Calling the Social Security Administration (“SSA”) office is unlikely to help you understand whether or not you qualify for Social Security Disability. This is because when you call the SSA office you will be speaking with a service representative, who is not qualified to make a determination regarding a person’s disability. That is a decision that is assessed by disability examiners who work at DDS, Disability Determination Services, a state agency which is entirely separate from SSA.
DDS assesses many factors in determining a person’s ability to return to the workforce. First, the determination is made whether the claimant can return to their old job. If they can, their claim is denied. Next, DDS will consider whether the claimant has transferrable skills, and will consider factors such as the claimant’s level of education, past work experience, and age. After the age of 50, a person is generally not expected to learn a new trade or skill. Assessing these factors along with a claimant’s physical or mental disabilities or limitations is part of a complex process that service representatives at SSA cannot and should not attempt to inform potential claimants on. This is why you are better off seeking an attorney who is knowledgeable and experienced in navigating the process of proving one’s qualifications to obtain SSD benefits from the SSA.
The Social Security Administration requires that you have earned enough “work credits” in the past in order to be eligible to apply for Social Security Disability benefits.
What are work credits?
When you work and pay Social Security taxes, you earn up to a maximum of four “credits” for each such year.
The amount of earnings it takes to earn a credit has changed since 1978. In the year 2016, you must earn $1,260 in covered earnings to get one Social Security or Medicare work credit and $5,040 to get the maximum four credits for the year.
The number of work credits needed for disability benefits depends on your age when you become disabled. Generally, you need 40 credits, 20 of which were earned in the last 10 years ending with the year you become disabled. However, younger workers may qualify with fewer credits.
This is why, when you call a Social Security Disability attorney about filing for disability, they will probably ask you the following question:
“Have you worked on the books for at least five of the ten years before you became disabled?
If you worked LESS, you may not even be eligible to apply for Social Security Disability Benefits (SSDB.)
In addition, the more you worked and earned over your lifetime, the higher your monthly benefit amount will be!
Did you know?
Applying for and receiving Social Security Disability Benefits, ( when one is UNDER retirement age and unable to work for at least 12 months,) bestows perks from the Government that many people don’t know about. These include (if you win):
*Wage Freeze: If there is a period of time you are not paying into your Social Security account due to being disabled, Social Security IGNORES this and computes your benefits as if you had been working! *Medicare: Two years after being approved for Disability Benefits, disabled workers may elect to receive Medicare coverage, regardless of age. *Children: When you qualify for Social Security disability benefits, your children may also qualify to receive benefits on your record. Your eligible child can be your biological child, adopted child or stepchild. A dependent grandchild may also qualify. To receive benefits, the child must be unmarried and be:
- under age 18; or
- 18-19 years old and a full-time student (no higher than grade 12); or
- 18 or older and have a disability that started before age 22.
Within your family, each qualified child may receive a monthly payment up to one-half of your full disability amount.
Bet you didn’t know these things… Feel free to call my office with any questions about Social Security Disability or NY Workers’ Compensation.
Section 10 of the Workers’ Compensation law in New York State says, among other things, that there shall be no liability for compensation “when the injury has been solely occasioned by intoxication from alcohol or a controlled substance………”
It has long been the law that if someone gets injured on the job SOLELY because they are drunk or stoned, the employer is NOT responsible.
But what about the recent legislation regarding medical marijuana? Does this affect the Workers’ Comp system in New York?
In my opinion, New York State and Governor Cuomo’s recent passage of a limited medical marijuana bill should NOT affect Workers’ Comp. Why? Because the bill says:
To be prescribed medical marijuana, a patient must receive a certification from a licensed practitioner who must register with the Department of Health and be qualified to treat the serious condition for which the patient is seeking treatment. The serious conditions for which medical marijuana can be prescribed are cancer, HIV/AIDS, ALS (Lou Gehrig’s Disease), Parkinson’s Disease, multiple sclerosis, damage to the nervous tissue of the spinal cord with objective neurological indication on intractable spasticity, epilepsy, inflammatory bowel disease, neuropathies, Huntington’s Disease, or as added by the commissioner by DOH.
Looking at this list, there are few if any such conditions that could possibly be work-related. The only ones that are possible are the nerve damage situations but those seem to cover only the most severe. So this law likely won’t affect Workers’ Comp.
But what about Social Security Disability and Medical Marijuana? I googled these together and found some interesting articles. Remember, marijuana is still illegal on the federal level and Social Security is a federal program. If someone is alleging a mental disability and is taking marijuana on a daily basis it might be hard for the Judge to decide their case. Anyone who is found to be disabled because of drug use can be denied benefits on that basis.
So the use of medical marijuana will make disability claims more complicated.
Bottom line—this is still new territory for the disability field, so stay tuned………
What is Social Security Disability and who may qualify?
Social Security Disability (“SSD“) is a federal insurance program designed to provide income to people who are physically restricted in their ability to be employed i.e. they are totally disabled and unable to work.
Others who may receive benefits are:
Blind workers; children of blind or disabled workers; widow(er)s; adults disabled since childhood.
There are several factors that must be satisfied in order for a person to qualify for SSD:
- A claimant must have worked at job(s) covered by Social Security and paid taxes into the system;
- The claimant must have worked at least five of the preceding ten years from the alleged onset date, at a job covered by Social Security (the Social Security Administration refers to it as having worked “twenty (20) of the previous forty (40) quarters.”)
- The claimant must have a medical condition that meets Social Security’s definition of a disability. This definition is very strict and only applies to total disabilities, not partial or short term disabilities. A claimant is considered totally disabled if:
- a. they have a physical or mental condition that prevents them from engaging in any “substantially gainful activity,” and
- b. their disability has lasted or is expected to last for at least one year from the alleged onset date or result in death.
- they are under the age of 65 (Under retirement age)
If a claimant meets this heavy burden, then the claimant will receive monthly cash benefits——–the more they paid into the system, the more they get. Moreover, these benefits will continue until a claimant is able to work again on a regular basis, or they reach full retirement age and the disability benefits will automatically convert to retirement benefits. Medicare kicks in after the person receives benefits for two years.
Be careful: Not all companies and persons who represent claimants applying for SSDB are attorneys! An experienced SSD attorney is the best choice to help claimants who have been denied SSD, receive the benefits they deserve.
Last week I received a call out of the blue from Hofstra Law School. They needed a Disability attorney to come in on Sunday morning and advise veterans about Disability issues. This would be a “pro bono” (free) clinic. Could I help out? It took me a couple of milliseconds to think about it. Of course I could, I responded.
The first Hofstra Veterans Legal Assistance Clinic was held this past Sunday. It involved attorneys in various legal specialties: veterans, immigration, family, divorce, elder, consumer law, and more. Sponsors included the County, the Law School, and the Nassau County Bar Association. All advice given was offered free of charge. The vets were able to go from room to room where the attorneys had “set up shop” and get real-time advice about real issues. The attorneys were also being observed in action by Hofstra Law students. This was another cool part of the whole thing: not only were we attorneys helping the vets, but the Hofstra law students were getting training as well.
One veteran regaled me with stories from the Korean War, and I enjoyed hearing his tales. Another had such a complicated legal situation that he probably consulted four different attorneys while he was there about the same matter. Yet another owed Social Security $30,000 that he didn’t have. I helped him out as best as I could.
We should never forget our Veterans. I certainly tried to do my part, by participating in the first Veterans Legal Assistance Clinic at Hofstra Law School. And I’m glad I did.
Right now you’re at a Social Security Disability Hearing. You are claiming that you’ve been disabled and unable to work since a certain date, (let’s use as an example, January 1, 2011.) The Judge hearing your case has two choices—he/she can either grant your application (you win) or dismiss it (you lose.) Right?
Well, no. It’s more complicated than that. You see, a Social Security Law Judge must decide not only if you are disabled but also an “onset date”—the date that Social Security decides that your inability to work STARTED. And if the Law Judge feels you have weak medical evidence, or just wants to shave your claim down, the Judge might offer a deal—-a later “onset date” that pays you less “back” money but still pays you into the future. (In our example, for instance, the Judge might offer to find you disabled as of August 1st, 2011 rather than January 1st, causing you to lose a half year of back benefits.)
Deciding whether to accept such a deal at a Social Security hearing can be tricky. If you have other pending matters (like long term disability or COBRA) that look at the disability dates picked by the Social Security decision, you could mess up that other case. Or, it might have no effect.
So should you play “Let’s Make a Deal” at a Social Security hearing? Sometimes yes, sometimes no. It’s always best to have an experienced Social Security Disability attorney at your side when confronting a deal-making Judge! (Many attorneys believe that if you turn down such a deal, the Judge may disallow the whole case so a half a loaf is usually better than none.) But still, the decision must be carefully thought over—it can have far-reaching implications!
Every so often I get this call from an attorney I know:
“Hi Dan, my client has a small business in New York. One of his workers got into an accident at work. Now the employee has filed a claim against him. Even worse, the NYS Workers’ Comp Board has hit the company—and my client— with thousands of dollars in penalties and fines for not having comp insurance. What should we do?”
My answer is: “THEY SHOULD HAVE HAD WORKERS’ COMP INSURANCE IN THE FIRST PLACE. NOW YOU ARE GOING TO HAVE MONTHS OF AGGRAVATION AND HAVE TO PAY UP THE WAZOO TO GET OUT OF THIS MESS.”
Wazoo’s a legal term, isn’t it?
Of course, uninsured employers have rights, and they should be adequately represented and advised when they deal with the s—storm that ensues from not having comp insurance. But believe me, it is a full-blown s—storm—something to be avoided like the plague. The State WILL make the uninsured employer miserable.
So here’s the moral to my story. IF YOU OWN A BUSINESS, AND HAVE ANY EMPLOYEES WHATSOEVER, WHETHER ON THE BOOKS OR OFF THE BOOKS, AND YOU DON’T HAVE WORKERS’ COMP INSURANCE, YOU ARE INVITING DISASTER.
State law requires that the New York State Insurance Fund (NYSIF) MUST give you a policy of comp insurance if you cannot obtain a policy from a private carrier like Liberty Mutual, Hartford, etc. The NYSIF’s website is at www.nysif.com. Do yourself a favor. For a few hundred dollars, protect yourself from untold grief. Take it from an attorney who sees the aftermath of companies and employers having no comp insurance—-way too often.