Nuts and Bolts of Social Security Disability Representation

Transcription

1 Nuts and Bolts of Social Security Disability Representation Seminar Topic: This material provides an in-depth examination of the process and procedure related to social security disability caseload management This material is intended to be a guide in general. As always, if you have any specific question regarding the state of the law in any particular jurisdiction, we recommend that you seek legal guidance relating to your particular fact situation. The course materials will provide the attendee with the knowledge and tools necessary to identify the current legal trends with respect to these issues. The course materials are designed to provide the attendee with current law, impending issues and future trends that can be applied in practical situations. Page 1

2 Copyright 2017 Printed in the United States of America. All rights reserved. No part of this monograph may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, except for citation within legal documents filed with a tribunal, without permission in writing from the publisher. Disclaimer: The views expressed herein are not a legal opinion. Every fact situation is different and the reader is encouraged to seek legal advice for their particular situation. The Apex Jurist, is Published by ApexCLE, Inc South Emerson St., Suite 248 Mount Prospect, Illinois Ordering Information: Copies of this monograph may be ordered direct from the publisher for $64.95 plus $4.25 shipping and handling. Please enclose your check or money order and shipping information. For educational, government or multiple copy pricing, please contact the publisher. Library of Congress Cataloging-in-Publication Data ApexCLE, Inc. 1. ApexCLE, Inc. 2. Law-United States Guide-books. 3. Legal Guide 4. Legal Education. Page 2

3 About the Author and Presenter Jan Kodner Jan Kodner is a partner at Rabin, Kodner and Brown. The firm was created by the merger of Jan Kodner and Associates with Jeffrey A. Rabin and Associates in December, Jan graduated with honors from Chicago Kent College of Law in 1978 and from University of Illinois in 1975, also with honors. According to his Von Steuben High School senior yearbook, he was a hall monitor and division vicepresident. His practice has been concentrated in the Social Security Disability field for over 30 years. He lives in Evanston with his wife, Roberta Levin. He has two adult kids who have yet to give him grandchildren. He is a past chair of the Chicago Bar Association Subcommittee on Social Security Law and a sustaining member of the National Association of Social Security Claimant's Representatives (NOSSCR). He served as a board member of the SSI Coalition for a Responsible Safety Net. He has presented many talks and continuing legal education sessions at NOSSCR and CBA conferences. He has been recognized as a Leading Lawyer by his peers in the field of Social Security Disability Law every year since the Network was created in In 2011, and again in 2013, a Leading Lawyers survey of Illinois attorneys named Jan as the #1 lawyer in the Social Security field. For many years, Jan served in various capacities as a producer, director and writer of the dreaded middle school variety show Haven Help Us in Evanston. With the help of a much more technically talented friend, he has created music videos such as Addicted to Gum, Walk Like a Havenian and Locker Pop, available for viewing on You Tube. Author s Address: jan@rkblegal.com Author s Website: Author s Mailing Address: 636 S Des Plaines River Road Des Plaines, IL Author s Phone Number: , Page 3

4 Table of Contents Contents Table of Contents... 4 Timed Agenda:... 5 Nuts and Bolts of Social Security Disability Representation... 6 I. Introduction to Social Security Disability Programs... 6 A. Disability Insurance Benefits (DIB)... 6 B. Supplemental Security Income (SSI)... 7 C. Disabled Widow/Widower Benefits... 7 D. Disabled Adult Child Benefits... 7 II. Answers to Common Questions about Social Security and SSI Disability 7 Page 4

5 Timed Agenda: Time Description 00:00:00 Program Start 00:00:30 Presenter Introduction 00:03:31 I. Introduction to Social Security Disability Programs 00:04:40 A. Disability Insurance Benefits (DIB) 00:04:50 Defining disabled 00:07:28 Path of getting to ultimate determination that person is disabled 00:24:54 II. Answers to Common Questions 00:25:23 A. My client has filed for Worker s Compensation or is already getting WC can he file for SSD? What affect does WC have on his claim for SSD? 00:31:40 B. My case is pending with Social Security. Can I work? 00:34:16 C. My case was approved by Social Security. Can I work? 00:38:53 D. Can I get Unemployment Compensation while seeking or getting SSD? 00:46:03 E. What if I inherit money or win the Lotto? 00:47:32 F. I am 62. Do I have to file for early Social Security Retirement benefits? 00:49:32 G. I am getting LTD benefits. My insurer wants me to file for SSD. Do I have to? 00:50:49 H. My child has been getting SSI for years. I am ready to take Social Security myself. What effect does that have on his SSI? 00:54:01 I. Can my children/spouse receive benefits if I win my case? 00:55:50 J. Can I go to school while the disability case is pending? 00:56:07 K. What are Compassionate Allowances? 00:59:01 L. When will I get my money? 00:65:36 Conclusion 00:66:40 End Page 5

6 Nuts and Bolts of Social Security Disability Representation I. Introduction to Social Security Disability Programs There are four different Social Security programs which may be applicable to a disabled Claimant: 1. Social Security Disability Insurance Benefits (DIB); 2. Supplemental Security Income Benefits (SSI); 3. Disabled Widow/Widower Benefits (DWB); and 4. Disabled Adult Child Benefits (DAC). Each program has its own legal requirements for eligibility before the issue of disability may be reached. A. Disability Insurance Benefits (DIB) Under the disability insurance program, a person must show that he/she is insured for benefits. To achieve insured status for DIB benefits, the worker must have a specified number of credits or quarter. Credits are earned by working at a job covered by Social Security. Each year the Social Security Administration determines the amount of earnings from work that is required to earn a credit. In 2015, $1,220 of earnings earns one credit. A worker can earn up to four credits each year. To be insured for disability insurance benefits, the Claimant must be fully insured. This means that he/she must have between six and forty credits depending on the age at onset of disability. Most persons seeking disability insurance benefits require forty credits. Very young adult workers may require less depending upon their age at the onset of disability. A second requirement is that the credits must have been earned in at least five out of the ten years prior to the onset of disability. The onset is the point where the claimant lost the ability to perform substantial gainful work. It is usually not the date of diagnosis, unless the problem arose from a sudden trauma or accident. Page 6

7 B. Supplemental Security Income (SSI) This program is designed to give a benefit to disabled persons who are very poor. A person cannot have $2, or more in non-exempt resources. If the person is married and living with his/her spouse, the resource limit is $3, Other sources of income will cause the SSI to be reduced. C. Disabled Widow/Widower Benefits A widow/widower may be eligible for benefits based upon the Social Security earnings of the late spouse. Eligibility is based upon: 1. The spouse had sufficient earnings to have been covered for Social Security benefits; 2. The onset of disability must occur within seven years of the spouse s death, or attainment of age 16 of the youngest child of the spouse for whom the widow was providing care and getting Social Security benefits; 3. The claimant must be at least 50 years of age. D. Disabled Adult Child Benefits A person who has been disabled as of age 22 is eligible for benefits upon a parent s Social Security account if the parent is otherwise covered for Social Security benefits. This is a very important benefit for young adults who may have been receiving SSI benefits for years before their parents became disabled, retired or deceased. II. Answers to Common Questions about Social Security and SSI Disability A. My client has filed for Worker s Compensation or is already getting WC.can he file for SSD? What affect does WC have on his claim for SSD? A person need not wait for the WC to stop or settle before a claim for SSD should be filed. If he is getting WC or has filed, he must disclose this to the SSA. When the person is getting WC benefits, this could cause the SSD to be reduced, depending upon several factors. When the WC case Page 7

8 settles, the WC attorney should use spread language to avoid any further setoff of the SSD. B. My case is pending with Social Security. Can I work? Work activity will be considered by the SSA in their determination as to whether a person is capable of performing and sustaining substantial gainful activity (SGA). If the gross earnings are at the substantial level ($1,090 or more in 2015), this will indicate that the claimant is not disabled. If the work ends in less than 90 days, it is usually considered as a failed work attempt and does not disqualify the claim. C. My case was approved by Social Security. Can I work? Most work by a disabled person is governed by the trial work period rules. A person who earns a certain amount of money per month (($790 or more in 2015) has used a trial work month, even if the work is part time. He is entitled to 9 trial work months. If he continues to work beyond the 9 month trial work period, and is earning amounts which are considered substantial, his benefits will come to an end. If he keeps working but the earnings are below the SGA level, the benefits continue. If he stops performing substantial work within 36 months after the end of the trial work period, benefits may resume pursuant to an extended period of eligibility. D. Can I get Unemployment Compensation while seeking or getting SSD? The two programs are inconsistent but not always incompatible. To qualify for UC, the claimant alleges that he is ready, willing and able to work. The State of Illinois Department of Employment Security requires disclosure as to whether the claimant has filed for or is getting SSD. They will usually reject an UC claim if the claimant answers in the affirmative. The Social Security Administration does not currently ask the claimant if he is getting UC and the issue does not usually come up until the hearing stage. SSD may still be allowed even where the claimant got UC, especially if the person is 50 years of age and older. E. What if I inherit money or win the Lotto? Page 8

9 If the claim is for SSD, this will not matter. If the claim is for SSI, the resource rules apply. It is a good time to remember the past generosity of your lawyer. F. I am 62. Do I have to file for early Social Security Retirement benefits? If the client is getting SSD already, no. Her SSD will switch to retirement benefits when she reaches her full retirement age. If she is getting SSI, she must file for early SSR since SSI is a program of last resort. If the SSD case is still pending, it is up to the claimant. G. I am getting LTD benefits. My insurer wants me to file for SSD. Do I have to? Usually the policy requires the recipient of the LTD to file for SSD. The insurance company is almost always contractually allowed to reduce their benefit by the amount (or most of it) of the SSD. H. My child has been getting SSI for years. I am ready to take Social Security for myself. What effect does that have on his SSI? A person can receive benefits upon the Social Security account of the parent if he has been continuously disabled prior to age 22, has not married, and the parent paid sufficiently into the Social Security system. The parent must either decease, or begin to receive SSR or SSD for the disabled adult child to qualify. I. Can my children/spouse receive benefits if I win my case? This depends on the earnings history of the claimant. If the person paid enough into the Social Security system, there are auxiliary benefits payable to the minor children and/or spouse. If earnings were too low, no additional benefits are payable. If the client is getting only SSI, there are no additional benefits. J. Can I go to school while the disability case is pending? All activities of daily living will be considered by the SSA in their determination as to whether you are able to work. Attending college or other school usually will not impact upon a claim where the worker is Page 9

10 older and/or suffers from physical impairments. It can be a negative where the claim is based upon mental impairments. K. What are Compassionate Allowances? The Social Security maintains a fluid list of certain, very severe impairments which can allow a case to be expedited and approved very quickly. The list may be found at: L. When will I get my money? Most SSD cases are paid rapidly, usually within a few weeks of the favorable decision. If there also was a claim for SSI, release of the benefits is delayed to make sure the person is not double paid. If there are other issues, such as worker s compensation, which can alter the amount of the benefit, the delays can be lengthy, sometimes several months. Page 10