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.

When can widows get Social Security disability benefits?

Question: My husband died two years ago. He was 63. He was collecting Social Security benefits when he died, but the payments stopped right after I reported his death. Social Security told me I can’t get survivor benefits until I’m 60. I’m 55 now.

After my husband died, I tried to find a job, but had no luck. No one would hire me because I have no experience — I never really worked, except for a couple of years after I dropped out of high school. Now, because of diabetes, high blood pressure, and obesity, I can’t work even if I could find a job. I can’t even walk up a flight of stairs without getting out of breath and having aches and pains. Can I get disability benefits?

Answer: It’s true that as a widow, you can normally collect survivor benefits based on your spouse’s earning record with Social Security once you turn 60. However, if you’re disabled, you can collect survivor benefits earlier.

If you are at least 50 years old and disabled, and your disability started within seven years of your spouse’s death, you can receive Social Security benefits based on your husband’s earnings record. Assuming you don’t have children collecting benefits on your husband’s record, you can receive 71.5% of your husband’s SSDI benefit amount.

That said, Social Security must find you have a disability that prevents you from doing substantial amount of work. You generally have to either meet the requirements of one of Social Security’s listed disabilities (your medical conditions probably don’t qualify) or prove that there are no jobs that you can do, even simple sit-down jobs that require no walking or lifting.

Luckily, Social Security has a special vocational profile for people in your situation that may make it easier for you to qualify for disability. Social Security must automatically find you disabled if you:

  • are age 55 or older
  • have no “past relevant work” (no substantial gainful activity within the last 15 years)
  • have no formal schooling past the 11th grade, and
  • have a severe impairment.

It is much easier to prove that you have a severe impairment than to prove that you meet the requirements of a listed disability or that there are no jobs you can do. The SSA defines a “severe” impairment as one that significantly limits your ability to perform one activity needed to do most jobs, such as:

  • walking, sitting, standing, pushing, pulling, lifting, or carrying items
  • hearing, speaking, or seeing
  • understanding and following simple directions, or
  • interacting with co-workers and supervisors, or adjusting to changes in the workplace.

It seems that, with your medical condition, Social Security should find that your condition is severe since your ability to do physical activities sounds significantly limited. In fact, for Social Security to deny you by saying your impairments weren’t severe, the agency would have to find that you have only slight abnormalities that have no more than a minimal effect on your ability to work.

Does having a pacemaker make me disabled for Social Security?

Question:

I recently had a pacemaker implanted and don’t feel I’m able to go back to work. Can I get Social Security disability benefits?

Answer:

Social Security awards disability benefits to those whose activities are so limited by their condition that there is no job they can do — or to those who meet the criteria of one of Social Security’s disability listings. Either method of getting an approval will be an uphill battle for someone with a pacemaker unless they have other, severe medical conditions as well. Here’s why.

First let’s look at Social Security’s medical listings. Having a pacemaker doesn’t alone qualify you automatically under any of the cardiovascular listings. But if you still have cardiovascular symptoms after having the pacemaker implanted, you can check to see if you meet the criteria in any of Social Security’s listings. Most people who have had pacemakers installed have slower than normal heartbeats or heart block, so the disability listing most likely to apply to you is the one for arrhythmias. If your arrhythmias aren’t fully controlled by the pacemaker, and your arrhythmias have caused fainting, or almost fainting (with altered consciousness), on at least three different occasions in the last year, you could qualify under the listing for arrhythmias and get benefits. Or, if your arrhythmias are controlled but you have congestive heart failure, you could qualify under the listing for chronic heart failure if you meet its complex requirements. (Read more in Nolo’s article about getting disability benefits through a cardiovascular listing.)

In a nutshell, if your pacemaker implantation was successful, it’s likely your symptoms and limitations have largely gone away, making you less likely to qualify for disability under a listing. But because your condition might not be stable right after your procedure, Social Security will wait until three months after your pacemaker is installed to make a decision, so that your new condition can be properly evaluated once your condition is stable.

Second, without meeting the requirements of a listing, you would have to prove to Social Security that you can no longer work due to doctor’s restrictions, such as “no operating hazardous equipment due to potential dizziness,” or self-reported limitations, like severe fatigue. While significant limitations or restrictions are more likely with an ICD (implantable cardiac defibrillator) than a pacemaker, if you do have limitations or restrictions, this limits the number of jobs Social Security can say you are able to do. Where doctor’s restrictions can really help you get disability is if you’re over 50 or 55. If you can’t return to your previous type of work because of restrictions, Social Security may not be able to require you to learn another line of work at your age.

Ironically, you may have been able to qualify for disability before you had a pacemaker if you had recurrent arrhythmias that caused you to lose consciousness. What if you have arrhythmias and the doctor recommends a pacemaker, and you refuse to get one? That’s another question altogether. Social Security normally has the ability to deny disability benefits to those whose disability could be corrected by medication, surgery, or other medical treatments. But if you have a good reason for refusing a pacemaker (one that’s on Nolo’s list of excuses for failing to comply with doctor recommendations), you might still be able to get benefits – perhaps with the help of a good disability attorney.

Why does Social Security deny most disability applications?

Question: I read that most disability claims are initially denied by Social Security, only to be approved by a judge on appeal. Doesn’t that imply that the initial application and review process is designed to favor denying otherwise legitimate claims?

Answer: It depends on who you ask.  I think some claims are approved at the hearing stage for practical reasons. For instance, sometimes an applicant’s medical condition deteriorates while waiting up to a year for a hearing.

Other denials are overturned at the hearing stage because the applicant hired a lawyer after getting a denial letter. Disability lawyers are trained to get the right evidence from the applicant’s doctors, come up with convincing theories of disability, and find errors made by Social Security. In contrast, when the initial claims examiner is looking at your file, there’s no one to advocate for your case.

Additionally, judges are human. When they meet an applicant in person and can connect a medical file to a face, and hear in the applicant’s own words why the applicant can’t work, they may be more likely to be convinced of the applicant’s disability.

I also asked the author of Nolo’s Guide to Social Security Disability what he thought. David Morton III, M.D. is a former chief medical consultant for Social Security and has made medical decisions on many disability claims. Here is what he had to say.

There have always been rumors that Social Security intentionally denies applicants at the state agency level and makes them appeal—that the SSA wants to deny disabled applicants. This idea is false, and arises out of the fact that administrative law judges (ALJs) reverse so many medical and non-medical assessments by professionals at the state agency level. 

While some deserving applicants are initially denied by incompetent doctors, or examiners who shouldn’t be making medical determinations, most applicants are denied simply because they are not disabled according to Social Security’s definition. 

Here is why they win on appeal. ALJs overrule medical doctors in the evaluation of medical data, although they are not doctors. Can you imagine how loud attorneys would scream if M.D.s starting demanding the right to make the non-medical part of disability determinations, with the power to overrule the attorney? Doctors reading the determination reasonings of ALJs are often mystified at the ALJs’ reasoning. 

What needs to happen is for Social Security doctors who are really knowledgeable about the system to be present at every disability hearing to provide a medical assessment that the ALJ is compelled to use. Currently, ALJs sometimes hire retired doctors as “medical experts” to testify at hearings, but most of these experts have never worked inside Social Security and do not fully understand its policies for awarding disability.”

Will I lose disability benefits if I receive compensation benefits?

Question: Will I lose my disability benefits if I start to receive compensation benefits?

Answer: You didn’t say what type of disability benefits you’re receiving, and what type of compensation benefits you might get soon, so I’ll try to address of all the possible situations you might be in.

If you are currently receiving Social Security disability benefits (SSDI), veterans disability compensation benefits will not decrease your benefit check (nor will any other VA benefit). Workers’ compensation benefits, on the other hand, will decrease your Social Security benefits — SSDI and workers’ comp benefits can’t total more than 80% of what you earned before you became disabled.

If you’re receiving SSI, most types of income will reduce your SSI check. This includes veterans disability compensation, workers’ compensation benefits, state temporary disability payments, military pensions, and most other veterans benefits, with a few exceptions (which I’ll list below).

Social Security treats all of these benefits as unearned income, and they will cause your SSI check to be decreased. The amount of your unearned income is simply subtracted from the federal SSI payment (sometimes $20 of the unearned income isn’t counted, depending on the benefit).

Now for the exceptions. The following VA benefits aren’t considered countable income and should not affect your SSI payment:

  • aid and attendance benefits
  • housebound benefits
  • benefits that are used to pay unusually high medical expenses
  • clothing allowance for those who use prosthetics or wheelchairs, and
  • payments made to children of Korean or Vietnam veterans for certain birth defects.

If you’re currently receiving private disability benefits from a long-term disability (LTD) insurance policy, whether or not workers’ compensation or veterans disability compensation will reduce your LTD payments (called “offsetting your benefits”) depends on what the language in your LTD policy says and whether both types of benefits are for the same disability.

Can a chiropractor help me get Social Security disability for back pain?

Question: I have a quick question about disability for back pain. Does it matter if one goes to a chiropractor for tests and diagnosis in comparison to a regular doctor?  What’s better?  

Answer: I wish I had a quick answer, but I don’t. (I’m assuming your question has to do only with what’s more likely to get you approved for disability benefits, not whether you’ll get better treatment from a chiropractor or M.D.)

Disability claims examiners and judges who work for Social Security are required to give weight to medical opinions from “acceptable medical sources.” This means doctors and osteopaths with a medical degree. Social Security must also accept records from licensed psychologists, but only for disability claims related to intellectual or learning disabilities. (In all other cases involving mental impairments, only a psychiatrist is an acceptable medical source.) In short, Social Security requires that a medical doctor diagnose and evaluate your impairments before you can get disability benefits.

As a result, if the only medical records you have in relation to your back pain are from a chiropractor’s office, you will likely be sent to a consultative exam with a doctor paid for by Social Security. Such an assessment is not likely to help your claim, as a doctor who only sees you once for a few minutes isn’t going to understand your limitations as well as a heath care provider who has seen you over a long period of time.

That said, Social Security should take a chiropractor’s records into account when looking at the severity of your back pain and how it limits your abilities. While a claims examiner or judge doesn’t have to rely on a chiropractor’s diagnosis and prognosis since chiropractors aren’t acceptable sources, if you have a long treating relationship with your chiropractor, the examiner or judge should evaluate a chiropractor’s records for information on your limitations.

Are there exceptions to the acceptable medical source rule? Yes, there have been numerous federal court rulings on whether chiropractors and nurse practitioners can be considered acceptable medical sources. Some federal courts have said that the opinion of a chiropractor who regularly treats a patient should be given the same weight as a medical doctor, and others have said that when a disability applicant lives in a rural area with no access to an M.D., a nurse practitioner’s opinion is entitled to consideration. Social Security has not changed its rule, however, that says that a chiropractor is not an acceptable medical source, so while you could end up winning your case in federal court after several appeals, it’s a much better idea to get an M.D.’s opinion from the get-go.

Getting a medical doctor’s detailed opinion about your diagnosis, prognosis, and how your medical condition limits your abilities and activities is the most important thing you can do to win your disability case, since Social Security must give controlling or substantial weight to the opinion of your treating doctor — unless it’s inconsistent with other evidence in your file.

Welcome to Nolo’s Disability Blog

Welcome to the latest addition to Nolo’s legal blogs: the Disability Blog. I’ll be blogging mostly about Social Security disability and SSI, with some information on veterans benefits, Medicare, Medicaid, and workers’ compensation thrown in from time to time. Send me your question about disability, and if it hasn’t already been answered on our site, I’ll answer it. Please don’t send questions that you don’t want published, and know that we can’t guarantee an answer to all questions. Ask a question.