|
By John M. Bigler This month's article will focus on a government benefit that could be critical for younger seniors who have become disabled. I'm talking about Social Security Disability benefits. Disability benefits are an entitlement that an individual earns by paying into the Social Security system from one's earnings at work.
There is a two-prong test to determine eligibility for Social Security Disability benefits. The first question is whether or not an individual has worked and paid into the Social Security system. It is necessary for the average worker to have contributed a total of at least 40 quarters, each quarter representing a three-month period. The worker must also have contributed or paid into the system at least 20 of the 40 quarters previous to becoming disabled. Whether or not a worker has enough earnings to be qualified is a simple question that can be easily answered by the local Social Security District Office. However, the second question is whether or not an individual is disabled, meaning, are they incapable in engaging in substantial gainful activity. This means that in order to qualify, it is necessary for an individual to show that they are incapable of performing any type of full- time work. It must also be shown that the disability is expected to last at least one year or to result in death.
For an individual over 50, the issue of skills acquired in previous employment is a critical part of the case. Also considered is the person's education. For example, a 60 year old construction worker with an 8th grade education may have a bad knee that prevents him from doing the heavy lifting and climbing required of his job. If he has performed only that type of work in the last 15 years, then the Social Security Administration would be hard pressed to show any other type of work that he had the skills to perform. Once that worker provides medical documentation that he cannot return to his former work, he most likely will be found eligible for benefits. But, if that same worker had acquired skills as a supervisor and it was shown that he did a great deal of paperwork on the job, the SSA would attempt to show that he had developed skills that could be transferable to a less strenuous type of work such as a desk job. If that is the case, then that individual will need to show a more severe physical impairment. Possibly he would also have a back condition which will prevent him from sitting long periods of time and he could then be eligible. The 60 year old office administrator is going to have a more difficult time then the construction worker because that type of work is not as physically demanding. Therefore, a physical impairment will have to be more severe in nature. Many people become discouraged in pursuing disability because it is not unusual to be turned down on the initial application and then to be turned down on an appeal which is called a reconsideration. However, the third stage is a hearing in front of an Administrative Law Judge. On Long Island, the hearings are held in the Office of Hearings and Appeals in Jericho. What many people, unfortunately, do not realize is that being persistent pays off. We are fortunate on Long Island that the Administrative Law Judges in our office are extremely fair and will cooperate fully with a claimant in obtaining medical documentation. The key to a successful claim is the opinion of a treating physician. If the claimant's treating physician is lukewarm in his or her assessment, or does not provide details of the type of treatment that they are providing, then it will be difficult to establish the claim. The claimant must always remember that the burden is on them to prove disability, not on the SSA to disprove it. Therefore, it is critical to have strong letters from the treating doctor indicating that the individual is disabled and why. With that type of documentation, chances of success are good, but again, it is often times necessary to pursue the case to an administrative hearing and sometimes to appeal it even further. The benefits for a senior for Social Security Disability are more than just the monthly benefits. In addition to a monthly check, the claimant becomes automatically eligible for Medicare coverage two years after first being entitled to benefits. Therefore, it is not necessary to wait until age 65 for Medicare coverage. Many seniors who are not able to work may decide to apply for Social Security Retirement at age 62 even though it will mean an approximately 20 percent lesser benefit. If one is found eligible for disability benefits, the monthly benefit is the same rate that one would receive if retiring at age 65. Therefore, it will be unnecessary to apply for retirement and the individual can simply collect 100 percent disability benefits until age 65 at which time the benefit will convert to Social Security Retirement. Anyone interested in pursuing disability should strongly consider retaining an attorney. The attorney can be of great assistance in obtaining the proper medical documentation from the treating sources that will establish disability. The attorney will also present the case at the hearing. Most attorneys who represent disabled claimants do so on a contingency basis. The fee, which is usually 25% of the retroactive benefits, is capped at a maximum of $4,000.00. Also, if the claimant feels that the attorney has not done a good job or has unnecessarily extended the case in order to build up retroactive benefits, that person has the right to complain to the Social Security Administration who will then require the attorney to file a fee petition and will review the fee. Reprinted with permission of the Suffolk Times © 1999 [ Contact Us ] [ Guestbook ] [ Email ]  The Law Offices of John M. Bigler, Attorney At Law 1421 Wantagh Avenue, Wantagh, New York 11793-2206 1-888-ELDER-LAW · 516-409-6565 · Fax: 516-409-6522 E-Mail: info@biglerlaw.com · Web Site: www.biglerlaw.com |
For people who become disabled and unable to work, the monthly disability check is often critical in avoiding financial disasters. Without it, many disabled workers would be forced to turn to welfare.
For a younger individual defined as someone less than 50 years old, the standard is difficult to satisfy. For such a person, it doesn't matter what type of work they've been doing in the past. If that person is capable of doing any type of work, even though it may be unrelated to what they were doing, even though they may have none of the skills required for that job, still they are considered "not disabled". However, for an individual over 50 and especially for those over 60 who are considered closely approaching retirement age, the issue of previous employment is extremely important.