the date your backpay was paid from). Medicare isn’t free for most disability recipients though. There are premiums, deductibles, and copays for most parts of Medicare, and the costs go up every year. Here are the new figures for 2014, and how you can get help paying the costs.

Part A Costs

You will have to pay a premium for Medicare Part A (hospital insurance) if you aren’t fully insured under Social Security. Generally being fully insured means having worked 40 quarters (the equivalent of 10 years) in a job paying FICA taxes. Many disability recipients aren’t fully insured because they became unable to work before getting enough work credits. If you (or your spouse) don’t have enough work credits, you’ll pay a premium of $426 per month, or if you (or your spouse) has between 30 and 39 credits, you’ll pay a premium of $215. (The premiums actually went down in 2014.)

If you need hospital or skilled nursing care, you’ll have to pay the first $1,216 in costs (your deductible) before Medicare will start paying anything. Once you’ve satisfied the deductible, the first 60 days in the hospital (or 20 days in skilled nursing care) are free. If you still need inpatient care after that, you will be responsible for the following copays.

  • Hospital days 61-90: $304 per day
  • Hospital days 91 and beyond: $608 per  day, and
  • Skilled nursing days 21-100: $152 per day.

Medicare can be quite expensive for those on disability who aren’t fully insured, but if you are eligible to be a Qualified Medicare Beneficiary (QMB) because of low-income, a Medicare Savings Program will pay your Part A premium, and possibly other costs as well.

Part B Costs

Most people pay a Part B premium of $104.90 each month. However, if your adjusted gross income is over $85,000 (or $170,000 for a couple), the monthly premium can be over $200. The Part B deductible for 2014 is $147 per year.

Again, if you have low income, there are various programs that can pay your Part B premium and deductible, called Medicare Savings Programs.

Part D Costs

Part D premiums vary depending on the plan you choose. The Part D deductible for 2014 is $310 per year (though some plans waive the deductible).

There are subsidies available to pay for Part D for those with low income (called Extra Help). See Nolo’s article on Extra Help for Part D for when you are eligible.

As for the “donut hole,” when Part D helps you less, in 2014 the donut hole begins after you’ve spent $2,850 on prescription drugs and ends when you’ve spent $4,550. However, in 2014, while you are in the donut hole, brand-name drugs must be sold to you at a 52.5% discount and generic drugs at a 28% discount.

For more details on the 2014 costs of Medicare and Medigap plans, see Nolo’s article on Medicare premiums, deductibles, and copays in 2014.

New Social Security Figures Released for 2014

Yesterday Social Security announced that there would be a 1.5% increase in Social Security and SSI benefits for 2014. This is smaller than most retirees and disabled recipients would have liked, but remember that in 2010 and 2011, there was no increase.

Along with this increase in benefits, many important Social Security limits and Medicare fees will change on January 1, 2014.

The average Social Security retirement and disability benefit is expected to increase to $1,294, the average disability benefit to $1,148, and the average surviving spouse benefit to $1,243. The most Social Security benefits a retiree can collect in 2014 will be $2,642 per month.

If you continue to work while collecting early Social Security retirement benefits, your benefits will be reduced by $1 for every $2 you make over $1,290 per month. But if you will turn 66 during 2014, you can make up to $3,450 per month before your benefits are reduced (there is no limit once you turn 66).

The maximum amount of your income that is subject to the Social Security tax to fund Social Security retirement, survivors, and dependents benefits, as well as Social Security disability insurance, is $117,000 in 2014. There is no limit to the amount of income subject to the Medicare tax.

As to SSI, the new federal SSI benefit rate is $721 per month for an individual and $1,082 per month for a couple. The SSI payment amounts are higher in states that pay a supplementary SSI payment. Although some states have higher limits, in states with=out a supplementary payment, if you have income between $721 and $1,527, your SSI payment will be reduced, and over $1,527, your SSI will be terminated.

As far as determining your initial eligibility for disability purposes, in 2014 you must be making less than $1,070 per month to qualify for benefits, or $1,800 if you are blind. If you receive SSDI and are trying to go back to work, if you make more than $770 per month, it will count as one of your nine trial work months.

When Should I File for Social Security Disability?

Question: I’ve been on and off work for a few months due to degenerative disc disease and arthritis. I’ve finally accepted that my back pain has become so disabling that I’m not going to be able to hold down a job. When should I file for Social Security disability benefits? Do I need to be off work for six months first?

Answer: There is no amount of time you have to be off work before you apply for disability benefits. Generally, once you have stopped working and you have a physical or mental impairment that prevents you from making at last $1,040 per month, you can be eligible for disability benefits. Because the disability application process can take a year or two, if you feel you are disabled, you should generally file for disability as soon as possible. There are only a few reasons to delay applying for Social Security disability: if you are still working, if you are collecting unemployment, or if you haven’t yet seen a doctor for your problems. Let’s look at these situations more closely.

Working. If you are working part-time, or have been working on and off, this may indicate to Social Security that you’re able to do work activities. To Social Security, if you can earn $1,040 per month, you are not disabled. If you’re not working now, you should be okay to apply for disability, using your last day of work as the onset date of your disability. (You might even be able to use an earlier onset date if your sporadic attempts at work weren’t working out because of your disability – see our article on unsuccessful work attempts for more information.)

Unemployment. If you’re receiving unemployment compensation, it might cause a problem with getting an approval for disability. To receive unemployment benefits, you generally have to certify you are “willing and able to work.” While there are circumstances where it’s okay to collect both benefits at once, it’s generally safer to not be collecting unemployment benefits when you apply. For some more guidance on this, see my June 2013 blog post on applying for disability benefits while collecting unemployment benefits.

Not under a doctor’s treatment. If you haven’t been seeing a doctor regularly for your impairment, this could be a problem. Social Security needs to see medical records such as doctor’s notes, lab test, x-rays, and so on. And Social Security is less likely to take your problems seriously if you haven’t seen a doctor for them. If you haven’t been able to afford to go to a doctor, Social Security may send you on a consultative exam with a Social Security doctor, but unless your impairment is clear-cut and very severe, you are unlikely to be approved for benefits on the basis of a consultative exam. It’s better to make an appointment to see a doctor (maybe try a free clinic) to develop evidence of your impairment.

If you plan to delay filing for disability for a month or two until you’ve either seen a doctor, run out of unemployment benefits, or stopped working, you can get what’s called a “protective filing date.” You simply let Social Security know that you’ll be filing a disability application in the next few months, either over the phone or by sending the agency a letter. The date that you let Social Security know that you intended to file becomes like your application date, as long as you file for disability within six months of that date. This can be important for calculating your disability backpay and a few other reasons. For more information, see our article on protective filing dates for Social Security.

What Social Security Benefits Are Available for the “Currently Insured”?

Question: I read your last post on getting Medicare before you’re 65 and it talked about being currently insured. If my husband is currently insured (he worked for a while a couple of years ago), does that mean I can get Social Security benefits when he dies? He is in poor health and I don’t think he’s fully insured, because he can’t get Social Security retirement benefits.

Answer: There are very limited Social Security benefits for those who are currently insured or for the spouses of those who are currently insured. For most Social Security benefits, such as retirement benefits, you need to be “fully insured,” which generally means you have 40 work credits, or 10 years worth of work. For disability benefits, you need to be “insured for disability benefits,” which means you need at least one work credit for each year that has passed since you turned 21 (plus you need to have worked a certain amount in recent years).

To be currently insured, on the other hand, an individual needs to have earned only six credits in the three years before he or she became eligible for disability benefits or passed away. A credit is earned by making $1,160, and an individual can earn up to four credits per year. (A person can earn six credits in as little as 13 months if he or she makes a total of at least $6,960. )

However, the only time currently insured individuals can benefit from this insured status during their lifetime is if they have end-state renal disease (ESRD). In that case, they can get Medicare Part A, premium free, while being currently insured instead of fully insured.

While someone who is just currently insured is not eligible for Social Security retirement benefits or disability benefits, after the currently insured individual dies, his spouse and children may be eligible for survivors benefits. The following survivors benefits are available to the dependents of someone who was currently insured:

Child’s insurance benefits, for children who are unmarried and either:

  • under 18
  • between 18 and 19 and in school, or
  • disabled, with a disability that began before age 22.

Mother’s or father’s benefits, for surviving spouses who care for a child of the deceased spouse. The child being cared for must receive survivors benefits based on your spouse’s record and either be:

  • under 16, or
  • disabled.

A surviving child or a surviving spouse who has a surviving child in his or her care will receive 75% of what the deceased individual’s Social Security payment would have been, up to a family maximum. (If there is more than one child, each family member would get less than 75%.) Keep in mind that if the deceased individual wasn’t fully insured, the survivors benefit payment may be quite low. Also, as an aside, you should know that a currently insured individual’s spouse or children are not eligible for dependents benefits during the individual’s lifetime.

For more information, see our article on currently insured status for Social Security disability.

How Can I Qualify for Medicare Before I’m 65?

Question: I was just denied Social Security disability benefits because I didn’t have enough work credits. I was mainly applying to qualify early for Medicare (I’m 60), because I have high medical costs due to kidney problems and other conditions. Now I’m worried I won’t qualify for Medicare even when I turn 65. What can I do?

Answer:  You have some options. There are several parts to Medicare, with different rules for qualifying for each. Part A, Hospital Insurance, is the Medicare coverage that’s premium-free for those who are fully insured with Social Security. Individuals over 65 who aren’t insured with Social Security can pay a premium to get Part A. Anyone over 65 can also get Part B, Medical Insurance (mainly for doctors’ visits), simply by paying a premium.

Here are the various ways to qualify for Medicare.

Premium-free Medicare for those age 65 or older. If you are 65 or older and you OR your spouse worked for long enough in a job covered by Social Security, for a railroad, or for a federal, state, or local government in a Medicare-covered job, you qualify for free Medicare Part A. Generally you need 40 work credits (each representing one calendar quarter of work) to be fully insured by Social Security. That represents about ten years’ worth of work.

To qualify based on your spouse’s work record (or your ex-spouse’s work record), your spouse must be at least 62. Do you have a spouse who will have enough work credits by the time you turn 65?  Check with Social Security to see if your spouse (or ex-spouse) will have enough credits.

Paid-premium Medicare for those over 65 and older. Those over 65 who don’t qualify through one of the above methods can get Part A or Part B by paying a premium. Note though, if you want to get Part A by paying a premium, you also have to pay for Part B. On the other hand, you can just get Part B if you want, by paying the Part B premium. Also, anyone who is entitled to Medicare Part A or enrolled in Part B can get Part D prescription drug coverage by paying a monthly premium.

How much are you looking at having to pay for Part A if you’re not fully insured for Social Security? If you, or your spouse, has 30 to 39 work credits (instead of the 40 required to be fully insured by Social Security), the monthly premium for Part A is currently $225 per month. If not, the monthly premium would be $441 per month (in 2013 numbers). If you have income below a certain level, however, you can get help paying your premiums through one of the Medicare Savings Programs.

Those younger than 65. Unfortunately, there are limited ways to get Medicare if you’re under 65. You can qualify for Medicare if you are approved for disability benefits from Social Security or the Railroad Retirement Board. However, there is a 24-month waiting period after you become entitled to disability benefits before you can get Medicare. You can also get Medicare coverage if you have end-state kidney/renal disease (ESRD). (For ESRD, you or your spouse need only be “currently insured” with Social Security. If you or your spouse earned six credits in the three years before turning before turning 65 or dying, you are currently insured.)

If your income and assets aren’t too high (and you may not need to count money you spend on your medical expenses), you might want to look into applying for Medicaid, especially if your state has opted for Medicaid expansion. Or, check out the new health care marketplaces.

Ways to get more credits. If you are close to the amount of credits you need (at age 60, you need 38 credits to qualify for disability benefits; at age 62 or older, you need 40 credits to qualify for disability or retirement benefits), you might consider going back to work on a very part-time basis. You need to earn only $1,160 to get one credit, and you can earn four credits per year. Getting to 40 credits (or 30, even), can save you thousands of dollars in Medicare Part A costs over the years. Or, if your spouse is close to being fully insured for Social Security, he or she might be able to earn a few more work credits.

Lastly, you can always appeal a Social Security denial. If you can get approved for disability benefits, you’ll automatically be eligible for Medicare two years later or when you turn 65, whichever is earlier.

Can I Qualify for Disability Benefits if I Can Work Part Time?

Question: My degenerative disc problems and stenosis became so bad that I was forced to quit my job as a vocational nurse—I could no longer be on my feet all day or physically assist heavier patients. I had been working three 12-hour days per week for the past ten years. I am 49. Can Social Security say that I can work fewer hours and deny me benefits?

Answer: Applicants for Social Security disability should be able to get benefits if they can’t work on a “regular and sustained basis.” Generally, this means full time; for Social Security to deny you benefits, you need to be able to work 40 hours per week without needing to take frequent breaks. In most cases, Social Security won’t deny you benefits because you could work, say, 15 or 20 hours per week.

The rule is a bit different if you worked part-time in the years before you quit due to your impairments. In that case, if Social Security says that you can still do your past part-time job, you can’t get benefits, even if Social Security would agree you couldn’t work a 40-hour week. So in your case, if Social Security decides you can work 36 hours per week, you’ll be denied benefits even if you clearly couldn’t work 40 hours per week. (To learn more about this issue, see our article on disability benefits and full-time work vs. past-time work.)

What if Social Security agrees you can’t work your past job that required three 12-hour shifts per week? (By the way, this probably won’t be difficult to prove — that schedule would be physically grueling for most people; nearly impossible for someone with your physical impairments.) But before approving you for disability benefits, Social Security would look to see whether there are other jobs you could with easier schedules (for instance, five 7-hour days) – or other 36-hours-a-week jobs that require less physical work and more sitting down. Whether Social Security would find that there are other jobs you could do depends on what your residual functional capacity (RFC) is.

One more issue—because you’re not yet 50, Social Security will assume there are other types of jobs that someone your age can learn to do (unless you were given a “less-than-sedentary” RFC, which is not common). For example, say you can’t find a nursing job with lighter duties or a less taxing schedule, Social Security will argue that there are many sit-down jobs you can do.

But once you turn 50, this changes. Then Social Security will use the “grids” to decide whether you should be expected to learn a new line of work. First, Social Security will assess whether you have skills you can transfer to another type of job. If not, Social Security may not expect you to be able to “adjust” to new work, depending whether Social Security gave you an RFC for sedentary work or light work. For more information on this issue, see our article on the disability grids.

Shouldn’t a Broken Leg That Doesn’t Heal Qualify for Disability Benefits?

Question: I applied for Social Security Disability benefits after I fractured my femur and needed to use a walker, so I wasn’t able to work. Social Security denied me because they said I was likely to recover and return to “ambulation within 12 months of onset.” I appealed the denial, and it’s now been almost a year, and I am still unable to walk without a walker or two crutches. Do I need to wait for my hearing date to prove I’m disabled, since it’s obvious I’ll meet the 12-month requirement?

Answer: Social Security denies most cases of broken bones because they’re expected to heal within a year. Only fractures that cause other complications are usually granted disability benefits at the initial application stage.

However, Social Security is aware that some broken legs don’t heal within a year, either due to improper healing, the bones not rejoining, or shortening of the bone.

Social Security is supposed to grant disability benefits to those with a break in their femur, tibia, or tarsal bones if, six months after the injury, your medical records show the bones have not rejoined and your doctor says that you won’t be able to walk without a walker or crutches for at least a year. Unfortunately, Social Security tends not to believe that you won’t be able to walk within 12 months of your original injury. (Even if you’re expected to walk with a cane before the end of a year, that means you’re unlikely to qualify for disability.) Your denial notice may have said something like, “Sufficient restoration of function in your leg is expected within 12 months, leaving no significant limitation of your ability to perform basic work-related functions.”

Because of this, Social Security typically only grants disability to applicants with fractures when it’s been over a year and the disability applicant still can’t walk. This often happens at appeal hearings, which usually don’t happen for a year or more after the initial application, which is why applicants with bone fractures have a high rate of winning benefits on appeal.

In your case, there are a couple of ways you can try to get approved without waiting for a hearing.

1)      Request that a Social Security judge give your case an “on-the-record” (OTR) review. When you request an OTR, you’re saying the judge doesn’t need to see you in person or hear your testimony because your case is so clear cut. Your medical files show that you still qualify for disability because it’s been 12 months and you still can’t walk.

2)      Request that a Social Security staff attorney review your case. You can ask for an attorney advisor opinion on your case if you have new evidence that makes it clear you qualify for disability – evidence that wasn’t available when you applied for disability or asked for a reconsideration review. In your case, you now have solid evidence that your inability to “ambulate” would last at least 12 months, which should qualify you for benefits.

To request an OTR or attorney advisor opinion, contact your Social Security hearing office (Office of Disability Adjudication and Review), or find a disability lawyer to help you. To learn more about these methods, see Nolo’s new article on getting a faster disability decision.