Social Security Disability: What Every Attorney Should Know
BROOKLYN BARRISTER - FEBRUARY 2011, Vol. 63 No. 5
The official publication of the Brooklyn Bar Association
Social Security Disability Law is highly specialized and generally practiced by attorneys versed in the federal administrative law and governing legal doctrine under which these claims lie (Code of Federal Regulations, Title 20 Chapter III, Part 400 and the Social Security Act). For this reason, many general practitioners are unaware of the substantial benefit available to their clients.
This article seeks to provide you with an opportunity to assist your clients, as well as to turn legal inquiries into income generating cases. However, it covers general information, does not apply to every situation and is not meant to substitute specific legal advice from an attorney familiar with this area of law.
Social Security Disability and Your Client: Did You Know That SSD Benefits Can Exceed $900.00 per Week?
Social Security can be an important source of income to your clients who become permanently or temporarily unable to work. Many attorneys who contact me, on behalf of their clients seeking Social Security Disability, are surprised at how substantive SSD benefits can be. When they inquire further, they are astonished to learn that benefits will, after a period of time, also include full medical coverage. When they discover that these benefits can be obtained irrespective of net worth, are not reduced by any pension, passive or spousal income and are provided with no lien or set-off on legal settlements, they really stand up and take notice.
Social Security Disability is an often unexplored asset and one that can have a dramatic impact on the financial security of your disabled clients, during periods they become unable to work. These financial benefits can be interim, during long periods of convalescence, or permanent, depending upon the nature of your client’s disability.
What Is a Disability?
Disability is a subjective term. Social Security defines disability solely in the context of employment; a person must be unable to engage in substantial gainful activity 42 U.S.C. § 423(d)(1)(A). To a career firefighter, it may simply mean the inability to perform full fire duty... climbing a ladder or carrying an injured adult, while clothed in full bunker gear and wearing an oxygen tank and self-contained breathing apparatus. Disability to an office worker might be a spinal condition which renders them unable to sit at a desk all day long. To a park worker, disability might mean the inability to stand and walk all day. Disability determinations differ dramatically from one individual to the next and disability eligibility is affected by your client’s age, education or work experience. See U.S. Department of Labor’s Dictionary of Occupational Titles (DOT), Fourth Edition, Revised 1991, a standard vocational reference.
Who Is Eligible?
There are several basic predicates for eligibility.
1. If your client is no longer capable of working or has been unable to work for a period lasting (or which they expect to last) longer then one year; and 2. If your client has (a) worked a minimum of 5 years during the 10 years proceeding their disability and (b) paid into the Social Security System during that period; and 3. If a claimant became unable to work before the age of 65.
How do You Protect Your Clients?
Eligibility for social security disability benefits are predicated upon a worker’s FICA contributions. There exist complicated statutes of limitations which are affected by your client’s unique earnings history. Benefits can be obtained retroactively, but a delay in filing can result in a direct financial loss as well as reducing the limited time period within which your client is required to establish disability. It is important to insure that there is no delay in filing.
How Does One Apply?
An application must be filed directly with the Social Security Administration. However, great care should be directed at insuring that the application properly documents physical and/or mental impairments and the proper support by treating specialists. Improperly filed claims can result in the loss of retroactive benefits or the denial of a claim. We do not recommend that our clients file directly and because most claims are ultimately decided after an administrative hearing held before an ALJ, it is prudent to have an experienced practitioner assist in the development of the record, ab initio. Given the immense financial value of these benefits and the improved chance of success, you should carefully consider advising your client to consult with an attorney, whether or not they ultimately pursue a claim. Attorney fees are modest, capped and are paid only upon a successful result.
How Long Does the Application Process Last?
While the initial determination takes about 6 months, claims are often denied and the process can often take several years if it requires a hearing. Thus, it is important to begin the process as quickly as possible, and do so with great care and attention. Poorly handled claims and equivocal medical evidence are likely to waste away valuable time and result in the denial of your client’s claim. A disability attorney assists in determining eligibility but, more significantly, he or she can guide your client on how to establish a medical disability within that eligibility period.
Are there Time limits on when to file or limits on the number of applications?
Social Security Disability must be established within a specific period of time. Your client’s eligibility for benefits may be directly affected by their employment, disability or retirement. Social Security disability eligibility is based upon (FICA) contributions to Social Security made by their employer during their employment. These contributions generally cease upon retirement or disability. When your client stops making contributions to Social Security, a clock starts ticking on the time they have left to establish disability...... Remember, your client’s individual eligibility for social security disability benefits is based upon their personal earnings history, contributions and retirement date and is unique. For this reason, you cannot rely on any general rule, time limit or date to determine eligibility.
How Long Do Benefits Last?
Benefits can be interim or can last your client’s lifetime (if your client remains disabled). Benefits are not reduced when your client reaches retirement age and should your client’s condition improve and they become able to return to work, there is no requirement that monies be paid back.
How much are the attorney fees?
Attorney fees are generally the lesser of 25% of past due benefits or $6,000.00; they are contingent upon success, capped by law, and must be approved by the Social Security Administration. Given the immense benefits, it makes financial sense to have an attorney on board as quickly as possible to help you prepare the application and continue to present a persuasive case.
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