How Far Back Can I Receive Back Payment?

When you are awarded disability benefits by Social Security you will receive a set amount of money each month for as long as Social Security considers you to be disabled. Those who are receiving SSD benefits receive an amount of money each month based on their work earnings record and those receiving SSI benefits receive an amount equal to the maximum amount allowed by Social Security minus set amounts for income or resources.

If you apply for Supplemental Security Income benefits today, then today is the first day that you could possibly receive any back payment once you are awarded. So, if you apply for SSI on December 1, 2011 and you are found to be disabled by Social Security on June 1, 2012 you will receive a check for those months while you waited for your case to be decided. In this example, if Social Security determines that your onset date was December 1, 2011 and you meet the other criteria that the SSI program has (financial component), then you will receive back payment for six months. You will not receive back payment for any months that you do not meet the financial criteria for SSI. Since you first applied for SSI on December 1, 2011 that is the earliest month that you could receive benefits for. This is the case even if your disability began in December, 2008.

It is not as straight forward for those who are applying for SSD. If you have applied for SSD, Social Security allows you to receive retroactive payment for up to twelve months prior to the date that you filed your SSD application (assuming you can prove you were disabled that far back). However, Social Security regulations require that the first five months that you are considered disabled you do not receive any retroactive pay, there is a waiting period.

Using the same dates as above, assume that someone has been disabled since December 1, 2008 but does not apply for SSD until December 1, 2011. If Social Security agrees that the person's onset date is December 1, 2008 it is possible for the applicant to receive retroactive benefits from December 1, 2010 (one year before the initial application was filed). In this situation, the applicant does not lose five months of payment, because their onset date was more than five months before the person was first eligible to receive retroactive back payment.

In both examples you can see why it is very important to file for benefits with Social Security as soon as you know that you are expected to be out of work for at least a year.

This is a complex topic and can be even more confusing if you are applying for both SSD and SSI at the same time.

Onset dates can be a confusing but important issue in any Social Security disability case.

Can I Receive SSI If I Leave The United States?

Under Federal Regulations

You lose your eligibility for SSI benefits for any month during all of which you are outside of the United States. If you are outside of the United States for 30 days or more in a row, you are not considered to be back in the United States until you are back for 30 days in a row.

You may again be eligible for SSI benefits in the month in which the 30 days end if you continue to meet all other eligibility requirements.

By United States, we mean the 50 States, the District of Columbia, and the Northern Mariana Islands.

What Is The Five Step Sequential Evaluation Process?

In order to meet the required definition of disability under the law, an applicant "must have a severe impairment(s) that makes you unable to do your past relevant work or any other substantial gainful work that exists in the national economy."

If you do not have an impairment that meets one of Social Security's listings, then Social Security will analyze your Residual Functional Capacity under the five-step sequential evaluation process.

The five-step sequential evaluation process is a series of steps that Social Security uses to analyze your condition to determine whether or not you are disabled.

According to Social Security, "if we can find that you are disabled or not disabled at a step, we make our determination or decision and we do not go on to the next step. If we cannot find that you are disabled or not disabled at a step, we go on to the next step."

1. Are you working? 
This is usually fairly straight forward, if you are engaged in substantial gainful activity then Social Security determines you to be working.

2. Is your medical condition "severe"?
Your disabilities must interfere with basic work related activities. Additionally, your disabilities must meet the Social Security duration requirement. This means "unless your impairment is expected to result in death, it must have lasted or must be expected to last for a continuous period of at least 12 months."

3. Does your disability meet a listing? 
If your condition meets one of  Social Security's listings or your condition is of equal severity to one of the listings then you will be found to be disabled.

4. Can you do past relevant work?
Social Security looks at the work that you did over the past 15 years to determine whether or not you can still do that work. If Social Security determines that you can still do this past work, then you will be found to be not disabled. If Social Security determines that due to physical or mental impairments that you cannot do your past relevant work, then they will proceed to the final step in deciding whether you are disabled.

5. Can you do any type of work?
If Social Security determines at Step 4 that you can no longer do your past relevant work, then they will look at whether you can adjust to another type of work. Social Security will consider your medical impairments (if any), physical condition along with your age, education, past work experience and any transferable job skills that you may have. 

If Social Security determines that you can make an adjustment to another type of work then they will find that you are not disabled. However, if Social Security determines that you can't adjust to another type of work you will be found to be disabled. 

According to the Regulations, if Social Security finds that you are capable of adjusting and doing other work, they are "responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy."
 

What Is Social Security's Definition Of Disability?

The Code of Federal Regulations defines what disability means in §404.1505.

According the to the Regulations:

The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.

In order to meet the required definition of disability under the law, an applicant "must have a severe impairment(s) that makes you unable to do your past relevant work or any other substantial gainful work that exists in the national economy."

If you do not have an impairment that meets one of Social Security's listings, then Social Security will analyze your Residual Functional Capacity under the five-step sequential evaluation process.

The Social Security Administration has different rules for those who are blind.


Declan Gourley is a New Jersey Social Security Disability lawyer.

What Is Sheltered Work?

As we have already discussed, in order to determine if an individual is disabled Social Security will first look at whether or not that person can engage in Substantial Gainful Activity. However, there are special exceptions for when an individual can be found to be receiving more than SGA but still be found to be disabled.

A special exception to this rule is known as "sheltered work" or "special environment." Basically, this means that the individual is being offered a special opportunity by their employer that normally does not exist.

Recently I had a client who had very severe back injuries from a car accident awarded Social Security Disability Benefits even though he had been earning over SGA for the past year. The client had a friend, who operated a business and offered the disabled individual an opportunity to work for him. It was a commissioned position and he worked as an independent contractor. The employer had several different employees responsible for the same tasks however they were required to work a set schedule and work at least 40 hours per week. The employer knew that my client was disabled and was very flexible with him. The disabled individual was only able to work at most three hours per day and a few times per week it was common for him to call work and say he was in too much pain and couldn't come into work. The employer had no problem with the disabled worker going out to his car as needed to take naps when he became too fatigued to function.

Since the employer was his friend, he was giving him an opportunity that he would not have given to any other employee. The business owner completed a certification stating that he had given the individual the job only because he was his friend and that no other employee would be afforded the same flexibility. The individual knew that no other employer would hire him because of the flexibility that he required due to his disabilities. Although he was earning more than SGA most months, the only reason why he was able to keep a job was because of the special relationship he had with his employer.

The judge agreed that even though the applicant was involved in work where he was earning more than SGA, it was sheltered work.

It is usually not easy to show that work is sheltered, but an experienced Social Security attorney will know what questions to ask the employer, what documentation to get and how to present the argument to the judge at the Administrative Law Hearing.

I Received Mail From Social Security, What Should I Do?

Once you have applied for Social Security disability or SSI you will begin receiving mail from the Social Security Administration.

Sometimes these letters are just confirmation letters and require no response. But, often the letter will require a response from you in order to assist Social Security in making a decision on your case.

First, I will tell you what you should not do. You should not ignore the letter, throw it in the garbage or put it in a pile of papers to get to "later on."

You should make any correspondence from Social Security your number one priority throughout the entire process. 

If you have an attorney then you should call them to let them know that you received a letter from Social Security and tell them what the content of the letter is. Often your attorney will have already received the same letter. Typically when Social Security has sent you a letter, they have also mailed the letter to your attorney. Unfortunately, this is not always the case. You cannot assume that just because you got the letter that your attorney also got it.

If you do not have an attorney then it is extremely important that you read the letter carefully. If you don't fully understand what the letter is either stating or requesting the first time, then read the letter multiple times. Often the letter will request you to respond within a certain time frame. It is very important that you adhere to these deadlines. Typically Social Security will set a time frame for responding. If you fail to respond within that time frame then they may make a decision on your case without the information that they are requesting. A standard time frame that Social Security often gives an applicant to respond is ten days.

If at any point you are confused or feel overwhelmed by Social Security's request then I suggest that you contact a lawyer with experience in assisting disabled individuals file for Social Security disability.

What Is A Common Mistake Claimants Make That Is Easily Fixed?

One of the most common mistakes that people applying for Social Security disability benefits make is being overly vague. No attorney or Administrative Law Judge expects you to be the next Stephen King, recalling everything in immaculate detail, but in my opinion this is one area where clients hurt themselves and it is very easily corrected if you realize the mistake and the problems that it can cause.

When I meet my client for the first time the interview is very detailed as I want to fully understand what the person's disabilities are, how their daily activities are restricted, how often they are affected by their conditions and basically get an overall understanding as to how this person is affected by their medical condition(s). The overwhelming majority of people answer questions very vaguely. For instance, I may ask a person how often they have difficulty sleeping at night. A common response to a question like this is "sometimes," "often" or "from time to time."

When they do this, I immediately get to work on changing the way that person answers those types of questions. You see, I know that if I really have no idea how often the problem(s) exist then I know that if the case were to go to hearing that there is no way an Administrative Law Judge will know either. You have to prove to the Social Security Administration that you are disabled and unable to work. I am not asking or even hinting that you should lie or exaggerate. But, there's a significant difference in saying "sometimes," and in saying "three times a week," or "five times a month."

The same applies when you complete the initial application to apply for Social Security disability or the forms that Social Security requests that you complete such as the Work History Report or Adult Function Reports. If you answer questions vaguely on those forms then there is no way for a disability examiner to truly understand what limits your ability to work.

When speaking in frequency, you should always try to attach a number of occurrences that the event or problem happens in a day, week, month or year. What often happens is that because you have been living with this impairment or problem for a period of time you begin to get used to it and feel almost like others will understand. The problem is, the majority of time, others do not understand. The definition of "sometimes" to you may mean a few times a week, whereas to someone else it may mean once a month.

It is important to keep in mind when talking to anyone about your disabilities how it affects you and how often it does. Assume that the person (whether it be your attorney, a doctor or an Administrative Law Judge) who is asking you about your disability knows NOTHING about it, what the symptoms are and how often they affect you.