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When Should I apply for Social Security Disability?

Q. I’ve been off work due to illness for five months.  I just got a letter from my employer General Motors telling me that I have to apply for Social Security Disability.  What is Social Security Disability and do I have to apply?

A. In 1956, Congress created the Social Security Disability benefit program with the purpose of providing monthly benefits to workers who became unable to work for a long or indefinite duration. If a worker has worked enough in their lifetime, and recently enough before they became unable to work, that worker is said to have “insured status” and can apply for benefits.

pic-any2.jpgTo qualify for benefits, a worker must first of all not be engaging in “substantial gainful activity.”  Earnings above $1090 a month–for non-blind individuals–are presumed to be substantial gainful activity.  Earnings below $1090 a month are generally considered to be less than substantial gainful activity–although an ability to earn less than $1,090 a month may suggest to Social Security a capacity to earn more.

A claimant must then show that he or she has a “severe impairment” that significantly limits the claimant in the performance of gainful activity.  Some claimants that meet these qualifications above automatically qualify for benefits if their physical ailments are described in the “Listings of Impairments.” Many claimants’ disabling medical conditions are not found  within these Listings, so the analysis for eligibility continues. For workers who do not meet the Listings, such workers must prove that they are unable to perform any of their past relevant work they have performed over the previous fifteen years. Once a claimant has proven these matters, the burden shifts to the Social Security Administration to put forward evidence of jobs a claimant can still perform notwithstanding their disabilities.

Social Security frequently relies upon certain rules called “the Grids” to prove that there are  jobs a disabled person can still perform.  Different Grids apply for persons of different ages.  One set of Grid rules apply for persons under 50; another set of rules apply for persons between 50 and 54; another set of rules apply for persons 55 and over.  The older a person is, the more difficult it is for Social Security to prove that jobs exist which a disabled person can perform.  Social Security also tries to rely upon testimony from “vocational experts” about the existence of jobs that a disabled person may be able to perform notwithstanding their disabilities.  If denied on application, a claimant can request a hearing before an Administrative Law Judge.  At the hearing, the focus is usually on the extent of a worker’s functional limitations and the existence of jobs which may accommodate those limitations.  It is strongly recommended that a worker retain a lawyer for such a hearing who can effectively cross-examine the vocational expert and who can obtain the necessary relevant medical opinions and statements from treating doctors.

Under your GM-UAW collective bargaining agreement, you are required to apply for Social Security Disability Benefits if you have been off work for five months. If you do not apply, you may jeopardize your entitlement to sick leave benefits, Extended Disability Benefits or to part of your Total and Permanent Disability Pension.  You therefore should apply. Usually, if you receive Social Security Disability, you and your dependents will have more disposable monthly income than you did previously.  If you are found eligible for benefits though, a part of the past due Social Security Disability Benefits usually  needs to be paid to General Motors for disability or pension benefits you were paid to cover the same period of time.

Our law firm specializes in representing injured workers and we have been helping the disabled with their Social Security claims for decades.   These claims are handled on a contingency fee basis; in other words, if we don’t succeed on your behalf, there is no attorney fee. If we are successful, Social Security pays us a fee from out of the past due benefits, monies that usually would otherwise go back to General Motors.  If you want our assistance in applying for benefits or in appealing an unfavorable determination, please  give our office a call.

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