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Social Security Programs and Benefits

Programs

The Social Security system provides two benefit programs for disabled persons: Social Security Disability (Title II) and SSI (Supplemental Security Income).

Social Security Disability (Title II) is for workers covered by Social Security who have contributed to a Social Security account while working for a specified period of time, usually 5 out of the last 10 years of work. Disabled widows and widowers of Social Security wage earners may also qualify.

SSI (Supplemental Security Income) provides disability benefits for low income persons not covered by Social Security. It can also be added to Social Security benefits which are lower than a certain minimum level.

Benefits

Social Security disability beneficiaries receive two primary benefits: a monthly check and medical benefits. The amount of the monthly check is determined by a formula which takes into account the amount paid into Social Security and the length of time of employment.

SSI (Supplemental Security Income) does not require previous employment, and monthly benefits are based upon "need", considering the individual's other income and assets. Special rules apply for legal residents who are not citizens.

Medical Benefits

Medicare

Social Security Disability recipients are entitled to Medicare benefits if they have been disabled for two years after a five month waiting period. A small "premium" (approx. $50.00) is deducted from the beneficiaries' Social Security check.

This entitles them to have certain medical expenses covered by Medicare.

Medicaid

SSI beneficiaries are entitled to Medicaid benefits. These are similar to Medicare benefits, but may be more restrictive in terms of medical providers and may cover items which are excluded from Medicare coverage. Medicaid benefits are available from the first month the recipient is entitled to SSI benefits.

There is no waiting period.

Social Security recipients (Title II) receive Medicare. SSI recipients receive Medicaid. Certain eligible recipients who receive both Social Security Disability and Supplemental Security Income receive both Medicare and Medicaid.

The health care benefits provided by Social Security are essential for disabled persons.

Who is Disabled and the Claims Process

Who is "Disabled"?

The standard of disability which must be shown is the same for both programs.  First, there is a finding as to whether you have a condition that automatically qualifies such as blindness.  If you do not have a condition that automatically qualifies you, the judge uses several factors to determine if you have physical or mental problems (or a combination of problems) severe enough to keep you from working in any regular paying job ("substantial gainful activity") for at least 12 months or which will result in death. Disability due to drug and alcohol addiction is not covered in whole or in part.

In determining disability, the test is not whether you would be offered a job, but whether there are jobs which you could perform.  There are four basic factors being age, education, transferable skills, and the physical and medical problems you have.  They look at age in that the older you are the more likely you will qualify.  This is under the idea that the older you are the less likely you will be able to be retrained.  For education, the lowest level is being illiterate, so if you have a high school diploma you are in the higher category.  The more education, the less likely you will get awarded on the idea that you have the ability to get a less physical job.  For types of work, they look at “transferable skills”, meaning for example, if you worked a very physically demanding job, but you did certain things at that job which were not demanding, such as supervising others or filling in forms and entering things into the computer, then perhaps you could transfer those skills to a job that is not physically demanding.  On the issue of your physical or mental problems they look at what would affect your ability to do certain work.  For example, would a certain back injury make you unable to do heavy work.  Would certain pain medication make you unable to do work that requires judgment.  Would having to lay down twice a day make you unable to work full time.

For those over 55 years old, new regulations allow a more realistic look at age, education, and experience in making this test.

The Claims Process

Application: For either Social Security or SSI, an application for disability benefits may be filed at the local district Social Security Office. You must wait until you have been unable to work for six months before you apply.  Generally our clients apply themselves and hire us only if they receive a denial.  Please apply electronically if at all possible because the agency is pushing the “paperless” applications ahead of the paper applications.


Denial: You should not become discouraged if your claim is denied at first. It is estimated that 80-90% of the applications are denied. This is an appropriate time for you to seek legal representation. We will discuss the case with you and give you an opinion of the merits of your claim. The earlier we start working on the case, the better chance we have of being successful.

Reconsideration: The next step in the process is the "Request for Reconsideration" from Social Security. After approximately two to three months, a decision will be reached on the Reconsideration request.

The case will either be granted benefits or denied. If the case is denied, it is then time to request a hearing before an Administrative Law Judge.

Request for Hearing: At this stage in the process, it is critical to have competent legal representation to give you the best chance of winning the appeal.

Preparing for the Hearing: An important service of this office is to obtain the medical records and other evidence to give a true picture of your condition.  WE will prepare a submission to Social Security before the hearing in most cases to let the judge know our reasoning and position.

The Hearing and Decision

The Hearing

The hearing is the most crucial stage of the appeal process, where the attorney's representation is most helpful. An Administrative Law Judge will preside and testimony will be taken under oath, but the hearing is generally somewhat informal. It is private, usually held in a small room with only the Judge and his assistant, you, your attorney, and possibly your spouse or a friend.

The medical records will be admitted into evidence. You will be asked questions, either by the Judge or by your attorney, which you must answer to the best of your ability or recollection. The Administrative Law Judge may call experts including "Vocational Experts" and "Medical Advisors," to testify about the possibility of training for a new job and the severity of the medical condition.

The attorney will prepare you thoroughly for the hearing, so there is no need to be apprehensive. Its purpose is to seek the truth and to carry out the purpose of the Social Security Act.

The Decision

The Judge will not announce a decision at the hearing.   We have found the judges to be fair and reasonable.  A written decision will be sent to your lawyer and to you. It usually takes at least two to three months after the hearing to receive the decision, if not longer. You should always contact your lawyer after you have received a decision from the Administrative Law Judge.

If the decision is favorable, you should receive your first check approximately 8-12 weeks after the decision.

Attorney Fees

Attorney Fees

Our office handles Social Security disability and SSI cases on a contingent fee basis. In other words, we are paid only if we succeed in getting benefits for you. A written copy of the retainer agreement will be given to you. All fees or fee agreements must be approved by the Social Security Administration. We generally request a fee of 25% of the retroactive benefits, or a specified maximum fee.

In Social Security cases, the attorney's approved fee is withheld from the lump sum payment. In SSI cases, the retainer fee which you pay the attorney must be held in a trust account until the fee is approved. A retainer may be requested prior to accepting an SSI case if you do not also have a Social Security case. Under those circumstances, we will place those funds in a trust account pending approval of our fee by the Judge at the conclusion of the case.

We are available by phone to answer questions and also ask you to please call us if you experience any change in your condition, if you receive any notice from Social Security, or if you move or change your telephone number.

Please call Jeanne Vinal at 716-832-5900 if you have any questions or if you would like to discuss retaining us to represent you in this process.

 

Attorneys located in Buffalo, NY, Vinal & Vinal, P.C. serve the Greater Buffalo Area,
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Vinal & Vinal, P.C.
Attorneys at Law
193 Delaware Avenue
Buffalo, NY 14202
www.vinalLaw.com

phone: (716) 832-5900
fax: (716) 832-6735