The Law Office of Michael A. Bell in Lewiston, Maine

FREQUENTLY ASKED SOCIAL SECURITY DISABILITY QUESTIONS

1. Are there any different non-medical requirements between Social Security Disability Insurance [SSD] and Supplemental Security Income—Disability [SSI]?

Yes. The differences have nothing to do with medical disability. The same medical definition applies to both, as we explain below. Instead, the differences have to do with the non-medical requirements for each program. One program is an insurance program for disabled workers, the other a safety net for disabled persons who meet poverty guidelines.

SSD is the insurance program. Like any insurance, it requires a premium to have coverage. For SSD, the premiums are paid when taxes are paid on earnings, from wage labor or self-employment income from work. If you are medically disabled and have worked outside the home for pay, SSD is the program that can cover you, alone or in combination with SSI.

SSI is not an insurance program, but the safety net. It provides benefits if you are medically disabled, even if you are not insured under SSD, so long as you have no financial resources.

2. Is the medical definition of disability for Social Security Disability Insurance [SSD] and Supplemental Security Income—Disability [SSI] the same or different?

The medical definition is the same. You have to prove that you have a physical or mental condition, or both, that prevents your past work, and any other work in the national economy, on a sustained forty hour basis, for a period of twelve months or more, or if less than that, that has ended in death, or is likely to end in death.

3. How do you prove the medical condition?

The medical definition is the same. You have to prove that you have a physical or mental condition, or both, that prevents your past work, and any other work in the national economy, on a sustained basis, for a period of twelve months or more, or if less than that, that has ended in death, or is likely to end in death.

4. What is past work?

It is the work that you have done in the past, your customary work. Social Security calls it your “past relevant work” [PRW], and if you have worked a long time, will look back at the last fifteen years of your work.

5. What if I haven’t worked for fifteen years, or at all?

Social Security will look back at however many years of work you have performed, generally no more than fifteen years. If you have never worked, you will still need to prove the next requirement, but you cannot have a case for SSD, only SSI.

6. What does it mean to have to prove that I can’t do any other work in the national economy?

Just what it says: besides showing you can’t do your customary PRW, you have to also show you cannot work at any other job on a full-time forty hour basis in the USA. That basically means you have to show that you cannot do entry level, unskilled, minimum wage work.

7. How is work defined?

Work is defined as “substantial gainful activity.” It is substantial in that you do it, or can do it, for forty hours. It is gainful in that you do this activity for pay, wages that you get from others, or your own self-employment earnings. The work is not supported by subsidy, nor is it volunteer work.

8. What is work on a sustained basis?

It means full-time, forty hours a week, work. If your medical conditions prevent full-time work, and allow part-time work, you may still have a case—or not, depending on the individual circumstances of the case and your earnings.

9. What is the twelve month duration requirement?

It means that the medical condition is not a temporary setback, but is of a lengthy duration, a problem that significantly interrupts your ability to work.

10. Does the duration requirement mean I should wait for twelve months before applying?

NO! In Maine it can easily take well more than a year to have your case heard before a judge after you first apply. You should apply as soon as you reasonably believe, from your medical professional, that you are likely to be unable to work for a year. While you are pursuing your case for Social Security disability, you will meanwhile be doing everything possible to get better and get back to work if you can. By the time your case is ready, you will either be recovered and back at work, and can seek to be paid for a "closed period" of past disability that has fortunately ended or withdraw your case, or you will be ready to have your case finally decided, without having to wait an extra year. If your condition is so serious that your doctor tells you that in less than twelve months it will cause your death, the system is supposed to work quickly.

11. What is the benefit under each program, and who gets paid?

For SSD, there is a benefit for the individual claimant, called the Primary Insurance Amount [PIA], and for children dependent on the claimant who are under 19 years old, and still in high school. The benefit, like most insurance benefits, depends on how much the worker earned over how long a period of time. The more that was earned over the longest period of time, the higher the tax “premium” was paid, so the higher the benefit. Social Security keeps records of your yearly earnings. If the disabled worker has not paid into the program sufficiently to be insured or covered, it will say that there are insufficient earnings to have disability coverage. The SSD benefit is fixed by the tax premiums paid in. Other non-employment earnings or household income do not lower the SSD benefit. Only workers' compensation or Maine State Disability benefits can lower an SSD benefit.

For SSI, the benefit only goes to the individual claimant. It is calculated based on what other household earnings, income and assets exist. It is not a fixed benefit. In Maine, if one fully qualifies for SSI, the maximum benefit for 2015 and 2016 is $733. It can never be more than that, but can be less, depending on other income and/or assets in the household.

12. What about health insurance?

There are two kinds. With SSD comes Medicare. To be eligible for it, you have to first have been paid for 24 months of SSD. You get Medicare only through the federal Social Security system. Medicare covers only the Social Security claimant, not the claimant's spouse or any dependent children.

With SSI comes Medicaid, which in Maine is known as MaineCare. To be eligible, you get it automatically if you qualify for SSI, with the first month of payment of benefits. However, you can also get MaineCare through the State of Maine, if you prove to it that you financially and medically qualify.

13. What's my disability onset date?

It is the date that you are claiming to be the date that your medical condition[s] made you disabled, by preventing you from working on a full-time 40 hour a week basis. It is commonly referred to as your alleged onset date of disability [AOD]. It is often but by no means always the date you last worked [DLW] at all. After all, despite their medical problems, many times people keep trying to stay at work, and the work hours may go down gradually over time. The system is not supposed to penalize people for their unsuccessful work attempts [UWAs].

14. How far back can benefits be paid?

For SSD, you can be paid no more than a year before an application. Also, from the AOD, you do not get paid benefits for the first five full months, the “five month waiting period.” That means that the only way anyone is paid a year before an application is that they were found disabled 17 months earlier.

For SSI, you can be paid no earlier than the month after an application. That means that no matter how long ago anyone is found to have been disabled, SSI benefits don't start until after the application.

15. What does it mean to be denied benefits for “not being insured” or “exceeding the resource limit?”

It means that Social Security is not deciding anything about your medical situation. Instead it is saying you do not meet the non-medical requirements for the two primary programs.

If you get a Notice referencing SSD and “not being insured,” it means that there were insufficient tax “premium” payments into the system to have coverage for SSD. You may still be covered for Social Security Retirement benefits though.

If you get a Notice referencing SSI and “exceeding the resource limit,” it means that there was too much income or financial resources in the household to meet the poverty guidelines for SSI.

Either way, every medical professional in the world could certify that you are medically disabled, but it does not matter. You are not going to qualify for SSD or SSI.

16. What's the difference between the Social Security Administration and Disability Determination Services [DDS]?

You file your application paperwork with Social Security, and it determines whether the non-medical requirements for SSD and SSI are met. However, the medical determination of disability is made by a state agency that contracts with Social Security, called DDS. At the present time, there is no face to face decision-making by DDS on whether or not you are medically disabled.

17. Why would DDS send me to a medical or psychological exam? Should I go?

The primary reason a special consultative evaluation [CE] is set up, at government expense, is because the person assessing your claim for medical disability is not convinced there is sufficient evidence to prove your claim. The scheduling is a red flag that you may not have, on your own, sufficient objective medical evidence to prove your case. It is also an opportunity to begin fixing that problem. You should take advantage of that opportunity, go, and be very complete in describing your medical history and problems. In fact, if you do not go without a very good reason given to DDS in advance of the scheduled CE, your claim can be denied for failure to cooperate.

On the other hand, you get what you pay for. Generally, your own medical professional will do a better and more complete analysis of your condition, over many visits, than will a one-time examiner who you will never see again, who may not be complete and who may hurry you, and who is being paid by the government. All things being equal, if you end up relying exclusively on CE evidence, your case is weaker than if you have your own medical evidence.

18. What is the best way to be successful?

That's easy: treat all your medical conditions by seeking all appropriate medical care. By doing so, you both improve your health and document your conditions. Also, if felt to be appropriate by your medical provider, seek the services of the Maine Vocational Rehabilitation [VR] office (additional information on VR is found at under a separate tab). Additionally, if your medical professionals give you a limited capacity to try and work, do your best within those medical limitations.

If you follow that advice, all outcomes of that are “wins.” Treating all conditions is the best way to improved health. If, after trying every reasonable medical treatment and vocational option, you still cannot work, you have done the best you could to demonstrate your work ethic, and to prove that despite leaving no stone unturned, you cannot work and are entitled to benefits.

19. Do I need representation?

Every case is different. We will tell you if we think representation is important for you. The choice, of course, is entirely yours. Generally speaking, the further you go in the process, the more complex it becomes. Certainly, it becomes more necessary at the administrative law judge [ALJ] hearing, especially as the system is requiring more documentation at an earlier stage and specific deadlines in which to submit additional evidence. No matter what, you can discuss matters with us, without cost or obligation, to make the best choice for you.

20.What about deadlines?

There are always 60 days to request going to the next step, of Reconsideration or Requesting an ALJ Hearing or an Appeals Council review, unless you already are receiving disability benefits and your case is being reviewed. The forms are available on-line, at our office, or at the local Social Security office. When contacting us, it is very important to have your most recent decisions available, so that we can make sure no deadlines are missed.

21. What's the fee?

The fee is 25% of the past-due or retroactive benefits won for you and any dependents, if successful, zero otherwise. Any fee must be approved by Social Security, and can be questioned by either you or your representative. By law, Social Security is supposed to withhold toward the fee 25% of the retroactive benefits due the claimant and the family if there is an attorney representative involved.

22. Any other costs?

Yes, for out of pocket expenses, primarily medical reports, as well as photocopying, faxing, and travel. These are due, win or lose, and a deposit or payment plan is set up for such costs. This is the only cost to pursue a case that we decide has merit. However, the lack of funds should never be a reason not to contact us.

23. How long does it take?

Our goal is to win as early in the process and as quickly as possible. Unfortunately, many cases that should be decided in a person's favor early on must wait until a hearing before an ALJ, presently the third step in the process. From a hearing request to a hearing takes up to a year, and to get to that step takes six to twelve months.