Public Benefits

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Am I eligible for social security benefits based on my disability?

In order to be found disabled under Social Security rules, your disability must be expected to last at least 12 months.  You must also be found disabled under a five-step analysis that Social Security applies to disability applicants. You may only be found disabled at steps 3 or 5.

Step 1: Substantial Gainful Activity (SGA)

Step 1 asks if you are engaged in substantial gainful activity.  If yes, you are not disabled.  If no, go to step 2.

What is substantial gainful activity (SGA)?

SGA: Involves significant and productive physical or mental duties and is done (or intended) for pay or profit.  20 CFR § 404.1510. Basically, if someone can work and earn a certain amount of money, then that person is no longer disabled.

With SSI benefits, any amount of money earned is going to affect the amount of benefits as well. SGA amounts increase with increases in the national average wage index.

SGA Amounts: A person who is earning more than a certain monthly amount is ordinarily considered to be engaging in SGA.  The monthly SGA amount for 2012 is $1,010 (net). (If you receive benefits because you are blind, the SGA amount is $1,690.)

At the same time, the SSA does not want to prohibit disabled people from attempting to return to work.

Trial work period:  After a person becomes eligible for disability benefits, the person may attempt to return to the work force. As an incentive, the SSA provide a trial work period in which a beneficiary may have earnings and still collect benefits.  A person may work for 9 months (in a 5 year period) and still be considered disabled.  Once the person earns over $720 (in 2012) the trial work period is triggered.

Step 2: Severe Impairment

Step 2 asks if you have a severe medically determinable impairment.  If no, you are not disabled.  If yes, go to step 3.

When is an impairment severe?

To meet this definition, you must have a severe impairment(s) that makes you unable to do your past relevant work or any other substantial gainful work that exists in the national economy.

Severe:  If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, the SSA will find that you do not have a severe impairment and are, therefore, not disabled. The SSA will not consider your age, education, and work experience.   Although that information will be relevant at a later step. However, it is possible for you to have a period of disability for a time in the past even though you do not now have a severe impairment.

Step 3: The Listings

Step 3 asks if your impairment(s) meet or equal a listing. If you meet a listing, you are disabled. If not, go to step 4.

What are the listings of impairments?

You can find the listing of impairments in the Appendix 1 to Subpart P of  20 CFR 404. The lisitings define impairments considered severe enough to prevent an individual from doing any gainful activity. The Part A listings contain medical criteria that apply to the evaluation of impairments in adults age 18 and over. Part B defines impairments and required medical criteria for children.

In order to be found disabled, you must meet or medically equal a listing.  20 CFR § 404.1526. You can also find the listings of impairments for both adults and children on the SSA website.

How do I medically equal a listing?

Medical equivalence: Your impairment is medically equivalent to a listed impairment if it is at least equal in severity and duration to the criteria of any listed impairment.

Combination of impairments: If you have a combination of impairments, no one of which meets a listing, the SSA will compare your findings with those for closely analogous listed impairments.  Then combination of impairments might be medically equivalent to a listing. In order to meet a listing, you will need to provide Social Security with copies of all of your medical records.

How do I show that I meet a listing?

You must make sure that you provide all of your medical records to the Social Security Administration so that your disability can be properly supported and evaluated. Your impairment must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques.  A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms.  20 CFR § 404.1512.

Step 4: Past Relevant Work

Step 4 asks if, given your impairment(s), you can do your past relevant work.  If yes, you are not disabled.  If no, the go to step 5.

What is past relevant work?

Past relevant work is work that you have done in the last 15 years.

Step 5: The Grids

Step 5 asks if, given your impairments, there is any work available in significant numbers that you can do.  If yes, you are not disabled.

What is the grid?

In evaluating whether or not you are disabled at step 5, the administrative law judge will refer to the “grid.” The grid is located at Appendix 2 to Subpart P of  20 CFR § 404. You can also find the grid in Appendix 2 on the SSA webiste.

The grid utilizes a number of factors to determine whether or not you are disabled at Step 5. The grid uses your residual functional capacity, age, education,  and prior work experience in order to determine whether or not you are disabled under the regulations. You will need to establish that through you physical limitations, you are unable to perform work in the national economy.  Physical ability will include your ability to stand, lift, walk, sit, push, pull, etc.  You can also testify to your subjective pain.

At the hearing, a vocational expert may be present to give his or her opinion regarding any jobs that may be available in the national economy.  See the Dictionary of Occupational Titles. Any mental impairments will take the individual outside of the grid.  The grid is not equipped to deal with mental disabilities and nonexertional impairments.  20 CFR § 404.1569a.

How do I file an appeal?

After an applicant submits the application, the SSA will first make an initial determination denying or granting benefits.  Generally, most applicants are denied at this stage.

The applicant then has 60 days (plus 5 days for mailing) to request a reconsideration of that decision.  This is another administrative review.  Generally, at this stage, the applicant will be required to attend a consultative evaluation from a doctor contracted with the SSA. You can find the Form SSA-561, Request for Reconsideration on the SSA website.

If the decision on reconsideration is still to deny benefits, the applicant has 60 days to request a hearing before an ALJ.  This hearing may be in person or by video conference. At the hearing the ALJ will evaluate your claim based on the 5 step process discussed above. You will be given the opportunity to present updated medical records and will be allowed to testify about your physical and mental limitations. The form to request the ALJ hearing may also be found on the SSA webiste.

If you are unhappy with the ALJ’s decision, he or she can request that the decision be reviewed by the SSA’s Appeals Council.  This review is simply an appellate review of the judge’s decision to determine if that decision is supported by evidence and is consistent with the law.   The opportunity to submit additional evidence is limited.

If the Appeals Council affirms the ALJ decision, the final step is to seek judicial review in Federal District Court.  A federal judge will act in an appellate capacity, reviewing the decision of the SSA to determine whether it is supported by substantial evidence and whether it is consistent with the applicable law. For more information on the SSA appeals process you can visit the SSA website.


Social Security Disability Insurance (SSDI)

If you were denied SSDI due to a finding that you are not disabled, please see Disability Claim Process.

SSDI Eligiblity

In order to be eligible for SSDI, you must have worked enough quarters to give you “insured status”.  Basically, you must have worked enough to be able to receive benefits based on your earnings record. The regulations for SSDI benefits are located at 20 CFR § 404. Your insured status is a basic factor in determining if you are entitled to old-age or disability insurance benefits or to a period of disability. It is also a basic factor in determining if dependents’ or survivors’ insurance benefits or a lump-sum death payment are payable based on your earnings record. See our Survivors' Benefits page for more information on another social security benefit. The are many different ways you can become fully insured for disability benefits purposes and the definitions are listed in the regulations. If you are neither fully nor currently insured, no benefits are payable based on your earnings.

If you are not eligible for SSDI benefits, you may still be eligible for Supplemental Security Income (SSI).

Difference between SSDI and SSI?

There are two general types of social security disability benefits:  Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI). The difference between the two types depends on the claimant's work history. The disability rules for both are the same. Also, with SSDI, the amount of assets you have does not matter, but for SSI you must not have assets over $2,000 and you must be low income.


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Supplemental Security Income (SSI)

If you were denied SSI due to a finding that you are not disabled, please see Disability Claim Process.

Eligibility

Supplemental Security Income, or SSI, is a federally funded program that makes payments to individuals with a low income who are disabled, age 65 or older, or blind. If you are a minor, your parent or guardian can file on your behalf. In order to be eligible for SSI benefits, your income must fall below a certain level. Income, for purposes of SSI eligibility, means any type of money you receive in the form of wages, other Social Security benefits, pensions, etc. Your assets must also fall below a certain amount to qualify for SSI, although, generally, the value of your home will not be counted.

Assets that may be counted include cash, bank accounts, stocks, U.S. savings bonds, land, vehicles, personal property, life insurance, and anything else that can be converted to cash and used for food and shelter.

The SSA considers individuals to be blind if they have a visual acuity of 20/200 or less in their better eye even with the use of a corrective lens, OR, have a visual field limitation in their better eye, such that the widest diameter of the visual field subtends an angle no greater than 20 degrees.

If you do not meet the definition above, you may still qualify for SSI as a disabled individual. To be found disabled for SSI eligibility purposes, you must have a medically determinable physical or mental impairment, which 1) has lasted or can be expected to last for a continuous period of at least 12 months, AND 2) results in the inability to perform any substantial gainful activity, OR 3) can be expected to result in death.

20 CFR § 404.202:
(a) You are—
(1) Aged 65 or older;
(2) Blind; or
(3) Disabled.
(b) You are a resident of the United States (§ 416.1603), and—
(1) A citizen or a national of the United States (§ 416.1610);
(2) An alien lawfully admitted for permanent residence in the United States (§ 416.1615);
(3) An alien permanently residing in the United States under color of law (§ 416.1618); or
(4) A child of armed forces personnel living overseas as described in § 416.216.
(c) You qualify based upon your income.
(d) You do not have excessive resources.
(e) You are disabled, drug addiction or alcoholism is a contributing factor material to the determination of disability (see § 416.935), and you have not previously received a total of 36 months of Social Security benefit payments when appropriate treatment was available or 36 months of SSI benefits on the basis of disability where drug addiction or alcoholism was a contributing factor material to the determination of disability.
AND
(f) You are not—
(1) Fleeing to avoid prosecution for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which you flee;
(2) Fleeing to avoid custody or confinement after conviction for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which you flee; or
(3) Violating a condition of probation or parole imposed under Federal or State law.

Income Limits

Income is anything you receive in cash or in kind that you can use to meet your needs for food and shelter – such as wages, regular gifts from family or friends, Social Security benefits and pensions.  Income also includes any money received for or in-kind payments for food and shelter. The amount of income you can receive each month and still get SSI depends partly on where you live.  See 20 CFR § 416.1100.

Some income is also not counted to determine if you qualify for SSI. For example, the following do not count:

  • The first $20 a month of most income you receive;
  • The first $65 a month you earn from working and half the amount over $65;
  • The first $60 of any irregular gifts;
  • Medical assistance – either in kind or cash used to pay for medical assistance received from a government entity;
  • Food stamps;
  • Shelter you get from private nonprofit organizations; and
  • Most home energy assistance.

Income can be counted when actually received or when set aside and available for use.

Spouse's Income

If you are married, part of your spouse’s income and resources are included when deciding whether you qualify for SSI.  If you are younger than age 18, part of your parents’ income and resources are included.  And, if the disabled person is a sponsored noncitizen, the sponsor’s income and resources may also count.  This is called deeming.

The SSA may also deem the value of in-kind support, such as the value of housing. If you are a student, some of the wages or scholarships you receive may not count. If you are disabled but work, Social Security does not count wages you use to pay for items or services that help you to work.  For example, if you need a wheelchair, the wages you use to pay for the wheelchair do not count as income when we decide whether you qualify for SSI.  If you are disabled or blind, some of the income you use (or save) for training or to buy things you need to work may not count.

Resources/Asset Limits

Resources means cash or other liquid assets or any real or personal property that an individual (or spouse, if any) owns and could convert to cash to be used for his or her support and maintenance. Resources are limited to $2,000 for an individual; $3,000 for a married couple.

Not all resources are counted, some exemptions are allowed such as the primary residence, an automobile, and household goods.  20 CFR § 416.1210. If the property cannot be liquidated, it is not a resource. Non-liquid resources - resources that cannot be converted to cash within 20 days - will be evaluated based on the equity value of the property. If an individual does have resources that put him or her over the resource limit, that person can still qualify and receive benefits if they make reasonable efforts to properly dispose of the resource.  Generally, a person must dispose of resource for fair market value in 9 months if the resource is real property and 3 months if it is personal property. Any net proceeds from the sale of the resource would then need to be used to pay any benefits received pending the sale of the resource.

The SSA can look back 24 months to determine if an applicant transferred property for less than fair market value. For example, if you own property that is not your primary residence and decide to give the property to your brother so you can qualify for SSI, the SSA will look back at that transaction to determine if you disposed of the property for less than fair market value. If the transaction occurred within the 24 months before you applied for benefits, you will be charged with the difference between the compensation actually received and the actual value of the property as a resource and potentially ineligible for benefits for a period of time.

Past Use of Drugs or Alcohol

The ALJs often misinterpret the limitation on drug and alcohol use as listed in (e) above.  The drug addiction or alcoholism must have been a “contributing” factor “material” to the determination of disability. It is generally not enough that the person used drugs or alcohol during the period they are claiming they were disabled. The question is whether or not the person would still be disabled without the drug or alcohol abuse.  This leads to a but for test: but for the drugs or alcohol use would the person be disabled – if yes, then the SSA cannot find the claimant ineligible due to drug and alcohol abuse.

Fleeing Felon

Under this provision, see (f)(2) above, the SSA was terminating benefits of SSI recipients simply for having an outstanding warrant. A new settlement agreement in a case called Martinez v. Astrue challenges this practice. Now, the SSA must actually show the person was “fleeing” to avoid prosecution and not simply have an active warrant in order to terminate benefits. If you were denied or terminated from receiving social security benefits because of the "fleeing felon" provision, please feel free to contact Nevada Legal Services as we may be able to assist you in recovering benefits improperly denied. Whether or not you may be eligible for repayment of suspended benefits based on the fleeing felon provision depends on when your benefits were initially suspended and may depend on when you appealed that suspension.


Social Security Retirement Benefits

Eligibility

Workers who have worked in "covered employment" for a sufficient number of years are eligible for retirement benefits when they retire at age 62. This usually means you must have worked a total of at least ten years of work at a nongovernmental job.

The Social Security Administration (SSA) keeps a database of your earnings record and work credits, tracking both through your Social Security number. You can see this information on your Social Security Statement, which is available to everyone age 25 and over. The Social Security Statement also gives you an estimate of the benefits you'll receive at retirement age, which can play an important role in your financial planning.

Up until 2011, the SSA mailed annual Social Security Statements to everyone age 25 and over (who was not already receiving Social Security benefits). Now you need to go online to get a copy of your statement or view it online, unless you are over age 60 and not yet collecting Social Security benefits. Go to www.ssa.gov/mystatement/ and open an account with Social Security to view your statement.

When Can I Start Collecting?

The Social Security Administration used to consider 65 to be full retirement age for the retirement benefit. Benefits amounts were calculated on the assumption that most workers will stop working full time and will claim retirement benefits when they reach age 65.

Now that people are generally living longer, Social Security's rules about what is considered full retirement age have changed. Age 65 is still considered full retirement age for anyone born before 1938. But full retirement age gradually increases from age 65 to 67 for people born in 1938 or later. For anyone born after 1960, the full retirement age is 67.

You may choose to begin receiving retirement benefits at any time after you reach age 62. However, there are incentives to wait until your "full retirement age," which is between 65 and 67, depending on the year of your birth. The amount of your benefits will be permanently reduced by a certain percentage if you begin claiming them before you reach full retirement age.

Retirement Age for Those Born After 1937

1938 65 years, 2 months
1939 65 years, 4 months
1940 65 years, 6 months
1941 65 years, 8 months
1942 65 years, 10 months
1943 – 1954 66 years
1955 66 years, 2 months
1957 66 years, 6 months
1958 66 years, 8 months
1959 66 years, 10 months
1960 or later 67 years

Benefit Amount Calculation

The amount of benefits to which you are entitled under any Social Security program is not related to financial need (except for SSI -- Supplemental Security Income), but is based on the income you have earned through years of working, through jobs and self-employment. Social Security keeps a record of these earnings over your working lifetime and pays benefits based on the average amount earned.

The calculations are complicated. The amount of any benefit is determined by a formula based on the average of your yearly reported earnings since you began working.


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Social Security Survivors Benefits

In addition to disability and retirment benefits, widows, widowers, children and dependent parents may all be eligible for survivors benefits from the Social Security Administration (SSA). Click on the links below for more information regarding survivors benefits.

What are the requirements to receive survivors benefits?

The requirements to receive survivor benefits depend on your relationship to the eligible worker.

Widows/Widowers
May receive:

  • Full benefits at retirement age (65 if born 1945-1956 and 67 if born after 1962).
  • Reduced benefits at 50 if disabled
  • Benefits at any age if he or she is caring for your child who is receiving Social Security benefits and is under 16 or disabled

If a widow or widower remarries before age 60, he or she generally cannot receive survivor benefits based on the former spouse’s record.

Children
May receive benefits if they are:

  • Unmarried
  • Under 18 (or 19 and attending elementary or secondary school full time)

If your child was disabled before turning 22 and remain disabled, they may receive survivor benefits at any time.

Dependent Parents

May receive benefits if they:

  • Are over 62 years of age
  • Received at least half of their support from the eligible worker

Can divorced spouses receive benefits?

Yes.  Under certain circumstances, divorced spouses may receive survivor benefits if the divorced spouse meets certain requirements.

  • The marriage must have lasted at least 10 years
  • The divorced spouse is at least 60 (or at least 50 and disabled)
  • These rules do not apply if the divorced spouse is caring for the eligible worker’s child who is 16 or under or disabled and the child is the divorced spouse’s natural or adopted child.

Will working affect my benefits?

Work will not affect your benefits if you are at full retirement age.  If you are not yet at full retirement age, your benefits may be reduced if your earnings exceed earnings limits.  The limits can be found here.

How much will I receive?

The benefit amount is based on the earnings of the person who died. The SSA uses the deceased worker’s basic benefit amount and calculates what percentage survivors are entitled to receive. The percentage depends on the survivors’ ages and relationship to the worker. If the person who died was receiving reduced benefits, your survivor’s benefit is based on that amount. Here are the most typical situations:

  • A widow or widower, at full retirement age or older, generally receives 100 percent of the worker’s basic benefit amount;
  • A widow or widower, age 60 or older, but under full retirement age, receives about 71-99 percent of the worker’s basic benefit amount; or
  • A widow or widower, any age, with a child younger than age 16, receives 75 percent of the worker’s benefit amount.
  • Children receive 75 percent of the worker’s benefit amount.

For more information, visit the SSA website regarding Survivors Benefits.

Can more than one person receive benefits from the deceased worker?

Yes but there is a maximum amount of survivors benefits that can be distributed from any one worker's benefits. The amount of benefits that can be distributed varies but is generally capped at 150-180% of the deceased worker's benefit amount. Whether or not you are entitled to benefits also depends on the number of other beneficiaries entitled to benefits from the deceased worker and their relationship to the deceased. These rules can be complicated. Please see contact the SSA for more information.

What if I disagree with a decision made by Social Security?

You have a right to appeal a decision you disagree with.  You have 60 days from the date of the letter to send a written request for an appeal.  The appeals process is generally the same as the process for disability benefits. For more information, see our page regarding Social Security Disability Benefits. You have a right to appoint a representative to help you with the appeals process.

NOTE: The information contained on this page is for general background information only. If you have a legal question, it is best to consult with an attorney.