Disability And Injury FAQs

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The Required Administrative Process in a Claim for Benefits under ERISA

The key to an ERISA disability benefits claim is make sure to follow all required steps in the administrative process.  Claimants must “exhaust” their administrative remedies before filing a lawsuit.  Failure to exhaust one’s administrative remedies may result in significant limitations on the standard and scope of court review in a lawsuit.  This is why everything you do in the the administrative claims process may determine whether you are ultimately successful in your claim should you have to go to court.

Step One

Step One is to bring a claim to the plan administrator. A claim is a “request for plan benefit . . . made by a claimant in accordance with a plan’s reasonable procedure for filing benefit claims.” 29 C.F.R. §2560.503-1(e). As set forth in Abdel v. U.S. Bancorp, 457 F.3d 877 (8th Cir. 2006), a claim for benefits is made when claimant seeks benefits.  Compare another case, Layes v. Mead Corp., 132 F.3d 1246 (8th Cir. 1998, wherein the court decided that there was no claim for benefits until formal procedures for filing claim are satisfied.

Typically, an application for benefits consists of three parts: (1) an application with detailed information from the claimant, (2) detailed information from the employer, and (3) the attending physician statement. Failure to complete any of these forms can be fatal to a claim. In the case Mitchell v. Equitable Life Assur. Soc’y of U.S., 310 Minn. 219, 224, 245 N.W.2d 618-620-21 (1976), the claimant was barred from filing suit for failing to supply the employee’s statement and physician’s statement.

There is also usually a requirement of timely notice of claim and a proof of loss or proof of claim consistent with your state’s insurance laws.  However, late notice will usually only bar a claim where there is prejudice to the plan’s insurer. The notice prejudice rule that applies to an insured ERISA plan was set forth in UNUM Life Ins. Co. of America v. Ward, 526 U.S. 358, 369 (1999).

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What Social Security Counts as SSI Income

Under SSI, income includes cash, checks and other things you get that can be used for food or shelter. Here are examples of income:

• Wages from your job, whether in cash or another form;
• Net earnings from your business if you are self-employed;
• The value of food or shelter that someone gives you, or the amount of money some gives you to help pay for them;
• Department of Veterans Affairs benefits;
• Railroad retirement and railroad unemployment benefits;
• Annuities, pensions from any government or private source, workers’ compensation, unemployment insurance benefits, black lung benefits and Social Security benefits;
• Prizes, settlements and awards, including court ordered awards;
• Proceeds of life insurance policies;
• Gifts and contributions;
• Support and alimony payments;
• Inheritances in cash or property;
• Interest earned, including interest on savings, checking and other accounts;
• Rental income; and
• Strike pay and other benefits from unions

 Items that do not count as income

The following items are not income:

•  Medical care and services;
• Social services;
• Money from the sale, exchange or replacement of things you own (though the money may count as a resource if you retain it until the next month);
• Income tax refunds;
• Earned Income Tax Credit payments;
• Payments made by life or disability insurance on charge accounts or other credit accounts;
• Proceeds of a loan;
• Bills paid by someone else for things other than food, clothing or shelter;
• Replacement of lost or stolen income; and
• Weatherization assistance.

Some things Social Security normally counts as “income” will not reduce your SSI payment. For example, under certain conditions, home energy assistance provided by certain home energy suppliers is not counted as income. Food, clothing, shelter or home energy assistance provided free or at a reduced rate by private nonprofit organizations also is not counted. Even though these items may not count, you should still tell Social Security about them.

Keep records of your earned income

Social Security will need to verify your wages or self-employment income. It is important that you keep all your pay slips, including pay slips for overtime, vacations or bonuses. If you are self-employed, you should keep your completed federal/state income tax forms.

If there is a change in your resources

Tell Social Security if there is any change in what you own. A single person can have resources worth up to $2,000 and still get SSI. A couple can have resources worth up to $3,000.

Resources Social Security does not count

Social Security does not count many of the things you own. Your home and the land that it is on do not count if it is your primary residence. Depending on how much they are worth and how they are used, household goods, personal property and a car may not count. Life insurance with a face value of $1,500 or less per person usually does not count. Up to $1,500 in burial funds for you and up to $1,500 in burial funds for your spouse do not count. Burial plots for you and your immediate family also do not count.

Resources Social Security counts

Some of the things Social Security does count are:

•  Cash;
• Your checking and savings accounts;
• Christmas club accounts;
• Certificates of deposit; and
• Stocks and U.S. Savings Bonds.

Any payments that you get from SSI or Social Security for past months will not be counted as a resource for nine months after the month you get them. If there are any past payments left over after the nine-month period, they will count as resources.

What you need to tell Social Security

If you are single, tell Social Security if your resources are more than $2,000. If you are living with your husband or wife, tell Social Security if your combined resources are more than $3,000.

If you have a child who gets SSI, you should tell Social Security about changes in the things the child owns AND the things you and your husband or wife own.

If you agreed to sell property so you could receive SSI, you should tell Social Security when you sell it. If you do not sell the property, you may not be able to get any more SSI payments. And, you may have to return any payments Social Security already sent you.

If your name is on any bank account with another person, you must tell Social Security about the account, even if you do not consider the money to be yours. You must tell Social Security about the account, even if you do not use the money or account. If someone wants to add your name to an account, check with Social Security first. If the money is not really yours, or if it is for a special purpose like your medical expenses, Social Security can tell you how to set up the account so it will not affect your SSI.

If you (or your husband or wife) buy, sell or become the owner of any real estate, a car or personal property, you need to tell Social Security.

Call Social Security if you are not sure if something counts. Social Security will help you figure it out.

If you get help with living expenses

Let Social Security know if someone gives you money, food or free housing. Also, tell us if anyone helps pay for your food, utilities, rent or mortgage or if the amount someone pays you changes. If you used to get help with expenses and do not get it now, tell us that, too.

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Note: Please be advised that the Ortiz Law Firm does not typically handle Short Term Disability claims, except in limited circumstances where the claimant has “exhausted” all available administrative appeals and must file a lawsuit.

Short Term Disability benefits (sometimes referred to as “STD” benefits for short) provide vital income protection to individuals immediately after the onset of a disabling condition.

Short Term Disability insurance is designed to replace a specific percentage of your pre-disability income during the first few weeks or months after the onset of a disabling illness or accident. Policies typically provide coverage for a period of six months to a year. Short Term Disability benefits are often an important source of income until Long Term Disability benefits begin.

You can typically purchase Short Term Disability Insurance benefits from an insurance agent or through your employer.

Some benefits you might obtain include:

• Weekly benefit payments, which will pay you a portion of your pre-disability earnings on a weekly basis for term length of your policy;

• Comprehensive Rehabilitation Program benefits, which can provide benefit incentives related to vocational (job) rehabilitation, dependent (child) care, workplace modifications and more.

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SSI Disability Benefits for Surviving Spouse Where Decedent Passes Away While Waiting for Decision

If you are the surviving spouse, you may be eligible to pursue the claim and receive payments. For an adult SSI claimant, only the claimant’s spouse is eligible to receive payments; no other surviving relatives can substitute in for the claim, including children and parents. However, you must have been living in the same household as the deceased claimant at any time during the month of death or the preceding six months. See, 20 C.F.R. §416.542(b)(1).

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There are a number of circumstances in which the Federal government can garnish “regular” Social Security benefits (See below, SSI benefits can never be garnished). They include:

• To enforce child support or alimony obligations under Section 459 of the Social Security Act;
• Internal Revenue Service (IRS) can levy against benefits to collect unpaid Federal taxes according to Section 6334(c) of the Internal Revenue Code;
• IRS can collect taxes due by levying up to 15 percent of a monthly benefit until the debt is paid;
• IRS allows beneficiaries to have a portion of their check withheld to satisfy a current year Federal income tax liability according to Section 3402 (P) of the Internal Revenue Code;
• Other Federal agencies can collect money from benefits to pay a non-tax debt owed to that agency according to the Debt Collection Act of 1996 (Public Law 104-134); and
• Under the Mandatory Victim Restitution Act, certain civil penalties provide the right to garnish benefits under 18 USC 3613.

However, if a creditor other than the federal government tries to garnish your Social Security benefits, inform them that such an action violates Section 207 of the Social Security Act (42 U.S.C. 407).

Section 207 bars garnishment of your benefits. It can also be used as a defense if your benefits are incorrectly garnished. Our responsibility for protecting benefits against garnishment, assignments and other legal processes usually ends when the beneficiary is paid. However, once paid, benefits continue to be protected under section 207 of Act as long as they are identifiable as Social Security benefits.

NOTE: Supplemental Security Income payments cannot be levied or garnished.

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There are at least five separate types of Social Security disability benefits:

• Disability Insurance Benefits is the most common and important type of Social Security disability benefits. It goes to disabled individuals who have worked long enough in recent years (five out of the last 10 years in most cases), and paid sufficient Social Security taxes to qualify.
• Disabled Widow’s and Disabled Widower’s Benefits are paid to individuals who are at least 50 and become disabled within seven years after the death of their husband or wife. The deceased husband or wife must have worked long enough and earned enough credits under Social Security to be “insured”.
• Disabled Adult Child Benefits are available to disabled adult children of persons who are deceased or who are currently drawing Social Security disability or retirement benefits. The adult child have become disabled before the age 22.
• Supplemental Security Income (“SSI”) benefits are payable to individuals who are poor and who are disabled. It does not matter whether an individual has worked in the past or not in order to qualify for SSI.
• SSI child’s disability benefits are SSI benefits paid to children under the age of 18 who are disabled. The way in which disability is determined is a different for children than it is for adults.

For Disability Insurance Benefits, Disabled Widow’s Benefits or Disabled Widower’s Benefits and Disabled Adult Child benefits, it does not matter whether the disabled individual is rich or poor. Benefits are payable based upon a Social Security earnings record.

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I get e-mails asking this question frequently, but often worded differently.

• “How do I get an SSDI or SSI decision faster?”
• “How do I speed up my Social Security disability?”
• “What can I do to get a quicker decision on my SSD or SSI claim?”

They all mean the same thing. The bottom line is people want to know how to speed up the process of getting their Social Security disability. They want to win fast, and I am going to list some ways on this site that can help that happen. However, keep in mind that pretty much nobody who decides to apply for Social Security disability will have a quick and pleasant experience. Some form of financial hardship must be expected.

Frankly, it has never been easy to speed up an SSDI or SSI decision, because the Social Security Administration simply can’t put every suffering person on the fast track to disability benefits. In fact, in recent years, it has become more difficult than ever to get rapid decisions on Social Security disability claims. The chief reason for this increase is just how many more cases every year Social Security has to make decisions about at all stages of the process, from the initial application through to the final hearing.

To help make your Social Security disability experience faster on your end, I am going to give you some basic tips, including how to request a quicker decision with a “dire need letter.” I will also overview the new Social Security disability process that helps speed up cases for thousands of claimants and explain how veterans are entitled to a speedier application process and decision:

• How to Speed Up Social Security Disability Claims

I and other Social Security disability lawyers have seen the claims process become more and more difficult to push through, but that’s why you need an experienced lawyer like myself to provide the professional aide that will get you a decision as painlessly as possible. If you have questions or need any assistance, please call my office at 850-898-9904 or click the link below for a free case evaluation.

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If you applied for benefits, you can check the status of your application online.

Your application status shows:

• The date Social Security received your application;
• Any requests for additional documents;
• The address of the office processing your application; and
• If a decision has been made.

If you receive an error, it may be because:

• You entered an incorrect Social Security number or confirmation number;
• You did not complete the application; or
• Social Security made a final decision on your application more than four months ago.

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If you disagree with the Appeals Council’s decision, or if the Appeals Council decides not to review your case, you would then have to go to the last level of the appeals process which would be to file a civil suit in a federal district court. If you bring a civil action seeking judicial review of the Social Security Administration’s (SSA’s) final decision, our staff will prepare the record of the claim for filing with the Court. This includes all the documents and evidence SSA relied upon in making the decision or determination. There is a fee for filing a civil action in Federal court.

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Question: I will start collecting Social Security in February of 2011. I am having health problems that will probably result in my not being able to work (even part time) in the near future. Can I start collecting Social Security and then later change to Social Security Disability?

Answer: It depends on how old you are. You cannot collect social security disability after your full retirement age.

However, if you are talking about Early Retirement, then you should apply for disability because you will be eligible for full disability pay until your full retirement age (when you social security disability income becomes retirement income), and you will collect your full retirement income. If you take early retirement and do not file for disability, then you will forever collect a reduced retirement income.

Another benefit to applying for both Social Security disability benefits and early retirement: you can collect the reduced early retirement while applying for the disability income.