Law Office of
Richard A. Culbertson

3222 Corrine Drive
Suite E
Orlando, FL 32803

Phone: 407-894-0888
Fax: 407-898-2737

FAQ

Will i get social security with the condition i have?

disability lawyers, medicaid attorneys, legal processes, the law office of richard a. culbertson, orlandoThe Social Security Act defines disability for anyone over 18 years of age as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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. There are different rules for blindness and children.

Social Security has established a five step process for determining who meets these criteria. The 5 step sequential evaluation process applies to all Social Security Disability and Supplemental cases except Supplemental Security Income for children. In the case of children's SSI, only the first 3 steps apply. Children may also be found disabled if it is shown their impairment is functionally equal to an impairment listed at step three of the process.

Step 1: Are you working and performing substantial gainful activity?
As of January 1, 2007, if you are earning $900.00 or more per month, the work is presumed to be substantial gainful activity. This amount changes each year. The reasonable costs of certain items and services which are needed to enable you to work in spite of your impairment should be deducted from the monthly income before determining whether the presumption applies. If you worked less than 6 months and had to stop working or reduce your earnings due to your impairment, the effort may be considered an unsuccessful work attempt and not considered substantial gainful activity even though you earned more than $900.00 per month. Social Security has specific factors they look at to make this determination.

If you are found to be performing substantial gainful activity, you will be found not disabled and the evaluation will not proceed to any of the subsequent steps.

Step 2: Do you have a severe impairment?
A severe impairment is an impairment or combination of impairments, which significantly limits your physical or mental ability to do basic work activities. Your age, education, and work experience are not considered in determining whether you have a severe impairment.

One court has held that an impairment is not severe if it is a slight abnormality which has such a minimal effect on you that it would not be expected to interfere with your ability to work, irrespective of age, education or work experience. Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984).

If you do not have a severe impairment, you will be found not disabled and the evaluation will not proceed to any of the subsequent steps.

Step 3: Do you have a "listed impairment"?
Social Security has listed specific criteria for specific impairments divided among the following categories:

 

If your condition is found to meet all of the specific criteria of a particular listed impairment, you will be found disabled. When you have an impairment or combination of impairments which are not listed, a finding might be made that the impairment is equal in severity to a listed impairment. In that case, you will be found disabled at this step.

Step 4: Does your impairment prevent you from doing your past relevant work?

Past relevant work is work you performed within the 15 years immediately preceding the alleged onset date of your disability. If you can still perform any past relevant work, in spite of your impairment, you will be found not disabled and the evaluation will not proceed to Step 5. If it is found that you cannot perform any past relevant work, then the burden shifts to the government to show that there are jobs in the economy that you can perform and the evaluation proceeds to Step 5.

Step 5: Can you perform any other work which exists in significant numbers in the national economy?

Work exists in the national economy when there are a significant number of jobs in one or more occupations having requirements which you are able to meet with your physical or mental abilities and vocational qualifications. It does not matter whether work exists in the immediate area where you live, whether a specific job vacancy exists, or whether you would be hired. If there is a job you can still do, which exists in significant numbers, Social Security will find you are not disabled. There are many factors which go into this determination. Age, exertional limits, nonexertional limits, and whether you can work full time on a reliable and sustained basis are all important factors in this determination.

What is the difference between social security disability and supplemental security income?

Social Security Disability Insurance (also referred to as SSDI, DIB. or Title II) is available to people who have worked and paid in enough quarters of coverage to be fully and currently insured. It is more of an insurance type program, and is not a welfare program. A quarter of coverage is earned when a certain amount of earned income is reported. The amount needed for a quarter of coverage changes each year. The total number of quarters needed depends on your age.

If someone is disabled and fully and currently insured, there is no limitation on the assets he or she can own. An individual can be a millionaire and still get SSDI. Earned income and workers' compensation benefits may affect the amount of monthly benefits, but other unearned income from such sources as interest, dividends and return on investments should not result in a reduction of benefits. There are also specific rules and work incentives establishing how much a person can earn, and when earnings will result in termination of benefits.

Benefits are not paid for the first five full months of eligibility. If all other factors of eligibility are met, benefits can be paid for twelve months prior to the date of the application.

Supplemental Security Income (also referred to as SSI or Title XVI) does not have the same quarters of coverage requirement as SSDI, SSI is more of a welfare type program. You can get SSI if you never worked a day in your life, but there are stringent asset and income limits for eligibility for SSI. You must have nonexempt assets worth less than $2.000.00. There are extensive rules on which assets are counted and which assets are exempt. You can be disqualified for up to three years for transfers of assets for less than fair market value.

In addition, other income may affect the amount of your benefits, and could make you ineligible. The maximum amount of the monthly SSI amount payable changes each year. The maximum monthly amount payable in 2007 is $623.00. That amount would be reduced if you have other non-excluded income. The first $20 of unearned income is excluded. The remainder will result in a dollar for dollar reduction in SSI benefits. There is a budgeting process that applies to earned income which results in exclusion of a flat deduction and then a certain amount for dependents. After that, each $2 of income results in a $1 deduction in monthly benefits. Of course, working could also affect the issue of whether or not you are disabled.

There is no waiting period for SSI benefits. They begin the first month after the application (if and when you are found disabled), but there are no retroactive benefits paid for the period prior to that month.

Disability standard. The definition of disability is the same for Social Security Disability and Supplemental Security Income.

How do i apply and how long does the whole process take?

Step 1: Application
The Social Security Administration administers the Social Security Disability and Supplemental Security Income programs. You contact the Social Security office serving your area to start the process. You can find out which office serves your area by calling information or going to the Social Security Website at www.SocialSecurity.gov.  You can apply in person, over the phone, or online.

Social Security has a contract with a State office, the Division of Disability Determinations, to evaluate each case and make a determination as to whether or not the claimant is disabled. After you complete the application process, Social Security sends your file to the State disability office. They may request more information from you regarding your disability, and will obtain copies of the medical records from your health care providers. They may want you to see one of their doctors. If you can get the information they need from your own treating doctor instead of going to an examination by a new doctor, it is usually in your interest to do so. Your doctor already knows your case, and has access to the testing and treatment which has already been provided. The Social Security doctor may not be able to identify your problem at a brief one-time exam. An opinion by one of these doctors that your impairment would not prevent you from working could mean that you will not receive your disability benefits.

After obtaining the information they need, the State disability determination office will make a recommended decision to Social Security. The length of time it takes to get to this point depends how long it takes the Social Security office to complete the application, and send your file to the State disability office which varies substantially from office to office. It also depends on how long it takes your medical providers to send your records, and how quickly the State office staff perform their responsibilities. According to the Division of Disability Determinations Office in Orlando, the average time spent on a case in their office at the initial level is 85 days.

If the State disability recommends that your claim be approved, Social Security will review the case and send a Notice to you. They will then make sure that you meet all of the other non-disability requirements for eligibility and process your payment. The State office recommends most cases be denied. If a recommendation of denial is made, Social Security will send you a denial notice. If your claim is denied, you have sixty days from the date you receive the denial to appeal. Social Security assumes you receive the notice within five days of the date on it unless you can prove otherwise. You file an appeal by completing and submitting a Request for Reconsideration with two Social Security releases, and a Disability Report on a form supplied by Social Security.

Step 2: Reconsideration
If you file a Request for Reconsideration with Social Security, your file will be sent back to the State disability office. They will obtain any updated information and another determination will be made by another claim examiner. Again, the amount of time it takes depends on how quickly the Social Security staff, State office staff, you, and your doctors do what is needed. The average time would be approximately three or four months. Any given case could take more or less time.

If a recommendation for approval is made, the file will be returned to Social Security. After a review, a Notice will be sent to you, and the process will begin to make sure you meet all other eligibility criteria and determine the amount of your benefits. Again, the State office recommends most cases be denied. If your claim is denied, you have sixty days from the date you receive the denial to appeal. Social Security assumes you receive the notice within five days of the date on it unless you can prove otherwise. You file an appeal by completing and submitting a Request for Hearing with two Social Security releases, and a Disability Report on a form supplied by Social Security.

Step 3: Hearing
Although your results may vary, most people who appeal their case to an Administrative Law Judge are found disabled. The problem is that it generally takes more than a year before a case is even assigned to a judge. It could take two or more months after that before the hearing is scheduled, and two or more months after that to receive the written decision.

Step 4: Appeals Council
Administrative Law Judge decisions can be appealed to the Appeals Council. Detail as to where and when the appeal must be filed will be included with the Judge's decision. It could take two months to more than a year after you file your appeal before the Appeals Council issues a decision.

Step 5: Federal Court

Claims that are denied by the Appeals Council can be appealed to the United States District Court. More details are included with the notice sent by the Appeals Council.

How much does it cost?

Social Security

There is no cost to file an application for Social Security Disability or Supplemental Security Income benefits. The State disability office will not charge you for the costs of obtaining medical records they may request from your health care provider. They will not charge you if you are required to go to an examination at their request.  You may have to pay for the costs of documentation you may need to support your claim (e.g. a certified copy of your birth certificate).

Attorney fees
At the Law Office of Richard A. Culbertson, we handle most disability cases on a contingency fee basis. This means you do not have to pay us any attorney fees at the time we start working on your case. If you are not awarded retroactive benefits, you do not have to pay us any attorney fees. If we are successful, and you are paid retroactive benefits, the attorney fee would be 25% of those retroactive benefits. No amount is charged based on your ongoing monthly disability check or any medical benefits you may receive as a result of a favorable decision. In most cases, we also agree to limit our fee to a maximum dollar amount if we are able to prevail at the administrative hearing level without an appeal. This may bring the actual amount of the attorney fee to substantially less than 25% in many cases.

In appropriate cases, we may agree to accept a case on an hourly or flat fee basis. At the Law Office of Richard A. Culbertson, we do not charge for incidental expenses such as postage, long distance phone calls, or mileage. We will not charge you for any costs associated with your case unless we discuss the matter with you first. If you need evidence to support your case such as a medical examination or extensive medical records, we may be able to advance such costs with an agreement for reimbursement if benefits are awarded.

Will i get medicare or medicaid?

Medicare
If you are awarded Social Security Disability benefits, you will be eligible to receive Medicare twenty four months after the first month for which you are paid. For example, if you are paid Social Security Disability benefits retroactive to March 2005, you will be eligible to receive Medicare on March 1, 2007. This is the same Medicare utilized by retirees who are 65 years old.

Medicaid
If you are a Florida resident and eligible to receive a Supplemental Security Income check, you are also eligible for Medicaid. As long as you receive Supplemental Security Income, you do not have to file a separate application for Medicaid.

Medicare and Medicaid
If someone is eligible to receive a Social Security Disability check and a Supplemental Security Income check, they may receive both Medicare and Medicaid.

Other Medicaid
There are many different Medicaid programs in Florida. Each program has its own eligibility criteria and coverage rules. Even if you are not eligible for Supplemental Security Income and the automatic Medicaid that comes with it, you may be eligible for coverage under one of the other Medicaid programs. Further information may be obtained from the Florida Department of Children and Families. Even though you are not a child or a family, you may be eligible based on a finding that you are disabled as long as you meet the other eligibility criteria for that program.

COBRA
If you have COBRA coverage that would otherwise end after eighteen months, you may be eligible for an extension if you are found disabled by the Social Security Administration prior to the end of your COBRA eligibility period, and you file an appropriate request for an extension of coverage prior to the end of your COBRA eligibility period. For further information, contact your insurance carrier or seek legal advice from a specialist in this area.