By Attorney Thomas W. Durkin
Different Types of Social Security Programs and Differences Between the Programs
The Social Security Administration administers two programs that provide benefits based on disability: Social Security Disability Insurance (SSDI under Title II of the Social Security Act, and Supplemental Security Income (SSI) under Title XVI of the Social Security Act. You must be found disabled to be eligible for either program. There are many important differences in the Social Security rules and regulations affecting eligibility and benefit payments.
Comparisons / Differences Between SSDI and SSI Programs
SSDI: The monthly benefit amount varies for each individual. To be eligible for SSDI, an individual must have worked and earned sufficient credits to be "insured" for social security purposes. Generally, it is five out of the last ten years. The amount of benefit is based upon the amount of time worked and the amount of earnings in "covered work," which is work on which social security taxes have been paid. You can request a social security statement that estimates your monthly benefit payment amount by eithe completing an online form over the intemet, or by requesting that your local social security office mail you the form.
SSI: SSI is not based upon your work history. Rather, it provides monthly income benefits to individuals who have limited income and financial resources. You can be eligible for SSI even if you have never worked in employment covered under social security. For 2014, the SSI payment for an eligible individual is $721.00 per month and for 2015 it is $733.00 per month. In addition, there is an SSI resource (savings and assets you own) limit, which is currently $2,000.00 for an individual and $3,000.00 for a couple. There are resources that are not counted in this limit such as your home, some personal effects or household goods, and one car, usually. The SSI benefit rate is also supplemented in Wisconsin by additional monthly payments, which is called the "state supplement."
SSDI: With some exceptions, there is a five-month waiting period before SSDI are payable, but benefits can be payable up to 12 months prior to the date of the application. Benefits will be payable staring in the sixth full month after the date your disability begins, but can only go back 12 months before the date of your application. For example, if an individual files for SSDI benefits on January 1, 2015 and it is found that the individual's disability began on January 1, 2014, benefits will first start to be payable on June 1, 2015 (six full months after date the disability began).
SSI: There is no waiting period for SSI benefits to be payable, as benefits begin the month following the application date, but no benefits are payable before the month following the date of the individual's application.
For example, if an individual files an SSI claim on January 1, 2015, and it is found that individual's disability began on January 1, 2014, benefits are only payable starting February 1, 2015 (the month following the application date).
SSDI: Benefits can be payable to the individual and that person's eligible dependents up to a family maximum amount.
SSI: There are no dependent benefits payable in an SSI case. Benefits are only paid to the individual that is found eligible.
SSDI: If found eligible for SSDI benefits, you will automatically be enrolled in Medicare after you get 24 months of disability benefits. Retroactive periods of eligibility count toward the 24-month period. Medicare is divided into two parts - hospital insurance (also known as Part A) and medical insurance (also known as Part B). Hospital insurance will not cost you anything, but for medical insurance (doctor bills and other an individual has to pay monthly premium, which is typically deducted from your monthly benefit payment amount if you want this coverage. There is also a Medicare Prescription Drug Program known as Medicare Part D, which can provide help to individuals with limited income and resources to pay for prescription medication, deductibles and co-payments.
SSI: Most states, including Wisconsin, automatically provide Medicaid insurance to individuals found eligible for SSI benefits. There is no waiting period for Medicaid. Medicaid eligibility usually starts in the same month as SSI eligibility.
Definition of Disability for an Adult
The inability to do any substantial gainful activity (SGA) by reason of any medically determinable determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.
What this means to you:
Different Levels of the Appeals Process
There are generally five different levels of the appeals process. They are as the initial application, request for reconsideration, request for hearing, appeals council review, and federal court judicial review. There are deadlines for filing an appeal at each step in the process.
You can generally file the initial application on your own without an attorney. You file an application, adult disability and work history report, and sign authorizations for healthcare records. The local Social Security office will gather your medical, hospital and other relevant evidence. This generally takes the Social Security office an estimated 3-5 months to make a decision on your initial application.
If you get denied, the second step in the process is to file a request for reconsideration. The request for reconsideration must be filed within sixty (60) days (60 days plus 5 additional days for mailing time) and you should use a Request for Reconsideration form, 55,4.-561-U2, and complete the Disability Report-Appeal, SSA-3441-BK and sign healthcare authorizations.
Reconsideration is a complete new review of your claim, plus any new evidence, by someone who did not take part in the first decision. This process generally takes again 3-5 months. National percentages are that if you are denied at the first step, there is a high likelihood that you will be denied at this step. There must be a substantial change in circumstances, like a major surgical procedure or severe worsening of your medical condition, in order to get the initial denial overturned.
Most claims that need medical review are sent to the Disability Determination Service/Disability Determination Bureau ("DDS") or ("DDB") in Madison, WI. Oftentimes, you will receive requests for additional forms or reports to be completed, such as Function Reports or and/or Work History Reports, or receive requests for additional documentation from someone in Madison who is handling the review of your claim. You should cooperate with the person reviewing your claim by completing all necessary forms, reports, requests for documentation on a timely basis, and attending consultative examinations, or otherwise, you will likely be denied for failure to cooperate.
In some instances, when there is not sufficient medical evidence about your condition and/or impairment, Social Security will set up and pay for a medical examination. This is called a Consultative Examination ("CE"). Consultative Examinations can be conducted for either physical, mental, or a combination of both types of conditions and./or impairments.
If you are denied again, then you must hle a request for hearing form. The forms include the Request for Hearing form, HA-501-U5, Disability Report-Adult, SSA-344IBK, and the medical authorizations. There is the same sixty (60) day (60 days plus 5 additional days for mailing time) deadline. Once you file your request for hearing, your file is then transferred to the Office of Disability Adjudication and Review ("ODAR").
The Office of Disability Adjudication and Review ("ODAR") is located in Milwaukee, Wisconsin. Most persons that live in Southeastem Wisconsin will have their hearings held at ODAR in Milwaukee. There are several Administrative Law Judges ("ALJs") that hear cases in Milwaukee. This is the longest step in the process. There usually is a long backlog to schedule hearings. It can take an estimated 12 to 16 months or sometimes longer to get a hearing scheduled and can vary based upon a number of factors, such the number of ALJs, ALJs leaving the Milwaukee office and new ones being hired, the amount of claims, etc...
There is not much that can be done to speed up the process, but you can request an expedited hearing in certain circumstances. This is called a "dire need-critical basis" case. Social Security Regulations recognize four situations warranting critical basis expedited processing, which are:
The most typical situations to request an expedited hearing are when you are either facing an eviction, if you are renting, or foreclosure proceedings have been started if you own a home, or you are homeless.
An ALJ will hear your case at the hearing. At the hearing, the ALJ can issue a favorable bench decision on your behalf or close the hearing, take everlthing into consideration, and issue a written decision. If you receive a favorable bench decision, it still has to be put in writing by the ALJ, but it is usually a much shorter decision and arrives quicker, oftentimes in a week to two weeks. If it is a full written decision by the ALJ, the time period can vary greatly depending upon the ALJ, his/her schedule, and other factors, but an average time frame would be generally 60-90 days to receive a decision, but ALJs are not bound by that time frame.
If you do not receive a favorable decision from the ALJ after your hearing, the next step in the process is to file an appeal with the Appeals Council. The form is a Request for Review of Hearing DecisiorVOrder, form HA-520-U5. The deadline is the same as the other steps in the process, which is the 60-day deadline, plus 5 additional days for mail. When you file your appeal, you should state the specific reasons why you disagree with the ALJs decision.
The Appeals Council is limited to review of claims on four grounds . They are as follows:
The Appeals Council may either deny or dismiss your request for review, or it may grant your request for review, and either issue a favorable decision on your behalf or send the case back to the ALJ for a new hearing. If your case is sent back for a new hearing, it is normally sent back to the same ALJ that denied your case. It will be sent back with a detailed explanation of what must be done at the new hearing.
It can take at least 12 to 16 months, if not longer, for the Appeals Council to process your claim. The Appeals Council will consider all the evidence from the hearing record, as well as any new and material evidence submitted to which relates to the period on or before the date of the decision.
If the Appeals Council denies your appeal, you can file a civil lawsuit in Federal District Court. As long as you live in southeastern Wisconsin, your complaint would usually be filed in the Eastem District of Wisconsin, United States District Court. This is generally the last level of the appeals process. You generally have the same 60-day deadline.
If you file this on your own, you can file forms to waive the filing fee based upon limited income and resources. The filing fee for a social security civil lawsuit in 2015 is $400.00, but you can get forms to get the filing fee waived if you have limited assets and resources. It is highly recommended that you have an attorney at this step in the process.
The parties are now plaintiff and defendant. The Court will set a briefing schedule for the parties. The briefing schedule is normally the Plaintiff s initial brief, the Commissioner's initial brief, and the Plaintiff's reply brief. The Court will then decide the case on the briefs submitted by the parties. There is usually no opportunity for an in-person hearing or oral argument at this step in the process in the U.S. District Court for the Eastem District of Wisconsin.
Five Step Sequential Evaluation Process
Social Security uses a Five-Step Sequential Evaluation Process to decide if you are disabled. It is followed in every case. It is a 5 Step Sequential Evaluation Process that is in the following order. It is the same for both SSDI and SSI claims.
The five steps are as follows:
If you are working and your earnings average more than a certain amount each month, you will generally not be found disabled. The amount changes each year. In 20l4, it is $1,070 per month and20l5 it is $1,090.00. If you were/are eaming more than $1,070 per month in 20l4 and $1,090.00 in 2015, then generally you will not be found disabled.
For your medical condition to be considered severe, it must significantly limit your ability to do basic work activities, such as sitting, standing, lifting, etc. It can either be a physical condition, mental condition, or both. It must last or can be expected to last for 12 months.
If your medical condition is not that severe, such as it only has a minimal effect on your ability to perform basic work activities, then your condition will not be considered severe, and you will not be considered disabled.
If your condition is found to be severe, then your case will proceed on to Step 3 of the Sequential Evaluation Process.
There is a Listing of Impairments that Social Security uses that describe impairments for each major body system that are considered severe enough to prevent you from doing any gainful activity. The Listing of Impairments applies to both SSD and SSI claims.
The Listing of Impairments is as follows:
1.00 Musculoskeletal system
2.00 Special Senses and Speech
3.00 Respiratory system
4.00 Cardiovascular system
5.00 Digestive system
6.00 Genitourinary system
7.00 Hemic and lymphatic system
9.00 Endocrine system
10.00 Multiple body systems
12.00 Mental disorders
13.00 Neoplastic diseases
14.00 Immune system
If you meet or equal the requirements of the Listing, then you are found disabled at Step 3 in the Sequential Evaluation Process and no further evaluation is needed. This determination is usually made on the basis of medical evidence only. If you do not meet the Listing, then Social Security will go on to Step 4 in the Sequential Evaluation process.
At this step, the Social Security office decides if your medical condition prevents you from being able to do the work you did before. This is called past relevant work. If Social Security finds that you can do the work you did before, defined as your "past relevant work", then Social Security will find that you are not disabled.
If you cannot do your past relevant work, then Social Security goes on to Step 5 of the Sequential Evaluation process.
This is the last step in the Sequential Evaluation process. This is where most of the cases are decided. If you cannot do the work you did in the past, then Social Securitylooks to see if you would be able to do other work in the regional and national economy. At this step in the process, Social Security takes into consideration your medical condition, your age, education, past work experience and any other skills you may have to determine if you could do other work. Social Security says that this work must exist in significant numbers in the region where you live and in the national economy. It is up to Social Security to decide whether work exists in significant numbers.
If you cannot do your past work and cannot do other work in the regional and national economy, then you will be found to be disabled.
If Social Security finds that you can do other work, taking into consideration the above factors, then Social Security will find that you are not disabled.
You should be aware that the fact that you are unemployed because of an inability to get work due to the economy, or you have filled out hundreds of applications and no one will hire you, does not necessarily make you eligible for disability.
The Hearing Before an Administrative Law Judge
The hearing before an Administrative Law Judge ("ALJ") is generally your best chance of getting the two previous denials overturned. It is probably the most important step in the process.
If you are going to retain an attorney, try to do so prior to receiving your notice of hearing date or the day of the hearing. If you go to a hearing unrepresented, all ALJs are instructed to ask you if you want to be represented by counsel at the hearing. If you do, then you will usually be granted a postponement of the hearing to obtain an attorney. However, you should obtain an attorney well in advance of your hearing, as there are many things that need to be done in preparation for your hearing.
When the hearing office is getting ready to schedule your hearing, it will send you a CD and an Exhibit List. The CD contains your entire Social Security file. includine all of your medical and hospital records and reports it has gathered to date. You need to update any and all new medical evidence and file those records in advance of your hearing. Try to avoid if at all possible filing records on the day of your hearing or not filing them at all before your hearing. You should also obtain any reports from treating physicians setting forth your permanent limitations/restrictions and file them well before the hearing as well.
Hearings are closed to the public. Generally, present in the hearing room is you, your attorney (if you have one), the ALJ, a hearing monitor who records the hearing, and a vocational expert or medical expert, if one is called to testify. The hearing is supposed to be an informal, non-adversarial proceeding (even though some ALJs treat as adversarial), but witnesses are sworn in.
Practical considerations for the hearing are:
The selection of the ALJ to hear your case is done on a random basis. The length of the hearing can vary greatly, but an average is approximately one hour. Some ALJs will tell you at the hearing if they are going to decide in your favor and issue a bench decision. Other ALJs will take all of the evidence into consideration, including your testimony, and issue a written decision, which generally can take within 60-90 days, but varies depending upon the particular ALJ.
Childhood cases are decided differently than adult cases.
The general definition of disability for a child is a medical impairment, which can bephysical, mental or both, which results in "marked and severe functional limitations, and lasts for twelve months or is expected to result in death." If a person is 18 years of age or older, then the adult definition of disability applies.
There are three main steps in a childhood claim. They are as follows:
This usually only applies to a small number, because most children are not working. The same considerations in Step 1 of the Sequential Evaluation process for an adult are the same for a child.
This is the same standard in the Sequential Evaluation process as for an adult.
The Listing of Impairments for a child's case is very similar to the Listing of Impairments for an adult. The same is true if a child medically equals a Listing of Impairment.
However, the major difference is that in childhood claims, the child can be the "functional equivalent" to a Listing of Impairment.
The functionally equal the Listings, the child's impairment must be of Listing level severity, which means that it must result in two "marked" limitations in domains of functioning or one "extreme" limitation in a domain of functioning. There are six domains of functioning considered in childhood cases:
In a childhood case, there are several sources of information that are important. As with adult disability claims, medical evidence is always important. In addition, in a childhood case, school records, reports from teachers, IEP reports, report cards, and testing at school becomes important. Testimony and/or reports from a parent, caseworker, or teacher can also be important in a childhood disability claim.
You should be aware that if you have a child on either SSI or SSDI benefits, that once the child turns; 18 years of age, your child will almost always be re-evaluated using the adult standard. This sometimes results in a denial of continuation of benefits using the adult standard, and you will have to appeal that denial to continue the benefits.
Following a Favorable Decision
You will receive the ALJ Decision in writing. If it is favorable, your file will then be electronically transferred back to another social security office for the processing of your benefits.
SSDI benefits cannot begin until you have been disabled for at least 5 full months, and payments usually start with your sixth month of disability. With SSI benefits, your first SSI payment will be made for the first full month after which you applied or became eligible for SSI.
With SSDI you are eligible for Medicare benefits, but you have to receive disability benefits for 24 months before you will become eligible for Medicare. With SSI, you automatically become eligible for Medicaid benefits.
As SSDI benefits are based upon eamings and work history, the amount you receive will vary depending on how much you have earned and worked over your lifetime. Once every two years, you get a statement from Social Security in the mail, which tells you how much your monthly beneht amount will be if you become disabled. Further, you can go online at the Social Security website and filI out a form to find out how much your SSDI monthly benefit payment will be. With SSI, it is a set amount (in 2015 it is $733 per month) that can be decreased (but not increased) depending income, resources, and if someone provided shelter and food to you free of charge while waiting for your claim to be processed.
With SSI, the Social Security office will send you a letter telling you that you meet the medical requirements to quali$ for SSI and now the local social security office must determine whether you meet the "non-medical requirements." This is usually your income and resources.
You must schedule an appointment with a representative at the local office and bring certain documentation with you, such as checking and savings information.
You can and should sign up for direct deposit for both SSDI and SSI benefits.
The social security office will determine the amount of your back benefit award, the amount and starting date for your monthly benefits, and if you have an attorney, how much it approves as payment for attorneys fees.
Your monthly benefit payments will continue as long as you remain disabled.
If improvement is expected in your condition or the ALJ recommends review, the social security office may review your case to see if you are still disabled.
Do I Need An Attorney/Attorneys Fees
The decision whether to hire an attorney is for you to make.
You probably do not need to retain an attorney at the first step in the appeals process. This is the initial application. If you decide that you are going to hire an attorney, then the sooner the better after the first denial. You should get an attorney earlier enough so that your attorney can help you through the process and get the necessary medical records and reports in preparation for your hearing. Your attorney will also help you prepare for the hearing itself. You should not wait until the last minute to get an attorney because this may result in additional delays, possibly having your hearing postponed.
If you have any doubt or concern about your ability to handle the hearing and represent yourself, then it is advisable to retain an attorney. If you are concerned about whether you can afford an attorney, then you should take the following into consideration. Attorneys work on social security cases on a contingent fee basis. This means that attorneys only get paid if they are successful in getting you approved for benefits. If you are not approved for benefits, then generally you will not owe your attorney anything.
If you do get approved, the fee that any attorney can charge is set by social security law and regulations. It is the LOWER of either:
The social security office will tell you what amount it approves in attorneys fees. You may also additionally have to pay your attorney for costs and expenses, which is typically the costs of getting medical records and reports together in advance of your hearing. Some attorneys will front these costs for you, and you will not have to pay them back until you get your favorable decision.
This is not meant to say that you cannot win your case on your own. The way the process is set up today, most people hire attorneys. Keep in mind that you have probably waited a long time for your hearing and you want to make sure that you present your best case as you usually only get one chance at the hearing.