Federal Social Security Law Overview

If you are reading this, it is most likely that you applied for and believe you were wrongfully denied Social Security Disability Insurance Benefits (DIB) or Supplemental Security Income (SSI) benefits.

The Social Security system was designed, as the title suggests, to provide security to the elderly, blind and disabled. Your disability under Social Security is based on your inability to work. You will be considered disabled if you cannot do the work that you did before, and if you cannot adjust to any other type work because of your physical and/or mental condition(s). According to the Social Security Administration, you must be “completely disabled from performing substantial gainful activity” to be eligible. Your disability must last or be expected to last for at least a year or to result in death. The medical and vocational requirements are the same for both DIB and SSI benefits. However, each program has different financial requirements. (LINK to financial discussion below.)

How do I apply for benefits?

The best way to apply for DIB and SSI benefits is to call Social Security to arrange for an application appointment.  You may do this by calling 1-800 772-1213.  You will be given an appointment to complete an application at your local office or, if you prefer, you may arrange a telephone appointment. It is much better to have an appointment rather than just walk into your local office because there is lots of information that you will need to have at the time of your application.

Additionally, you may also apply on the internet for DIB benefits only. SSI applications cannot be taken over the internet because the financial requirements for SSI that must be reviewed by a claims representative. The internet link for DIB applications is: http://ssa.gov/applyfordisability/adult.htm.

The date on which you first contact SSA will be used as your “protected filing date” for your DIB or SSI applications so long as you complete the application itself within 60 days.  Keep in mind that the benefit amounts for both DIB and SSI benefits are tied to the application date. Do not delay in contacting Social Security. 

Keep a record of any contact you have with Social Security. Obtain the names of staff persons you speak with and the date of your contact. Request copies of your application and make copies of any other documents that you submit. It is very helpful to keep your own paper file of everything you have submitted to Social Security.

Do I need an attorney?

Because Social Security’s rules are so strict, many disabled people are mistakenly discouraged from filing claims.  If you are not sure about your situation, it is important to consult with an attorney. 

Some people are able to obtain their benefits without a lawyer. However, it is often difficult for disabled people to navigate the process of obtaining such benefits from the federal government on their own because of the often confusing requirements and amount of paperwork that is involved. The process of getting benefits is a legal process that requires evidence of disability. That is why many applicants for benefits choose to hire an attorney who has special expertise in the area of Social Security to help them.

How much will it cost? Do I have to pay up front?

Fees for Social Security/SSI disability appeals are contingent fees. This means that we do not get a fee unless we win your case. Our fee is set by the Federal Government and is based on the amount of back benefits that you obtain.  Current fees are $5,300 or 25% of your back benefits – whichever amount is LESS. You are responsible for reimbursing us for all costs advanced in your case – win or lose. This includes the cost of such items as medical records fees, copying records and your Social Security file, certified mailings, etc. There is no charge for our first interview with you.

When should you contact us?

We assist people at all levels of their appeals and are also willing to work with clients who have not yet started their application. We will be happy to talk with you at any point. If you have already been denied at one of the stages of your claim – initial, reconsideration or the hearing level before an administrative law judge - you generally have only 60 days to file an appeal. It is important to check the date on your denial letter from Social Security and not to miss any deadlines for your appeal.

Do you help children with disabilities?

We can assist children as well as adults in their disability claims. However, financial eligibility for children’s SSI benefits is dependent on family income; and DIB benefits for children have other particular requirements that we can discuss with you.

What geographic areas does your office serve?

We are located in Northern California and have clients throughout the San Francisco Bay Area. This includes San Francisco as well as Marin, Napa and Sonoma counties to the north, Alameda and Contra Costa counties in the East Bay and Santa Clara and San Mateo counties on the Peninsula. We may also be available for representation outside of these areas if needed. Please contact us to discuss this.

What records does Social Security need?

Medical records, medical records, medical records! The determination of disability is a legal process that requires written documentation of what is wrong with you. If you have not received ongoing medical treatment for the condition that is the basis for your disability claim, you will need to discuss this further with us.

Social Security may send residual functional capacity questionnaires to your physicians. They may send forms for you to complete regarding your daily activities to see if you are able to function despite your medical condition.  If you are already our client, we can assist you in filling out these forms.

Do I have to wait until I am disabled for 12 months before I can file a claim?

You may be eligible for benefits with a condition that is expected to last 12 continuous months or longer not just for one that has already lasted 12 months. 

How long might I have to wait to obtain benefits?

The quick answer is that it may take a very long time. Unless you have a very severe physical and/or mental impairment that Social Security immediately recognizes as preventing you from being able to work, it can take many months or even years to be found disabled and obtain benefits.

The processing time for cases at the initial and reconsideration levels alone may take up to about 9 months.  After denial at these levels, there is a very long wait for an in-person hearing before an Administrative Law Judge. For instance, as of December 2005 (the latest date for which we have statistics), there was a wait of 16 months at the San Rafael Office of Disability Adjudication and Review (ODAR) and 18 months at the San Francisco ODAR.

As of May 25, 2007, the Average processing time for case arriving at our local ODAR office (NOT from the date of application) is as follows:

• Oakland: 497 days
• San Francisco: 599 days
• Our "winner", San Rafael: 649 days.
  Incidentally, San Rafael ranks 121 out of a total 143 ODAR offices for the longest processing time.

Should I file for Social Security even if I am still receiving my State Disability Insurance (SDI) or Workers’ Compensation payments?

Yes. We generally urge people to file for Social Security sooner rather than later as SDI coverage lasts for only 12 months at the most and because it can take many months or even years before you might be approved for Social Security Disability. You may file your SSDI claim while still receiving SDI or Workers’ Comp payments. An overlap in SSDI and State disability benefits may or may not result in any offset against some of your SSDI benefits, but there is no reason to wait.  If, however, your claim is also for SSI, the State Disability amount may make you financially ineligible for SSI, but you should first check with your local SSA office and not let it stop you from proceeding with your SSDI claim. 

Is the mere diagnosis of a severe medical condition sufficient for me to obtain benefits?

Social Security looks at far more than you medical diagnosis as many people can continue to work even with severe medical conditions such as blindness, diabetes, heart disease and mental illness. At issue are the physical and mental functional limitations that are a result of your illness(es) as well as whether or not you have continued to work – even if it is part-time – and are earning what Social Security calls Substantial Gainful Activity (SGA). In 2007, earning $900/month constituted SGA. (http://www.ssa.gov/pressoffice/colafacts.htm)

Social Security will assess your ability to function in full time work despite your illness. They will also look at your age, educational level, the type of work that you did in the past 15 years
when considering disability.

What if my doctor thinks that my condition is not severe enough for Social Security benefits?

Your doctor may be right. However, physicians and other practitioners cannot be expected to know all the different rules for each of the many different types of disability programs for which their patients may be eligible. These include private insurance, State Disability, Workers Comp, general assistance and Social Security.

Your doctor may think that you can do some part-time work, but Social Security’s standard is based on whether you are able to work on a full-time basis. The important thing is that you at least seek legal consultion if you believe that your condition is preventing you from working.  

What types of medical and/or mental health problems do you have experience with?

It’s a very long list. Our clients have included people with the following impairments (as well as others not listed below):

• Lumbar or cervical disc problems
• Failed back surgery
• Other spinal disorders
• Bilateral repetitive stress injury / carpal tunnel syndrome
• Severe hearing loss
• Vertigo
• Chronic obstructive pulmonary disease (COPD)
• Chronic heart failure or ischemic disease
• Chronic liver disease including cirrhosis, Hepatitis C
• Crohn’s Disease
• Diabetes with diabetic neuropathy and/or retinopathy
• Fibromyalgia/Chronic Fatigue Syndrome
• Complex Regional Pain Syndrome/Reflex Sympathetic Dystrophy (CRPS/RSD)
• Ehler’s Danlos Syndrome
• Multiple Sclerosis
• Peripheral Neuropathies
• Epilepsy uncontrolled by medication
• Grand Mal and petit mal seizures
• Traumatic brain injury/cerebral trauma
• Incapacitating migraine headaches
• Cancers and residual treatment-related impairments
• Lymphedema
• HIV/AIDS
• Severe cognitive impairments
• Severe mental illness including:
• Depression,
• Bipolar disorder
• Anxiety disorder/agoraphobia
• Schizophrenia and other psychotic disorders
• Organic mental disorders
• Dually diagnosed psychiatric / substance abuse disorders

Where can I find a list of the medical and psychiatric conditions that Social Security will evaluate for disability?

You can check their Listing of Impairments online at: www.ssa.gov/disability/professionals/bluebook/AdultListings.htm

How do I know if I am financially eligible for Social Security and/or SSI benefits?

Social Security Disability Insurance (DIB) pays benefits to you and certain members of your family if you are "insured," meaning that you worked long enough and paid Social Security taxes. Your eligibility depends on whether you have consistently contributed money from your earnings into Social Security and whether you have accumulated enough “quarters” of coverage. The more money that you have contributed over the years, the higher your disability payments will be.  You may call the “800” number to obtain this information.

Persons receiving DIB benefits may also receive payments for their minor children, even if the children are not living with them.  Financial need is not a required in order to receive DIB benefits. In 2007, as long as you are not earning $900 or more per month through your work activity, you may be eligible.  (For blind claimants, the amount allowed is higher.)  Passive income and personal assets have no bearing on your eligibility.

Supplemental Security Income pays benefits based on financial need and there are very strict requirements about how much money or resources you can have in your possession – or have access to - in order to be eligible for SSI benefits. SSI may also be available in combination with DIB benefits for those people whose DIB rate is less than the full SSI rate.  This may occur if one has worked enough quarters to be insured for DIB, but did so at lower wages.  

Individuals with assets of $2,000 or more are not eligible. There are many items that are considered to be “assets” – including savings accounts, certain insurance policies, stocks, bonds, retirement accounts, and most anything else that has a “cash-out” value. If you are married to a wage earner with assets, you may not be eligible.  The dollar amount of how much you may receive in SSI benefits varies by what state you live in, and the benefit amount changes each year. In California, in the year 2007, SSI pays $856 per month for a single person. If you are living free in someone else’s home or someone else contributes to your food and/or shelter expenses, your SSI benefits will be reduced below the standard monthly amount. Further SSI eligibility information can be found at (LINK): www.ssa.gov/notices/supplemental-security-income/text-eligibility-ussi.htm and www.ssa.gov/pubs/11125.html.

Again, if you believe that you are disabled and unable to work but are not sure if you are eligible, it is important that you obtain more information immediately..  A delay in beginning the application process may cause you to lose out on cash benefits and/or medical insurance through Medicare or Medi-Cal if and when you are found disabled.  You may either contact us for a consult or contact Social Security.

For more detailed information on all aspects of Social Security, click on ssa.gov - the official government website or call Social Security’s free telephone hotline at 1-800-772-1213.