Age Matters: Social Security Disability Favors Older (50+ years old) Workers
Does age matter when filing a Social Security Disability claim? Yes it does. Here are the four categories that the Social Security Administration (SSA) uses when evaluating age:
“Younger Individual”— Ages 18 to 49;
“Closely Approaching Advanced Age”— 50-54;
“Advanced Age”— 55-59
“Closely Approaching Retirement Age”- 60-65
The three factors most often used to evaluate a claimant’s case other than medical condition are AGE, education, and work experience. Let’s look at an example.
Two construction workers suffer similar, severe back injuries. They are both unable to lift anything heavy and in fact are limited by the injury only to the physical ability to do easy, sitting-down , “sedentary” work.
Comparing the age,education and work experience of the two construction workers who can only do “sedentary” work:
Worker A: 48 years old. Can speak and write English. No skills other than construction work. High School Graduate.
Decision by Social Security: NOT Disabled- (Regulation 201.18)
Worker B: 50 years old. Can speak and write English. No skills other than construction work. High School Graduate.
Decision by Social Security: Disabled- (Regulation 201.12)
SSA’s regulations would grant benefits to the 50 year old, but not to the almost identical 48 year old. Why?
The regulations state that “Individuals (50 and over) may be significantly limited in vocational adaptability….(if they have) no transferable skills…” (Regulation 201.00 g.)
Translation? SSA doesn’t expect 50 year old and older workers to learn a new trade or skill that would allow them to work a sedentary (physically easy) job. But it does expect those under 50 to do so. Hence, the bias in favor of 50 and over workers.
It is much easier to win if you are 50 or over, period.
So, when you contact a Social Security attorney such as myself, the first question they will ask you is: How old are you? Because age really does matter in the world of Social Security Disability Claims!
I get this question a lot. Whether it’s Workers’ Comp or Social Security Disability, clients are sometimes confused about whether going back to work is “bad” or can somehow “hurt” their case. So let me be clear: in my opinion it’s almost always better to go back to work, if you can, rather than depend on Workers’ Comp or Social Security payments. But here’s some common questions and my answer to those questions:
Q: Since I filed for comp against my employer, doesn’t this mean I can never work there again?
A: This is not true. I have plenty of clients who may even have several accidents at different times all at the same employer, filed for comp each time and continue to work there.
Q: Will I lose my Social Security Disability (SSD) case if I return to work?
A: Possibly. To be found disabled in a SSD case, an individual must be unable to engage in any substantial gainful activity (SGA) by reason of a medically determinable physical or mental impairment(s) which can be expected to result in death, or which has lasted or can be expected to last for a continuous period of at least 12 months.But, and this is a big but, once you meet the 12-month requirement, if you return to work afterwards, you may still receive benefits, after a 5-month waiting period, for the time you were out of work! This is called a “closed period” type of case. In other words, once you are out at least 12 months, if you are awarded benefits you can get them until you return to work, and even sometimes later on if you go back out of work.
Q. My treating Workers’ comp doctor told me that I shouldn’t work but the company doctor cleared me. What should I do?
A. The best advice is to always follow your own doctor’s advice about returning to work. If there is a conflict between doctors, that is why there are Judges at the Workers’ Compensation Board—to decide these kinds of disputes.
Q. What’s a Trial Work Period in Social Security?
A: To quote from the SSA website:
We have special rules that allow people who get Social Security disability benefits to work without losing their monthly benefits.
A trial work period allows you to test your ability to work for at least nine months and receive full Social Security benefits regardless of how much you are earning as long as you disabled.
After your trial work period, you are allowed a period of 36 months during which you can work and still receive benefits for any month your earnings are not substantial.
So, to sum up, it’s never “bad” to return to work after you have applied for comp or SSD. What IS bad? Returning to work but NOT TELLING THE INSURANCE COMPANY IN A COMP CASE OR THE GOVERNMENT IN A SSD CASE. Bottom line: As long as you INFORM THEM that you have returned to work, there’s nothing to be afraid of!