September, 2005

SOCIAL SECURITY DISABILITY – PART II

DISABILITY DEFINED

Last month we talked about the appeal process for social security disability benefits.  Now that you are in front of the Administrative Law Judge, let’s see what s/he looks at to see if you truly are “disabled.”  Like I said, unless you have a vested interest in this stuff, the material is a little dry.  Skip to the bottom for a lawyer joke.

To be disabled under the Social Security Act, you must be unable “to engage in any gainful employment because of a physical or mental impairment, which is expected to last for at least a year, or result in your death.”  There is an evaluation process. 

The first issue is whether you engaged in any “substantial gainful activity” since the onset of your disability.   If you did, good news.  You’re not disabled and you can go get a job.  What is “substantial gainful activity?”  It can be a few hours a week at the office or even a volunteer position where you never got paid.  It’s the activity that counts, not the amount you earn.  And the threshold is pretty low, so take it easy.

If you didn’t work during the appeal process, the ALJ will next consider the severity of your impairment.  Just having an illness is not enough.  There is Irritable Bowel Syndrome and then there is Irritable Bowel Syndrome.  You have to have a bad case of whatever it is you have in order to make it to the next step. 

If your impairment is severe, the ALJ must next determine if it Meets or Equals one of the Impairments found in the regulations.  The SSA has a list of illnesses and injuries.  If yours matches one on the list, you Meet the Listing.  If yours isn’t on the list but you can show it’s as bad as one that is, you Equal the Listing.  Remember, just saying your impairment is the same as the one in their book is not enough.  You will need objective medical records to back it up.  So it would be a good idea to look at the Listings and your own medical records before you file to see where you stand.

Don’t give up hope if your impairment does not Meet or Equal one of the Listings.  You may still be eligible under a second test called the Vocational Allowance.  First, the judge determines what tasks you can do.  How much can you lift, how long can you stand, can you bend over, etc.   Then the judge looks at your age, education and work experience. If there aren’t enough jobs in your area for someone with your past resume and your current impairments, then you win your case.

If the judge finds you are disabled you will most likely get about 2 years worth of retroactive benefits.  This can average about $20,000.  Ka-ching for you and your lawyer who gets 25% of that.

Speaking of lawyers:  One was walking to his car in a dark lot when two thugs jumped out and mugged him.  They tackled him and wrestled him to the ground, landing punches all over while they picked his pockets.  But the lawyer fought back hard and escaped the struggle and ran away.  Panting heavily, the muggers got back to their hideout and counted the money.  “Not too bad,” said the first thug. “We have $40 between us.”  “I told you we shouldn’t have knocked over a lawyer,” said the second.  “We had $200 when we started.”