Frequently Asked Questions
Q: Do I have to be disabled a year before I file for Social Security Disability Benefits?
A: No! If you have been disabled for a year or there is an expectation you will be disabled for a year, you should begin the application process. Social Security requires that you are either disabled for a year or have the expectation of being disabled for a year. I emphasize this because every now and then a client comes to my office who has waited a year to file for his Social Security Disability benefits. Unfortunately, such a client has inadvertently lost precious time having his disability claim processed, and meanwhile this individual has often depleted his savings or invaded his retirement savings to make ends meet. Processing a disability application may take anywhere from three months to two years, if there is even the possibility that you will be disabled from work for a 12-month period, you should strongly consider beginning the application process. You may always withdraw your application with no harm done if your health improves.
Q: Can I lose Social Security Disability benefits if I wait too long to file a disability application?
A: Absolutely! You should definitely contact your local Social Security Office to file an application if you have been unable to work for 12 months or more. If you wait more than 16 months to file your application, you risk losing benefits. This is because a Social Security Disability application will only allow you to receive benefits for up to 12 months immediately before the month your application is filed. There is a statutory five month waiting period after disability has been established where you cannot receive benefits; therefore, technically you will not begin to lose disability benefits unless you wait more than 16 months. Since a Social Security Application will cover only one year of past benefits, if you wait beyond the 16 month guideline for filing, earlier benefits to which you are entitled may be lost. Many personal injury attorneys are aware of this limitation and will advise you accordingly. Nonetheless, if you are out of work due to a motor vehicle accident or another injury and have not filed, you should consider filing a disability application.
Q: Can I receive Social Security Disability benefits and Workers' Compensation benefits at the same time?
A: Certainly. You should investigate whether you may be eligible for Social Security Disability benefits while you are out on Workers’ Compensation, not only to receive money entitled to you, but also to protect your earning record for retirement benefits. There may be some reduction in your monthly disability benefits called a Social Security Offset. In the late seventies Social Security Administration determined that some lower income workers received more money than they had earned working when they received both Social Security Disability and Workers’ Compensation. In response the Social Security Administration created the Workers’ Compensation Offset formula that provides that the sum of your Workers’ Compensation benefits and your monthly Social Security Disability benefits cannot exceed 80% of your former highest income. Since for many workers, their compensation benefits are far lower than their highest wages, any reduction in their Social Security benefits is small or nonexistent. I would like to caution individuals receiving Workers’ Compensation to carefully examine any offer from the insurance carrier of a lump sum settlement. First, lump sum settlements may be structured to avoid reducing your Social Security Disability benefits. Secondly, if you are thinking of settling your claim, make sure you are aware of whether or not the insurance carrier will continue to pay your medical costs. Many injuries to the neck, back and other joints can be a lifetime, chronic condition, and you need to be informed whether you will receive continued medical coverage.
Q: Once I begin receiving disability benefits may I return to work?
A: I have included this question because many individuals feel they are too young to retire and they anticipate returning to work. An individual may be disabled one year and a day and receive what is called a closed period of disability which means their medical condition has improved to the point they can return to work. If you are disabled from your job more than a year, you should consider filing under the Social Security Act where you may be entitled to this money. In fact, the Social Security Administration encourages people to return to work in several ways. The primary incentive is called trial work period. During this time he may receive both Social Security Disability Benefits as well as his wages. The most important feature of this trial work period is that if the individual finds he is unable to return to full time employment or his substantial gainful activity due to his original disability, he may continue on the benefits without interruption. However, it is always advisable to inform Social Security Disability of your return to work and to document such communications to your local Social Security office.
Q: When should I contact a Social Security attorney?
A: I would advise contacting an attorney at the time of your disability application. It may be crucial at the onset of your application process that an attorney be allowed to help you and your physician focus and amass medical symptoms and objective evidence that an Administrative Law Judge will consider relevant to decide your claim. The most important part of your disability claim is the Hearing Record which includes statements and treating notes from your treating physicians, hospital records, and your diagnostic tests and studies. Having said that, many clients benefit from learning what symptoms and limitation are important to their disability claim. Disabled people often spend much of their energy just trying to get comfortable. Understandably, clients are often not prepared to describe with the required specificity, exactly how their symptoms and pain prevent them from performing work activities. I often find that they have not informed their physicians of limitations and symptoms crucial to their disability determination. Obviously, if they do not inform their physicians of their pain and limitations it will not appear in the physician’s treatment notes and treatment notes from your doctor. These consistent complaints of pain and limitation can be a powerful support for your claim of disability. Furthermore, physicians are often receptive to authorizing diagnostic testing or to making referrals to specialists. This additional evidence often makes the difference in establishing you are disabled according to Social Security’s rules and criteria. When your hearing date approaches, an attorney will review your Disability Hearing File and discuss its contents with you. During this important review your attorney will make sure that no essential medical documentation is missing. Your attorney may again contact your treating doctor(s) for written clarification of the severity of your condition and limitation to present to the judge. Your attorney will also meet with you prior to the hearing to again focus on what issues the Administrative Law Judge will be considering, and to assist you in expressing to the Hearing Judge the severity of relevant symptoms and limitations.
Q: How much will an Attorney charge for representing me?
A: Please be aware that no attorney can collect a fee for his or her services until you receive a favorable determination, and generally all Social Security Disability attorneys are allowed to charge you the same fee for representing you in your disability claim through the hearing level. The amount of money an attorney is allowed to charge is set forth in the Social Security Act section 406(b) which provides that when a decision maker renders a favorable decision the decision maker may allow as part of his decision a representatives fee not in excess of 25% of past due benefits and not to exceed the sum of $5,300. Past due benefits should not be confused with the monthly benefits you begin to receive after your favorable determination. Past due benefits are the benefits that have accumulated from the time you prove you are disabled until you receive a favorable determination.
Q: What are the steps involved in filing for Social Security Disability?
A: If you have become too ill or injured to work, you'll first need to get medical care and carefully document your medical condition. When the timing is appropriate, you'll be able to file an application with the Social Security Office. You may file by mail, by phone, or in person. Once you apply, your application will be sent to Disability Determination Services (DDS). DDS will determine whether you qualify for Social Security Disability benefits based on your medical data and your application. You may be asked to undergo additional examination if necessary. Once DDS makes a decision, you will receive a written notice. If you have been denied, the notice will state the reason.
Q: Why should I work with a Social Security attorney?
A: Applying for Social Security disability can be one of the most complex and confusing legal processes to undertake. If your application has already been denied once, you only have 60 days to take action once you receive your initial notice. If you fail to appeal, you could lose all your rights. While the application and appeal processes are new and confusing to you, our office handles matters like these every day. We can guide you through every step of the process, stay on top of pending documentation, make sure everything is properly assembled and filled out, and represent you if necessary. Whether you are applying for the first time or trying to make an appeal, working with an experienced Social Security attorney can make all the difference.
Q: What happens if my Social Security Disability claim is denied?
A: If you have filed a claim and it was denied, you can request an appeal within 60 days. There are multiple ways to appeal depending on your circumstances. You can request an appeal online if your claim has been denied for medical or non-medical reasons; if you disagree with the reconsideration, you may request a hearing online. You may request an Appeals Council review of a dismissal or decision made by an administrative law judge, and finally a Federal Court review if you disagree with the Appeals Council decision. An experienced Social Security Disability attorney can help navigate you through the next steps.
Contact Us to Schedule a Consultation with Our Social Security & Disability Lawyer
If you have any other questions, please feel free to contact our law firm in Buffalo, NY to schedule a consultation. No matter your needs, our Social Security and disability lawyer is here to fight for the compensation that you deserve. Our law firm is proud to assist clients across Buffalo, West Seneca, Tonawanda, Orchard Park, Niagara Falls, Lancaster, Cheektowaga, Amherst, Clarence, Hamburg, NY and the surrounding areas.