Social Security Disability

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Frequently Asked Questions

Will receiving Social Security disability benefits affect my current COBRA health insurance plan?

While you are receiving disability benefits, COBRA may be extended 11 months (from 18 months to 29 months.)

Will my attorney keep our conversations confidential?

Yes. Absolutely. A lawyer can never repeat what has been said to him or her. That's true whether or not we agree to represent you. Being confidential is one of the most important aspects of being a lawyer. You never have to worry about your personal business getting out.

Will I get more money if my disability gets worse? Should I reapply at that time?

Since the disability payment amount is based on your average income before you became disabled, your benefit amount does not change if your disability gets worse. If you were initially denied any benefits, however, you should reapply or appeal your claim if you're still within the time limit.

Will going back to work for one day wreck my social security claim?

It won't usually, but you should talk to an attorney to understand the rules and laws regarding how much you could work while your claim is pending.

Who decides how much money I'll be able to get in Social Security benefits? Is it based on my type of disability?

The more money you earned when you were able to work -- and have paid into the Social Security system -- the more money you can receive in benefits.

What will happen to my SSD claim if I die before it is settled?

In some situations your surviving spouse or children may be able to continue your claim and be eligible for benefits.

What items are considered Impairment Related Work Expenses (IRWE)?

Examples include medical devices (wheelchair, crutches, cane), bandages and certain transportation costs that you need in order to work. IRWE is deducted from your monthly income when determining disability or SSI payment amounts, if the costs are not reimbursed to you by your insurance.

What is SSI?

Supplemental Security Income gives benefits to adults (and their children) who earn a limited income. Adults without disabilities who are older than 65 can also receive this benefit if the financial guidelines are met.

What is Residual Functional Capacity?

RFC is an assessment of a person's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis -- for 8 hours a day, for 5 days a week (or an equivalent work schedule).

What is Martindale Hubbell?

Martindale Hubbell is the oldest, and certainly the most reliable, rating and evaluation service for lawyers. Not all lawyers have been ranked by Martindale Hubbell as it is a purely voluntary process.

Once a lawyer agrees to be evaluated by Martindale Hubbell they have no further input into it.Martindale goes to other lawyers, judges, deputy commissioners, etc., and asks them to anonymously rank the attorney's ethics and skill level.

If a lawyer is given a "V" for "Very High Ethics" Martindale goes on to give an "A, B, or C" ranking for skill level as follows:

CV Peer Review Rating — The CV certification mark is a good first rating for lawyers and a definitive statement of their above-average ability and unquestionable ethics. This is the maximum rating a lawyer can receive who has been admitted to the bar from 3-4 years.

BV Peer Review Rating — The BV certification mark is an excellent rating for a lawyer with more experience. This is the maximum rating a lawyer can receive who has been admitted to the bar from 5-9 years.

AV Peer Review Rating — An AV certification mark is a significant rating accomplishment - a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence. A lawyer must be admitted to the bar for 10 years or more to receive an AV® rating.

What is date last insured (DLI)?

The date last insured is the cut-off date that the applicant must convince the Social Security Administration that they are disabled. A finding of disability after the DLI will not allow you to receive disability benefits because you are no longer insured after the DLI. Remember, the SSD program is an insurance program. FICA taxes are like the premiums. The general rule is that you must have worked five out of the last ten years to keep your insured status.

What is Board Certification? Does it matter?

All lawyers in North Carolina are required to graduate from law school (usually taking three years to do so), pass a half-day ethics examination, and then pass a two-day bar examination. After that you can call yourself a lawyer and practice any area of the law you like. Ethically we're required to seek assistance in a case if we aren't really competent in that area of the law. Less than 2% of all attorneys who attempt a much more difficult examination, the Board Certification exams, actually pass.

To even sit for the exam a lawyer must have several years of experience in the particular field, have undergone extensive additional training in that area of the law, have many of their cases reviewed to see how well they performed, undergo a secret evaluation by your competitors, and then take a one-day examination. Then, and only then, may you use the term "specialist" to describe yourself.

Does this matter for your case? There are good attorneys who have not taken the specialization exam. However when you have the opportunity to go with a firm with multiple specialists ora firm with none it may not make sense to go with the firm which has no specialists.

What is an expert and will I need one to help with the presentation of my case?

It is the Plaintiff's responsibility to bring forward enough evidence to satisfy a jury or judge who is deciding issues in the case. As part of that process, we sometimes hire experts to give opinions about particular issues. An expert is an independent evaluator with advanced technical knowledge who reviews the facts and circumstances of your case to formulate opinions to assist the judge and jury with decisions in the case. Examples can include doctors (who can state an opinion on the cause of an injury, physical pain and limitations), economists (who analyze lost wages, benefits and vocational prospects when you're out of work or if there's a death) and accident reconstructionists (who re-create a construction or traffic accident). Often, the expert will be counted on to provide his or her opinion in a deposition or at trial or both.

The decision to hire an expert is on a case by case basis. Sometimes an expert can assist with case preparation because their expertise can help the attorney ask for the right documents in discovery, etc. Additionally, experts are used to support a part of your case that is being challenged by the defendant (or that you expect will be challenged). In a medical malpractice case, you cannot even begin to pursue your case without an expert opinion from another doctor that malpractice has occurred. One thing is almost always certain, you can expect to be challenged by the defendant on one or more issues in your case. When that occurs, it is important to have as much support for your position as possible. And when that contested issue involves technical knowledge beyond your knowledge, you will need experienced, trained professionals to help explain your position. Defendants hire experts and so should you, when recommended by your attorney.

Your attorney will find experts who are best equipped to help with your case and who are familiar with industry standards. Unfortunately, expert opinions are not free. Nor will experts often work on a "contingency basis" as many plaintiff's attorneys do. Experts typically bill by the hour and expect to be paid regardless of the outcome of your case. In addition, they often require up-front retainers. So, the decision to hire an expert is one that should be considered early on in your case. Although things happen in the course of litigation that may change a decision about hiring experts, usually attorneys will know that they need certain experts prior to filing a lawsuit.

Therefore, if you cannot afford to hire an expert you may be limited in your ability to pursue your case. This is one of those "costs" that make litigating cases difficult for most people. Be sure to have an open discussion about experts, expert fees and all costs at the beginning of your case. And if you don't understand the need for an expert in your case or who will pay for it, ask your attorney.

What is a SSI Redetermination?

The SSA periodically re-checks claims for people who are receiving benefits, so they will review all factors of your situation. They will ask you to confirm the household income, living arrangements and other items. Most redeterminations are scheduled with the recipients although some will occur unannounced.

What is a medical expert?

He or she may testify at the hearing and can help you in presenting evidence. It is important that the medical expert is qualified in the medical field of your impairment.

What is a disability?

The Social Security Administration defines a disability as "the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." It includes a definition for impairments which "must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques."

What is a bench decision?

This is when the administrative law judge verbally approves the claim at a hearing. He or she will follow up with a short written decision in just a few days. This is most often the case in clear-cut cases where there's no doubt that the claim should be granted. This is good for everyone because it speeds up the process by cutting out lengthy time with the court and added paperwork.

What happens to my Disability benefits when I reach retirement age?

The money you receive based on your disability will roll over into retirement benefits even though you are not able to work. This will keep your payments at a steady level and they won't be reduced.

What happens at a hearing?

The hearing is the best chance for a claimant to explain his/her reasons for seeking disability benefits. The claimant will almost always testify with the help of his or her representation. An Administrative Law Judge presides, and there are sometimes expert witnesses like vocational or medical experts. The hearing can take fifteen minutes to over an hour. These hearings are rarely combative or intense, but it is not uncommon for people to disagree. A successful hearing is when the claimant is able to present his or her best evidence and persuasively present his or her best case.

What does my old jobs skill level have to do with me being approved for disability?

There are three general skill levels of jobs: unskilled, semi-skilled, and skilled. The Social Security Administration uses these levels to help determine if the applicant is capable of performing other jobs. Unskilled workers can do simple duties that need little or no judgment and can be learned at work, usually in less than 30 days. Semi-skilled employees need some skills but these skills are not complex. Skilled workers use judgment to make on-the-job decisions concerning people, facts, figures or ideas. If your past work involved skilled work, the Social Security Administration is more likely to determine you have skills that will allow you to perform less physically demanding work.

What does a Vocational Expert do for my case and who hires one?

A Vocational Expert (VE) works independently at a SSD hearing and gives his or her impartial expert opinion concerning how an individual's impairments -- both physical and mental -- affect his/her ability to work. The VE understands the structure and function of work and has experience in job placement or in counseling adults who are handicapped or disabled. Evaluation skills are needed when determining a person's capabilities and limitations and the VE must also understand labor market conditions and trends. The VE is generally called to give input on a case when needed by the Administrative Law Judge (ALJ).

What determines if I have a hearing with a judge face to face or if it's a video hearing where we're not even in the same room or town?

That is decided by the court based on the distance between you and the courthouse and/or the number of scheduled hearings

What can you tell me about an Unsuccessful Work Attempt (UWA)?

The Social Security Administration looks at an applicant’s ability to earn wages in the analysis of whether or not someone is disabled. If someone earns money for a short time and ultimately cannot continue because of a physical or mental impairment, he or she may still be entitled to disability benefits during this time period. If you were forced to reduce your hours or if you had to spend money out of pocket to compensate for a disability at work (such as pay for your own special chair), but you were unable to continue performing the work, then the Administration may categorize this work activity as an UWA. An UWA is generally six months or less.

What can you tell me about an Expedited Reinstatement (EXR)?

If you return to work and eventually lose your disability benefits because you are making above the income threshold, but later have a medical condition that is the same or is related to your original disabling impairment, you may be eligible for reinstatement without a new application.

In order to qualify for reinstatement, your previous enrollment in Disability benefits must have ended because your earned income was above the SGA ($1,000/month gross in 2010) and you must not be performing SGA in the month you ask for EXR nor be able to work at SGA because of your medical condition. Your request for EXR must be within five years from the date your Disability benefits were terminated.

What can I expect at my first meeting with my attorney?

He or she will want to get the basics from you -- name, address, phone, how you heard about their law firm, your birthdate, your Social Security Number, your work history and if you have a spouse and/or children. You will also be asked to provide details about your medical issues including names and locations of doctors who are treating you and how often you see each one. You should bring any doctor's notes, hospitalization or treatment center information and medication details. You should also take with you any paperwork you have received from the SSA denying your claim for Social Security Disability benefits.

 

What can I do on-line on my computer with Social Security Disability?

You can apply for benefits, including the Adult Disability and Work History Report. You can also check the status of your Disability application. You can update your benefit contact information, including your phone and address. And you can request a review of your case if it is denied by starting an Internet Appeal. Go here for more details.

What are ratings and do they matter?

It's a question that can never be answered too often!

When your doctor is getting ready to release you from his care he will probably assign a "rating" to you. Formally this is a "permanent partial impairment rating.". It measures the amount of loss of use you have to your injured body part.

For example, let's say you cut off your right thumb. You would have a complete loss, 100% loss, of your thumb. But if your thumb got mashed in a machine it is probably still there. It just doesn't bend, grip, or have normal sensation to pressure or temperature. So, depending on how bad off you are the doctor will say your use of that thumb is impaired to a certain extent. The Industrial commission has a guide which the doctor can look to for guidance.

Say the doctor assigns a 50% rating to your thumb... What does that mean? The Workers Compensation Act assigns a value to many of your body parts. The thumb is valued at 75 weeks of your compensation rate (the amount you get paid weekly while out of work). So a 50% rating would get you 37.5 weeks of benefits at your compensation rate.

When you think about settling your case the rating is just one of several things to consider. Whether or not you have returned to your old job is probably a greater factor in this -- and we would be happy to sit down and lay out some different scenarios for you.

Tell me about long term disability benefits and what that means to me since I may get Social Security Disability benefits.

Many individuals are eligible for long-term disability benefits as part of an employment plan. Often the long-term disability payment will be reduced if you receive SSD, but you will need to read your information for details. Most policies require that you file for SSD as you pursue or receive long-term disability plan benefits. If an individual receives long-term disability benefits and then gets approved for SSD, the long-term disability carrier will likely want to be paid for their overpayment (arguing the retro SSD payments no longer entitled the claimant to full long-term disability payments).

Since it often takes so long to get approved for Disability benefits, can I get them paid out to me retroactively once I'm approved?

You can file for benefits that include up to one year before you were eventually approved -- assuming you were disabled and met all SSA requirements during that time.

Should I apply for Social Security Disability benefits if I have never been able to work?

If you are an adult who has become disabled but never entered the work force, you are not eligible for SSD. But because you are unable to earn an income or if your income is quite low, you may be able to get SSI assistance for you and your family (see the SSI FAQ).

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Meet the founders

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Todd Oxner is a founder and managing partner who is known statewide for his success in handling workers' compensation claims. He is a Board-Certified Specialist in Workers' Compensation. Learn more
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Chip Permar is one of the founding and managing partners of Oxner + Permar, PLLC. He is a Board-Certified Specialist in Workers' Compensation. Learn more
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