Frequently Asked Questions

While Social Security considers if you are still able to perform the duties of your past work Social Security will consider that, however, you also have to show you cannot do other kinds of work as well. Simply not being able to do your past work is often not enough to be found disabled.

You have to show that you cannot do some type of full-time work in order to qualify for Social Security. If you can still do full-time work, but you cannot get hired for a job, you probably would not qualify for Social Security disability benefits. Your ability to work is the issue in a Social Security disability case. Social Security does not consider if you are hirable for a job. This is a tough standard and sometimes means you can be denied for being able to do a theoretical job.

Social Security disability is an “all or nothing” system. Social Security does not pay disability benefits if you are hurt or have a disability that prevents you from doing some jobs or limits the jobs available to you. Social Security does not pay you 50% of your disability benefits if you have a 50% impairment rating.

In part, you have to show that you have a medical or psychological condition that prevent you from being able to do any kind of full-time work to qualify for Social Security disability benefits.

Medical and psychological illnesses, injuries and conditions are only considered by Social Security in deciding if you are disabled. If you cannot get a job because of a felony conviction or criminal record, that is not a factor Social Security will consider in deciding if you are disabled. Social Security generally does not consider if you are hirable in deciding disability cases.

Maybe.

You can get Social Security disability while working under certain conditions.

The general rule is you have to show that you cannot work in order to qualify for Social Security disability.

That is a simplified definition though and not quite exact. The actual test is you have to show that you cannot engage in a substantial gainful activity. And, not all work is a substantial gainful activity. So, you can get Social Security disability while working so long as the work is not a substantial gainful activity.

Social Security decides if work is a substantial gainful activity by first looking at your income from the work. If your monthly pre-tax earnings are at or above the substantial gainful activity threshold (for 2018: $1180 if you are not blind, $1970 if you are blind) then the work is probably a substantial gainful activity.

However, there are also exceptions such as subsidies or impairment related work expenses(IRWEs) and unsuccessful work attempts which can reduce the income Social Security considers.

Another test for substantial gainful activity is the value of your work. This mostly applies if you are self-employed and may be working a 40-hour (or more) work week, but have earnings below the substantial gainful activity amounts. It also applies to service men and women in the military (Army, Navy, Air Force, Marines) going through their Med Boards / Warrior Transition Union / Warrior Transition Battalion (or similar).

If the value of your work is at least equal to the substantial gainful activity amount, Social Security may decide that you are working at a substantial gainful activity level.

Note: working without reporting earnings, working “under the table,” structuring your earnings to stay below the substantial gainful activity threshold may be considered as fraud and result in federal criminal prosecution.

If you can still do some kind of full time work, even if it pays considerably less than your usual occupation, you are probably not disabled. To qualify for Social Security disability, you have to show you cannot do some kind of full time work. Social Security does not consider that the work you may still be able to do pays you less than the work you did previously; or even if the only work you can do now is a minimum wage job.

Here are the chances of winning at each stage:

• Application – 36.3%

• Reconsideration – 8.1%

• Hearing and above – 76.1%

Click the link for more information about the chances of being approved for Social Security disability benefits at each stage.

There are 7 possible stages (6 appeals) in a Social Security disability case:

Application and initial determination. 

Request for Reconsideration. If the Social Security initial application is denied, a “reconsideration” is the first appeal. 

Request for Hearing before an Administrative Law Judge. This is where you and your representative present your case to a Social Security judge.

Appeals Council. If the Social Security judge denies the case at the hearing level, you can appeal to the Social Security Appeals Council.

U.S. District Court. The first federal appeal (the case is now out of the Social Security system).

Circuit Court of Appeals. This is the second federal appeal.

U.S. Supreme Court. Few Social Security cases go to the Supreme Court; however, it does happen.

Strictly speaking, the answer is no. Social Security benefits are not “transferred” to the surviving spouse upon the death of the disabled spouse.

However, a widow(er) may be entitled to survivor’s benefits. Keep in mind there are a number of requirements for survivor benefits including the following:

• The marriage has to have lasted at least 9 months (although there are some exceptions).

• The surviving spouse is at least 60 years old, or at least 50 years old and disabled (and the disability began within 7 years of the death of the spouse).

Generally, widow(er)’s benefits are a percentage of the deceased spouse’s benefits until full retirement age. Then, Social Security will first pay the widow(er)’s own retirement benefits. If the deceased spouse’s benefits are higher, Social Security will supplement the widow’s own Social Security benefits up to the deceased spouse’s benefit rate. In other words, a widow(er) gets the higher of his/her own retirement benefits or those on the spouse’s earnings record; but, not both.

Yes, many people qualify for both Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) at the same time. However, getting both Social Security disability and SSI does not mean more money. Well, not a lot anyway. If you qualify for both SSDI and SSI, you may receive only an extra $20 compared to what you might receive on SSI alone. Remember that Supplemental Security Income has income and asset requirements. In many cases your SSDI benefits may make you ineligible for SSI benefits. If you qualify for both, you can only get up to the maximum set by the Federal Benefit Rate ($750 in 2018).

If your Social Security Disability Insurance benefits are already higher than what you could get from SSI, you only get the Social Security Disability Insurance benefits.

Here is an example: if you are entitled to $500 from Social Security Disability Insurance (SSDI), you might also get $280 from SSI to get up to the $750 Federal Benefit Rate (plus the extra $20 from the disregard) giving you a total for $730 per month. Note: these numbers are for 2018 only.

However, if you qualify for $1,000 per month from Social Security Disability Insurance, you probably are not entitled to any additional benefits from Supplemental Security Income (since you are already receiving benefits above the Federal Benefit Rate).

Generally, it doesn’t. There is no automatic translation of a personal injury, workers’ compensation or VA impairment rating into a Social Security disability. An impairment rating is some evidence but it does not show what your limitations would be in the workplace. However, an impairment rating often comes with a report which may specify your limitations such as, “no lifting more than,” which is more helpful in Social Security disability case. It is the report rather than the rating that may be helpful.

The one exception to this is a 100% VA impairment rating. While this does not guarantee Social Security will find you disabled, Social Security often gives great deference to 100% VA rating.

Social Security provides two main benefits for people who are disabled: monthly cash benefits and health insurance (Medicare benefits directly and Medicaid eligibility through the states). Both adults and children can qualify and there is no minimum age to qualify for Social Security disability benefits.

What’s the difference between Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI)? Even though only “Social Security Disability Insurance “has “disability “in its title, both SSDI and SSI are Social Security programs for the disabled.

Social Security Disability Insurance (aka SSDI, DIB, Title 2 benefits) pays benefits based on a worker’s contribution to Social Security through payroll taxes. This means the amount paid is different in each case. SSDI can pay benefits up to 12 months prior to the date of application. After an individual is “in pay status” for 24 months (has received 24 months of back benefits – including back benefit months) he or she is eligible to receive Medicare benefits.

Supplemental Security Income (aka SSI, Title 16 benefits) pays benefits regardless of work history. Individuals with limited, or no work history, those who have not contributed sufficiently to Social Security Disability Insurance, or who have paid into alternative programs (such as teachers paying into PERA), may still be eligible to receive SSI benefits if found disabled.

However, SSI is a “program of last resort.” In addition to requiring that an individual is disabled, Social Security must determine that the individual meets income and asset requirements. Generally, SSI is available to individuals with low incomes and limited resources. A spouse’s income, inheritance, gifts, prizes, settlements, property, etc, may make an individual financially ineligible to receive SSI benefits. You can find out more about SSI income and resource limits here.

Supplemental Security Income (SSI) benefits can only be paid back to the date of application / protected filing date (SSDI benefits can paid 12 months prior to the filing date). SSI benefits come with Medicaid benefits (SSDI provides Medicare benefits).

Supplemental Security Income (SSI) benefits are generally not considered taxable, however Social Security Disability Insurance (SSDI) benefits may be taxed under some circumstances.

• 4 to 6 months from the completed Social Security disability application to the initial decision.

• 2 to 4 months from filing a Request for Reconsideration to the Reconsideration decision.

• 6 to 16 months from filing the Request for Hearing to actually having the hearing. Note: this is the HARDEST time to estimate. Wait times vary from hearing office to hearing office and from year to year.

• 45 to 90 days to get the decision after the hearing.

• Another 45 to 90 days to process benefits after a favorable (“winning”) decision.

We often tell people to prepare for a 2-year process.

How much you will get per month in Social Security Disability Insurance (SSDI) benefits depends upon your earnings and how much you have paid into Social Security through payroll taxes. This means the amount is different for every person. If you have a Social Security Statement (summary of your earnings and benefits), your estimated benefits are listed on the inner page on the left side. However, Social Security is reducing the mailing of the Social Security statement. You can check your benefits through the My Social Security portal (part of the Social Security website). My Social Security lets you get a benefit verification letter, check your benefits and earnings record, change your address and phone number and start or change direct deposit of your benefit payments.

If you are unable to use the My Social Security portal, Social Security also has benefit calculators available here to estimate Social Security Disability Insurance benefit amounts.

In 2018, the maximum Supplemental Security Income (SSI) benefit is $750 for individuals and $1,125 for couples. This changes year by year. Click here to find the current SSI amount.

The SSI benefit amount is set by the Federal Benefit Rate (FBR). However, Supplemental Security Income benefits may be reduced based on income or resources or such things as retirement or other disability benefits, VA benefits, spouse’s income and assets, inheritance, gifts, prizes, settlements, property, etc. These may reduce SSI benefits or even make an individual ineligible for SSI.

If you receive “interim assistance” (state benefits while you are waiting for Supplemental Security Income benefits), Social Security may take part of your back benefits to refund the state agency.

Before Social Security decides if you are disabled, you first have to be eligible for benefits.

• If you have not worked long enough or recently enough, you may not have enough Quarters of Coverage to qualify for Social Security Disability Insurance benefits.

•If you have too much income (spouse’s earnings, retirement, VA benefits, settlement proceeds, inheritance, etc.) or assets (land, cars, etc.), you might not be eligible for Supplemental Security Income (SSI).

Social Security disability does not provide “universal” and “continual” coverage. It is possible to be not eligible for either Social Security disability or SSI. If you do not meet the eligibility requirements for either Social Security disability or SSI, you simply may not be eligible for Social Security disability benefits. If this happens to you, it is important to check that Social Security is using accurate earnings records and has the right information about your income and assets. You can check your earnings record using the My Social Security portal.

Probably. If you do not qualify for Social Security disability, it does not mean you will not be eligible for any retirement benefits.

Social Security has separate rules for deciding if you’re disabled or even eligible to apply for Social Security disability. These do not affect your eligibility for Social Security retirement. You can be denied (or not be eligible for) Social Security disability but still get your Social Security retirement benefits when you reach retirement age.

To qualify for Social Security disability, you have to show that you are not able to work. Diagnoses or symptoms, are generally not enough to qualify. That means a condition such as epilepsy can be disabling. However, simply being diagnosed with epilepsy is not enough to qualify for Social Security disability. You have to show how your condition affects you and how that would prevent you from being able to work.

There are some conditions Social Security considers to be presumptively disabling such as blindness and the conditions listed in the Compassionate Allowance Program. Social Security can rapidly approve a case if you have one of the covered conditions.

However, in most disability cases, you have to show that your conditions keep you from being able to do full-time work to qualify for Social Security.

Yes. Military service members (disabled soldiers, Wounded Warriors) who become disabled on active military service on or after October 1, 2001 are eligible for expedited processing of their Social Security disability benefits. Social Security has tried to make the disability process as easy and as fast as possible for wounded warriors.

There is no automatic translation of a personal injury, workers’ compensation or VA impairment rating into a Social Security disability. An impairment rating is some evidence but it does not show what your limitations would be in the workplace. However an impairment rating often comes with a report which may specify your limitations such as, “no lifting more than” which is more helpful in Social Security disability case. It is the report rather than the rating that may be helpful.

The one exception to this is a 100% VA impairment rating. While this does not guarantee Social Security will find you disabled, Social Security often gives great deference to 100% VA rating.

Unless you have a specific reason to wait to start an application, consider applying as soon as possible. Many Social Security disability cases take over a year (assuming an initial denial and including the wait for a hearing). This is with the expedited processing for Wounded Warrior cases. You will probably be separated from your branch of the service before your Social Security goes in front of a judge. It often helps to get started on a Social Security disability application as soon as possible.

Because a military service member often receives full pay while waiting for their medical evaluation boards and separation from the military, it often looks to Social Security like the Wounded Warrior is still able to work because of his or earnings. This can lead to a denial of benefits. To show the earnings are a subsidy it can help to get the following:

• A letter confirming placement is a Warrior Transition Unit or Battalion.

• A letter from a superior describing all current duties and responsibilities and the earliest date for this assignment.

• If your duties include office work, provide a letter of any accommodations that make the work not competitive (e.g. less than 40 hour a week schedule, ability to leave at will, not enough work for all soldiers assigned to the office, etc).

Traumatic Brain Injury (TBI) is damage to the brain caused by an injury. TBI typically results from a violent blow to the head that causes the brain to collide with the inside of the skull.

No, there is no age limit for TBI. The TBI may occur after the age of 22 and a person may still seek guardianship under Article 17A.

Yes. Wounded soldiers can get their Social Security disability benefits while still in the military. Wounded or disabled soldiers, who have not been separated from military service, are often placed in a Warrior Transition Unit (WTU) or Warrior Transition Battalion while waiting for Medical Board evaluations. Since the soldier often receives full salary with minimal duties during this transition period, these earnings are a type of subsidy. This means soldiers in a WTU can still apply for Social Security benefits, even though their earnings may be over the substantial gainful activity threshold.

• 4 to 6 months from the completed Social Security disability application to the initial decision.

• 2 to 4 months from filing a Request for Reconsideration to the Reconsideration decision.

• 6 to 16 months from filing the Request for Hearing to actually having the hearing. Note: this is the HARDEST time to estimate. Wait times vary from hearing office to hearing office and from year to year.

• 45 to 90 days to get the decision after the hearing.

• Another 45 to 90 days to process benefits after a favorable (“winning”) decision.

We often tell people to prepare for a 2-year process.

Generally, an appropriate time to file the petition would be when the individual is around 17 ½ years old so the guardianship can be in place when the individual turns 18. However, the petition can be filed any time after the individual turns 18 years old.

An adult with a developmental disability, and an adult with a traumatic brain injury (TBI).

Developmental disabilities must begin before the person is twenty-two years of age. Disabilities can include: cerebral palsy, epilepsy, autism, dyslexia, neurological impairment, intellectual disability.

Since medical evidence of the disability is required the court will require two certifications by physicians as to the underlying condition and its manifestation; or one certification of a physician and one affidavit of a licensed psychologist as to the underlying condition and its manifestations.

Either a parent, any interested person who is over eighteen years of age, or a corporation having corporate power to act as a guardian of people with developmental disabilities may seek the appointment of a guardian in a 17-A proceeding. A non-profit corporation that is organized and existing under the laws of New York State may only seek guardianship when no family member is involved.

A non-profit corporation can seek guardianship if the disabled person is living in a residential facility and does not have a guardian. A corporation can also seek guardianship if they need to make health care decisions or handle some finances for the person with the disability.

The Guardian handles limited financial and property matters related to the person under a disability. Also, the court could authorize the guardian to make decisions to withhold or withdraw life-sustaining treatments such as artificial nutrition and hydration.

At the hearing, the Petitioner testifies as to the need for the guardianship, who they desire to be appointed as Guardian and the powers requested.  The court Evaluator testifies as to his/her findings and recommendations.  Other witnesses may also be called.  The Court typically states its conclusions at the end of the hearing in a Bench Decision.

A guardianship will last either for the lifetime of the person under guardianship or until the guardianship is discharged through Court action. If the needs of the person under guardianship change, an application can be made to modify or even dissolve the guardianship order.

No, even if the person with the disability reaches the age of majority or marries the guardianship does not end. Only a court decision can end a guardianship of a person with a disability.

No, the 17A Guardianship is only valid in New York State. This means that if the individual under the guardianship moves to a new state, the guardian will not have the authority to make decisions for his/her ward. The guardian would then need to initiate another guardianship proceeding in the new state. However, depending on the laws of the new state, it may be possible to transfer guardianship from New York without the need for another guardianship proceeding.

A Guardianship proceeding is commenced by the completion and submission of an Order to Show Cause and a Petition to the Court.  These documents set forth the details of why a Guardianship is needed for the Alleged Incapacitated Person.

Once the Judge determines that the AIP is in fact incapacitated or is a person in need of a Guardian, a proposed Order and Judgment is prepared by the Petitioner’s attorney and filed with the Court for judicial approval.  The Order and Judgment sets forth the name of the Guardian(s), the powers granted to the Guardian, and the compensation due to the Court Evaluator for his/her services which will be paid from the Incapacitated Person’s (“IP”) assets or as otherwise directed by the Court.  A signed Order and Judgment is necessary for the appointment of the Guardian.

The Guardian may be required to post and file a Bond with the Court.  The Guardian will also have to sign and file certain documents for his or her appointment, including a Consent to Act, Oath and Designation, and other Court forms.  Once all documents have been filed, the County Clerk will issue a Certified Commission to Guardian, which is the document enabling the Guardian to act.

The Court will require the Guardian to take a class, offered through the Office of Court Administration, to teach the Guardian about his/her duties and responsibilities.

The Guardian can seek compensation for services rendered as Guardian. Compensation is requested when filing the Annual Report. The Court Examiner will review the request for compensation and the Court will make an Order as to same. If the guardianship assets are low, the Court can reduce the standard compensation or deny the request. The Guardian can waive compensation.

A Guardian must apply to the Court for the authority to sell or buy real property for the incapacitated person.  The Court will review the terms of the Contract of Sale/Purchase, the Contract price and the need for the transaction.  The Court appoints an independent Certified Appraiser to certify the fair market value of the property and to determine if the Contract price is reasonable.  The Court can seek modification of a Contract or reject it.

The Guardian will have to file an Initial Report within ninety (90) days of being Commissioned, to report on the initial assets of the Guardianship and as to the IP’s well-being.  The Court appoints a Court Examiner who will review the required Guardianship accountings.

Further, the Guardian will need to file an Annual Report in the month of May, setting forth his or her acts as Guardian for the preceding year ending December 31st.  The report accounts for the Guardianship assets and the IP’s well-being.

A Petition can request authority to do Medicaid planning and asset protection.  The Petition must clearly establish the validity of the plan and that at no time will the Alleged Incapacitated Person be left without assets or Medicaid to meet the medical needs.  The Courts can authorize a Guardian to implement Asset Protection Planning, Estate Tax Planning and Medicaid Planning for an incapacitated person. The Court will base its decision on whether the plan is in the best interest of the incapacitated person and whether a reasonable person would also implement such a plan.