1. How does the SSA define disabled?

SSA defines disabled as the “inability to engage in any substantial gainful work activity (SGA) because of a medically determinable physical or mental impairment(s):
a. That is expected to result in death, or
b. That has lasted or is expected to last for a continuous period of not less than 12 months.”

SGA is based on hours worked and/or amount earned. Almost every year the amount earned changes, for 2011 a person cannot work full time (usually defined as 40 hrs/week) or earn more than $1000.00/month (Non Blind) or $1650.00 (Blind). SGA for a self employed person is determined after expenses and taxes are paid (defined as countable income). But if a self employed person devotes a substantial amount of time to the business (40 hrs/week) and makes under the SGA amount then he/she would still be considered to have substantial gainful work activity and would not be disabled under SSA rules.

It is also expected that the disability would negatively affect the person’s activities of daily living (ADLs). ADLs are things such as personal hygiene, dressing, shopping, cooking, cleaning, working, interaction with other people, lifting, and walking. These changes should appear in the medical record and be consistent with the reports you sent to SSA.

Note: The definition for a child under the age of 18 is different as compared to an adult. See SSA website for definition.

2. How does the SSA find someone disabled?

The SSA has a multi-level process. There are five levels: Application Level, Reconsideration Level, Hearing Level, Appeal Council Level, and Federal Court Level. At each Level, the SSA uses a multi-step process.

At the Application Level and Reconsideration Level, the SSA gathers information and medical records. It then sends it to a State Agency to determine if you meet any definitions of disabled. The definitions are either defined under Listing or Grids. Listings are statute defined disabilities. If your disability matches a Listing exactly then you are automatically found disabled. Grids look at your age, education, work history, and residual functional capacity to determine if you are disabled.

Residual functional capacity is the ability to do work related activities such as lifting, carrying, sitting, standing, walking, reaching, grasping, using foot pedals, climbing, bending, crawling, etc. The less you can do, the fewer jobs you will be able to do, and the more likely you will be found disabled.

At the Hearing Level an Administrative Law Judge (ALJ) looks at the record and can take testimony from you, witnesses, and experts. The ALJ will reevaluate the record in light of the evidence, testimony and social security rules. The ALJ will determine what disabilities you have and how they affect your ability to work. The ALJ will then use both the Listing and Grids to determine if you are disabled under SSA rules. Even if you do not meet a Listing or Grid you may still be found disabled by testimony provided by a vocational expert.

A vocational expert (VE) is a person with experience and a high level of education (usually a masters degree or higher) in placing disabled people in the work place.

At both the Appeals Council and Federal Court Level, they are concerned with “if the process was followed” and did the ALJ miss anything of relevance. You can submit more evidence at the Appeals Council level if it is new and relevant, but at the Federal Court Level, you cannot submit new evidence. It is much harder to obtain a favorable decision at these levels due to the limit on what they can look at.
 
3. My doctor says I am disabled, why didn’t SSA find me disabled?

The SSA reserves the right to determine if you are disabled under SSA rules. The SSA takes into consideration that your doctor says you are disabled but does not rely on it to determine if you are disabled. Usually, a short letter from the doctor saying you are disabled is not enough. SSA needs more information to determine if you are disabled.

The SSA looks at your doctors’ records and reports to see:
a. How long the doctor has been treating you;
b. What your medical determinable conditions are; and
c. How they affect your ability to work and Activities of Daily Living (ADL).

If your doctor is willing to write a report, the doctor should state:
a. How long he/she has been treating you (the longer the better);
b. Brief history of your medical condition(s);
c. What are your medically determinable condition(s);
d. How those medically determinable conditions affect your ability to work and ADLs;
e. Your medical outlook i.e. poor, fair, good, etc.; and
f. A brief summary.

4. How much can an attorney charge me?

There are two parts of what an attorney can charge: fees and costs.

The SSA sets what attorneys can charge for fees. Fees are for the time the attorney spends on your matter. It is set at 25% of back benefits or $6000.00 which ever is less.
 
Example 1: There is $10000.00 in back benefits. 25% of $10000.00 is $2500.00 so the attorney can charge $2500.00 for fees
Example 2: There is $36000.00 in back benefits. 25% of $36000.00 is $9000.00 so the attorney is limited to $6000.00 for fees ($6000.00 < $9000.00).
Example 3: There are no back benefits. 25% of $0.00 is $0.00 so the attorney can charge $0.00 for fees.

Costs are usually paid by the attorney and at the end of the representation you have to pay back the attorney. Some firms collect a nominal amount up front to cover costs. Costs include things such as obtaining medical records, reports, long distance faxes, mileage, etc. Costs are different for each person and there is no cap on them.

5. How do I pay for an attorney?

Usually the attorney will fill out a form so that fees are taken out of the back benefits and sent to the attorney directly by SSA. The attorney may send you a bill for costs at the end of the case or even ask for a nominal amount up front.

6. I have filed for a hearing in front of an ALJ, now how long do I have to wait for the hearing?

The average processing time as of February 25, 2011 for most Wisconsin claims is 355 days.

7. Can I collect unemployment insurance benefits while waiting for a hearing?

Technically, yes, you can collect unemployment insurance benefits (UI) and still be eligible to receive SS benefits, but some ALJs frown on granting SS benefits while you are receiving UI benefits. The reason why some ALJs frown on it is because to receive unemployment benefits you must state that you are ready, willing, and able to work whereas to receive SS benefits you are saying you are not able to work. The ALJ may feel that there is a contradiction in your statements regarding your ability to work. The ALJs think that you are either not telling the truth when you claimed UI benefits or now are not telling the truth when claiming you cannot work. Either way, the ALJs take away is a negative impression of your honesty.

8. Can I work and still collect benefits?

Technically, yes, but you cannot work full time or collect more than the SGA amount. Here again, some ALJs frown on a claimant working because they feel you must be total incapable of working to receive SS benefits.

9. What is the difference between Social Security Disability Insurance (SSDI) and Supplementary Security Income (SSI).

The SSDI and SSI programs share many concepts and terms, however, there are also many very important differences in the rules affecting eligibility and benefit payments. The following table summarizes differences between the SSDI and SSI programs. These differences are important as many people may apply or be eligible for benefits under both programs.*

* http://www.ssa.gov/OACT/COLA/sga.html, accessed on April 5, 2011.

* DISCLAIMER: All answers to frequently asked questions are hypothetical and provided for informational purpose only. The answers are neither intended to be nor are they legal advice. Changes in the law may affect the answers and your rights. Please contact a Social Security Benefits attorney at Olson, Kulkoski, Galloway & Vesely, S.C. regarding changes in the law. Olson, Kulkoski, Galloway & Vesely, S.C. is not liable for any errors or inaccuracies contained in the answers or any actions taken in reliance on the answers.