Category Archives: Uncategorized

What if I Change My Mind After Delaying Social Security Retirement Benefits?

Question:

What if I delay retirement but then become sick, making it unlikely I’ll live long enough to break even on my delayed Social Security benefits?

Answer: Fortunately, if you decide to delay collecting Social Security until sometime after your full retirement age, there’s a way to reverse this decision if you become ill and either need the money right away or expect to die sooner than you had hoped…but only if you plan ahead.

If you claim your retirement benefits at full retirement age, then immediately “suspend” collecting those benefits, you reserve the right to unsuspend the benefits at any time and start collecting them. The real bonus is that you can request that you receive all the benefit payments owed to you since your full retirement age. Social Security calls this “reinstatement” of your retirement benefits. You will receive a lump sum of the benefits you would have received if you hadn’t suspended your benefits. Of course, this lump sum won’t include the delayed retirement credits that you were hoping would increase your retirement benefits permanently by waiting until 68, 69, or 70 to retire.

This is a helpful option to have in case your finances suddenly change for the worse or you become seriously ill and your life expectancy is unexpectedly shortened. In this way, claiming and suspending your retirement benefits is kind of like having an insurance policy. You suspend the benefits in the hopes that you will live a long and healthy life and not need to access the funds until age 70 (or 68 or 69, as the case may be). But if you run into financial trouble and need money, or you find out you have a serious or terminal illness and aren’t likely to live long enough to recoup the Social Security benefits that you lost by delaying collecting them, you can access the money at any time, right away.

For more details on delaying retirement, suspending benefits, and reversing the decision, see Nolo’s  article on Changing Your Mind About Delaying Social Security Retirement.

Can I Get My Student Loans Canceled When I’m on Social Security Disability?

Question: I received a heart transplant three months ago and am unable to work. I was just approved for Social Security disability. Will my student loans be automatically forgiven?

Answer: Unfortunately, no, student loan cancellation won’t be automatic – but an award of Social Security disability insurance (SSDI) benefits can help.

The federal Department of Education (DOE) will cancel (“discharge”) federal student loans for anyone with a total and permanent disability (TPD). The DOE considers a TPD to be an impairment that prevents you from doing any significant amount of work for at least five years. As you can see, this is a tougher definition to meet than Social Security’s definition of disability, which only requires you to be unable to work for one year.

So how does the Department of Education use evidence of an award of SSDI (or SSI) to judge whether you should receive a discharge of your student loans? When the Social Security Administration (SSA) awards disability benefits, the agency puts you into one of three categories based on its expectation of whether your condition will improve. The category dictates when you will receive a “continuing disability review” to see if your disability is still present. Here are the categories:

  • Medical Improvement Expected (MIE). Your condition is expected to improve in the short term. Your case will be reviewed in six to twelve months.
  • Medical Improvement Possible (MIP). The SSA believes it’s possible your condition will improve, but it’s not sure when. Your case will be reviewed in about three years.
  • Medical Improvement Not Expected (MINE). The SSA expects that your condition will not improve and you will be permanently impaired. Your case will be reviewed in five to seven years.

Your review date will be included in your initial award letter (if it’s not, contact Social Security and request a Benefits Planning Query). Only those who are given a review date of five to seven years qualify for a total discharge of their federal student loans.

Social Security does not place heart transplant recipients into the Medical Improvement Not Expected (5-7 year review) category, so they are not automatically eligible for loan cancellation. Recipients of a heart transplant fall into the Medical Improvement Expected category, and in fact, the SSA’s disability listing for heart transplant recipients says that these individuals will be considered disabled only for one year following the surgery. After that, the SSA will reevaluate the individual’s condition to see whether they can meet the definition of disability another way. Our article on disability benefits for heart transplant recipients lays out the complications that a heart transplant might face and the ways they could get disability benefits after one year.

That said, heart transplant recipients may still be able to get their student loans cancelled. If your doctor submits documentation showing that you are unable to work and that your disability is expected to last for a continuous period of five years, the DOE may agree to cancel your loans. For more information on applying for a TPD discharge from the DOE, see our article on canceling student loans due to permanent disability.

If that doesn’t work, when it’s close five years since your heart surgery and you are still clearly disabled, you should qualify for a discharge of your loans. At that point, you can prove your continuing disability by having your doctor submit documentation that you are unable to work and that your disability has lasted for a continuous period of five years. In this case, any loan payments you made during the time you were receiving disability benefits (specifically, since you sent in your original SSA notice of award to the DOE) should be returned to you. However, there may be no need to make payments during this time if you get a temporary deferment or forbearance due to hardship and disability. See Nolo’s article on loan deferment and forbearance for more information.

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 blog post on pacemakers and disability for more information.) In general, Social Security is less interested in diagnoses and more interested in how and 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.

If I move to a state that doesn’t recognize same-sex marriage, will I lose my Social Security benefits?

Question: I heard Social Security finally changed the rules regarding benefits for same-sex couples. If I was married in a recognition state in the Northeast and then I retire to Florida, a non-recognition state, will my Social Security spousal benefits be cut off?

Answer: It depends. If you were already receiving benefits before you moved, you should be okay. The Justice Department has clarified this week what happens if a married couple moves to a state that doesn’t recognize gay marriage. From now on, when a claimant applies for spousal benefits, the Social Security Administration will evaluate his or her eligibility based on the state in which she lives during the application process, and will not later reassess eligibility if the person moves. Here’s some background on how Social Security decides eligibility.

Whether a spouse is eligible for Social Security benefits on her spouse’s earnings record depends on whether the state in which the couple lives recognizes the couple’s marriage as valid. Despite a 2013 Supreme Court ruling that overturned part of the Defense of Marriage Act (DOMA), a federal Social Security statute still says spouses are considered married when the state in which they live considers them married.

The states that now recognize same-sex spouses as legally married and eligible for Social Security dependent and survivors benefits are California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and D.C.

So, for example, if you and your spouse are legally married in New York and you apply for Social Security benefits while living there, and then you move to Florida, a state that doesn’t recognize same-sex marriage, you will continue to receive benefits because you lived in New York when you applied for benefits. This is a bit quirky, because it also means that, if you marry in New York, live there for a while, then move to Florida, and then apply for Social Security benefits, you will be ineligible, because at the time of application you lived in a non-recognition state. Confusing, but that’s the way current law stands.

For more information on the benefits available, see Nolo’s articles on Social Security dependents benefits and Social Security survivors benefits.

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.

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.

How Obamacare Will Affect Social Security and People With Disabilities

One way that Obama’s health care reform will help make health insurance accessible to more people is by eliminating preexisting condition exclusions.  This will be a big benefit to those with disabilities, because many will now be able to purchase their own insurance. Having more people eligible for private health insurance will have an effect on Social Security, Medicare, and Medicaid.

Thanks to Obama’s health care reform law, as of January 1, 2014, insurance companies can no longer deny coverage to individuals with preexisting conditions, or charge them higher rates. (See Nolo’s recent article on the ban against preexisting condition limitations.) At the same time, individuals without group health insurance can purchase insurance through the Health Insurance Marketplace; applications can be submitted starting October 1, 2013. Those with low income (less than 400% of the federal poverty level) are eligible for lower premiums, and those with even lower income (250% of the federal poverty level) can qualify for lower out-of-pocket costs like deductibles and copays. (See Nolo’s federal poverty guidelines for exact figures.)

These two provisions of the new health care reform law (called the Patient Protection and Affordable Care Act of 2010) should lower the number of people on Medicare and Social Security disability.  Why? Historically, many folks with preexisting conditions who lost their prior work-based health coverage apply for disability benefits just so they can get health care benefits. They know that an approval for Social Security disability will mean they can either qualify early for Medicare, or, if they have very low income (or somewhat low income and very high medical expenses), they may be eligible for Medicaid. Some of these folks will now decide not to file for disability benefits since they don’t need a disability approval to get health care, now that insurance companies can’t turn down people with disabling medical conditions and disabled individuals have an opportunity to buy affordable health care, more flexibility in choosing a health care plan, and the potential for out-of-pocket savings on their health care needs.

Not only that, but now that more persons with disabilities or chronic medical conditions will have good health care and access to reasonable priced medications, more of them will be able to work despite having physical or mental impairments, and fewer of them will need to apply for disability benefits.

What’s more, those who can’t work for a while due to a temporary disability will be less likely to need to be off work indefinitely, thanks to better health care and access to medications. In fact, fewer people many now qualify for Social Security disability since only those whose medical conditions prevent them from working for at least 12 months are eligible for SSDI or SSI disability benefits. Now, some disability applicants who would have been eligible to receive Social Security while they recuperate from injuries or mental illnesses may recover sooner because of regular doctors’ visits plus the proper medication.

On the other hand, some other folks who would have previously been denied disability benefits or Medicaid benefits are now more likely to be approved. Often disability applicants are denied because they haven’t been seeing a doctor for treatment and don’t have test results to prove their disability. Now that health care is more accessible, more folks who apply for disability will have been seeing doctors regularly and have the proper diagnoses, lab results, and x-rays in their records. This should help eliminate the need for Social Security to send applicants to consultative medical exams and should reduce the number of disability appeals – with the proper medical records, fewer claims will be incorrectly denied disability benefits in the first place. This represents significant potential cost savings for Social Security.

Similarly, despite fewer people applying for disability benefits, Medicaid roles will increase, of course, because in some states Obamacare’s Medicaid expansion will now allow adults with incomes of up to 133%-138% of the federal poverty level to qualify for Medicaid.

But overall, health care reform appears to be a great deal for persons with disabilities.