The Advocate Archives > Trauma and Disability Part I: Social Security Disability Insurance

Trauma and Disability Part I: Social Security Disability Insurance

By Janet Thoman, Attorney at Law

Most victims of trauma recover from their injuries and are able to return to work and their pre-trauma activities. For some, however, traumatic injury leaves them unable to work in the long-term or permanently. Those in this position may have coverage with private short term/long term disability insurance with their employer or self-contracted. All others will have to unscramble state and federal benefit programs. This article focuses on the federal disability program available through the Social Security Administration. Next month’s article will discuss private disability insurance benefits.

The largest of the federal disability programs is administered by the Social Security Administration. The following is an overview of the primary Social Security programs your patients may encounter if they are rendered unable to work for a year or more.

The Social Security Administration (SSA) administers two primary programs for persons with disabilities. Social Security Disability Insurance (SSDI) program covers those individuals who are considered “insured” by virtue of having worked a certain period of time and paying into the social security system before becoming disabled. (Title II of the Social Security Act). Supplemental Security Income (SSI) provides benefits to disabled persons based on financial need. While both share some common requirements and features, each covers somewhat different situations.

Social Security Disability Insurance (SSDI) is available to individuals who have worked a certain amount of time prior to becoming disabled. Certain disabled dependents of the insured worker may also be eligible for these benefits. Eligibility for SSDI depends on the disabled person’s status as an insured under the program and does not consider the individual’s income or resources.

Supplemental Security Income (SSI) bbenefits (Title XVI of the Social Security Act) provides payments to individuals (including children under age 18) who are disabled and have limited income and resources.

For both programs, the definition of disability is the same. The law defines disability as:

The inability to engage in any substantial gainful activity (SGA) by reason of a medically determinable physical or mental impairment(s) which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.

A “medically determinable impairment” is defined as a condition that can be confirmed by medically accepted methods. A doctor must document the diagnosis, reasons for the diagnosis and whether improvement of the condition can be expected. An impairment cannot be based solely on the claimant’s report of symptoms and limitations.

The Process

Processing of initial claims is usually done through Social Security field offices and state agencies, usually called Disability Determination Services (DDS). The field offices usually handle the non-medical aspects of an application, while the DDS handles the medical aspects and makes decides whether the claimant is disabled under the law.

To apply for either SSDI or SSI, your patient must submit an application for benefits. This can be done on-line (www.socialsecurity.gov), over the phone or in person at a field office. The application asks for general personal information, work history and medical information. Once the application is complete, the Disability Determination Service will request information from the claimant’s doctors to determine if the claimant is disabled under the SSA’s definition. It often takes 3 to 5 months to receive an initial determination of eligibility.

Disability Determination Services are state agencies funded by the federal government. The DDS is responsible for obtaining medical information and making the initial determination about whether a claimant is or is not disabled under the law. The DDS usually attempts to make the disability determination based on the claimant’s treating doctors’ records. However, if a determination cannot be made on that information, the DDS may arrange for a consultative examination through the claimant’s treating doctor or through one chosen by the DDS.

Once the medical information is received, the determination of disability is made by a two-person team consisting of a medical or psychological consultant and a disability examiner. The team can also make a determination that the claimant is an appropriate candidate for vocational rehabilitation and can refer the claimant to the state vocational rehabilitation agency. Once the team has made the determination on the application, it is sent back to the field office for action.

If the DDS determines that the claimant fits the criteria for disability, assuming all other eligibility requirements are met, the field office will compute the benefit amount and begin paying benefits. Only about 40% of initial applications are allowed at this stage.

If the DDS determines that the claimant does not meet the criteria, the field office will advise the claimant of this and of his or her right to appeal the decision. On a first request to reconsider the decision, the application and any additional information is returned to the DDS for re-evaluation by a different two-person adjudicative team.

If the claim is again denied, the claimant can appeal again. The second appeal is processed through a Hearing Office within the SSA’s Office of Hearings and Appeals. An Administrative Law Judge (ALJ) makes the decision on this appeal, usually after receiving additional medical information and holding a hearing.

The final stage of the administrative appeal process, if the claim is again denied by the Office of Hearings and Appeals, is to file an appeal with the Appeals Council. The claimant usually has only 60 days to appeal at this level.

If a claimant wishes to pursue benefits after completing the appeal process within the SSA, he or she may file a civil suit in Federal District Court. Most appeals are completed well before filing such a suit.

How Does the SSA Decide Eligibility?

The SSA uses a five-step “sequential evaluation process” to determine eligibility for benefits. This process requires review of a claimant’s current work activity, severity of his or her impairments, the claimant’s residual functional capacity, his or her past work history, age, education and work experience. Evaluation progresses from one step to the next.

1. Is the claimant working?
   If the claimant is working and earns more than a specified amount ($900 per month for 2007), he or she will not be considered disabled.
   
   If the claimant is not working, go to Step 2.
2. Is the condition "severe"?
   The condition must interfere with basic work-related activities for a claim to be considered. If it does not, the claimant will not be considered disabled and is not eligible for benefits.
   If the condition does interfere with basic work-related activities, go to Step 3
3. Is the condition found in the list of disabling conditions?
   For each of the major body systems, the SSA maintains a list of medical conditions that are so severe that they are automatically considered disabling. If the claimant’s condition is not on the list (does not “meet a listing”), then the condition is evaluated to determine if it so severe that it causes a comparable level of impairment. If it does not, the claimant is not considered disabled and is not eligible. If the condition is severe, got to Step 4.
4. Can the claimant do the work he or she did previously?
   If a condition is severe but not at the same level of severity as a medical condition on the list, then SSA will determine if the condition interferes with the claimant’s ability to do the work he or she did previously. If it does not, the claim will be denied. If it does, go to Step 5.
5. Can the claimant do any other type of work?
   If a person cannot do the work he or she did in the past, SSA will determine whether the claimant is able to make adjustments and perform a different job. The SSA considers the medical conditions, claimant’s age, education, past work experience and any transferable skills. If the claimant cannot adjust to other work, the claim will be approved. If the claimant can adjust to other work, the claim will be denied.

Disability benefits for workers and widows usually cannot begin for five months after the onset of the disability. If awarded, benefits will be paid beginning the sixth full month after the date the disability began. SSI benefits may begin as early as the first full month after the individual applied for or became eligible for benefits. Under SSI, benefits may be paid during the period in which a formal disability determination is made. If the claimant is found ineligible, they may be required to pay back the benefits paid during this period.

Other Benefits

Medicare or Medicaid benefits may be available to individuals covered by SSDI or SSI. Medicare provides benefits for medical care for those over age 65 or who are eligible for SSDI and have been receiving benefits for 24 months. Medicaid is a medical benefit program administered by the individual states (the term Medicaid is used in many but not all states). It usually covers those eligible for SSI benefits. Eligibility rules vary from state to state. In Washington, the Medicaid program is administered by the Department of Social and Health Services (www1.dshs.wa.gov).

Coordination of claims and benefits arising out of a traumatic injury is a vital aspect of legal representation of a person with a long term disability. The laws are complex and frequently changing. Patients who have been injured by the negligence of another and left with a potential disability should seek consultation with an attorney knowledgeable about long term injuries, insurance claims, and personal injury and disability laws in order to protect their access to health care and income benefits. Simply have your patient give us a phone call. The consultation is free.

Keywords MedicalLegal