Category Archives: social security disability

Getting Workers’ Comp and Social Security Disability–Is it Really “Double-Dipping?”

double dippingAn injured worker’s receipt of Social Security Disability (SSD) benefits can produce an offset from workers’ compensation (WC) payments.  A workers’ compensation recipient who is also collecting SSD cannot receive, in combined benefits, more than 80% of his average current earnings (ACE).  Wisconsin is one of nine “Reverse Offset” states whereby any offsets are taken on WC benefits rather than Social Security benefits.  Under Wisconsin statutes, for each dollar that the total monthly workers’ compensation benefits (excluding attorney fees and costs) plus the monthly benefits payable under the Social Security Act for disability exceed 80% of the employee’s ACE as determined by Social Security, the workers’ compensation benefits shall be reduced by the same amount, so that the total benefits payable do not exceed 80% of the employee’s ACE.

In most states, under Social Security law, a recipient’s SSD benefits are reduced when the total of the recipient’s disability payments plus workers’ compensation (WC) benefits exceed 80% of the ACE.  The reduction is taken against the recipient’s monthly SSD, not WC. In Wisconsin, however, just the reverse is true and the workers’ compensation insurance carrier’s liability is reduced.

In Wisconsin, the maximum age for ending the Social Security offset has been 65 since the offset went into effect in 1980.  However, since Congress amended the Social Security Act in 2013 by the incredibly-titled “Achieving a Better Life Experience (ABLE) Act,” the amendment extends the workers’ compensation Social Security offset to the full retirement age (essentially age 66 for those born between 1943 and 1954, and age 67 for those born after 1960).  The revised law provides that the offset continues until an employee attains full retirement age.  The way this works out practically, for example, for a worker with a $600 monthly Average Weekly Wage ($400 in Temporary Total Disability), or about $30,000 in average current earnings (ACE), 80% ACE would be $24,000 per year or $2,000 per month.  If SSD pays $900 per month, WC would be limited to the 80% ACE figure ($2,000) so the WC carrier liability would be limited to $1,100 instead of its $1,720 ($400 TTD rate x 4.3) monthly liability absent the SSD.

The purposes of the two systems—SSD and WC—differ substantially. WC applies the principle that, irrespective of fault, projected costs of injuries can be secured in advance through insurance. Eligibility for SSD benefits requires an employee to build equity in the program through earning income credits.  The employer has paid a premium for the worker’s injury not based on any offset, and the employee has paid into Social Security for the entirety of his work life.  The rationale for the “offset” is loosely based on a “double dipping” assessment, much the same as the “Moral Hazard” rationale for not providing a full pay check to workers who are injured (in order to reduce the incentive to remain off work).

Wisconsin experimented historically with the percentage of Permanent Partial Disability payable for Temporary Total Disability (from 70% to the current 66.66%), based on the notion that the worker should be no better off disabled than if he were working, the 33% diminution assessed as an amount relatively close to his taxation rate.  This rationale does not, of course, hold for those workers who exceed the maximum (currently $1,380) wage rate.  The “Moral Hazard” rationale for reduction of benefits is based on the theory that an injured worker should not be “better off”  because of his injury.  In over 40 years’ representing injured workers, I’ve yet to see a worker actually better off because of his work injury.

What is the Date Last Insured, and Why Does it Matter?

time-wont-let-me_lToday’s post comes from guest author Susan C. Andrews, from Causey Law Firm.

A person who has been out of the labor market for quite some time before he applies for Social Security Disability (SSD) may find that his application for benefits is rejected because he cannot prove he became disabled before his date last insured.  In order to qualify for benefits in the first place, a person must pay Social Security taxes long enough to have insured status. When the individual stops working and therefore stops paying into the system, eventually he will hit his date last insured and lose his insured status. It is a little like a private insurance policy: when you stop paying the premiums, you no longer are covered by the policy.  For a person who has work steadily in his lifetime, the date last insured is arrived at and insured status lapses about five years after stopping work.

The Social Security Administration has another program for the medically disabled called Supplemental Security Income (SSI) where there is no date last insured rule, but there are other program requirements and limitations. In a future article, we will explore the differences between the Social Security Disability (SSD) and Supplemental Security Income (SSI) programs.

As an example of how the date last insured issue can prevent a person from getting Social Security Disability (SSD) benefits, consider the case of a 35 year-old woman who has worked steadily since her late teens. She and her husband have twins when she is in her mid-30s. There are a lot of late night feedings and diapers to change! She stays home to take care of the twins while her husband continues to work to support the family. When the twins turn five, she begins to think about returning to work, perhaps when they go into first grade a year or so later. Five years has passed, and she reaches her date last insured. She loses her insured status and has not yet returned to work. When the twins turn six, she gears up her job search, but has not yet re-entered the labor market. Then medical catastrophe strikes: she has a very disabling stroke – unusual in a person this young, but not unheard of. She clearly cannot work. She applies for Social Security Disability and is turned down because she did not become disabled before her date last insured. Unlike the Social Security Retirement program, where it is possible to collect Social Security Retirement (SSR) benefits on the earnings record of one’s spouse, the Social Security Disability program only allows for benefits to be paid on the basis of one’s own earnings record.

Consider another scenario with this family of four. When the twins are three, mom is diagnosed with Multiple Sclerosis. This condition can progress slowly or more quickly. In her case, she suffers a fairly quick progression of symptoms. By the time the twins are six and going into first grade, she is ready to return to work, except that she is suffering a variety of MS symptoms, including the profound fatigue that is experienced by many with this disease. Her combination of symptoms prevents her from working, so she applies for Social Security Disability. She passed her date last insured when the twins turned five. Will she get benefits? That depends. She certainly can apply for benefits after her date last insured, but she must be able to show that her symptoms had become sufficiently severe to prevent her from working before her date last insured. We have handled many cases where the individual is out past his or her date last insured. The key is to obtain all of the medical records that help to document the seriousness of the medical condition before that date last insured. Sometimes these can be buttressed with statements from family members or close friends who were in a position to observe at close range how seriously the person’s medical condition was affecting her functioning prior to the date last insured. In the case above, a statement from the husband likely would be helpful.

The Social Security Administration has another program for the medically disabled called Supplemental Security Income (SSI) where there is no date last insured rule, but there are other program requirements and limitations. In a future article, we will explore the differences between the Social Security Disability (SSD) and Supplemental Security Income (SSI) programs.

Photo credit: Јerry / / CC BY

What Does The Supreme Court's Striking Down Of The Defense Of Marriage Act Mean For Your Social Security Disability Benefits?

The United States Supreme Court struck down the Defense of Marriage Act

Today’s post comes from guest author Barbara Tilker, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

On June 26, 2013, the Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) violated the Fifth Amendment and is therefore unconstitutional. While DOMA was in effect, the federal government did not recognize same-sex marriages that were performed in states where they are legal, such as New York.  This meant that the Social Security Administration was unable to pay certain benefits to individuals who would have otherwise been entitled to them if they were married to someone of the opposite sex. As this part of the law has been struck down, validly married same-sex couples should be treated identically to opposite-sex couples by the Social Security Administration. 

There are several Social Security benefits that married individuals are entitled to that unmarried individuals are not.  The two largest programs are survivor benefits and disabled widow(er)s benefits. A surviving spouse can now be entitled to benefits on a deceased spouse’s earnings record once they attain age 60 or are disabled and age 50. These benefits, once only available to opposite-sex couples, should now be extended to same-sex couples as well. Stepchildren may now also be entitled to benefits on a worker’s earnings record, if the worker is either deceased or receiving Social Security retirement or disability benefits. 

The Social Security Administration relies on state law to determine if a person was legally married. Social Security looks at the law of the state where a person was living at the time of their death to determine if their marriage was valid. It’s possible that a same-sex couple could be married in New York (or another state where same-sex marriage is legal) and then move to a state that does not recognize same-sex marriage.  According to Social Security’s current rules, the Administration would look to the rules of the state where the person lived at the time of their death to determine if the marriage was valid. 

At first glance, this seems to mean that validly married same-sex couples could be denied benefits they would have been entitled to if they didn’t move. However, Social Security also recognizes a “deemed marriage” provision. In simple terms, if both partners believed themselves to be married, and acted like a married couple, and the only reason they are not validly married is “a legal impediment not known to the applicant” at the time of the marriage ceremony, Social Security will consider the marriage to be valid for benefit purposes.

We don’t know yet how Social Security will enact these provisions or what the end result will be. However, it appears clear to us that many people who were being denied benefits because of who they love will now be entitled to them. 

Denied Or Partially Denied For Social Security Disability? A Special Ruling Means You May Be Entitled To A Re-Hearing

Today’s post comes from guest author Barbara Tilker, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

If you filed for Social Security disability and appeared at a hearing in the Queens Office of Disability Adjudication and Review before any of the following Administrative Law Judges – Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld, David Z. Nisnewitz, and Hazel C. Strauss, you may soon be entitled to a new hearing before a different Administrative Law Judge. You may soon receive, or have already received, a “Notice of Proposed Class Action Settlement and Fairness Hearing” from Social Security. 

This notice concerns a lawsuit, Padro, et al. v. Astrue, brought against the Social Security Administration by the law firm of Gibson, Dunn, & Crutcher and the Empire Justice Center. The lawsuit was filed to address allegations of “general bias” against disability claimants by the five judges named above. In settling the lawsuit, the Social Security Administration is not admitting any wrongdoing by any of the judges. 

Under the terms of the proposed settlement, any individual who received an unfavorable or partially favorable decision from one of these judges dated after January 1, 2008, is eligible to have a new hearing. The hearing will be conducted by a different judge than the judge who issued their first decision. However, if an individual filed a lawsuit in District Court and the judge’s decision was upheld by the court, that individual will not be entitled to a new hearing in front of a different judge.

The proposed settlement has not been finalized and the terms are subject to change. There is a hearing scheduled to finalize the settlement on July 24, 2013. Once the settlement is finalized, all affected individuals will receive another notice from Social Security advising them of their right to a new hearing. If you receive such a notice, you will have sixty (60) days to notify Social Security that you wish to have a new hearing.  If you believe that you might be entitled to a new hearing, but have not received a notice, you should contact your local Social Security office as soon as possible.

If you are interested in having our office represent you at your hearing, please contact our office as soon as possible so that you can schedule a free initial consultation with our staff.

New Social Security Rules Make It Harder To Present Your Case

Today’s post comes from guest author Ryan Benharris from Deborah G. Kohl Law Offices.

In December, 2010, the Social Security Administration (SSA) implemented a set of rules put in place to enable more effective case review. One of the major changes was that Applicants will no longer know who their Administrative Law Judge is prior to their scheduled hearing. A recent article in the Wall Street Journal noted that these judges seem more concerned with the speed of case processing than on whether the applicants actually deserve benefits. WSJ also indicated that some judges were approving more than 85% of the cases they heard in what was allegedly an effort to have the cases resolved more quickly. Unfortunately, for applicants, this change in practice has made their cases much harder to litigate. Many Administrative Law Judges have different styles of practice in how their cases are heard. An attorney may present information in a different style depending on the judge. The importance of an applicant being represented by an attorney before the Social Security Administration has never been clearer. Since there is no way to know who the Administrative Law Judge is prior to the hearing, it is absolutely imperative that every case prepared in accordance to all rules governing how cases are tried before the court. If even the slightest detail is overlooked, it may prevent an applicant from being allowed to present evidence that could win his or her case.

How Does Social Security Help Me Get Back to Work?

The SSA has programs to help disabled people rejoin the workforce.

Today’s post comes from guest author Barbara Tilker from Pasternack Tilker Ziegler Walsh Stanton & Romano.

As I discussed in a previous post, you don’t have to be on Social Security Disability (SSD) forever. Many people find that their medical conditions improve and they want to try to get back to work. However, it’s hard to get back into the workforce after being out of it for a long time, and people are worried about losing their eligibility for benefits if they try to go back to work but are unsuccessful.

Social Security recognizes that it can be difficult for people to get back into the labor market and that people would be reluctant to go back to work if they would automatically lose entitlement to their disability benefits. To address these concerns, Social Security runs several programs to help people transition back into the workforce while maintaining financial eligibility.

Social Security has many programs and policies to help people return to work, but I will discuss two of these programs in some detail. These are the Ticket to Work program and the Trial Work Period.

The Ticket to Work program gives disabled individuals access to a network of services that offer retraining and vocational rehabilitation. This is a free, completely voluntary program. Once you reach out to them, you will Continue reading

I Can’t Find Work; Does That Mean I’m Disabled?

Having physical or mental impairment will not automatically make you entitled to Social Security Disability benefits.

Today’s post comes from guest author Roger Moore from Rehm, Bennett & Moore.

Many people believe that if they suffer from a physical and/or mental impairment and can’t find work, this means they should be on Social Security Disability. This simply isn’t true.

Disability is not necessarily tied to your ability to obtain work, or your inability to perform one main occupation. The Social Security Administration (SSA) will review your employability not just in your immediate locality, but also in the state and region in which you live.

While only employment opportunities in your immediate areas are considered for workers’ compensation, the same is not true for social security disability. If you are unable to find work in your immediate area, the SSA requires you to move to a locality where a job exists. Note that the SSA’s responsibility doesn’t include having to find you employment, but only to establish that you are physically and mentally capable of performing that job if a position became available.

Additionally, your inability to perform the work you’ve done for years or decades does not automatically qualify you for disability. The SSA will consider skills you’ve acquired from your work life in determining whether those skills allow you to “transfer” to or perform other occupations. It’s important to also remember that the SSA isn’t really concerned with how much those other occupations may pay. If you can work full-time in a position that is available in your state and region, this will normally disqualify you from receiving disability.

The conditions which the SSA imposes upon a claimant are unfortunately, not always feasible or fair. Nevertheless, as it is the current state of the law, compliance is required.

Important Changes Are Coming to Social Security in 2012

Today’s post comes from guest author John Anselmo from Pasternack Tilker Ziegler Walsh Stanton & Romano.

Changes to Social Security are coming in 2012. Beginning in the new year, the threshold (maximum amount) a disabled, non-blind, person can make per month to qualify for Social Security Disability benefits will increase from $1,000 per month to $1,010 per month. This cap is how the Social Security Administration defines Substantial Gainful Activity. One quarter of coverage is now $1,130, up from $1,120, and maximum taxable earnings have increased from $106,800 to $110,100. Supplemental Security Income (SSI) will go up from $674 per month to $698 per month,  in step with the general 3.6% cost of living increase for all benefits. This amount does not include any State Supplement. For the complete report on 2012 Social Security Changes, check out this Fact Sheet. If you are wondering what the implications of these changes will be for you, learn more at, or contact your attorney.