SOCIAL SECURITY DISABILITY

 

Social Security Disability is a program managed by the Federal Government. It provides income to people who cannot work because they have physical and/or mental conditions that are expected to last at least one year or result in death and which prevent a person from doing any type of work activity.

It is not a short-term or temporary program. Being found disabled by other programs such as long-term or short-term disability or Veterans benefits does notautomatically qualify a person for Social Security Disability.

Applying for disability can be a long process, and it is not unusual for someone to be denied benefits early in the process. It is important to get experienced help with your Social Security claim.

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Gail Barnett

I have over 10 years of experience helping people with their Social Security Disability claims. I can provide assistance at any stage in the process, including applying for benefits, filing appeals, and representing people at hearings. I have also represented people at both Federal district court and the 8th Circuit Court of Appeals.

If you have questions about disability, and/or need help with your claim, I am here to assist you.

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Frequently Asked Questions:

Gail L. Barnett – Attorney

Gail graduated from Drake University in 1987 with a Bachelor’s Degree. Following graduation, she was hired at an inpatient treatment center for substance abuse. From there, she moved into the field of the mental health, spending 5 years employed at a residential care facility for adults with chronic mental illness, before transitioning to case management. As a case manager, she met clients with psychiatric difficulties in their own homes, helped them with activities of daily living, and located services allowing them to remain in the community.

Gail returned to Drake University and in 2003 obtained her Juris Doctor with high honors. She was employed as an attorney at the Legal Aid Society of Story County, where she first started practicing disability law. In December 2005, she was hired by Schott Mauss & Associates (at that time Max Schott & Associates), where she specialized in claims for Social Security Disability and Supplemental Security Income.

After 12 years, Gail joined Abendroth Russell Barnett Law Firm.  She is a partner and shareholder.

Gail continues to practice in the area of Social Security disability. She also assists clients with guardianships and conservatorships, Medicaid planning, special needs trusts, and other areas related to disability.

Karen Walker – Legal Assistant

Karen graduated from Iowa State University in 1994 with a degree in Family Services.  She continued to work in the area of child welfare initially in residential facilities such as the House of Mercy and at Youth Emergency Services & Shelter (YESS). From there, she was employed with the Department of Human Services through the Polk County De-categorization Program assisting children with services as they entered adulthood. She later was employed as a supervisor at Visiting Nurse Services, coordinating in-home care to families in need. In 2010, Karen was hired at Schott Mauss & Associates as a legal assistant, utilizing her experience in the field of social work to assist client’s with applications for Social Security Disability. In 2017, she joined Abendroth Russell Barnett Law Firm where she continues to help clients with their Social Security benefits.

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When filing for benefits, most people apply for Supplemental Security Income (also known as SSI or Title XVI) or Social Security Disability Insurance (also known as SSDI or Title II)

Social Security Disability Insurance are benefits based on an “insured status” because of a person’s work history and the amount paid into Social Security.

Supplemental Security Income is for people who have not worked long enough or haven’t earned enough in recent years to qualify for SSDI. It is also for people who have not worked.

A person might be eligible for both SSI and SSDI. An individual only eligible for a small amount of SSDI may also be qualified for some SSI.

For the most part, the application and appeal process is the same for all types of benefits. With the exception of children’s cases, the definition of disability is the same. There may be additional requirements for the type of disability. For example, to be eligible for SSI, factors such as household income and assets are considered. For Disabled Widow/Widower Benefits, there are certain age requirements.

I can answer questions about what type of disability you may be eligible for.

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Social Security uses a 5-step evaluation to determine if you are eligible for disability. If you are found disabled at a step, Social Security does not go to the next step.

Step 1:  Are you working above the Substantial Gainful Activity (SGA) level?

SGA is an amount set by the Federal government and may change from year to year. If you are working and your gross earnings average more than the SGA limit each month, you are not disabled. If your gross earnings are under the SGA limit, Social Security goes to Step 2.

Step 2:  Do you have a severe medical impairment that has or is expected to last 12 continuous months or result in death?

A condition – or combination of conditions – is considered severe if it significantly limits your ability to perform basic work activities and has lasted a year, is expected to last a year, or will result in death. While certain injuries may temporarily prevent a person from working, to be eligible for disability, Social Security will look at whether the condition will last 12 months. The condition must be recognized and diagnosed by a medical provider. If you are found to have a severe impairment, Social Security goes to Step 3.

Step 3:  Does your medical condition meet or equal the severity of a Listing?

The “listing of impairments” are very specific mental conditions and symptoms. There are 14 different categories. It is usually very difficult to meet a listing; but if the answer is “yes,” you should be eligible for disability. If not, Social Security goes to Step 4.

Step 4:  Can you do any of your Past Relevant Work?

Social Security will consider your medical conditions and make a decision about how these conditions limit you. Next, Social Security will look at the work you have performed over the past 15 years and decide if you earned enough and worked long enough to learn how to do the job. If you are able to do your Past Relevant Work as either you worked or how it is  normally performed, you are not disabled. If you cannot, Social Security goes to Step 5.

Step 5:    Are you able to do any other work?

At this step, Social Security also considers such factors as your age, education level, and the amount of jobs existing in the national economy. Factors such as whether there is a job close to where you live, and/or how much the job pays is not a factor.

This is just a brief overview of how Social Security decides if you are disabled.  If there are questions about any of these steps, please contact me.

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Social Security periodically reviews a case to decide if you are still disabled. This is called a Continuing Disability Review (CDR). As part of the review, Social Security obtains updated medical records. If more information is needed, a consultative examination may be scheduled. If you no longer meet the criteria for disability, your benefits will end. Because Social Security benefits are based on a medical condition, it is important to continue to see your doctors and follow treatment recommendations even after being awarded benefits.

Social Security disability benefits automatically change to retirement benefits when you attain full retirement age. The law does not allow a person to receive both retirement and disability benefits on one earnings record at the same time.

With benefits for children, Social Security will re-evaluate the case when the child turns 18 years of age. The standards to qualify for disability for children differs from those for adults. Receiving benefits as a child does not automatically qualify someone for adult disability.

If Social Security decides that you are no longer disabled you have the right to appeal. I can help.

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Because the process for applying for disability benefits can take a long time, it is important that you file an application as soon as you feel you meet the criteria. Once you develop a medical condition, you do not need to wait a full year before applying. A severe medical condition must have lasted or is expectedto last a year. If your condition is not expected to improve within 12 months, you should apply.

If you are currently involved in a worker’s compensation claim or other types of litigation, you do not need to wait until after those claims are settled. You can file for both at the same time. Delaying an application can have an effect on what type of benefits you are entitled to receive, as well as how far back Social Security can pay benefits.

If you have questions about starting the application process, I can help.

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Applying for disability can be a lengthy process. After filing an initial application, Social Security will request your medical records. You will be required to fill out some forms and if needed, Social Security will send you out for examinations. It can take on average 3-6 months to get a decision depending on how quickly your medical records are received and reviewed.

Following an initial denial, it is very important to file an appeal, or Request for Reconsideration. At this stage, Social Security will update your information, have it reviewed by their doctors and make a new decision. This can take an additional 3-6 months. If you are denied, you will want to appeal the decision rather than file a new application. Filing a new application starts the whole process over and creates more delays.

Once a case is denied at Reconsideration, the next step is to request a hearing in front of an administrative law judge. The current wait for a hearing in West Des Moines Iowa is 12-18 months from the date the hearing is requested, not the date you first applied.

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Social Security allows you to work while you are applying for disability. There are different rules for work activity performed prior to being approved for disability and work performed after being approved.  Any work performed while you have an active Social Security claim pending falls in one of two categories.

Substantial Gainful Activity

If you are employed and earning more than the SGA amount on a regular basis, you are considered gainfully employed and your claim will be denied. If you are self-employed, there are different rules. Even if you are working part time, if your earnings take you over the amount, you are not disabled.

 

Below Substantial Gainful Activity

If you regularly earn below the SGA income limit per month, your claim will continue to be processed. However Social Security will consider the type of work being performed (for example, babysitting for friends and family can be considered employment) and the number of hours you work per week.

Social Security does look at special considerations, such as whether you receive special accommodations or if you are involved in a job coaching/sheltered workshop program.

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Sometimes health problems force people to retire early. If you are close to age 62, it can be worthwhile to apply for both early retirement and disability. If you take early retirement once you reach the age of 62, your retirement benefit amount will be permanently reduced. The amount of reduction depends on the number of months you have until full retirement age.

If you are awarded Social Security disability benefits, and were found disabled prior to age 62, your benefit amount will be equal to what you were entitled to receive once you reached full retirement age. This is due to what is referred to as a “disability freeze.” This means that your lack of income due to disability is not counted when calculating your Social Security retirement payment from your earnings record. Once you reach full retirement age, your benefits simply convert to retirement benefits. If you were already collecting early retirement before Social Security says you were disabled, you would be paid more than the monthly early retirement but less than full retirement rate.

Medical insurance is also a factor to consider. Early retirement does not entitle you to Medicare. You still need to wait until you are age 65; however, if you are found disabled, you will be entitled to Medicare after 24 months of disability payments.

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With a finding of disability, the Social Security Administration will decide what date your disability began. This is not necessarily the date your medical conditions began, but the date your conditions were disabling under Social Security Rules.

If you are approved for disability benefits, there is a 5-month waiting period before your benefits actually begin. For example, if you are found disabled as of January, your benefits will begin in June.

An individual awarded disability is entitled to Medicare (Part A and B). There may be a waiting period. You must be found disabled for two years before receiving Medicare.  With the 5-month waiting period, you would not be eligible for benefits for 29 months. It is 29 months from the date you are found disabled, not the date you receive the notice awarding benefits. This means that some of the months waiting for a decision can count towards the two-year waiting period.

If you are approved for Supplemental Security Income, you will be eligible for Medicaid. There is no two-year wait for Medicaid, but you will need to contact the Iowa Department of Human Services to apply.

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The Social Security Administration periodically reviews cases to determine if you are still disabled. This is called a Continuing Disability Review (CDR). Most cases are reviewed every 3 years, but the length of time between a finding of disability and a CDR depends on such factors as they type of medical condition, and whether improvement is expected. Because the standards for disability is different for children and adults, a review will also be done when a child turns age 18.

The Social Security will send you forms to describe your medical condition, and ask for a list of your medical providers. They will request medical records. If there aren’t enough records to make a decision, you might be asked to attend a Consultative Examination.

Social Security will look at whether there has been medical improvement of your impairments, if the improvement is related to your ability to work, and if you are now able to engage in substantial gainful work activity. Factors that will be considered include work or school activity; a showing of improvement documented in your medical records, failure to follow doctor-recommended treatment or failure to continue receiving medical treatment, and substance abuse.

If Social Security determines that you are no longer disabled, you will receive a notice that your benefits will end. You will also receive notice of your right to appeal. While you have 60 days to appeal, if you want your benefits to continue while appealing your case, you must file your appeal within 10 days from the date of the notice terminating your benefits.

If you received notice that your Social Security benefits will end because of improvement, you may want to talk to an experienced attorney.

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There are two major errors people can make when filing for disability. The first is lack of medical treatment. When you apply for Social Security benefits, you are stating that you are unable to work because of a medical condition. When reviewing a case for eligibility, the Social Security Administration cannot go by statements alone. There has to be supporting medical documentation.

If your medical conditions are severe enough to prevent you from working, you should be seeking medical care. The medical treatment must be current. Being diagnosed with a condition when you are younger does not provide the Social Security Administration any information about your current level of functioning; it just informs the Agency that you have a medical condition. Likewise, a doctor telling you that you are disabled is not a guarantee that you will get benefits. Many doctors are not aware of the legal standards for disability, and even if the doctors are aware, their opinions alone do not prove a disabling condition. There must be supporting documentation.

A second common mistake is in the appeal process. When someone is denied benefits, they have the option to either appeal a decision, or re-apply for benefits. It is better to appeal a decision. Re-applying just starts the entire process over. This can affect not only the type of benefits, but the amount of possible back payment. If a person decides to appeal for benefits, there is a limited amount of time to file an appeal. Missing the deadline can result in the need to file a whole new application for benefits.

An experienced attorney can explain both the requirements of filing for disability and the processes involved.

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If you have questions about whether to apply for retirement or disability benefits, you owe it to yourself to contact an experienced attorney who can answer all your questions. Contact us using the form below to get started.

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