Legal Lifelines
Social Security Disability (SSD/SSI)
updated November 2016
WHAT KIND OF APPLICATIONS CAN BE FILED WHEN APPLYING FOR DISABILITY?
Generally for adults, there are two kinds of applications, Social Security Disability Benefits (SSD) and Supplemental Security Income (SSI). There are also applications that can be filed for children with disabilities or if you are a widower/widow. You can check with Social Security at www.ssa.gov for more information on all of the applications that can be filed.
WHAT IS SSD?
SSD is based on your work history, meaning you need to have worked and made enough income over a certain period of time in order to be eligible to file this application. For example, if you have not worked at a job in the last 10 or 15 years, you may not be eligible to file an SSD application.
WHAT IS SSI?
An SSI application is based on financial need for food and shelter. You do not need to have worked before to file for SSI. SSI has income and asset limits. For example, a single person with more than $2,000 in assets will not be eligible for SSI payments.
CAN YOU APPLY FOR BOTH SSD AND SSI?
You may be eligible to file both applications at the same time and the Social Security Representative should tell you about that.
HOW DO I FILE AN APPLICATION WITH SOCIAL SECURITY?
You can file for disability online at the Social Security website, www.ssa.gov, or go to your local district office and file an application in person. The Social Security website has a link to locate your local office and all you need to do is put in your zip code. You can call your local district office to get more information. You can call the national Social Security hotline at 1-800-772-1213 for more information if you do not have access to a computer (you can try your local library for internet access).
HOW DOES SOCIAL SECURITY DETERMINE IF I AM DISABLED?
There is a five step analysis that Social Security will go through to see if you are disabled. However, before Social Security will start looking at the five steps, there is an initial requirement that must be met. To be considered disabled, you must show that you are not able to engage in any substantial type of work due to your physical or mental conditions. Your conditions must be expected to result in either death or last for a continuous period of not less than 12 months. If you do not meet this requirement, you are not disabled for Social Security purposes. You will need medical evidence to prove a disability. You should inform Social Security of all your doctors, any hospitalizations you have had due to your conditions, and any medications you are taking (this is not an exhaustive list- they will want other information too).
WHAT ARE THE FIVE STEPS TO SEE IF I AM DISABLED?
The first step is to see if you are doing substantial gainful activity. This means that Social Security will look to see if you have been working since the date you claim you became disabled. For example, in 2016, if you make $1130/month or more in gross income, meaning before taxes are taken out, then you are doing substantial gainful activity and you are not disabled. You can look at the website from Social Security (https://secure.ssa.gov/apps10/poms.nsf/lnx/0410501015 ) to see the chart of the monthly income you cannot go above. There may be income exemptions, such as family employment or if you are in a sheltered workshop employment setting. Check with Social Security (or on their website) for other income exemptions.
The second step is to see if you have a severe mental or physical condition. Under this step, Social Security will determine if your alleged conditions are severe, meaning that they affect your ability to basic work related activities. This is a low standard. So long as you can show that you have been receiving treatment for these conditions and that you have limitations as a result of the conditions, they should be considered severe. If you have no severe conditions, then you are not disabled.
The third step is to see if your condition meets a “listing” (Social Security has set down certain conditions which will be found to be disabling). These listings are specifically found in 20 C.F.R., Part 404, Subpart P, Appendix 1 and can be researched on Social Security’s website at http://www.ssa.gov/OP_Home/cfr20/404/ 404-ap10.htm. However, not every condition is part of the “listings.” To meet a listing you must show that you have certain required tests results or symptoms which affect you in limiting ways. If you meet all of the requirements of a listing, you should be found to be disabled. If your condition is not within these listings, it does not mean you are not disabled but you would have to move on to the next step.
If you do not meet a listing under the third step, the fourth step is to see if you can do your past relevant work. Social Security will take a look at your past work over the last 15 years and determine based on your age, education level, and residual functional capacity (which are the limitations on the work you could do now), whether you could still do it. Social Security will look at how long you did your job and what were the requirements of the job. If you are physically and mentally able to do any of your past relevant work, then you are not disabled. It does not matter that you are not able to actually find work in your area of employment. For example, if you are a taxi driver and you lost your license because you have a lot of unpaid parking tickets, technically you can’t be a taxi driver since you don’t have a license but there is no physical or mental reason you cannot do that job. In such a case, a judge can still say you can do that past work.
If you are not able to do your past relevant work, the final step is that Social Security will consider your age, education, past work experience, residual functional capacity, and transferability of any skills you got at your jobs again to see if there is any other work you can do in the national economy. A vocational expert may or may not be called depending on your limitations. A vocational expert is someone who knows about jobs that exist in the economy. If there are a significant number of jobs available that you could do, then you are not disabled. If your limitations narrow the amount of available jobs to the point where there would be nothing you could do, then you will be found disabled.
WHAT IF SOCIAL SECURITY SAYS I AM NOT DISABLED AFTER I FILED MY APPLICATION(S)?
If you are found not disabled after filing your application, and you still feel that you are disabled, you should file a Request for Hearing by Administrative Law Judge (ALJ) (the form can be found at http://www.ssa.gov/online/ha-501.pdf) or you can call the local Social Security office and tell them you want to file the Request for a Hearing. You have to file this hearing request within 65 days of the date on the denial letter otherwise your case is over (unless you have a really good reason why you missed the 65 day deadline and you have to tell Social Security in writing).
HOW LONG DOES IT TAKE TO GET A HEARING DATE IN FRONT OF A JUDGE?
It can take up to 18 months or longer from the time you file your request for a hearing with Social Security but it may be less. This is due to a backlog of cases already pending at Social Security.
WHAT IF I GO TO A HEARING AND AM FOUND NOT DISABLED AGAIN?
There are options to appeal the decision of the ALJ. Your first appeal would be to the Appeals Council which is within the Social Security Administration. You have to file this appeal within 65 days of the date on the unfavorable decision or it becomes the final decision on the case. If the Appeals Council denies your request for a review, you can then appeal to the United States District Court. Again, you have to file an action in Federal Court within 65 days of the date on the denial of your request for review from the Appeals Council otherwise the decision on your case is final. If you cannot file the action within 65 days because of a good reason, you need to ask the Appeals Council (not Federal Court or the hearings office) for an extension of time. You can also file a new application for SSD and/or SSI any time after you are found disabled but you will have to go through the whole process again.
DOES IT MATTER WHAT DATE I SAID I BECAME DISABLED?
Yes and no. For an SSI application, if you end up winning your case, Social Security can only pay you from the month after you filed your application as long as you were disabled by that date. For example, you file your application in February 2010 but you say you became disabled in June 2005. If you win your case, payment will only start from March 2010, the month after the application was filed, rather than payment starting from July 2005.
With an SSD application, your onset disability date does matter. Unlike SSI, SSD can give you benefits up to a year before the application date. Using the example above, even though you state you became disabled in June 2005, Social Security can only look back to February 2009 to start payments. Also, while SSI payments may start the month after the application date, SSD payments do not start until at least 5 full months after the date you were found disabled (for example, if you state you became disabled on July 15, 2009 (and you filed your application in February 2010 still), they will start counting from the next full month, August 2009, and count forward 5 months, which would be January 2010 so that is the month payments start).
WHAT HAPPENS IF I AM FOUND DISABLED? HOW ARE PAYMENTS DETERMINED?
How much SSD and SSI you qualify for is based on two different standards. With SSD, since it is based on your prior work history and wages, Social Security has a mathematical formula that will tell you how much of a monthly benefit you will get. This number is different for everyone since people make a different amount of income at their jobs.
For SSI, most of the benefit comes from Social Security. The maximum federal SSI benefit in 2016 is $733 per month for one disabled person. If a couple is married and both members of the couple are disabled, the maximum federal benefit is $1,100 per month in 2016. The federal benefit rate will be reduced by a third if you are receiving free food or shelter from another person. For example, if you live with a family member who does not charge you to live there, the SSI benefit is reduced to $488.67 per month. The federal SSI benefit is reduced by other income you may receive. The amount of the other income that reduces your SSI benefit depends on whether the income is earned or unearned. If unearned, only $20 per month does not count. If earned, the first $65 per month and half of the rest of the income does not count.
New York State supplements the federal SSI benefit by paying a separate benefit from the federal SSI. This benefit is called the SSP. The amount of the New York State SSP supplement varies depending on your living arrangements. There are several categories of living arrangements. The first is the “living alone” category, which pays $87/month. The second category is “living with others” and pays $23/month. Some situations which will place you in this category are if you live with other people but prepare your meals separately, or if you only live with a foster child. Yet another category is if you are living in a state run facility called “congregate care”.
DOES THE DEPARTMENT OF SOCIAL SERVICES (DSS) RECEIVE ANY OF THE MONEY I AM AWARDED FOR SSD AND SSI?
Yes and no. DSS can ask for money back that they have paid to you in the form of cash grants and rental allowance, whether it be for an apartment or a motel or other residence. When you apply for these benefits, DSS generally has you sign a statement that you will repay them out of any SSI you receive. DSS can only collect from your SSI back money. They cannot take any money from SSD back payments. Furthermore DSS cannot collect any money from your regular ongoing monthly payments. DSS cannot ask for any money back that was provided for Food Stamps, HEAP, Medicaid, TANF, or any other program where some of the money comes from the federal government. Just because you are found disabled and get Social Security payments, this does not necessarily mean that you will stop getting benefits from DSS all together. This very much is determined on a case-by-case basis depending on the amount of money you are receiving.
IF I AM GETTING BOTH SSD AND SSI MONTHLY, CAN I GET THE FULL AMOUNT OF BOTH?
No. For example, you are living alone and your SSD amount is $500. The maximum SSI monthly amount you are eligible for is $733. You cannot get both amounts combined. SSI subtracts any countable income from the maximum benefit for your living arrangement. For benefits, SSI does not count the first $20 of your unearned income such as SSD. In this example, SSI does not count the first $20 of your SSD, so it only subtracts $480 from the maximum living alone rate of $733 to get your monthly SSI benefit of $253. You there therefore receive a total of $753 from SSA ($500 of SSD and $253 of SSI). You would also receive an SSP of $87 because you are living alone. You would therefore receive 3 different benefits totaling $840 per month.
On the other hand, if your countable SSD monthly amount (SSD minus $20) is higher than the maximum amount of SSI you would be eligible for each month, then you only get the SSD amount and you would get no SSI. For example, you are living alone but your monthly SSD amount is $905, you get no SSI ongoing monthly payments since $885 ($905-$20) is higher than $820 (the $733 federal SSI rate plus the $87 SSP).
WILL I ALWAYS RECEIVE BENEFITS IF I AM FOUND DISABLED?
Not necessarily. There are different ways that you could stop receiving benefits- this is by no means an exhaustive list.
One reason you may not get continued benefits is there is a continuing review process to see if your condition gets better. Social Security usually reviews a case about every 3 years. If your condition gets better to the point where you can work at a full-time job, then they can stop your benefits. They have to give you notice and you can appeal this. You have 65 days from the date of the notice to appeal. However, if you appeal within 15 days of the date of the notice and ask for your benefits to continue, you will continue to get your benefits until the appeal is decided. This can be very important since it takes so long for hearings to be held. Social Security will have you sign a form that if you do not win your appeal, the benefits you receive while waiting for the appeal to be decided will be an overpayment. However, Social Security must waive the overpayment if you cooperate in the appeal and cannot afford to pay the benefits back. You will need to ask for the waiver—Social Security may not explain the right to waiver clearly.
Another reason you may stop getting benefits is if you go back to work and make too much money. For SSI, if you do that for 12 consecutive months, then your benefits can be terminated. The exact figure of how much income they count is based on your gross earnings. For SSD, they give you a certain amount of months to try and work but if you do too many months over the income limit, then your benefits can be terminated.
If you go to prison for a felony, your benefits will terminate.
OTHER INFORMATION:
More information about the process or to get forms can be found on Social Security’s website: www.ssa.gov or you can contact your attorney/representative.
This Lifeline contains general information, and does not constitute individual legal advice about your situation. You should consult with an attorney for individual legal advice about your situation and to find out how this information applies to your situation. To see if you qualify for free legal services, call the Legal Aid office nearest you.
