Qualifications to obtain SSD benefits from the SSA.

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.

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Workers’ Comp and Social Security Disability: They can go together

Many of my clients who are injured on the job in New York State are disabled and stay out of work longer than 12 months. In such an instance, can the injured worker ALSO receive Social Security Disability Benefits?

In many cases, the answer is YES.

If the Workers Compensation (WC) claimant (injured worker) is 24 years old and has a back injury, and stays out ow work longer than 12 months, I would say that person has a very low chance of winning a SSD claim. Probably too young. But let’s assume the injured worker is 55, speaks no English, has only had heavy jobs (requiring lots of lifting) their whole life and has that same back injury and time out of work (over 12 months.) Now, there’s a good SSD claim. I file both of these types of claims all the time for my clients………..if I win both, a client gets BOTH benefits at the same time!

The “catch” is that there is a monetary limit to how much a disabled worker can receive as a COMBINATION of SSD and WC. Here’s the rules:

1. SSD will only “offset” (lower its benefits) if the claimant also receives “public” benefits like WC, but not “private” benefits like a Long Term Disability policy that the client is covered by, or a private pension.

2. The applicable limit on receiving SSD and WC is the higher of either:

  • 80% of the worker’s pre-injury income, called “average current earnings,” or
  • the total amount of SSDI received by all of the members of the recipient’s family in the first month that worker’s compensation is received, called the “total family benefit.”

For most SSDI recipients, the 80% of earnings figure will be higher, and Social Security will use that figure in the offset calculation.

That’s why I practice in both areas of the law—–often, they go together like Batman and Robin, or peanut butter and jelly, or pork and beans, or…………..well, you get the picture!

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If I file for Benefits can I still go back to work?

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!

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