David Throesch Law Firm
COMMON QUESTIONS ASKED ABOUT SOCIAL SECURITY DISABILITY
CAUTION: The answers to these questions are generally what the answer to the question would be. The particular facts in your case could possibly change that answer.
1. Do I have to be totally disabled in order to get social security disability benefits?
No, most people that draw social security disability benefits could work occasionally. In order to be disabled you must prove that you are unable to engage in substantial gainful employment and that your condition has or is expected to last at least one year or is expected to result in death. If an individual is unable to engage in substantial gainful employment, they are considered disabled.
2. What does Social Security consider to be substantial gainful employment?
Social Security will look at the number of hours worked per week as well as how much money you make per week. While Social Security lists a maximum amount you can make a month, which goes up each year, it will be the particular Administrative Law Judge's decision if you are gainfully employed. If you need to work part time, we suggest that you not work over 20 hours per week and not earn over $500.00 to $600.00 per month. While this is below the maximum amount that Social Security technically says you can make, it is a more realistic estimate considering the fact that different Administrative Law Judges will look at your temporary work differently.
3. What are the different types of Social Security benefits that I might qualify for?
There are several different types of benefits you might qualify for. The most common ones are discussed below:
A. Disability Insurance Benefits (DIB)
DIB benefits are paid to individuals who have worked at least five out of the past ten years before they became "disabled". There are some exceptions to this for younger individuals who become disabled before they have an opportunity to work 5 full years. Once the individual has worked five out of the past ten years and has reported that income to Social Security they become what Social Security calls "insured". To get DIB benefits the individual must prove that they are both insured and disabled at the time their disability began. It doesn't matter how much money or other assets the individual has for DIB benefits. It is an insurance program. If the individuals are insured and disabled, they get benefits.
B. Children of DIB claimants
If the individual gets DIB benefits and has children, those children may qualify for benefits through their parents. They don't have to be disabled. The benefit is usually one half of the parent's benefits divided among the children, subject to certain family limits.
C. Supplemental Security Income (SSI)
SSI is a welfare program. Individuals who have not worked enough for DIB benefits or who even though they get DIB benefits are still under certain income and asset guidelines, can qualify for SSI. An SSI claimant must prove "disability" in the same manner as a DIB claimant. They then must meet certain income and asset guidelines. Children of pure SSI claimants do not draw benefits through their parent.
D. SSI Children Benefits
If an individual is "disabled" before age 18 and their parents (or whoever is taking care of them) income and assets meet certain guidelines they may qualify for SSI benefits in their own right. The definition of disability in a child's case is different than in an adult's case. In child cases it must be proven that the child has a severe impairment or a combination of impairments that causes a marked degree of limitation in at least two areas.
E. Disabled Widow or Widower's benefits
Disabled individuals who are over 50 years of age and were married to an insured deceased spouse for a certain number of years, may be able to draw benefits based on the deceased spouse's earnings record.
4. How do I apply for Social Security Disability benefits?
Fill out the required information and a packet will be mailed to you. You are under no obligation to hire the David Throesch Law Firm just because a packet is mailed to you. Visa-versa, the David Throesch Law Firm is under no obligation to accept your case until the contracts are signed by the attorneys. You will be notified immediately if your case is accepted. If your case is accepted, the David Throesch Law Firm will set up a telephone interview for you with Social Security and your application can be taken by phone.
5. What does it cost me to hire the David Throesch Law Firm to represent me in my Social Security case?
The attorney's fee to you will never be more than 25% of your back pay plus 25% of any family member's back pay benefits they might be able to draw through your disability. We do not charge a fee unless we win but we do charge out of pocket expenses win or lose. We don't need any money up front and we will try to limit the out of pocket expenses to $100.00 or less.
6. Do I have to be turned down by Social Security before I can hire an attorney?
No, in fact the attorney's fee will probably be the same whether you hire the attorney at the beginning of your case or near the end of it. It's based on a 25% contingency fee so you might as well have the benefit of your attorney's advice at the start of your case.
7. Can an attorney or non-attorney representative get me my benefits faster?
Unfortunately, the answer is basically no. The only thing the attorney or non-attorney representative can do to speed things up is to get the information Social Security requests to them as soon as possible. In rare cases where the claimant is about to lose their home or they are expected to die before they can get to a hearing. An attorney can write Social Security and ask that the case be expedited along with a detailed explanation as to why it should be granted. In my experience even when Social Security grants such a request it still takes a long time to get the hearing.
8. Why does it take so long to get disability?
There are several reasons for this. Social Security will tell you that they have thousands of cases to process and it takes a long time to fully develop and decide the cases. I also have a personal opinion, which is that Social Security is hoping you will go back to work. Making a current decision about who is disabled and who just wants a check is often not an easy one for Social Security. The delay helps Social Security separate the truly disabled from the fakers. Unfortunately a lot of truly disabled individuals suffer from this.
9. Can I draw partial disability benefits?
No, if you are unable to engage in substantial gainful employment and that condition lasts or is expected to last at least one year, or is expected to result in death you will be considered "disabled". There is no partial disability with Social Security.
10. What if I am disabled for a period of time and then am able to go back to work? Can I get disability for the time I was off work?
You may be entitled to a "closed period of disability" if you were off work for one full year or more. It is suggested that before you go back to work that you contact the David Throesch Law firm for advice.
11. Can I work part time while applying for disability? Will it hurt my case?
This is not an easy question to answer. The legal answer is that you are entitled to part time work if it is not considered "substantial gainful employment". You should understand that you will probably be going before an administrative law judge who must determine if you are capable of performing substantial gainful employment. Different judges look at this differently. If you are earning close to the maximum amount allowed per month many judges feel you could probably do a little more and make "substantial gainful employment". This is a personal decision you will have to make. My advice is not to work over 20 hours a week and don't make over $500.00 or $600.00 a month. Even at this level there will be a few judges that may use your part time employment against you, but those judges would probably find some other reason to rule against you had you not worked part time.
12. Can I see if I can go back to work while applying for, or receiving disability benefits?
Yes, but you will receive no benefits unless you have been off work for at least one full year. Social Security has what is called a "trial work period". This only applies to Social Security Insurance benefits (DIB). It does not apply to Supplemental Security Income (SSI) cases. There is currently some dispute over how long you have to be off work before you can enter into a "trial work period". It was generally considered that you have to be off work at least 5 months but some recent Federal Court Cases indicate that you may have to be off work for at least one full year. It is our recommendation that you not attempt a "trial work period" until after you have been off for one full year. If the trial work period is successful you may still be entitled to benefits for the year or more that you were off work, this is called a "closed work period". If the trial work period is considered to be successful and you accumulate nine months you cannot continue to draw disability or if you are applying for disability you will not be able to get benefits from when the "trial work period" began. If you are unable to complete the "trial work period" this may be considered and "unsuccessful work attempt". An unsuccessful work attempt is not supposed to affect you applying or drawing benefits, but keep in mind that the administrative law judge will look at your work history as a whole including the unsuccessful work attempt in making a decision on if you are capable of "substantial gainful employment".
13. Can I draw unemployment and apply for disability benefits?
When you apply for unemployment you have to sign a statement that you are capable and ready to work. When you apply for Social Security disability you sign a statement saying that you are not capable of substantial gainful employment. These two statements are not the opposite of each other. Social Security says that substantial gainful employment is currently $900.00 or more a month so when you say you can work for unemployment purposes you could be saying you can work, but not to the extent that you would make over $900.00 a month. Different administrative Law Judges look at this differently. A few ignore it, some will not give you Social Security benefits while you are getting unemployment benefits. A few will use it to try and say you are untruthful and if you lied about being able to work on the unemployment applications then you're probably lying about being disabled. If you should get unemployment benefits while applying for disability it is a personal decision that you will need to decide. If you were to look at it purely from the standpoint of your Social Security case the answer would be no, don't apply for unemployment benefits. Unfortunately, we all live in the real world and most claimants are in desperate need of money in order to live while applying for benefits. It may hurt your Social Security case but the unemployment benefit is a sure thing at a time you may desperately need the money. You should not delay applying for benefits, as you need to take advantage of the unemployment benefits while your claim is being processed.
14. How can I survive while applying for Social Security benefits?
There is no easy answer to this question. Obtaining Social Security Disability benefits can often take months if not years. In many claims it may be up to two years before all other appeals are exhausted and the claimant gets a hearing before the administrative law judge. With this in mind, claimants should plan ahead financially. Avoid any major purchases, and try restricting debt. Consider any possible loans, home equity or otherwise to help get through this period. Claimants should also consider applying for other benefits that they might be eligible for such as food stamps, rental assistance, etc. Your local church or friends and family might also be able to help. Contact the local DDS office. Please note that it is unethical for an attorney to advance money to his client. We are not allowed to do this and you should be leery of any attorney who might agree to do this. You can also review the questions concerning part time work, or a "trial work period" if necessary.
15. Can I draw workmen's compensation benefits while I apply for Social Security Disability?
Yes, you don't need to wait until those benefits cease before applying. There may be some offset of benefits. If you are represented by a workmen's compensation lawyer you should advise him that you are applying for disability benefits and your workmen's compensation settlement should be structured in such a way that it will have as little an impact on your social security benefits as possible.
16. What can I do to help my attorney win my case?
- The most important thing you can do to help your attorney is to keep him informed of any new addresses or phone numbers you might have. Your attorney cannot help you if he cannot find you.
- Go to the doctor and take all medications the doctor prescribes as you are directed to do. Our clients are given a list of doctors who take charity cases. The list also provides various ways to obtain prescription medication at reduced cost. If you are unable to go to the doctor or obtain medication you should document the efforts you have made to do so and be able to explain those efforts to the judge. It will be very difficult to win your case if you are not seeing a doctor and taking your medications as prescribed.
- If you have seizures, panic attacks, etc, document these and keep a record of when you have them and the severity of them.
- Let your attorney know of any new medical records that he might need to get to prove your disability.
- Fill out any disability or work reports requested by Social Security. Don't put down "its in my records" even if you have previously filled out a similar report. Do your best to get the dates correct.
- Prepare for your hearing with your attorney and if at all possible in person. The attorney can give you pointers as to how best explain things to the judge so it will be presented in the best light possible. The attorney needs to meet with you in order to advise you how to better testify. If it is not possible to meet with the attorney, your case can be prepared by phone, but it is not as effective as it would be if prepared in person.
- Be honest about what is wrong with you. There are two difficult clients, the He-man client and the hypochondriac. The He-man doesn't want to even go to a doctor and doesn't want to even admit that anything is wrong with him. The hypochondriac believes that everything is wrong with him from his head to his feet. Please remember, the judge hears hundreds of cases a year. It is very likely that he has several cases of individuals much worse off than you are. You should not complain or exaggerate your condition, nor should you hide it from the judge. You should be as honest and factual as possible. If you exaggerate your case the judge will have a tendency not to believe anything you say.
- If you are taking illegal drugs or drink excessive alcohol, STOP! If the judge determines that the illegal drug use or excessive alcohol use is material to your disability, you will not win your case. If you are smoking you need to strongly consider stopping especially if your disability involves difficulty breathing. I have also had numerous clients that testify they cannot afford their prescription medication yet purchase and smoke two to three packs of cigarettes per day.
- If you want to go back to work consult your attorney first and see what impact it will have on your case.
- Understand that your attorney doesn't control the Social Security administration. Your attorney does not get paid until you do. Don't take your frustration with the Social Security Administration out on your attorney. I know it is hard to resist doing this. Please remember that your attorney is only human. While the attorney is going to do his best for all clients. It is much more productive if the attorney can get along with, and communicate with his client. Also understand that it takes a long time to get a hearing. While it is your right to switch attorneys, you should give your attorney a chance to win your case. Don't take your frustrations with the system out on the attorney. Remember he isn't going to get paid unless you do.
17. Can I switch attorneys? If I do switch attorneys, is my contract with my old attorney still valid?
Yes, you can switch attorneys. If you switch attorneys your old attorney has the right to petition Social Security for a fee for the work he did while he represented you. Social Security however, will never pay your attorneys more than one fourth of your back pay no matter how many attorneys you had.
18. Why do some people get disability when they are not disabled and I keep getting turned down?
One possibility is that someone is much more disabled than they appear. They may be in great physical shape but have a mental disability, or have a physical disability that is not visible. The other fact is that life is sometimes not fair. Some claimants draw easier judges than others. While they all follow the same law many interpret the facts of your case differently. It is often necessary to keep appealing your case until you draw someone that interprets the facts of your case favorably.
19. Why have I not heard from my attorney?
You should understand that there are long periods of time in Social Security cases when you are waiting on Social Security to make a decision in your case. If Social Security has all the current medical records and all the reports and forms filled out in your case, there is nothing left to do until you get Social Security's next decision. In other words there is nothing your attorney can tell you because he is waiting just like you are.
20. Why do I usually have to talk to someone on my attorney's staff when I call rather than the attorney himself?
I'm going to answer this question with a question. Would you rather have a successful attorney who is busy preparing for and going to and winning the Social Security hearings, or would you rather have one whose business is so slow that he is always available to take your call? Our staff is trained to handle the day-to-day matters concerning your case such as filling out the forms and getting medical records. If the attorney did this on a daily basis he would not have time to prepare for and go to social security hearings, Rest assured when it comes time for your hearing you will be given personalized service from your attorney rather than the attorney talking on the phone to clients whose hearing may be a year or more away.
21. If my doctor says I'm disabled will I win my case?
Not necessarily. It is up to Social Security to determine if you are disabled, not your doctor. A doctor's opinion that you're disabled is very helpful in your case if the doctor will base that opinion on objective tests or observations that he has made that led him to that opinion.
22. VA says I'm disabled; why is Social Security denying my claim?
Social Security Disability and VA disability are two totally different programs with different rules and definitions of disability. It has been our experience that the fact that the claimant is getting VA benefits has a different effect on different judges. I have had judges comment that the fact the claimant is getting VA benefits leads them to believe they are probably disabled for Social Security. I have had other judges who think that if the claimant is getting a VA check then to also give them a Social Security check is double dipping and the fact the claimant is getting a check makes it harder to win the disability case. If the judge is one that this issue has come up in previous hearings with your attorney, then your attorney can advise you which way the judge goes on this issue. This is another reason it is important to have an attorney represent you.
23. I have a lot of things wrong with me, do I have to pick the worst one and go with that problem in trying to get my disability?
No. Social Security will look at the combination of all physical and mental problems you might have in determining if you are disabled. In preparing with your attorney, he should be able to help you with how much emphasis each illness should have in your hearing.
24. Will I get disability if my Senator or House of Representatives member writes Social Security for me?
Not necessarily. While it probably doesn't hurt your case to have your Congressional Representative write Social Security, it will not have an impact on the decision. On rare occasions, I have seen a letter from a Congressman to Social Security cause them to act more quickly on a stalled case, but this is unusual.
25. How can I get medical insurance?
If you win your disability case you will eventually get some type of medical insurance with Medicare or Medicaid. You can apply for Medicaid at your local Medicaid office and possibly get Medicaid without having a Social Security case.
26. What is the difference between Medicare and Medicaid?
Medicare is a medical insurance that you qualify for if you win a disability insurance claim (DIB). It doesn't matter how rich you are, if you win the DIB claim, you will qualify for Medicare. To get Medicare benefits, you have to have been considered disabled by Social Security for two years. This is not the date of the decision but rather two years from when the onset of your disability began as determined by Social Security. Medicare pays doctors a higher rate than Medicaid does but it generally doesn't pay for prescription drugs. Most SSI claimants will receive medicaid. You have to meet certain income and asset guidelines, as well as be disabled to get Medicaid. Some doctors are reluctant to take Medicaid because it doesn't pay them enough.
27. Is it possible to get both Medicare and Medicaid?
Yes. If you win your DIB claim and get Medicare, yet income and assets are still low enough to qualify for SSI, you can also get Medicaid.
28. Will Social Security send me out for a medical exam?
Possibly, that is a decision that Social Security and/or the Administrative Law Judge makes on a case-by-case basis. Do not rely on the Social Security exam to provide the medical information necessary to win your case. The exams are often brief and the doctor may or may not be on your side. I have had some medical doctors who have watch out the window to see how the clients are walking and will put this in their medical reports to justify a denial of your claim. Also, if you are taking a medical exam beware that the tests have built into them ways to determine if you are faking. Just answer the questions honestly. I have one Administrative Law Judge that says that most claimants are not nearly as disabled as they say they are, but are more disabled than they really think they are. If Social Security and/or the Administrative Law Judge schedules you an appointment, be sure and go to that appointment and be on time. Failure to attend the appointment will almost always result in your case being denied. If you have to go to a doctor that's over 75 miles away one way, Social Security will reimburse you the cost of transportation. This also applies if you have to go more than 75 miles one way from your home for the hearing.
29. Will the David Throesch Law Firm take child disability cases?
Yes, unlike many law firms, the David Throesch Law Firm will take child disability cases if they have merit.
30. What determines if a child is disabled?
Child cases are different than adult cases. In adult cases you have to prove the claimant is not capable of gainful employment so a different standard of disability has to be used. In child cases it must be proven that the child has a severe impairment or a combination of impairments that causes a marked degree of limitation in at least two degrees. If the child's only disability is ADHD and he is successful on medication and making good grades in school, that child will almost always be turned down for disability benefits.
31. If I am eligible for early retirement but am also disabled, should I just apply for early retirement and forget about applying for Social Security disability?
No, You should do both. If you are successful in your disability claim you will probably receive some back pay that you wouldn't have otherwise received. You may also be able to obtain medical coverage that you would not have received, and your monthly benefit will be higher than if you merely got early retirement.
32. Why should I hire an attorney to represent me? Why not a "non-attorney" who may have previously worked for Social Security?
Many non-attorneys will do a good job representing you as long as you are at the Social Security Administration level. But if your case needs to be appealed to Federal Court a non-attorney cannot do this. It's true, you can start your case over in many bases but if you only do that you will lose a substantial amount of back pay because when you start your case over it's doubtful that Social Security will award you benefits in the new case that go back past your previous denial. If you appeal your case to Federal Court and win, you will be awarded benefits based on the original disability onset date. We sometimes appeal cases to the Federal District court and start them over if possible. This gives the claimant two opportunities to win their case and possibly get all the back pay.
33. Will the David Throesch Law Firm take Referrals from other attorneys?
Yes, because of our excellent winning rate many attorneys will refer their Social Security disability cases to us. We are willing to take such referrals and either start your case from the beginning or take over your case regardless of what stage it is in. If you would like to have us represent you in your Social Security case please have your attorney contact us.