Disability And Injury FAQs
Injuries and illnesses that keep from work can cause considerable personal and financial strain. At these times, individuals and families rely on insurance policies to keep them secure. When those benefits are denied, it’s natural to have many concerns and questions. Browse our FAQs to find information and insight from our experienced disability and injury attorneys.
Should I Apply For Social Security SSD, SSI or Both?Show Answer Hide Answer
There are several different types of Social Security Disability benefits. The primary two are Social Security Disability Insurance Benefits (commonly shortened to SSD, SSDI or DIB) and Supplemental Security Income (SSI). We are commonly asked whether the claimant should file for SSD, SSI or both.
I hate to say this, but the answer really depends on your individual circumstances. Those who do not have enough work credits and have limited income, assets and resources should apply for SSI. Anyone who has worked long enough to earn enough work credits (quarters of coverage) should apply for Social Security disability. But keep in mind that many people may qualify under both programs of benefits.
You should contact a lawyer who handles Social Security disability cases or contact Social Security directly to see what benefits you may qualify for. Mr. Ortiz is a Board Certified Social Security Disability Attorney and he offers free disability case evaluations. Contact the Ortiz Law Firm today at 850-898-9904 for a free consultation.
What Do I Testify About At My Disability Hearing?Show Answer Hide Answer
We receive a lot of questions about the topics that will be covered at a Social Security Disability Insurance (SSD) and/or Supplemental Security Income (SSI) hearing before an Administrative Law Judge. So, we thought we’d share with you an infographic that highlights some of the areas that the ALJ may cover with a disability applicant:
Working with a capable Pensacola SSD lawyer prior to your disability hearing can ensure that the process go more smoothly. You and your lawyer may discuss ways to demonstrate your abilities and limitations. You might also examine medical records and work history to prepare for the hearing. For a free case evaluation with a Board Certified Social Security Disability Attorney, contact Mr. Ortiz at (850) 898-9904.
What Can I Do To Help Win My Social Security Disability Case ?Show Answer Hide Answer
There are some things that you can do to help win your own Social Security Disability (SSD) and/or Supplemental Security Income (SSI) case.
- Submit any and all medical records you have in your possession to Social Security when you first apply.
- Continue to get ongoing medical treatment. Try not to go more than 3 months between visits to the doctor, and try not to miss any scheduled appointments.
- If you are denied (at the initial application, reconsideration, or hearing stage)…appeal right away. After a denial by an Administrative Law Judge, you would need to appeal to the Appeals Council. After the Appeals Council, you would need to file a lawsuit in Federal Court.
- If you see a new doctor, go to the Emergency Room or Urgent Care, are hospitalized, or begin treatment at a new clinic, tell Social Security or your representative right away.
- Even if you have a lawyer or representative, always stay involved in your case.
- The Social Security disability application process is long and frustrating. Never take it out on Social Security employees, it can only hurt your case. Also, do not take it out on your lawyer or your lawyer’s staff; they are trying to help you win your case.
- Every few months check in on the status of your disability case with your lawyer or with the local District Office where you filed your claim.
- If you do not already have a lawyer, do your research. Check attorney reviews, determine if the lawyer you are considering is a Board Certified Social Security Disability attorney, and consult with a lawyer who has handled many Social Security disability cases.
- Speak to your doctor and see if he or she will complete a physical Residual Functional Capacity form (RFC), or mental RFC. These forms can be obtained from your representative.
- Keep a detailed journal of your day-to-day life (sometimes called your Activities of Daily Living) and how your condition affects you. In this journal note things like activities you are having difficulty performing, activities you no longer perform due to your condition, side-effects from your medications, and how your daily life has been affected by your disability.
If you would like to discuss some of these ideas with an experienced disability attorney, contact Pensacola lawyer Nick Ortiz for a free case evaluation at (850) 898-9904.
How Much Will a Social Security Disability Lawyer Charge in Attorney Fees?Show Answer Hide Answer
Attorneys are typically paid on one of two ways: (1) by the hour at a set hourly rate and (2) on a contingency fee basis for a percentage of the recovery in a claim.
Disability lawyers are paid according to the second method. Social Security disability attorneys do not charge fees at the beginning of the claim or require a retainer to work on an SSDI or SSI claim. Most disability attorneys will be paid a fee only if they win the case (this is the “contingency” that must occur.)
Contingency Fee Agreement
Whether you are filing for Social Security Disability Insurance (SSD or SSDI) or Supplemental Security Income (SSI), when you hire a disability attorney you will likely sign a fee agreement that allows the Social Security Administration (SSA) to pay your attorney a fee if your claim is approved. As an extra precaution, the SSA will need to review the agreement to make sure it satisfies the fee agreement guidelines set out in SSA’s regulations.
As stated above, most fee agreements are on a contingency basis, meaning the attorney will only be paid if you win your disability claim and are awarded past-due benefits.
How Much Is the Attorney’s Fee?
For Social Security disability lawyers, the fee is limited to 25% of the back due or “past-due” benefits you are awarded. Moreover, the maximum fee is set at $6,000. The attorney will be paid only out of your back pay, or past-due benefits.Example of Fee Calculation: if your back-due benefits are calculated to be $4,000, your attorney will be paid $1,000 ($1,000 is 25% of $4,000) and you will receive $3,000 ($3,000 is 75% of $4,000).
If no back-dated benefits are awarded, your attorney will not receive a fee and should not ask you for one.
It should not cost you anything to hire a disability attorney. The fee should be paid out of the disability award you will eventually receive after benefits are awarded.
When do you have to pay the attorney’s fee? You do not usually need to pay the attorney’s fee directly out of your pocket. The SSA should withhold the entire lawyer’s fee (up to $6,000) from your first disability check (your calculated award of backpay), before Social Security sends it to you.
Will It Cost Me More to Have a Board Certified Social Security Disability Attorney Represent Me?
No. It will not cost you any more to hire a Board Certified Social Security Disability Attorney to represent you than hiring any other attorney. That means you get the knowledge and experience of a Board Certified Social Security Disability Attorney without paying any more than you would to anyone else. You just pay the same 25% on a contingency fee basis.
Disability Back Pay
Once you are approved for disability benefits, the SSA will calculate the amount of back pay it owes you.
In SSDI claims, your back pay will include all retroactive benefits you are owed from the date you were approved going back to your established onset date (the date the SSA determined your disability began). [Note: the retroactive benefits do not go back forever if you delayed applying for benefits. The retroactive benefits cannot go back more than 12 months from the date of your application.]
For SSI, your benefits are calculated from the date you are approved for benefits back to the date you applied for SSI benefits.
(For more information, see our detailed article on disability back pay.)
During the course of your claim, your attorney usually has to request your updated medical records, vocational reports, and school and work records. In some instances, your attorney may order independent medical or psychological examinations, which can be quite expensive. The client must pay these costs separate and apart from the attorney’s fee. Other costs may include postage and charges for copying.
In most of our cases, the costs average between $100 and $200 and are based on actual costs.
Sometimes an attorney will ask for money in advance to pay for such costs. However, the Ortiz Law Firm does not do so. We advance these costs for our clients, and only ask that they reimburse us at the end of the claim.
Before hiring an attorney, you should ask whether you will be charged for out-of-pocket expenses in addition to the lawyer’s fee, and what types of expenses might be included.
Free Case Evaluation With a Board Certified Social Security Disability Attorney
Nick A. Ortiz is a Board Certified Social Security Disability Attorney. Call him today at (850) 898-9904 for a free case evaluation.
What is the Difference Between Social Security Disability and SSI?Show Answer Hide Answer Social Security Disability Insurance Supplemental Security Income Eligibility A disabled individual must have paid Social Security taxes and earned enough work credits to become insured for benefits. A disabled or blind adult or child must meet all of the following categories:
1. Have limited income;
2. Have limited resources;
3. Be a U.S. citizen or national (or in one of certain categories of aliens); and
4. Live in the United States or Northern Mariana Islands.
Payment The monthly disability benefit amount is based on the Social Security earnings record of the insured worker. The monthly payment is based on need and varies up to the maximum federal benefit rate. Some states add money to federal SSI payments. Medical Coverage The worker will get Medicare coverage automatically after receiving disability benefits for two years. In most states, beneficiaries are automatically eligible for Medicaid. More detailed explanation of the benefit Social Security Disability Supplemental Security Income What is the Disabled Widow/Widower’s Benefit claim?Show Answer Hide Answer
Disabled Widow’s Benefit / Disabled Widower’s Benefit (DWB)
Disability benefits may be payable to a widow or widower if he or she meets all of the following requirements:
- The widow or widower is between ages 50 and 60;
- The widow or widower meets the definition of disability for adults; and
- The disability started before the worker’s death or within seven years after the spouse’s death.
Apply for DWB
To apply for Disabled Widow’s/Widower’s Benefits:
- Complete the online Adult Disability Report; and
- Schedule an appointment to complete the application.
To schedule an appointment, call 1-800-772-1213 (TTY 1-800-325-0778) between 7 a.m. to 7 p.m., Monday through Friday, or contact your local district Social Security office.
Social Security Disability for Migraine HeadachesShow Answer Hide Answer
We are often asked whether a claimant can receive disability benefits for migraine headaches. Social Security has actually addressed this question in SSA Q&A 09-036, which posed the following “Brief Question”: “Please provide guidance regarding the evaluation of migraine headaches.” A PDF of the Q&A can be downloaded here: Q&A 09-036.
Social Security’s regulations state that it cannot establish a disabling condition based on symptoms alone. According to the medical literature, there are no laboratory findings or clinical signs to substantiate the presence of migraine headaches in most cases. The diagnosis of migraine headache is usually established through patients’ reported symptoms (pain, photophobia, nausea). Previous guidance from the Office of Disability from the early 1990’s stated that, although migraine headaches that are disabling for 12 continuous months in spite of treatment are extremely rare, there are some cases that do not respond to treatment. The guidance said to consider whether the impairment medically equals listing 11.03 based on “altered awareness.”
The more detailed questions posed in the Question and Answer are as follows:
What criteria should Social Security use to determine that migraine headaches are a medically determinable impairment (MDI)? Is a diagnosis from an acceptable medical source sufficient, even if it is based only on a claimant’s reported symptoms? If not, what evidence establishes the MDI?
If Social Security uses listing 11.03 to evaluate migraine headaches, should Social Security use POMS DI 24580.001/Social Security Ruling (SSR) 87-06 to evaluate migraine headaches? If so, what constitutes appropriate treatment and an ongoing treatment relationship?
The POMS/SSR also say that Social Security needs a description of a seizure from professional observation or a third party. Does this guidance apply to migraine headaches?
The POMS/SSR also say that Social Security needs a record of anticonvulsant blood levels in every case before it can allow a claim unless there is convincing evidence that subtherapeutic drug levels are due to abnormal absorption or metabolism and the prescribed drug dosage is adequate. Is there an analogous medically acceptable way to determine if an individual is taking headache medications appropriately? If not, how should SSA assess compliance with treatment?
What is “altered awareness” and how is it measured?
Because of significant changes in the diagnosis and treatment of migraine headaches since Social Security provided guidance in memorandums from the early 1990’s, Social Security is rescinding that guidance and temporarily replacing it with the guidance in this Q & A while Social Security prepares proposed updates to the neurological listings. However, as explained below, there is little change in the guidance Social Security originally provided.
Under Social Security’s general policy, you cannot establish the existence of any MDI based solely on a diagnosis in the evidence or on a claimant’s reported symptoms. There must be clinical signs or laboratory findings to support the finding. A diagnosis of migraine headaches requires a detailed description from a physician of a typical headache event (intense headache with more than moderate pain and with associated migraine characteristics and phenomena) that includes a description of all associated phenomena; for example, premonitory symptoms, aura, duration, intensity, accompanying symptoms, and effects of treatment. The diagnosis should be made only after the claimant’s history and neurological and any other appropriate examinations rule out other possible disorders that could be causing the symptoms. There are other clinically accepted indicators of the diagnosis, including:
- Headache event that lasts from 4 to 72 hours if untreated or unsuccessfully treated.
- Two of the following: Unilateral, pulsating (throbbing) quality; moderate (inhibits but does not wholly prevent usual activity) or severe (prevents all activity) pain intensity, worsened by routine physical activity (or causing avoidance of activity).
- At least one of the following during the headache: Nausea, vomiting, photophobia, or phonophobia.
Once other possible causes have been ruled out and a pattern has been established, Social Security considers the foregoing findings reported by a physician to be “signs” that establish the existence of migraine headaches as an MDI. This is consistent with the way the SSA establishes the existence of some mental disorders and other physical disorders that are characterized by complaints reported by acceptable medical sources based on their examinations.
As in Social Security’s earlier guidance regarding migraine headaches, Social Securitiy continues to recognize that migraine headaches will rarely prevent a person from working for a continuous 12 months but that there are exceptions. Likewise, listing 11.03 (Epilepsy – nonconvulsive epilepsy) is still the most analogous listing for considering medical equivalence. However, the guidance in POMS DI 24580.001 / SSR 87-06 is specific to epilepsy and not applicable to the evaluation of migraine headaches. Social Security does not consider treatment non-compliance or therapeutic levels of medication in the blood because, unlike treatment for epilepsy, which seeks to maintain a steady level of medication in the blood, there is no such standard of care in the treatment of migraine headaches. Also, therapeutic blood levels for migraine medication have not been established. Nor does Social Security require a professional observation or third-party description of a migraine headache event, although such observations are helpful. Social Security requires a professional observation or third-party description of a seizure partly because the person having the seizure is unaware of it and cannot describe how s/he looks during a seizure. This is not the case for migraine headaches.
It may be helpful to review the essential components of listing 11.03 as they may be related to migraine headaches:
- “Documented by detailed description of a typical” headache event pattern “Including all associated phenomena”; for example, premonitory symptoms, aura, duration, intensity, accompanying symptoms, treatment.
- “Occurring more frequently than once weekly.” Count characteristic headache events.
- “In spite of at least 3 months of prescribed treatment.” Inapplicable, as explained above.
- “With alteration of awareness.” This means a condition of being inattentive, or not cognizant of one’s surroundings and external phenomena as well as one’s personal state. Many psychotropic and neuroleptic medications used for treating migraines can produce sedation, confusion, or inattention. However, it is not necessary for a person with migraine headaches to have alteration of awareness as long as s/he has an effect (e.g., one or more of the problems described in the next bullet) that significantly interferes with activity during the day.
- “Significant interference with activity during the day.” Same meaning as in listing 11.03. May be the result, e.g., of a need for a darkened,quiet room, lying down without moving, or a sleep disturbance that impacts on daytime activities.
Acceptable Medical Sources or Doctors to Establish a Medically Determinable ImpairmentShow Answer Hide Answer
I was recently asked whether a Residual Functional Capacity evaluation by a psychologist carries any weight in a Social Security disability determination. In other words, can it be discounted because a psychologist is not a psychiatrist or medical doctor?
Let’s go right to the Code of Federal Regulations to answer this question.
Acceptable Medical Sources
CFR § 404.1513, subsection (a), defines who is (and therefore who is not) an “acceptable medical source” who can provide medical and other evidence of your impairment(s):
(a) Sources who can provide evidence to establish an impairment. We need evidence from acceptable medical sources to establish whether you have a medically determinable impairment(s). See § 404.1508. Acceptable medical sources are—
(1) Licensed physicians (medical or osteopathic doctors);
(2) Licensed or certified psychologists. Included are school psychologists, or other licensed or certified individuals with other titles who perform the same function as a school psychologist in a school setting, for purposes of establishing mental retardation, learning disabilities, and borderline intellectual functioning only;
(3) Licensed optometrists, for purposes of establishing visual disorders only (except, in the U.S. Virgin Islands, licensed optometrists, for the measurement of visual acuity and visual fields only);
(4) Licensed podiatrists, for purposes of establishing impairments of the foot, or foot and ankle only, depending on whether the State in which the podiatrist practices permits the practice of podiatry on the foot only, or the foot and ankle; and
(5) Qualified speech-language pathologists, for purposes of establishing speech or language impairments only. For this source, “qualified” means that the speech-language pathologist must be licensed by the State professional licensing agency, or be fully certified by the State education agency in the State in which he or she practices, or hold a Certificate of Clinical Competence from the American Speech-Language-Hearing Association.
So we see that a psychologist is an acceptable medical source. See the section below titled, “Residual Functional Capacity Forms and Statements About What You Can Still Do” for more information about how a psychologist’s opinions in an RFC are treated.
Medical Reports and What They Should Include
CFR § 404.1513, subsection (b), goes on to define what medical evidence and reports in support of a disability claim should include:
(b) Medical reports. Medical reports should include—
(1) Medical history;
(2) Clinical findings (such as the results of physical or mental status examinations);
(3) Laboratory findings (such as blood pressure, x-rays);
(4) Diagnosis (statement of disease or injury based on its signs and symptoms);
(5) Treatment prescribed with response, and prognosis; and
(6) A statement about what you can still do despite your impairment(s) based on the acceptable medical source’s findings on the factors under paragraphs (b)(1) through (b)(5) of this section (except in statutory blindness claims). Although we will request a medical source statement about what you can still do despite your impairment(s), the lack of the medical source statement will not make the report incomplete. See § 404.1527.
Residual Functional Capacity Forms and Statements About What You Can Still Do
CFR § 404.1513, subsection (c), then continues to define what medical evidence and reports in support of a disability claim should include, including Residual Functional Capacity assessments and Physical Capacity Evaluation forms:
(c) Statements about what you can still do. At the administrative law judge and Appeals Council levels, we will consider residual functional capacity assessments made by State agency medical and psychological consultants, and other program physicians and psychologists to be “statements about what you can still do” made by nonexamining physicians and psychologists based on their review of the evidence in the case record. Statements about what you can still do (based on the acceptable medical source’s findings on the factors under paragraphs (b)(1) through (b)(5) of this section) should describe, but are not limited to, the kinds of physical and mental capabilities listed as follows (See §§ 404.1527 and 404.1545(c)):
(1) The acceptable medical source’s opinion about your ability, despite your impairment(s), to do work-related activities such as sitting, standing, walking, lifting, carrying, handling objects, hearing, speaking, and traveling; and
(2) In cases of mental impairment(s), the acceptable medical source’s opinion about your ability to understand, to carry out and remember instructions, and to respond appropriately to supervision, coworkers, and work pressures in a work setting.
Evidence From Other Sources, Including Chiropractors, Nurse-Practitioners and Physicians’ Assistants
CFR § 404.1513, subsection (d), describes how the Social Security Administration will in fact consider medical evidence and reports from medical providers other than medical doctors, physicians and psychologists:
(d) Other sources. In addition to evidence from the acceptable medical sources listed in paragraph (a) of this section, we may also use evidence from other sources to show the severity of your impairment(s) and how it affects your ability to work. Other sources include, but are not limited to—
(1) Medical sources not listed in paragraph (a) of this section (for example, nurse-practitioners, physicians’ assistants, naturopaths, chiropractors, audiologists, and therapists);
(2) Educational personnel (for example, school teachers, counselors, early intervention team members, developmental center workers, and daycare center workers);
(3) Public and private social welfare agency personnel; and
(4) Other non-medical sources (for example, spouses, parents and other caregivers, siblings, other relatives, friends, neighbors, and clergy).
The Evidence Must be Complete and Detailed Enough to Allow SSA To Make a Disability Decision
CFR § 404.1513, subsection (e), requests that the evidence in the record be complete and detailed enough to allow Social Security to make a disability determination:
(e) Completeness. The evidence in your case record, including the medical evidence from acceptable medical sources (containing the clinical and laboratory findings) and other medical sources not listed in paragraph (a) of this section, information you give us about your medical condition(s) and how it affects you, and other evidence from other sources, must be complete and detailed enough to allow us to make a determination or decision about whether you are disabled or blind. It must allow us to determine—
(1) The nature and severity of your impairment(s) for any period in question;
(2) Whether the duration requirement described in § 404.1509 is met; and
(3) Your residual functional capacity to do work-related physical and mental activities, when the evaluation steps described in § 404.1520(e) or (f)(1) apply.
Assistance From a Disability Attorney
An experienced disability attorney can assist you in gathering the above medical records and opinions from your treating medical providers to represent you in your disability claim. Mr. Ortiz is a Board Certified Social Security Disability Attorney with experience in handling hundreds of SSDI and SSI disability claims. Call today at 850-898-9904 for a free case evaluation.
Qualifying For Divorced Spouse BenefitsShow Answer Hide Answer
A person can receive benefits as a surviving divorced spouse on the Social Security record of a former spouse who died fully insured, if he or she:
- Is at least age 60, or age 50 and disabled;
- Was married to the former spouse for at least 10 years; and
- Is not entitled to a higher Social Security benefit on his or her own record.
Generally, Social Security cannot pay benefits if the divorced spouse remarries someone other than the former spouse, unless the latter marriage ends (whether by death, divorce, or annulment), or the marriage is to a person entitled to certain types of Social Security auxiliary or survivor’s benefits.
If the surviving divorced spouse age 60 or over applying for benefits remarried after age 60, or after age 50 and at the time of remarriage was entitled to disability benefits, Social Security disregards the marriage. If a person is already entitled to benefits as an aged or disabled surviving divorced spouse and remarries, benefits continue regardless of the person’s age at the time of remarriage.
The benefits paid to a divorced spouse or a surviving divorced spouse will not affect the benefit amount paid to other family members who receive benefits on the same record.
If you would like to receive an estimate of benefits you may receive as a divorced spouse or a surviving divorced spouse, you should contact Social Security at your local District Office. They may be able to provide you with this information over the telephone. If you prefer, you may visit one of the local SSA offices. You can get the address and directions to your nearest office from the Social Security Office Locator that is available on the Internet.
Here is the contact information for the Pensacola, Florida SSA Office:
411 W GARDEN STREET
PENSACOLA, FL 32502
Monday 9:00 AM – 3:00 PM
Tuesday 9:00 AM – 3:00 PM
Wednesday 9:00 AM – 12:00 PM
Thursday 9:00 AM – 3:00 PM
Friday 9:00 AM – 3:00 PM
Other Social Security Disability Benefits If You Win Your CaseShow Answer Hide Answer
If you are approved for Social Security disability insurance (SSDI or SSD) benefits, you may be eligible to receive more than just a monthly cash benefit. You may also qualify for a “lump sum” back payment and Medicare (however, there may be an additional wait time before Medicare starts.
[Note: If you have been approved for Supplemental Security Income (SSI) benefits, see our article on SSI benefits.]
The monthly benefit amount for SSDI is determined by the claimant’s work history and the amount he or she contributed though payroll taxes to the Social Security system. Learn more about how much your may receive in SSDI benefits.
Lump-Sum Back Payments
If your claim takes a long time to process, you will not be limited to benefits from the approval date going forward. You are eligible to receive past due benefits, or “backpay,” for the time during your application and appeal period, which is payable in a lump-sum payment.
You can receive back pay from the date you filed your application, plus as many as 12 months of benefits before the application date. Whether you qualify for an additional full year of backpay depends on your “alleged onset date” or when you became disabled. Your disability onset date is the date your disability is determined to have started. This date determines your date of entitlement to benefits. In an SSDI claim, your actual entitlement date is five months after your disability (due to a five-month waiting period for SSDI). So if your disability onset date is 17 months ore more before the date of your application, you will receive a full year of backpay benefits. In some cases, the amount of backpay can amount to thousands of dollars simply because disability cases often take so long to be decided. Click here to learn more about backpay in Social Security disability cases.
You are eligible to receive Medicare benefits two years after you become eligible for Social Security disability insurance benefits. Note: This does not necessarily mean that Medicare benefits are available two years after you are approved for SSDI or two years after the payments finally begin. Instead, you will receive Medicare benefits two years after your eligibility for SSDI benefits has been established (in other words, two years after your date of entitlement). Remember, your date of entitlement is your disability onset date plus the five month waiting period.
For example, let’s take someone who stopped working on December 31, 2009 due to a disability. He does not apply for Social Security disability until January 1, 2011, and alleges a disability onset date January 1, 2010 in his claim for benefits. The claim takes two years and is finally approved on January 1, 2013. In this situation, the claimant’s “date of entitlement” is June 1, 2010, which is five months after January 1, 2010. Under these facts, the claimant is also eligible for Medicare as of June 1, 2012. This is two years after the date of entitlement of June 1, 2010 (or two years plus the five-month waiting period that applies to all Social Security disability cases).
In many cases, because the Social Security Administration takes so long to decide cases, you may be approved for Medicare benefits around the same time you are approved for SSDI benefits. In other words, because many claims take two years to get to a judge, you may have already “served” the required two-year wait for Medicare benefits by the time you receive your first Social Security disability check.
Auxiliary / Family Benefits
You may be eligible to receive additional benefits for your spouse or minor or disabled children. These are commonly referred to as “auxiliary” SSDI benefits.
For more information on applying for disability benefits or appealing a denial, call Pensacola attorney Nick A. Ortiz for a free case evaluation.