Category Archives: Social Security Disability

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.

I have CHF, bradycardia, hypertension, diabetes, high cholesterol, acid reflux, and sleep apnea; can I get disability?

Question: I had a heart attack in November 2012 and I went back to work after being told I needed a pacemaker. In March of 2013, my heart rate went to 40 and I was hospitalized for a few days and then sent home. It did it again in June and […] they took me to surgery and gave me a pacemaker. The cardiologist says my bottom chamber was blocked. I was diagnosed with CHF, bradycardia, hypertension, diabetes, high cholesterol, acid reflux, and sleep apnea. My blood pressure will not stay stable – it’s been like that for years — my doctor says my blood pressure was controlling my heart. I am taking Carvedilol 2×day, Lisinopril-Hctz, Potassium, Norvas, and Nexium. I can’t work anymore; can I file for disability?

Answer: If your pacemaker implant was successful, it may not help you much in getting disability. (See my earlier article on pacemakers and disability for more information.) In general, Social Security is less interested in diagnoses and more interested in how your day-to-day functioning is limited. You didn’t mention how you are actually limited in functioning, and the only way to get disability for heart failure without proving that your limitations prevent you from doing any job is to meet Social Security’s disability listing for CHF. If you’ve had three (or more) episodes of acute congestive heart failure over the past year that required extended emergency room treatment or hospitalization, Social Security should grant you disability benefits for meeting the CHF listing without even needing to look at whether your daily functioning is limited. Having failed an exercise stress test can help you meet this listing as well.

But, assuming you haven’t been hospitalized for CHF since your pacemaker implant, you’re more likely to get disability benefits by proving to Social Security that your activities are so limited that there isn’t any work you can do. Ask your doctor what New York Heart Association (NYHA) Functional Classification you fall under: Class I, II, III, or IV. (Class I patients have few symptoms and no limitation in ordinary physical activity while Class IV patients have severe limitations and experience symptoms even while resting). This will give you an idea where you stand, as far as the severity of your limitations. Social Security is more likely to find Class III and IV patients as unable to work due to the severity of their symptoms.

But the way to prove to Social Security that your limitations are too severe for you to work a full-time job is not with your NYHA class but by getting your cardiologist to fill out a functional capacity form saying what you are not able or allowed to do (such as not being able to walk for more than one hour per day or not being able to lift more than 25 pounds) as well as what you are capable of doing (such as being able to sit upright for six hours to eight hours per day).

If your doctor’s form or medical records do prove that you have severe limitations or restrictions, this limits the number of jobs Social Security can say you are able to do, making it harder for Social Security to find you “not disabled.” But if Social Security finds you can do sedentary work (a desk job), you won’t be found disabled unless you don’t have the skills to do sedentary work and you’re over 50 (and you can’t return to your previous work because of your limitations or doctor’s restrictions). Social Security also has to consider how the combined effect of all of your conditions limit your abilities, so make sure you have documentation of all of your conditions when you apply.

Social Security has rejected plenty of applicants who have pacemakers, CHF, high blood pressure, diabetes, and other conditions, so you may want to consult a Social Security disability attorney for help in getting disability benefits.

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.

Do I need a lawyer to reapply for disability to get benefits going back to the date of my first application?

Question: I have been battling chronic migraines, chronic daily headaches, depression & anxiety for over a decade. About 18 months ago I finally applied for disability benefits. I was denied. Due to my conditions and frustration, I failed to appeal my denial.
I know it’s too late to appeal, so can I reapply or do I need to get a lawyer? If I can reapply, can I still request benefits from almost two years ago, when I initially applied?

Yes, you can reapply for disability benefits from Social Security by filing a new claim. You can also request that your original claim be reopened when you file the new claim. If you’re successful, Social Security will pay benefits back to the date of your original application, or even up to a year before your original application date if you can prove your disability started that long ago.

You didn’t say when you received the denial from Social Security, but if it was less than 12 months ago, you should have an easy time reopening your claim. You do have to claim that the same medical conditions (or related ones) are disabling and that your disability started before the date of your first claim. In your case, it sounds like that won’t be a problem. But make sure you have medical records that show you suffered from these conditions several years ago and that you’ve also been seeing a psychiatrist or neurologist recently.

If you received the denial more than a year ago, you’ll have a harder time reopening the claim. You’ll have to show that you have “new and material” evidence about the claim (meaning the evidence wasn’t considered in the prior claim and it would have meant an approval of benefits), or that that the prior decision reflects an obvious error. This isn’t an easy standard to meet, and if you request a claim be reopened and the request is denied, you can’t appeal the decision.

So if you were denied over 12 months ago, I would ask a disability lawyer to help you reopen your original application. A disability lawyer will know how to request the prior claim be reopened and how to argue why your evidence is new and material or why there was a clear error in the initial decision. An attorney can also make sure your new claim follows the reopening rules regarding dates and relevance. Of course, if the lawyer doesn’t think your case is likely to win or get reopened, that will save you the time and headache it will take to file a new claim and wait for an answer. In other words, it’s always a good idea to at least do a free consultation with w lawyer. To set up a consultation, you can fill out Nolo’s case evaluation form and a disability lawyer from your area will follow up with you.

Will moving back in with my wife cause her to lose SSI and Medicaid?

Question: I am on SSDI and my wife is on SSDI and a very small SSI check. We live apart but her health is getting worse and she really needs to live with me. I get $807 SSDI and have to pay my $29 for Medicare Part D out of that. She gets $703 SSDI after her Medicare D payment. I would actually be kind of a caregiver for her, as she falls down a lot from her strokes years ago. We are wondering if it would affect her income or Medicaid in any way. She has full Medicaid because of her small SSI check and I am on Medicaid crossover.

Answer: Your income would be counted toward your wife’s eligibility for SSI, and given your SSDI income, it’s not unlikely that she would lose her SSI and SSI-dependent Medicaid. But, if your state has opted into Medicaid expansion, your wife could continue to qualify for Medicaid under the Affordable Care Act (ACA). (Under the ACA, those with incomes up to 138% of the federal poverty level can qualify for Medicaid in expansion states.)

Additionally, it sounds like your wife has been receiving Medicare. If she loses Medicaid, she could probably qualify to receive free Medicare Part B through the Specified Low-Income Medicare Beneficiary (SLMB) and Qualifying Individual (QI) programs and to receive “Extra Help paying for Medicare Part D.

Also, you should consider that your increased income from moving in together could affect your dual eligibility status  for Medicare and Medicaid. You could probably also get help through the above programs, but you may not continue to qualify as a Qualified Medicare Beneficiary (QMB) for crossover purposes. This could mean you might be subject to more out-of-pocket costs. I would talk to Social Security about how the move would affect your wife’s SSI eligibility and to your state’s department of health care services about how the change would affect dual eligibility for you both.

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.

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.

Should I hire a Social Security disability advocate or a Social Security disability lawyer?

Question: I’m about to apply for Social Security disability. I’ve seen an ad for disability advocates. What’s the difference between a disability advocate and a disability lawyer? Which should I hire?

Answer: The term Social Security disability advocate is used by both lawyers and nonlawyers who help people with their disability cases. However, many, if not most, individuals who advertise their services as “disability advocates” are not lawyers. Social Security is one of the few areas of law where it’s legal for someone to help and represent you at hearings without a license to practice law (thanks to a law passed in 2004 to reduce the backlog of Social Security disability cases).

Nonlawyer disability advocates must have a college degree or equivalent training, but they don’t need to go to law school or have any legal training. They do need to pass a Social Security exam on disability procedures and pass a criminal background check.

Disability lawyers, on the other hand, have graduated from three years of law school and passed the bar exam. They’ve learned to write legal briefs, question plaintiffs and witnesses at hearings, and properly read prior cases to support your claim.

Another difference: nonlawyer disability advocates aren’t subject to any rules of professional conduct requiring them to return phone calls promptly, charge you a fair amount for expenses, and keep you notified about your case. Disability lawyers, on the other hand, are, and are subject to discipline if they violate these ethical rules.

Also, only a licensed lawyer can appeal your Social Security disability claim to federal court, should you lose your appeal with Social Security.

You’d think that disability lawyers would be able to charge more for their services, but they can’t. Both nonlawyer and lawyer advocates are limited to the same percentage of your disability award (25%) and are paid only if they win. (Read more about how disability lawyers charge you here.)

Either way, if you have a hearing coming up, your chances of getting approved for benefits are higher if you’re represented by a lawyer or nonlawyer advocate. Nolo has a directory of disability advocates who can help you with your case; fill out a case evaluation form to have one of them contact you.