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Social Security Law

The following information, presented as a public service by the Committees of the DuPage County Bar Association, pertains to some of the more frequently asked questions posed to attorneys on various issues..

Please read the disclaimer before reading the questions and answers.

If you have a question that you would like to have addressed please e-mail your request, include your phone number if additional clarification is needed.

The following information does not constitute legal advice of any kind, but is intended to help the public with understanding some of the basic issues they may face.

Social Security

Q. What types of social security disability income are available and who qualifies?

A. Social Security provides two types of disability income for people who are unable to work:

  • Social Security Disability (SSDI) is your age 65 Social Security Benefit that is paid to you from the sixth month you are unable to work until you can return to work. It is available to people who have worked most of their lives and have paid sufficient FICA taxes.
  • The other program is called SSI and is a Federal Welfare program for the disabled. SSI does not require that you pay any Social Security taxes, but pays at a much lower amount and requires that the person have virtually no income or resources.

These two programs pay benefits to about nine million disabled people and their dependents.

In order to receive either of the benefits, the disabled person must show an inability to work (usually at any type of work) because of physical or mental impairments which either have lasted or are expected to last 12 continuous months (or more), or result in death.

In evaluating if a person is entitled to benefits, Social Security looks at five factors:

  1. Employment. If a person is not working, then Social Security will continue to the next factor. If the person is working, and earning more than $500 monthly, the person will be denied.
  2. Impact on work performance. A determination is made as to whether or not the person has a "severe" physical or mental condition that would have a significant impact on performing work-related activities.
  3. Physical or mental impairments. This factor is highly technical. It requires a determination as to whether or not the specific physical or mental impairment is the same as the specified impairments printed in the Social Security Regulations. This is strictly done by medical opinion, and very few people meet this level for benefits.
  4. Past work performance. A determination is made as to whether or not a person can perform his/her "past relevant work". This means work performed for more than six months at any time over the last 15 years before the person claims disability. If a person can perform that work, they are not disabled.
  5. Additional criteria. If a person cannot perform any of his/her past relevant work, then Social Security will move to the fifth and final factor which is determining if the person can perform other work that exists in reasonable amounts--either in the person's local area or in the national economy. At this point, Social Security takes into consideration age, education, the type of past work performed, and the person's restrictions from their physical and or mental impairments.

Normally, disability is granted either on the basis of the third factor (the impairment is the same as one specified in the Regulations) or at the final step where they take into consideration the capacity to perform other work.

After you file a Social Security application there are several step in the appeals process. Once an application is filed, Social Security will make a medical determination as to whether or not the person qualifies. If the person is not granted benefits then, within 60 days, an appeal called a Request for Reconsideration must be filed. Once this is filed, different evaluators from Social Security will look at the medical evidence and again decide if the person qualifies. If the Reconsideration is denied then, within 60 days, a Request for Hearing with an Administrative Law Judge must be filed. Each of the first two steps generally requires three-to-four months before an answer is given. Once a Request for Hearing is filed, it is ultimately scheduled before an Administrative Law Judge who is guaranteed decisional independence by a federal statute. This is the first time that person actually gets to talk to the individual who will make the disability decision and to present any written evidence or witness testimony.

Due to the complexity of the Social Security laws and the need for gathering precise medical evidence, it is vital that attorney representation be obtained as early as possible in the Social Security process. Certainly, it would be unwise to attempt to go before the Administrative Law Judge without a properly trained and knowledgeable attorney who is well-versed in Social Security Law and knows how to gather and present medical evidence in its most favorable fashion. It is also vital that, if a person is asking for either Social Security Disability or SSI, that he/she be under the care of a physician who will provide well documented information about the person's physical and or mental problems and limitations that these conditions cause.

Statistics show that the potential for receiving favorable decisions is greatly enhanced with legal representation. The fees are on a contingent basis (which means that they are only chargeable if the person receives benefits), and are very reasonable. You should know that non-lawyers can also represent people at the early levels of the Social Security Process. However, they cannot go above the Administrative level and, therefore, cannot take the case into the United States District Court, if necessary. You should also be aware that, as a general rule, both attorneys and non-attorneys charge the same fee for representation. The attorney, however, can take the case into the Federal Court and prosecute it as far as necessary, even to the United States Supreme Court.

Because review of the Administrative process in the Federal Court is very restrictive in its scope, it is imperative that a well-presented and solid legal case be established before the Administrative Law Judge. It is therefore imperative that proper legal representation be obtained at the Administrative levels.

Residents of DuPage County, Illinois with SSI or SSDI can receive a free 30-minute consultation with an attorney through the DCBA's Lawyer Referral Service.

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