BACK PAY

A high percentage of claimants who are approved for Social Security disability (SSDI) also qualify for back pay.  Back pay depends on two important factors:

1. The date disability began, and
2. The date the application was filed.

In SSDI or Title 2 cases, recovery of retroactive pay is limited to a maximum 17 months:  this is 12 months plus the 5 months comprising the waiting period.  

Thus, if you filed your application on June 1, 2015, but you had actually become disabled years ago, you would be able to recover 17 months of retroactive pay.

In addition, you would be able to cover any months AFTER the filing of the application--while you waited on Social Security to make a decision.  For example, if you file an application on June 1, 2015 but the decision on your case is not made until December 30, 2015, you could recover 7 months of back pay between June 1 and December 30--in addition to the retroactive pay.

There is technically a difference between "retroactive pay" and "back pay."

RETROACTIVE PAY - Covers months of disability BEFORE the filing of your application.

BACK PAY - Covers months of disability AFTER the filing of your application but before benefits are paid.

Also, it is possible to have a "protected filing date" that is earlier than the date of your application.  An example would be, you are in the hospital and are unable to file an application but you notify Social Security in writing that you intend to file as soon as you are able.  If you file a timely application after your release from the hospital, you may be able to use the date you notified Social Security of your intention to file as your protected filing date.  This could get more retroactive pay.

WHY IS "SGA" SO IMPORTANT?

"SGA" stands for "substantial gainful employment."  A person who is engaged in SGA is not eligible for any Social Security disability or SSI benefit.  In short, a person cannot be working at SGA level.  The definition of SGA changes slightly each year. In 2015, you are working at substantial gainful activity if you have gross earnings of at least $1,090 per month.  (Earnings include wages, commissions, bonuses, tips, etc.).

Only the earnings of the claimant are considered for SSDI eligibility, not the earnings of a spouse or other household member.  However, for Supplemental Insurance Income (SSI), the income of other members of the household may be counted.

If you are working part-time and earning less than the SGA threshold (above), you may still technically qualify for benefits.  However, it is my opinion that any work by the claimant can be problematic because it sometimes leads to credibility issues. For example, a judge may take the attitude that if the claimant is earning $1,040 per month, he or she is demonstrating that earning at least $1,090 would not be all that unreasonable from a health point of view.  In other words, if you are now working 30 hours a week, why are you unable to work 40?



 

YOU MAY WIN DISABILITY BENEFITS IF.....

In order to win federal disability benefits (Social Security, SSDI), you must prove at least the following key issues:

1. You have accumulated enough quarters of coverage to be insured under the Social Security Act, also called Title Two.
2. You are not now working at substantial gainful activity, SGA, (defined in 2015 as gross earnings of $1,090 per month or more).
3. You have a serious and medically determinable impairment.
4. This impairment has lasted, or can reasonably be expected to last for at least 12 consecutive months, or to end in death.
5.  The symptoms and limitations caused by your impairment(s) are severe enough to prevent you from perform any of your past relevant work.
6. The symptoms and limitations caused by your impairments are severe enough to prevent you from performing any other work which exists in the local, regional or national economy.
7. There is sufficient objective medical evidence to prove the severity of your impairment(s) and symptoms.

QUESTIONS

• What do you mean by "objective medical evidence"?  This usually refers to things like X-rays, laboratory tests, MRI or CAT Scan evidence, etc.
• Will Social Security take my word for how severe my symptoms are?  No.  They will require objective medical evidence to reasonably explain severity of symptoms.
•  How many quarters of coverage do I need to be covered by Title 2 or SSDI?  That depends on your age.  Most people need to have worked 20 out of the most recent 40 quarters, or about 5 years out of the most recent 10 year period.  Young persons may be covered with fewer quarters of work.
• If I am not covered by Title 2, may I file a new claim?  Not for SSDI.  You might file under Title XIV, or SSI, but that is an entirely different program.
•  Who obtains medical evidence for my claim?  In the initial application process, Social Security will attempt to obtain your medical records.  In any subsequent appeal, it up to the claimant or representative to find and submit medical evidence.

1.  

YOUR HEARING: WHAT TO EXPECT

Social Security disability hearings are fact-finding expeditions presided over by an administrative law judge.  A hearing generally lasts 45 minutes to 1 hour. You will meet in a large conference room atmosphere with 5 persons typically present:  the claimant, the representative, the judge, a clerk and a vocational witness called by Social Security.  The claimant and vocational expert/witness will be placed under oath. The major components of the hearing are (and I am giving the typical order):

1. Judge's direct questioning of the claimant.  
2. Representative's direct questioning of the claimant.
3. Vocational witness testimony
4. Representative's examination of the vocational witness.

At issue is whether you are disabled according to Social Security regulations. The medical evidence reigns supreme.  Most judges take the attitude that "if it isn't in your medical record, it did not happen."  You may claim pain, limited movement, inability to sit, stand or walk for prolonged periods, etc.  However, this must be supported by objective medical evidence.  The same is true of any psychological or mental limitations.  A claimant's testimony alone is never enough to win the claim.

The vocational expert's function is twofold:  to testify concerning your past relevant work, and to testify about any other work you might still be able to perform--in response to one or more hypothetical questions posed by the administrative law judge.  To help you understand how a hypothetical question is framed, I will offer one example:

"Assume an individual the same age, educational level and with the same past relevant work as the claimant.  Further assume a limitation to light work.  Add to that, the individual should avoid concentrated exposure to hot or cold temperatures and  any exposure to dust, fumes or gases.  

1. Would such an individual be able to perform any of his/her past relevant work?
2. If not, would such an individual be able top perform any other work which exists in significant numbers in the national, regional or local economy?"

 If the vocational witness testifies that the claimant would be able to perform any job under 1 or 2 above, and if the judge finds this testimony to be credible, the claim will probably be denied.
  
 
 



 

SOCIAL SECURITY'S NEW TOP PRIORITY: ANTI-FRAUD

Fraud prevention seems to be Social Security's new top priority.  In November 2014, the Social Security Administration opened a new division called the Office of Anti-Fraud Programs (OAFP).  The OAFP works closely with the Inspector General (the investigative and prosecution office) to "combat fraud and waste."  Congress has allocated billions of dollars to the anti-fraud campaign.

Acting Commissioner of Social Security, Calvin Colvin, said her office will take a stern stand against anyone found to be trying to abuse or defraud the system.  Ms. Colvin said:

   “We will find you; we will prosecute you; we will seek the maximum punishment allowable under the law; and we will fight to restore to the American public the money you’ve stolen from the American people.” 

Acting Commissioner Colvin did not address the backlog of more than 1 million disability cases waiting their turn for a hearing.  She did not address the fact that Social Security offices are closing each day at 3:00 PM or that they have been previously closed to the public each Wednesday at noon.  Neither did she address the fact that there are hundreds of thousands of claimants who have been waiting over 3 years to get a decision on their claims.

We can only hope that the heavy emphasis on fraud prevention will eventually result in making it easier for legitimate claimants to receive their benefits in a timely manner.  Unfortunately, at this moment, I see no reason for optimism.