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.

Why Can’t I Get Medicare Two Years After My Disability Onset Date?

Question: Can you please clarify “disability onset date” in regards to qualifying for Medicare? I became ill in 2007, hoped I would recover but did not, and filed for SSDI last December. Even though Social Security agrees I was disabled since 2007, they say I can’t get Medicare until the end of this year. I thought the two-year waiting period for Medicare started at the disability onset date, and not after you’ve received 24 payments? Can you please clarify, since I have incurred some medical bills that I cannot financially handle at this time?

Answer: Generally, the rule on Medicare eligibility for those who receive Social Security disability insurance (SSDI) is this: Eligibility for Medicare starts in the 25th month after you become eligible to receive  SSDI payments. (Note there are two exceptions to the two-year Medicare waiting period: those with end stage renal disease or ALS can get Medicare benefits sooner.)

But when exactly do you become “eligible” to receive SSDI? Do you become eligible to receive benefits when your SSDI checks start getting deposited in your bank? Or as early as your disability onset date? Or as of your disability onset date plus five months, to make up for the SSDI waiting period?

Social Security calls the date you become eligible to receive SSDI payments your “entitlement date.” Due to the five-month waiting period for SSDI, this date is five months after the date that Social Security establishes your disability began (your “established onset date,” or EOD). You then count 24 months out from the entitlement date to see when you’ll become eligible for Medicare. In other words, you can join Medicare 29 months after your established onset date.

In real life, it takes so long to get a disability hearing that applicants who go to the hearing stage of appeal to get benefits usually need to wait only a few months after their approval to be eligible for Medicare.

But what if your disability onset date was years ago, or 2007 as you say? Unfortunately, unless you applied for disability benefits a long time ago, this won’t help you get Medicare benefits too much faster. If you didn’t apply for Social Security disability until years after becoming disabled, or until 2012 in your case, your eligibility for Medicare won’t start 29 months after the actual onset of your disability. Because of maximums set by federal law, your established onset date can be no earlier than 17 months before the date you apply for Social Security benefits. For example, if you applied for benefits December 1, 2012, the earliest EOD you can receive is July 1, 2011.

In turn, this means your entitlement date can be only 12 months before you apply for SSDI, because of the five-month waiting period. (And Social Security will pay retroactive benefits for no more than 12 months prior to your application date.)  This would mean the earliest date that your date of entitlement could be is December 1, 2011, and the earliest date you could be eligible for Medicare is December 1, 2013. In essence, you can never become eligible for Medicare before two years have passed since you applied for Social Security disability. Moral of the story: If you think you’ll need ongoing medical treatment and can’t afford it, apply for Social Security soon after you become unable to work.

For more information about the complicated interaction between onset date, application date, and waiting periods, see Nolo’s article on how Social Security calculates backpay.

How the DOMA Ruling Affects Children of Same-Sex Marriages

Question: I married my wife in a same-sex marriage ceremony in New York last year. We now live in California. My wife is on disability. Is my child now eligible for federal disability benefits?

Answer: The children of same-sex couples who marry may now be eligible for federal disability and retirement benefits, including Social Security dependents and survivors benefits, veterans dependents and survivors benefits, and military benefits. Eligibility depends on the type of benefit and either the state the marriage took place in, the state the family lives in, or the state the couple lived in when they got married – all three federal benefit programs have different rules. The good news is that a child with same-sex parents can get federal benefits even if the new parent hasn’t gone through a stepparent/second-parent adoption.

Social Security

Let’s look at Social Security first. The children of disabled, retired, or deceased individuals who were insured through Social Security are eligible for dependents and survivors benefits. This is true whether the child is a biological child, adopted child, or stepchild of the insured individual. For instance, if a woman gives birth to a child and then marries her lesbian partner (the “stepparent”), if the stepparent is collecting Social Security retirement or disability benefits, the child is eligible for a dependents benefit based on the stepparent’s Social Security record.

Dependents benefits. The amount of the dependents benefit for a child is 50% of the parent or stepparent’s monthly benefit, but if other individuals are receiving a monthly benefit, such as other children or a spouse, the amount will be less. To be eligible for dependents benefits, the child must have been a stepchild for at least one year before the child can apply for benefits (in other words, the parents must have been legally married for at least a year and live in a state that recognizes same-sex marriage before the child can apply for benefits). Read more about the requirements for dependents benefits.

Survivors benefits. The amount of the benefit for a surviving child is 75% of what the deceased parent or stepparent’s monthly benefit, but will be lower if other children or the surviving spouse shares in the benefit. To be eligible for survivors benefits, the child must have been a stepchild (with parents who were legally married) of the deceased parent for at least nine months before the stepparent’s death. There are some exceptions to this rule, however: if the death of the stepparent was accidental or the result of active military duty, or if the parents legally adopted the stepchild, the marriage can have lasted fewer than nine months. Read more about the requirements for survivors benefits.

Legal issues. A stepchild in a same-sex marriage is eligible for benefits only if he or she lives in a state that recognizes same-sex marriage as legal and only if the stepparent financially supports the stepchild. The insured stepparent does not need to officially adopt the child. However, Social Security considers a child to be a stepchild eligible for benefits only if the child’s natural or adoptive parent married an insured individual after the child was born. A child’s whose natural parent married a stepparent before the child was born is not considered a stepchild, except in the case where the child was conceived before the marriage occurred. So in the situation where a lesbian or gay couple marries and then one spouse has or adopts a child, the other spouse (the stepparent) will probably have to officially adopt the child for the child to be eligible for Social Security benefits based on the stepparent’s earnings record.

Veterans Benefits

The rules are a bit simpler for VA benefits. If a biological or adoptive parent of child marries a same-sex partner who is eligible for veterans benefits, the “stepchild” is eligible for benefits as long as he or she lives with the veteran (or lived with the veteran before the veteran’s death). A child is eligible for veterans dependents and survivors benefits based on a same-sex marriage if the state the veteran lived in at the time of marriage recognized same-sex marriage as legal or if the state the veteran lived in when he or she became eligible for veterans benefits recognizes same-sex marriage. This means family members are ineligible for benefits when the veteran and his or her spouse traveled to a state that recognized same-sex marriage for the purpose of getting married.

Unlike Social Security, children aren’t eligible for a monthly cash dependent benefit if their parents are disabled; instead, their parent will receive a higher disability compensation rate depending on the amount of children he or she has. Plus, children and stepchildren of veterans are eligible for dependents benefits that include educational benefits and health care through CHAMPVA. Children and stepchildren of deceased veterans are also eligible for survivors benefits, including disability indemnity compensation and death pension. See Nolo’s article on veterans benefits for same-sex spouses for more information.

Military Benefits

While children and stepchildren of active duty military members are not eligible for separate cash payments, some forms of the service member’s compensation will increase when a dependent is added to the family. But children and stepchildren of service members are eligible for TRICARE health benefits and other benefits.

For the purpose of military benefits, stepchildren count as dependents without needing to be adopted. The stepchild’s parents do need to be legally married, which, to the Department of Defense, means that the marriage took place in a state that allows same-sex marriage. See Nolo’s article on military benefits for same-sex spouses for more information.

Learn More

For more information on developments following the Windsor decision on the Defense of Marriage Act, see Nolo’s series of articles under The Supreme Court’s DOMA Decision.

Why DOMA’s Reversal May Mean Less Social Security Money for Some Same-Sex Couples

With the Supreme Court’s overturning of part of the Defense of Marriage Act (DOMA), many same-sex couples who are already legally married in the states they live in are suddenly married in the eyes of Social Security. While this is good news for same-sex spouses who are eligible for Social Security disability insurance, the news may not so good for those who receive SSI, adult child benefits, or survivors benefits.


While being married per se doesn’t affect SSI eligibility, having a spouse can affect your eligibility if your spouse has income. If you live in a state that recognizes same-sex marriage, and your husband or wife has income, Social Security will attribute some of his or her income to you (this is called deeming spousal income). Because of SSI’s strict income limits, your new spouse’s income may make you ineligible for benefits, or reduce your benefits by the amount of your countable income.

If, on the other hand, your new spouse is also disabled, or over 65, Social Security will reassess your eligibility for SSI as a couple. The SSI asset limit for a couple is much lower than the amount two individuals are allowed to own, and in most states, the income limit for a couple is only one and a half times the income limit for an individual (instead of twice).  These stricter limits may make you ineligible for SSI now that you are legally married. In addition, the monthly SSI payment for a couple is only $1,066, so you may see your payment decrease (the SSI amount for one person is $710).

There’s one way that having your same-sex marriage finally recognized by Social Security could help you with SSI. If you’ve been living with your partner/spouse, and your spouse was paying your expenses, Social Security was probably not paying you the full SSI amount. If someone else pays for your food and shelter, the SSI counts this as “in-kind” income. Generally, Social Security keeps one-third of your SSI payment in this circumstance. But if you are now legally considered married in your state and it’s your legally recognized spouse who’s paying your expenses, the in-kind income rule doesn’t apply. You will be entitled to the full SSI amount, less any countable income you or your spouse have.

Who will be considered married by Social Security? If you and your new spouse live in a state in which you are considered legally married, Social Security will consider you legally married. But if you get married in a state that recognizes same-sex marriage as valid and you move to a state that doesn’t recognize same-sex marriage, Social Security may not consider you married. Some legal experts say that, for SSDI purposes, if you hold yourself out to the public as married, Social Security should consider you married even if you move to a state that doesn’t recognize same-sex marriage. This remains to be seen; we may see this issue resolved in the coming months.

For SSI purposes, if you can inherit from your spouse after your spouse passes away (without being named in your spouse’s will), this counts as being married.

 Adult Child Benefits

If you are receiving disability benefits under your parent’s work record, as an “adult child,” having your same-sex marriage recognized by Social Security due to the Supreme Court ruling will cause your SSDI benefits to stop. But if you marry a person with disabilities who is also receiving Social Security benefits, you may not lose your benefits when you get married.

Survivors Disability Benefits

If you are receiving survivors disability benefits, the Supreme Court ruling could negatively affect your benefits. You can receive survivors disability benefits if you are over 50 and disabled, your spouse died while eligible for Social Security retirement or disability benefits, and you are unmarried, or if you got married after the age of 50. So, if you married your same-sex partner after the age of 50, your benefits won’t be interrupted when Social Security recognizes your same-sex marriage. But if you were legally married before age 50, you could have a problem. Talk to a Social Security lawyer if you’re concerned.

Survivors Retirement Benefits

If you’re receiving retirement benefits as a surviving spouse, your benefits could be affected by the Supreme Court ruling. You can receive survivors retirement benefits if you are at least 60 years old, your spouse died while eligible for Social Security retirement or disability benefits, and you are unmarried, or if you got married after the age of 60. So, if you married your same-sex partner after the age of 60, your benefits won’t be interrupted when Social Security recognizes your same-sex marriage. But if you were legally married before age 60, you could have a problem. Talk to a Social Security lawyer if you are in this situation, or considering marrying your same-sex partner.

Social Security dependents and survivors benefits for same-sex spouses

Question: I live in California and want to marry my long-time partner in a same-sex marriage ceremony as soon as possible, now that the Supreme Court has ruled on Prop 8. Will this make me automatically eligible for Social Security benefits on my spouse’s record, now that DOMA has been overturned?

Answer: The recent Supreme Court ruling overturning part of the Defense of Marriage Act (DOMA) opens up Social Security spousal benefits to a large number of people who were ineligible before the ruling. Whether a spouse is eligible for Social Security benefits depends on whether the state in which the couple lives recognizes the couple’s marriage as valid. When DOMA was written into law in 1996, there were no states that had legalized same-sex marriage, so Social Security benefits before DOMA’s enactment and during DOMA’s reign were available only to hetero couples. With the Supreme Court overturning DOMA, same-sex spouses in states who were married in a state that allowed same-sex marriage and who lives in a state where same-sex marriage are recognized are suddenly eligible for Social Security benefits based on their spouses’ earnings records. (Note that if you were married before the state you live in recognized same-sex marriages, Social Security is not yet granting spousal benefits.)

The states in which same-sex spouses are now eligible for Social Security dependent and survivors benefits are California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Mexico, New York, Vermont and Washington and D.C. But to qualify for benefits based on a spouse’s, or deceased spouse’s, earnings record, Social Security requires that the marriage must have lasted a certain length of time. Let’s take a look at the various types of spousal benefits and the length of marriage required for eligibility.

To receive spousal retirement benefits as a spouse (a type of dependents benefit), you must have been legally married for at least a year and you must be at least 62. Note that even if you are eligible for retirement benefits on your own work record, you may be able to get a higher monthly Social Security check based on your spouse’s earnings record. Claiming early retirement benefits at age 62 may allow you to not have to claim your own retirement benefits until age 67 or 70.

For widow’s or widower’s benefits (a type of survivors benefit), you will be eligible for Social Security survivors benefits if you are at least 60 and you were legally married to your spouse for at least nine months before death. There are, however, exceptions to this rule. If you are the mother or father of your spouse’s biological child, or you legally adopted your spouse’s child while you were married and before the child turned 18, or your spouse’s death is the result of a violent accident, or your spouse’s death occurred while on active duty in the military, the nine month requirement does not apply.

For ex-spouse dependents or survivors benefits, you must have been married to your former husband or wife for at least 10 years.

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

UpdateFor an update, see this June 26, 2014 post on Social Security benefits for same-sex couples.

Will marriage affect my disability benefits from Social Security?

Question: I’m collecting disability payments right now for multiple sclerosis and lupus. Will Social Security cut off my benefits if I get remarried?

Answer: Whether getting married will stop or lower your disability benefits depends on whether you’re collecting SSI disability benefits, Social Security disability insurance (SSDI) benefits, adult child benefits, or survivors benefits based on the record of your deceased spouse (or ex-spouse). Let’s look at each situation.

SSI Benefits

Marriage itself doesn’t affect your eligibility for SSI benefits, but if your new husband or wife has income, Social Security will attribute some of his or her income to you (this is called deeming spousal income). Because of SSI’s strict income limits, your new spouse’s income may make you ineligible for benefits, or reduce your benefits by the amount of your countable income.

If you and your fiancé are both receiving SSI, your combined income will be subject to the lower couple’s income limit, and you will be eligible for the lower couple’s SSI amount. (The SSI amount for one person is $710, while the amount for a couple is only $1,066.)

SSDI Benefits

If you worked long enough to be insured for Social Security disability insurance benefits under your own work record, getting married will not affect your benefit payments. SSDI does not have income or asset limits.

Adult Child Benefits

If you are receiving disability benefits under your parent’s work record as an adult child, getting married will usually cause your SSDI benefits to stop. But if you marry a person with disabilities who is also receiving Social Security benefits, you may not lose your benefits when you get married. Learn more about adult child benefits.

Survivors Benefits

You may be receiving survivors disability benefits if you are over 50 and disabled and your spouse died while eligible for Social Security retirement or disability benefits. Your benefits won’t stop if you get married as long as you are over 50. (This is true for those receiving survivors disability benefits on their ex-spouse’s work record.)

Same-Sex Marriage

Note that Social Security doesn’t currently recognize gay marriage, so if you marry a same-sex partner in a state that allows same-sex marriage, your disability benefits won’t be affected as long as they are disability insurance benefits, adult child benefits, or survivors benefits. But if you are receiving SSI and you and your new spouse begin living together, Social Security could lower your monthly SSI payment by one third if your new spouse beings to pay for part of your share of your food or housing costs (Social Security calls this “in-kind“ income).

Still Not Sure?

If you’re still not sure whether your marriage could affect your benefits, call Social Security at 800-772-1213 or visit your local Social Security office to talk to a field representative. Or, if you think your benefits were wrongfully terminated or reduced after you got married, contact a Social Security disability attorney or legal aid office near you.

Update 6/26/2013: Social Security now recognizes same-sex marriages in states that legally allow or recognize same-sex marriage. If you marry a same-sex partner and live in a state that allows or recognizes same-sex marriage, your disability benefits could be affected in any of the ways discussed above.

Can I apply for Social Security disability while collecting unemployment benefits?

Question: I was laid off and haven’t been able to find work since then due to a bad back, diabetes, bursitis of the knee, and carpal tunnel in both wrists. Can I apply for Social Security disability while collecting unemployment benefits?

It can be a problem to collect unemployment benefits while applying for Social Security disability benefits because, when you file for unemployment benefits, you are saying you are willing and able to work, but when you apply for disability benefits, you are saying that you can’t work, for at least a year. Officially, Social Security says that collecting unemployment benefits is not a bar to being approved for disability benefits. After all, in most states (except for Texas, Georgia, and a few others), you are not necessarily saying that you are available to work full time, and disability applicants are allowed to work a limited amount of time.

But collecting unemployment benefits is a factor that administrative law judges (ALJs) can consider when they’re deciding your disability case. ALJs usually know when you’re collecting unemployment benefits, because Social Security has access to unemployment benefit information and usually includes it in your claims file. Some judges do not like to see that disability applicants are collecting unemployment benefits no matter what the circumstance. Some judges will deny your case altogether if you received unemployment after you applied for disability benefits, unless you can prove your condition has medically worsened since you applied for unemployment benefits. Other judges simply will not pay you disability benefits for the time period that you were receiving unemployment. Still others don’t care even if you’re receiving unemployment benefits at the time of your hearing. These judges realize that people need income to live on, and that there is no guarantee that disability benefits will be granted after the long process of applying for benefits.

What should you do? To be safe, especially in the few states where filing an application for unemployment means you’re saying you’re available to work full time, you may want to consider not applying for disability benefits until your unemployment benefits run out, or at least amending the date you say you became disabled (your “alleged onset date”) until after your unemployment benefits have stopped.

If you don’t, at your hearing, be prepared to explain why you’re collecting, or collected, unemployment benefits. The judge may ask what jobs you applied for while you were collecting unemployment (and whether they were similar to your old job). If the jobs were ones that your limitations say you aren’t capable of doing (for instance, a job requiring heavy lifting), you may have a problem. You may want to offer to amend your alleged onset date to a date after you stopped collecting unemployment benefits.

Likewise, if you applied for a full-time sedentary work but are telling the judge you can’t sustain full-time work, you may have a problem. You could argue that you probably could not have been able to sustain full-time work for more than a few weeks without great pain or other symptoms or without getting fired. As federal judges have stated in the past, “A desire to work does not mean that a claimant can actually work, and “Receipt of unemployment insurance benefits does not prove ability to work.”

If you have a valid argument that there is no legal conflict between your collecting unemployment benefits and disability benefits, tell the judge. Here are some examples:

  • You were applying for jobs that were within your physical or mental limitations (for example, no heavy work, fast-paced jobs, or high-stress jobs dealing with the public).
  • You were applying for part-time jobs.
  • You applied to jobs where you might be able to work if the employer agreed to accommodate your disability by providing special equipment or an aide to help you do your job, even though the accommodations you would have needed wouldn’t be reasonable for most companies due to their expense.
  • You were applying for “light” work, since that’s all you can do, and you’re over 55. In this case, the fact that you can do light work may not hurt your disability claim. Thanks to a special “grid rule” for those 55 and older and limited to light work, unless:
    • you can do your old job
    • you have job skills you could use to easily switch to light work, or
    • you’ve had recent job training.
  • You were applying only for sit-down jobs, since that’s all you can do, and you’re over 50. In this case, the fact that you can do sit-down work may not hurt your disability claim, again thanks to a grid rule, those 50 and older and limited to sedentary work will be found disabled unless you can do your old job or you’ve had recent job training for sedentary work or have job skills for sedentary work.

In this last circumstance, watch out, because some states don’t pay unemployment benefits to those who say they can only do sedentary work, because they aren’t available for a significant percentage of jobs out there.

Consider amending your onset date if you applied for full-time jobs, applied for jobs that were more demanding than your physical and mental limitations allow for, or if the judge asks you to amend it. Of course, by doing this, you could be giving up a large sum of money, so it’s best to talk about this with a disability lawyer before you decide what to do.

Can I apply for Social Security disability benefits at age 64 or 65?

Question: I was laid off at age 63 and haven’t been able to find work since then due to a bad back, diabetes, bursitis of the knee, and carpal tunnel in both wrists. Can I apply for Social Security disability? I haven’t needed to apply for retirement benefits because I was collecting unemployment benefits.

Answer: You can’t apply for Social Security disability if you have already reached full retirement age, which is currently 66. But until that time, if you are disabled according to Social Security definition, you can either collect Social Security disability or retirement benefits (but not both).

There is a common misunderstanding that you have to be under 65 to collect Social Security disability, but it isn’t true. In fact, it can be easier for those over 65 to get disability benefits, thanks to some special rules. For instance, Social Security examiners and judges must actively look for age-related impairments, such as hearing or memory loss, even if they are not mentioned on your application. In addition, Social Security is less likely to deny you because your condition might not last 12 months, since medical conditions are less likely to resolve themselves quickly after you reach age 65. (Also note that, if you have low income and assets, you can qualify automatically for SSI when you’re 65, without having to prove you’re disabled.)

There are several advantages to applying for disability benefits before you reach full retirement age, even if you are close to it. First, the amount you’ll receive for disability is higher than what you’d receive for early retirement. If you can qualify for disability benefits, you can essentially receive your full retirement amount before reaching full retirement age (the disability benefit equals your full retirement amount).

Second, you will avoid Social Security’s early retirement penalty. For people with disabilities, Social Security disability insurance is like an early retirement program without the penalty for collecting benefits early. If you aren’t familiar with it, the early retirement penalty will lower your current and future retirement benefits whenever you collect retirement benefits before age 66. If you collect retirement benefits at age 63, for example, your benefits will be reduced about 20% for the rest of your life.

Third, the years you have been unable to work due to disability, or unable to work at your full potential, won’t be included in the calculation of your normal retirement benefit. This can lead to a higher retirement benefit, but it’s true only if Social Security finds you officially disabled.

Because it can take years to get a decision on disability benefits, some folks apply for early retirement benefits and Social Security disability benefits at the same time. This is perfectly okay with Social Security, and allows you to collect your retirement benefits while waiting (sometimes up to a year or two) for a decision on your disability application.

If you are later approved for disability benefits, you’ll start receiving disability benefits rather than early retirement benefits. And if Social Security finds that you were disabled the whole time you were collecting early retirement benefits, it will pay you the difference in benefit amounts for those months. If you’re still collecting disability benefits when you turn 66, they will automatically be converted to retirement benefits. In addition, your future retirement benefits won’t be reduced for collecting earlier retirement, since you should have been receiving disability benefits.

However, there’s no guarantee you’ll be found disabled if you apply for both disability and retirement. If you are denied, you’ll be stuck collecting early retirement benefits and your full retirement age benefit will be permanently reduced due to collecting early retirement. Of course, if you need the money, you may be comforted by the fact that the closer you are to retirement age, the less the penalty is (if you’re 65, the penalty is only 6.67%).

Lastly, you mentioned you were collecting unemployment benefits. If you still are, this may raise an issue with Social Security regarding whether you’re disabled. I’ll address this in the next post.

Can Social Security disability payments be seized to pay child support?

Question: I had to stop working due to a disability and am having trouble meeting my child support obligations and paying off old credit card bills. My only income now is a Social Security disability check each month. Can Social Security disability payments be seized to pay child support? What about past due credit card bills?

Answer: Disability benefits from the Social Security Administration cannot be taken to pay off regular debts like credit card bills, defaulted loans, or medical bills, whether you are receiving Social Security disability insurance (SSDI) or SSI disability payments. This applies to ongoing disability payments as well as lump-sum back payments.

There are, however, a few special cases where SSDI payments can be seized to pay off certain debts. SSDI payments can be taken to pay past due or current child support, and the federal government can garnish your SSDI check to collect unpaid back taxes or student loans that were defaulted on.

You can, however, ask the court for a modification to your child support order due to your changed circumstances. Don’t stop paying your child support until you can get a modification. Also, you should apply for Social Security dependent benefits for your child.

SSI disability benefits, on the other hand, can never be taken to pay any type of debt, since they are intended to pay for subsistence-level food and shelter for the recipient. Even a lump-sum SSI check for back payments or accumulated SSI benefits in a savings account may not legally be garnished or seized. In the past, this rule was ignored by banks more often than it was honored, but a new law and direct deposit provide more protection for these funds. (To make sure the funds in your bank account are protected from being garnished illegally, you may want to read Nolo’s article on Protections for Social Security Funds in Bank Accounts.)

In case you’re thinking of filing bankruptcy, the same rule applies to SSI payments: they are exempt from being taken by the bankruptcy trustee to pay off your debts. As to SSDI benefits, they are supposed to be exempt from being taken in bankruptcy (according to the United States Code, Section 42 U.S.C. §407), but certain bankruptcy courts will exempt only the amount you need for your “care and maintenance.” So if you’ve saved some SSDI in a savings account or you receive a lump-sum back payment before you file Chapter 7 bankruptcy, in some states these monies could be taken to pay off your debts.

Which medical conditions are most likely to win disability on appeal?

Question: Do certain disabilities have a better chance of being approved for benefits after an appeal hearing? If so, why?

Answer: The Social Security Administration just released an interesting report that grouped disability applicants by diagnosis. It provided the rates of approval at the initial application stage and rates of approval after the appeal hearing, for many different types of disabilities (based on the primary medical condition listed in the disability application).

As it should be, those conditions with the highest approval rates at the initial application stage also had the highest rate of approval on appeal. These were the diseases widely considered to be the most severe; for instance, pancreatic, esophageal, and stomach cancer; chronic renal failure; and severe mental retardation. In fact, 81% of all applications based on cancer were approved initially, with 89% getting approved on appeal. (Note that many of the conditions in this group are also on the compassionate allowance list, which contains conditions that are so serious that they “obviously meet disability standards,” according to Social Security.)

I looked at which disabilities had the highest reversal rate on appeal; that is, which disabilities were often denied on initial approval but approved on appeal. A couple that stood out to me were chronic fatigue syndrome and carpal tunnel syndrome. For instance, out of a random sample from the disability research file, there were a total of 472 chronic fatigue syndrome claims. Out of these, 102 were approved at the initial application stage and 370 were denied (a 22% approval rate). After appealing, out of the 278 denials that were appealed, 76% of them were approved.

Similarly, of 117 carpal tunnel syndrome applications, only 19% were initially approved, and then 67% of the appealed claims were approved. Other diagnoses that fall into this group include sleep apnea, back problems, chronic migraines, somatoform disorders, skin problems, asymptomatic HIV, Crohn’s disease, and immune system disorders like lupus and rheumatoid arthritis. Most are illnesses that your average (and, in some cases, uninformed) folks consider to be less serious.

Why are so many of these cases being denied at the initial application stage? Are DDS claims examiners denying valid claims due to some type of pressure, or cynicism, forcing ALJs to have to overturn their decisions? Or is the question: Why are administrative law judges eager to reverse so many denials? Are these ALJs substituting their medical judgment for those of doctors? (Medical experts are not present at most hearings to help the ALJ decide whether an applicant is medically disabled.)

I think several issues are at play here. First, those who appeal often wait a year for a hearing. During that time, some medical conditions progress, leading to more complications, more inability to work, and higher approval rates. For instance, 93% of those who applied with asymptomatic HIV were initially denied. For those who appealed, the denial rate on appeal was only 38%. It’s likely that, by the time of the hearing, many of the HIV+ applicants had evidence that their impairments had become severe.

Another reason could be that only those with more serious issues appeal when they are denied. While the majority of applicants who are denied do appeal, interestingly, most applicants who are applying for learning disorders or attention deficit disorder (or more likely, their parents) decide not to appeal. (There are, however, other reasons for not appealing,  some of them socioeconomic.) On a side note, these two conditions have some of the highest rates of denial, at both the initial application and appeal stages.

Another issue that may affect the high rates of denials for some types of illnesses is that there may be a culture at DDS of denying diseases that are thought to be less severe, like fibromyalgia, chronic fatigue syndrome (CFS), carpal tunnel syndrome (CTS), migraines, reflex sympathetic dystrophy syndrome (RSD), and complex regional pain syndrome (CRPS). And no doubt some claims examiners are dubious as to whether there is any physiological basis for these illnesses. But courts have now forced the SSA to recognize that fibromyalgia and CFS, and even RSD and CPRS and similar diseases, can be valid, payable disabilities. (As a result, Social Security recently released a ruling for fibromyalgia with guidance on when it is should be considered a medically determinable condition.) In short, claims examiners may now have to start taking these conditions more seriously at the initial application stage.

Back problems such as degenerative disc disease, which Social Security sees a lot of claims for, run into trouble as well. In this sample, out of almost 90,000 applicants with back pain and limitations, only 23% were approved initially, but 61% were approved on appeal. Seeing this number of applications for back problems, claims examiners may become immune to complaints of back pain without proof of stenosis, nerve root compression or the like. (After all, after age 45 or 50, almost everyone has some sort of back problem.) Of course, back pain, pain syndromes, and other syndromes are harder to prove; the impairments and limitations these applicants claim are largely based on self-reported and subjective symptoms. When applicants initially apply for disability based on these conditions, they and their doctors may not have submitted enough solid medical evidence of disability.

The appeal rate of approval could very well be higher for many conditions because, once these applicants hire legal representation for their hearings, their disability lawyers work with the applicants’ doctors to order lab tests, clinical exams, x-rays, etc. to provide the evidence the lawyers know is needed to win the claims. Lawyers also know the legal rules Social Security must obey before deciding an applicant is not disabled, and they aren’t afraid to exploit them. All this legal maneuvering no doubt helps win appeal hearings, especially since the government does not have an attorney to represent its interests at the hearings.