7 Things Every Family Lawyer Should Know About Social Security Disability Law. Is It SSI or SSDI?

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1 7 Things Every Family Lawyer Should Know About Social Security Disability Law Presented by: Karen Terese Kugler J. Oakes Family Law 1. There is more than one program under which a person can receive social security disability benefits There are two main types of social security benefits related to disability: social security disability insurance (SSDI) 1 and supplemental security income (SSI). SSDI benefits are for individuals with enough work credits and SSDI provides a greater amount of monthly income. SSI benefits are for individuals without sufficient work credits and SSI provides a much smaller amount of monthly income. Some individuals that are not fully eligible for SSDI may receive benefits under both the SSDI and SSI programs. The following is a summary of the difference between the programs: Is It SSI or SSDI? What is it? Work history? Approximate benefit amount Treatment for child support under 518A Additional cash benefit for minor dependent children Date benefits begin SSI Disability benefits are based on financial need Party did not work very much and does not have enough work credits Maximum of $698 per month (for 2012) Not considered a part of gross income for child support No The date the party made an application for benefits SSDI Disability benefits are based on prior work and work credits Party has worked 5 out of the last 10 years before application for benefits Varies based on work credits but higher than $698. The average benefit is $1,111 per month 2 Is considered a part of gross income for child support. Cash benefit for children is also included. Yes The date the disability began 1 This is sometimes called RSDI, for retirement, survivors, and disability insurance. RSDI and SSDI are used interchangeably. 2 Social Security Administration, Annual Statistical Supplement 2012, page 1

2 Asset Limit Reduced by earned income? SSI SSDI Individuals generally are not No eligible for SSI if they have resources in excess of $2,000 (or $3,000 for a couple). Certain resources are excluded, most commonly a home, an automobile, and household goods and personal effects Yes No For example, a person whose However, if the earned income is income consists of $500 in gross too high this may trigger a monthly earnings would receive termination of benefits $ in federal SSI payments (($500 - $85) / 2) = $ countable earnings FBR $698 - $ = $ federal SSI 2. There are two different ways a child can receive social security disability benefits. Many people are familiar with children who receive social security benefits due to the receipt of SSDI by a disabled parent. However, children can be individually eligible for SSI based on their own disabilities. If you are working with a family in which there is a special needs child, particularly if that family is low income, ask them if they have applied for SSI benefits on behalf of the minor child. A child s receipt of SSI can help the family meet the child s special needs and can assist the family in qualifying for other state and federal aid. 3. Obtaining social security disability benefits can be a long and arduous process. It can take years from the date of application to obtain disability benefits. Many disabled persons give up prior to making it through all stages of the administrative process. The process of obtaining SSI or SSDI Step 1: Initial Application The party applies for SSI, SSDI, or both, either in person at their local SSA office or via the web. The party is asked to fill out a number of forms regarding: (1) medical providers (and authorizations for the release of information) (2) conditions and symptoms

3 (3) activities of daily living what can the party do and not do in their daily life (e.g. household chores, interactions with people, managing finances ) (4) prior work history A SSA worker will be assigned to the party s case and is supposed to obtain copies of the medical records for the party, as well as copies of any files from vocational rehabilitation programs. The party may be asked to attend an Independent Medical Examination (IME) or Special Examination to determine if they are disabled under the rules. Usually the IME will recommend that the party not receive benefits. The worker reviews the record and determines if the party is eligible for benefits. It is extremely common for parties to be rejected at this stage. In 2010, 36.3% of applicants were awarded benefits at this stage of the process. 3 Step 2: Request for Reconsideration If the worker rejects the party s claim, the party receives a notice and then has 60 days to make a Request for Reconsideration. There is a specific form for the Request for Reconsideration. A SSA worker will have the party update their information, will review the file with this additional information, and will determine if they believe the party is eligible for benefits. Just as with the initial application, it is extremely common for parties to be rejected at this stage despite severe disabilities. In 2010, only 8.1% of applicants were awarded benefits at this stage of the process. 4 Step 3: Hearing in front of an Administrative Law Judge (ALJ) If the party is denied benefits at the Request for Reconsideration stage of the process they can request a hearing within 60 days of the denial. The party s best chance of receiving social security disabilities is likely at the hearing stage of the process. It is very beneficial if the party has a social security law attorney to represent him or her in this process. For example, in the past, the SSA spent more time making sure that all the necessary documentation was in the party s file. Due budgetary constraints, the SSA workers do not always have time to make sure that the file is as complete an attorney can make sure that the party has a complete record upon which for the ALJ to make a decision. The hearing is held in front of an Administrative Law Judge (ALJ) and the hearings generally last 1 to 2 hours. The party will testify and be asked questions by his/her attorney and the ALJ. There may also be a medical expert and a vocational expert present who may testify

4 Because of the budgetary constraints faced by the SSA, there are now long lag times between the date that the hearing is requested and the date that the party receives a hearing in front of an ALJ. To cope with this issue, some social security practitioners have been scheduling conferences with the ALJ to determine if disability can be awarded based on the record and without a hearing. In 2010, 76.1% of applicants were awarded benefits at this stage of the process. 5 Step 4: Appeal to Appeals Counsel or Federal District Court. After the hearings level of the process, a party can appeal to the appeals counsel and then can file a case in Federal District court, but this is not especially common. 4. You cannot obtain social security disability benefits for temporary disabilities. In order to qualify for SSI or SSDI, an individual must be unable to engage in substantial gainful activity (SGA) by reason of a medically determinable physical or mental impairment expected to result in death or last at least 12 months. This means that in order to qualify for social security disability the impairment in question is usually a permanent and severe one. Interestingly, five states (California, Hawaii, Rhode Island, New Jersey & New York), Puerto Rico, and the railroad industry have programs that partially compensate a party for the loss of wages caused by temporary, non-occupational disability or maternity. Those programs are known as temporary disability insurance (TDI) because the duration of the payments is limited. Federal law does not provide for a federal-state insurance system for short-term disability. 5. There are multiple ways to qualify for disability benefits. How is eligibility determined? Eligibility for disability benefits is determined based on eligibility medically or eligibility vocationally. Option 1: Meets the listings The listings of impairments can be found in 20 CFR Part 404, Subpart P, Appendix 1. Each listing describes in detail the level of medical impairment necessary for each medical condition which the party would need to have in order to meet the listing and receive social security benefits this way. For example, if the party suffered from amputation of a limb, listing 1.05 would apply which states: 1.05 Amputation (due to any cause). 5

5 A. Both hands; or B. One or both lower extremities at or above the tarsal region, with stump complications resulting in medical inability to use a prosthetic device to ambulate effectively, as defined in 1.00B2b, which have lasted or are expected to last for at least 12 months; or C. One hand and one lower extremity at or above the tarsal region, with inability to ambulate effectively, as defined in 1.00B2b; or D. Hemipelvectomy or hip disarticulation. As a result, a party with one arm amputated would not meet this listing. It is not uncommon for parties to be disabled and unable to work, but still not have a disability that meets a listing. The two most common types of disabilities leading to an award of benefits are musculoskeletal impairments and mental disorders. 6 6

6 In 2010, of the applications approved, 29.8% were approved because they met the listings. 7 Option 2: Equals the listings Often parties have a number of different medical conditions that cause them to be disabled, or alternatively their condition is equal in severity to a similar listing but does not exactly meet the definition in the listings. In this situation, a party can receive benefits based on medically equaling the listing or combination of listings. In 2010, of the applications approved, 6.5% were approved because they equaled the listings. 8 Option 3: Vocational Impairment Often parties cannot meet or equal a medical listing, but they are unable to work due to the restrictions they have due to a disability. In this situation the Social Security Administration will analyze if the party is able to engage in substantial gainful employment (SGA). Generally, if a party earns more than $1,040 of gross income per month, this is considered substantial gainful employment and they will not be able to receive SSI or SSDI. The vocational guidelines can be found in 20 CFR Part 404, Subpart P, Appendix 2. SSA will first analyze if the party can work in a job similar to one they held in the past. If the party has no transferable skills, the SSA analyzes whether the party can work at any job with the medical restrictions that the party has. Factors such as age, education level, and ability to speak English can make it easier for the party to qualify for social security benefits based upon their inability to engage in substantial gainful employment. In 2010, of the applications approved, 46.1% were approved due to a combination of vocational and medical impairments Spousal maintenance can reduce some disability payments. When negotiating a settlement for spousal maintenance for a party who receives some sort of social security benefits, the family law practitioner may want to consider the impact that the receipt of spousal maintenance may have on the receipt of social security benefits. If the party is receiving SSDI then the receipt of spousal maintenance will not reduce the amount of social security benefits that the party receives. However, if the party is receiving SSI, then the social security benefits will be reduced by spousal maintenance. The first $20 of spousal maintenance will not reduce the SSI amount, but all spousal maintenance above that amount will reduce the SSI benefit dollar for dollar. So if the party receives $400 in SSI, and the party then receives $300 in spousal

7 maintenance, then SSI would be reduced to $120 per month. Thus, the only gain that the party received from the spousal maintenance is an additional $20 per month. Further, spousal maintenance is taxable to the party, while SSI is not taxable The benefit amount that a SSDI recipient receives for his or her minor children may not be sufficient to satisfy his or her child support obligation. Parties that receive SSDI have gross income equal to the amount that they receive for themselves for SSDI in addition to any other income they receive. Minn. Stat. 518A.29. The amount of the party s own SSDI benefit is entered on line 6 of the Minnesota Child Support Guidelines Calculator. Additionally, the amount of the benefit that the party s child receives based on the party s eligibility for SSDI is included as gross income for the party upon whose eligibility the benefits are based. Minn. Stat. 518A.31. The benefit that the child receives is entered on line 8 of the Minnesota Child Support Guidelines Calculator and is entered in the column of the disabled party (even if the payments are sent to the other party as representative payee for the child). If the disabled party is obligated to pay child support, it is mandatory that the party s child support obligation will be reduced by the amount of the SSDI benefit received on behalf of the child by the obligee. Jugovich v. Jugovich, No. A , 2008 WL (Minn. Ct. App. Nov. 4, 2008). It should also be noted that SSDI back pay benefits can be used as a credit toward future child support payments. County of Grant v. Koser, 809 N.W.2d 237 (Minn. Ct. App. 2012) 7 Additional Things You Should Know: 8. If your client is disabled, but has not yet obtained SSI or SSDI, he or she will have to prove that potential income should not be imputed. Pursuant to Minnesota Statute, it is rebuttably presumed that parties are capable of working 40 hours per week. Minn. Stat. 518A.32, Subd. 1. If a party is receiving SSI or SSDI then the statute provides alternate provisions regarding the calculation of child support. However, many parties may suffer from a disability that makes them unable to work, and yet not receive SSI or SSDI. For these individuals, the statute only states: A parent is not considered voluntarily unemployed, underemployed, or employed on a less than full-time basis upon a showing by the parent that: the unemployment, underemployment, or employment on a less than a full-time basis is because a parent is physically or mental incapacitated. Minn. Stat. 518A.32, Subd.3(3). Minn. Stat. 10 It should be noted that while SSI is not taxable, a portion of SSDI can be taxable depending on the situation of the party.

8 518A does not define incapacitated and it is the disabled party s burden of proof to show that they are incapacitated within the meaning of the statute. It is challenging to avoid the imputation of potential income if a party is disabled and has not yet been awarded social security benefits. In the case of Engelking, Mr. Engelking claimed to suffer from a debilitating injury, degenerative condition, diabetes, edema, hypertension and heart disease; underwent surgery; had applied for social security disability benefits; was on general assistance; and provided the court with a disability notice that he prepared and asked his doctor to sign. The Court would not modify his child support obligation and did not believe his claim of disability. Engelking v. Engelking, No. A , 2010 WL (Minn. Ct. App. Sept. 21, 2010). 9. Parties receiving SSI benefits have $0 in gross income pursuant Minn. Stat. 518A.29. Parties that receive SSI benefits should be found to have zero dollars in gross income for the purposes of calculating child support. 11 This is because SSI is a form of public assistance based on need. Minn. Stat. 518A.29(h) states that: Gross income does not include public assistance benefits received under section or other forms of public assistance based on need. 10. Once obtained, it is possible that a party could lose their right to receive social security disability benefits. SSA periodically conducts continuing disability reviews (CDRs) to determine whether an individual is still disabled. In addition to parties whose benefits are terminated due to the improvement of their medical condition, parties benefits can be terminated for engaging in substantial gainful employment (SGA). The SGA amount for non-blind individuals in calendar year 2012 is $1,010 per month of gross income. 12 If a party is regularly earning income above this amount it will lead to a termination of benefits. A 9-month trial work period allows beneficiaries who are still disabled to test their ability to work. During that period, beneficiaries may earn any amount and still receive full benefits. After the individual completes 9 trial work months, the SGA level is used to determine whether earnings are substantial. If a recipient of social security benefits wants to pursue a trial work period they need to contact SSA. 11. SSDI benefits paid on behalf of the child of the disabled person are generally paid directly to the custodial parent (even if that is not the disabled party) by SSA. 11 Unless the party engages in some minimal employment in this situation the gross income from the employment would be included. 12 Social Security Administration, Annual Statistical Supplement 2012, page 18

9 A custodial parent of a child receiving SSDI benefits should contact the SSA and apply to be the minor child s representative payee. Benefits paid for children must be managed and used in a particular way, so the party should review the responsibilities of being a representative payee. 12. Evidence found in a party s SSA file may be useful to use as evidence regarding other issues in a family law Social Security files can be a gold mine of information that is useful in family court cases. Here are some documents that may be found in an SSA file that may be relevant to family court proceedings Possible Item in SSA File Mental Residual Functional Capacity Assessment Form OMB No Physical Residual Functional Capacity Assessment Form OMB No A letter written by their treating physician on the physician s own stationary. Request for Medical Opinion Form (this is a form used by DHS -- DHS ENG). What is it? A form filled out by the party s doctor or by SSA s medical expert assessing the party s mental condition, and how it limits daily activities. A form filled out by the party s doctor or by SSA s medical expert assessing the party s physical condition, and how it limits daily activities. Medical opinion letter Used by social services to determine eligibility for programs such as GA, some parties will provide this to SSA in support of their Potential Use(s) To support or undermine a spousal To support or undermine a spousal To support or undermine a spousal To support or undermine a spousal

10 Possible Item in SSA File Special Medical Examination What is it? In determining eligibility for benefits, SSA may send a party to a special medical examination with a medical expert employed by the SSA. These reports are generally less favorable to a finding of disability. A medical expert may also testify at the hearing stage. Potential Use(s) To undermine a spousal maintenance claim. Party s Medical Records Medical Records To support or undermine a spousal Vocational Assessment or Vocational Records Some parties will have vocational assessments as a part of their file. There may also be records from day treatment programs, or other social services agency. A vocational expert may also testify at the hearing stage of the process. To support or undermine a spousal Due to confidentiality concerns these documents should be provided under a Sealed Source Documents cover or a Protective Order should be obtained, so that they do not become public record. It is also important to analyze whether the party has waived privilege by placing his or her medical condition in issue 13. Do not forget to consider back pay in dissolution actions. As discussed above, a significant period of time may elapse between the application for benefits (or onset of disability) and the award of benefits. When benefits are finally awarded, the party will usually receive back pay for monthly benefits that accrued during this time period. The back pay amount can be substantial, especially in SSDI cases. SSDI Example Robert s date of onset of his disability was January 1, Robert has one minor child, Bobby. Robert is awarded benefits at the rate of $1,200 per month for himself and $300 per month for Bobby. This award is made in January, SSI Example Robert s date of onset of his disability was January 1, Robert s application for benefits was filed on January 1, Robert has one minor child, Bobby. Robert is awarded benefits at the rate of $698 per month for himself. This award is made in January, 2013.

11 SSDI Example SSI Example Robert s back pay: Robert s back pay: $1,200 per month * 36 months = $43, $698 per month * 24 months = $16,752 Bobby s back pay: Bobby s back pay: $300 per month * 36 months = $10,800 None 14. Do not forget to consider overpayments in dissolution actions. As shocking as this is, sometimes the social security administration makes a mistake, and pays the claimant too high a benefit amount. Even if this mistake is due to no fault of the claimant, the claimant will be required to pay the overpayment back. This could arguably be a marital debt. Social Security Legal Resources Social security law is a form of administrative law and guidance is found primarily in the Code of Federal Regulations (CFR) specifically Title 20, Chapter III, of the CFR, Parts 404, 405 and 416. Additionally, the Program Operations Manual System (POMS) contains the information that SSA employees use when processing social security claims. I have found POMS helpful when SSA employees have wrongfully denied a claim or limited benefits, and have cited to POMS to convince them to change their decision. The Hearings, Appeals, and Litigation Law Manual (HALLEX) is helpful in understanding some of the procedures of the social security law process. All three of these sources can be found at Questions? Feel free to contact me: Karen Terese Kugler J. Oakes Family Law 2589 Hamline Avenue North, Suite C Roseville, MN (651) Work Home 13 If Robert was represented by an attorney the back pay amounts will likely be reduced by a 25% contingency fee.

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