Applicants for Social Security disability can be represented by an attorney at every step of the process. While some applicants don’t think about representation until after their claim has been denied, applicants can maximize their opportunity for a fast and favorable outcome by involving a lawyer before the claim is even made.
Social Security Disability Programs
The Social Security Administration (SSA) administers two programs that provide benefits to disabled individuals. Those programs differ from Social Security retirement benefits that are available to everyone with a qualifying work history who reaches retirement age. The two disability programs are available only to individuals who meet the SSA’s definition of “disabled.”
Social Security Disability Insurance (SSDI) benefits are available to individuals who are both disabled and “insured.” Workers become insured when they have accumulated:
1. 20 work credits within the 10 years before they become disabled, and
2. a total of 40 work credits before they become disabled.
Workers who become disabled before the age of 31 need fewer credits to be insured by SSDI.
Workers earn a maximum of 4 credits during each tax year. A work credit is awarded for earning a designated amount of income during the year. In 2022, workers earn a work credit after they have been paid $1,510. A wage payment of $6,040 during the tax year will earn the maximum number of credits for that year.
Supplemental Security Income (SSI) benefits do not depend on a work history. While SSDI is available to any disabled individual who is “insured” because of a qualifying work history, SSI is a means-tested program. SSI benefits are only available to individuals who have limited assets.
Current SSI eligibility requirements limit benefits to individuals who have assets valued at less than $2,000 and couples with assets worth less than $3,000. Assets include cash, bank account balances, investments, land, jewelry, and most property. A few assets are not counted when determining SSI eligibility, including the individual’s home, household goods, personal effects, and one vehicle.
Social Security Definition of Disability
Both SSDI and SSI share a definition of “disability.” Only individuals who meet that definition are eligible for benefits, even if they meet different definitions that determine eligibility for veterans’ benefits, workers’ compensation benefits, or private insurance benefits.
An individual is “disabled” for the purpose of SSDI or SSI benefits if the individual has a medical condition that has lasted or is expected to last longer than a year and if that condition makes the individual incapable of engaging in substantial gainful activity.
“Substantial gainful activity” refers to the ability to earn more than a defined threshold income. In 2022, that threshold is $1,350 a month. Any person who earns or is capable of earning more than amount is not “disabled” and will not qualify for benefits.
Some medical conditions, such as certain fast-growing cancers, are presumed to make an individual incapable of engaging in substantial gainful activity. In most cases, however, the SSA must decide whether the claimant’s particular medical condition makes the claimant incapable of earning the threshold income that the SSA regards as “substantial.”
Lawyers and the Application Process
A certain percentage of people who apply for SSI are rejected because they have too many assets. A Social Security disability attorney can review the applicant’s financial situation before they apply and offer advice about how they might lawfully transfer assets to make themselves eligible for SSI benefits. Since an unlawful transfer can make an applicant ineligible for benefits for a period of 36 months, getting legal advice is an important first step in acquiring SSI eligibility.
A substantial percentage of individuals who apply for SSDI and SSI are rejected because they do not meet the SSA’s definition of “disabled.” Applicants are automatically rejected if they are earning more than the threshold income when they apply. A lawyer can help applicants understand whether their application is likely to be futile.
Most rejections are based on the applicant’s ability to earn the threshold income rather than the applicant’s actual earnings. Other rejections are based on the absence of clear evidence in medical records to establish that the applicant suffers from a physical or medical condition that would impair the ability to work. Even if an impairment makes it impossible to perform the applicant’s former job, the ability to perform any job that would pay a threshold income will disqualify an applicant from Social Security disability benefits.
A lawyer can review the medical records to determine whether evidence of a disabling condition is clear. If the applicant’s pain or a physical or mental limitation makes an applicant feel incapable of working, a lawyer might recommend that the applicant receive a more thorough evaluation, including a functional capacity evaluation, that will more clearly spotlight the reason why the applicant cannot work.
Applicants might focus on a particular condition that they regard as disabling, even if no objective evidence in the medical record supports the belief that the condition makes it impossible to work. A lawyer will review all conditions, both physical and mental, to determine whether some combination of impairments might qualify the applicant for disability benefits.
A lawyer can also determine whether an applicant’s background or condition might make the applicant unsuitable for sedentary jobs that the applicant might otherwise be able to perform. Building a record before the application is filed is critical to making a successful application for disability benefits.
When an application for benefits is rejected, the applicant can submit additional evidence with a request for reconsideration. If that request is rejected, the applicant is entitled to a hearing before an administrative law judge employed by the SSA.
Making sure the medical record is complete prior to that hearing is essential. A lawyer will take great care to assure that evidence supporting the claimant’s disability is in the record.
At the hearing, the judge may rely on testimony of a vocational expert about jobs in the economy that the claimant can perform. An effective cross-examination of that expert is often the key to winning benefits. Experienced Social Security disability attorneys can confront vocational experts with facts they overlooked and can make a strong case that the claimant is incapable of engaging in substantial gainful activity.