This presentation contains general information for educational purposes and should not be construed as legal advice. It is not intended to be a comprehensive statement of the law and may not reflect recent legal developments. If you have specific questions concerning any matter shared in this presentation or need legal advice, we encourage you to consult with an attorney.
Disability Rights North Carolina (DRNC) hosted a panel discussion and Q&A on September 29, 2022 about SSI/SSDI and your legal rights to work, live, and play. Topics discussed include:
- Living on SSI/SSDI
- SSI/SSDI benefits
- Receiving SSI/SSDI benefits while working
- Trial work period and its relevance to employment
Panelists: Michael Shay | Lanie Summerlin | Amy Heimel
Michael Shay is a Board-Certified Specialist in Social Security Disability Law and has successfully represented hundreds of disabled individuals – children and adults – in a wide range of Social Security, Medicaid and Supplemental Security Income (SSI) cases.
Lanie Summerlin is a staff attorney with the Public Benefits Team in Legal Aid of North Carolina’s Greensboro office. She handles Social Security, Medicaid, and Food and Nutrition Services cases for clients across the Triad region. Lanie is a graduate of Wake Forest School of Law and Clemson University.
A special thanks to Amy Heimel, a staff attorney with the Medicaid Appeals Team at Legal Aid of North Carolina. She is a graduate of Duke University and Campbell Law School. Prior to becoming an attorney, she was a Social Security Disability case manager for several years at two law firms in Raleigh.
Frequently Asked Questions (FAQ)
What is Social Security Disability Insurance (SSDI)?
It is a disability program that is based on your work history. It is based on the amount of money you’ve paid into the system, every paycheck you’ve ever earned. They take a little bit out under FICA and set that aside. So it really is based on the amount of money you’ve paid into the system, the length of time that you’ve worked. That’s Social Security Disability Insurance.
What is Supplemental Security Income (SSI)?
SSI is another disability program, but it’s based on need as opposed to somebody’s work history. Oftentimes you’ll run into an SSI claim for younger individuals, for children, or for folks who for whatever reason have not worked enough quarters to be covered under the SSDI program. Because this program is based on need and not on work history, you do not have to have worked a certain number of quarters, but you do have to have income and resources below a certain limit.
Is the definition of “disability” the same for SSI and SSDI?
It is, and that’s a common question. The definition of disability, the Social Security Administration looks at whether or not an individual suffers from a medical impairment or a combination of medical impairments that precludes them from going out and engaging in any sort of sustained, full-time work. It’s important to note that the medical impairment must last or be expected to last for a minimum of 12 months.
If I have a disability, under the SSA definition, can I live a “normal” life?
Yes, Social Security is not looking at whether an individual is home bound, bedridden, or unable to care for themselves. That’s not really what the standard is. They look at whether or not someone is capable of engaging in work, based on their medical impairments.
Does SSA have a different definition of disability and/or work for children and minors?
Kids are held at a different standard than adults. It’s not about their ability to work. But, their ability to function in six different areas, called domains. It gets technical, but essentially, they look at a child’s limitation and assess:
- A child’s ability to acquire, and use information
- Ability to attend and complete day to day tasks
- How they interact and relate with others
- How they move or manipulate different objects
- General health and physical well being
As a child becomes an adult, does the standard change?
Yes, the standard changes as the child reaches the age of majority. In most cases, 18 or 19. Social Security will then look at them under the lens of if they can go out and work, now they’ve reached adulthood.
Are there other things SSA looks at, besides medical conditions when considering a disability?
Yes! While the overwhelming majority of Social Security’s analysis is based on medical history, they also take into consideration two big factors.
- Specifically, the “important” milestones are 50, 55, and 60. The older someone gets, the less restrictive some of the regulations become. SSA is basically saying you can’t compare a 59-year-old with the same standards as a 23-year-old.
- SSA considers your level of education. For example, someone with a Master’s degree may be held to a slightly different standard than someone who did not complete high school and struggles to read or write.
How does past work play into receiving benefits? What about job performance? Part time vs full time?
SSA looks at your work history, for adults with reportable work experience. It’s one of the most important areas they look at in a disability case. But, they really only look at the past 15 years. Beyond that, they really only focus on full-time, sustained, gainful employment. They don’t look a lot at a job that lasted a few days, or a part-time/seasonal/temporary job. The analysis with a disability claim is whether you’re able to return to any of your past gainful, full-time work.
So what are the requirements for SSDI?
It’s based on your work history, and your earnings and credits paid into the system. In can get complicated, but generally speaking, you have to have worked at least 20 quarters in the last 10 years prior to becoming disabled. That equals about five years, out of the past 10. Keep in mind, you cannot be engaged in full time work and get disability benefits.
How do I apply for disability benefits?
With COVID-19, things have slightly changed, but you can apply online, by telephone, at your local office. It’s recommended if you can, to have someone assist with the application. It may be difficult to apply online by yourself, because SSA holds everyone to the same standard when submitting an application. Meaning, you’re without assistance if you get stuck. In that case, it’s recommended to schedule a telephone interview, sit down with someone face-to-face at your local social security office, or work with a trained social service professional.
Do you have to choose between receiving SSI and SSDI?
No. You can apply and receive one, or both at the same time. When applying, you don’t have to know your work credits/history, or any of the technical stuff. Social Security works through both applications together.
Are there different applications for SSI and SSDI?
Yes, and no. You can apply individually, or you can do the application at the same time with the same form, and using the same information. You do not have to go to two separate offices, or do separate interviews.
I received a “partially approved” or “denial” letter in the mail – what does that mean?
Unfortunately, it gets confusing. The letter might recognize your medical problems, but state that you’re still able to work. That’s a denial. In that letter, you’ll receive information about your appeal rights. You can challenge SSA’s decision, and that might be a good time to reach out to a lawyer for a consultation. You only get 60 days to start the appeal process. Don’t push it until the last minute.
What can I expect during the appeal process?
Be patient. It can be a long, frustrating process. After you file your initial appeal, that’s called reconsideration, and a separate social security office or individual will look at your claim to see whether the denial was correct. Some people can be approved as part of the initial appeal. Statistically, it’s likely you’ll get denied a second time. At that point, you have the right to ask for a hearing and go in front of what’s called an administrative law judge. It’s not uncommon to hear nothing for a year, sometimes longer while waiting on a social security disability hearing. That’s where getting a lawyer or someone to help is a benefit.
What is a hearing?
It’s an opportunity for you, and your lawyer (if you have one) to sit with a judge informally, and go over your case. There is not an attorney representing SSA. There’s no gavels, screaming, arguing, audience, or other witnesses for the most part. The judges are all by and large, very nice, very professional, and very courteous.
While I wait to present my case to a judge, can I work?
That’s a hard question to answer. Social Security is not going to worry too much about a part-time job, a temporary job, or a little money here and there. But they are going to assess if you are working at any sort of sustained, gainful activity. A job that’s on a consistent basis. It comes down to how much you make, your hours, your work responsibilities, and gets very specific to each person, very quickly. There may be exceptions that apply in certain circumstances. That’s where consulting with a lawyer would be recommended.
Is the appeal process the same for adults, and children?
Yes, it’s almost identical.
If I get denied a third time by an Administrative Law Judge (ALJ), is my case over?
Not necessarily. There’s another step in the appeal process. Your case would go to the Social Security Administration Appeals Council, located outside of Washington DC. Someone at the Appeals Council will review the ALJs decision, and your case. You don’t have a hearing with them. You don’t physically need to go to DC. There are times when they approve the case, or send it back down to the hearing office for another review. It just depends on the facts and circumstances of the case.
The process sounds complicated, but do I really need an attorney?
Technically, no. You can go through the process on your own. It’s recommended however at some point, to consider at minimum a consultation with a lawyer who specializes in Social Security Disability. The way Social Security sets it up, most lawyers don’t charge anything up front. You should confirm cost during your initial phone call. Some lawyers structure their support in a way that unless you win the case, you don’t owe anything. It’s a complicated area of law, and the rules are constantly changing, so having someone who understands the process can be extremely helpful.
How much money do I get each month, if approved for disability benefits?
For SSDI, it depends on how long you’ve worked, and how much you’ve paid into the system. For SSI (Title 16 supplemental security income cases), it depends on a few factors, including your living arrangement. It’s hard to give an exact number, as it is specific to an individual’s case. There’s a lot of variables involved.
Once approved for benefits, do they review my case again every year? Or I get ongoing benefits for life?
SSA will check in from time to time. The timing depends on the individual case. Sometimes you’ll hear from them every two or three years. Other clients go four or five years without follow-up. During the re-evaluation, SSA is looking to see if there’s been any material improvement to your medical condition. Have you gotten better to the point where you can go back to work?
Can someone receiving benefits, still work?
Generally, yes. As long as you’re working part-time and earning below substantial gainful activity. There are additional rules about working while receiving benefits. It can get complicated though, so it’s encouraged before you start to work, you understand your rights.
What does “substantial gainful activity” mean?
It’s a certain monthly amount of earnings. It changes every year and is adjusted for inflation. If you earn above that level, you will not be considered disabled. So even if you’re only working a few hours, but earning a large amount of money, you may be considered non-disabled. In 2022, the substantial gainful activity us $1,350 per month, before taxes.
Do you have to report your income, or other resources to SSA each year?
Yes, absolutely. When applying, and receiving benefits, you will report your gross income, which is your income before taxes. You should report your income every month, especially if it changes. You should also report any resources, also known as “assets” to Social Security. Report any changes in your resources too.
Does everything I own count as a resource?
Not everything you own counts as a resource. SSA looks at what can be sold, and turned into cash to pay your bills. Examples include: money in a bank accounts, extra cars, boats, trailers, property or land. There are some really big exceptions though. Probably the biggest, the home you live in. That does not count as a resource. No matter what the value of your home is, as long as you live in it, it’s going to be excluded. You can also have one car excluded as long as you use it for routine transportation.
Why does Social Security need to know my income/resources?
For two reasons. The first, is to determine whether or not you are disabled. Secondly, is to assess your need if you’re receiving SSI. If you’re earning a certain amount of money, SSA is going to decide that you’re not disabled and you will stop receiving benefits. Remember, if you’re receiving SSI though, that is a need-based program that is not based on your work history, but it’s based on you having below a certain amount of income and resources within a limit.
Can reporting income or my resources and assets, affect the monthly amount I receive?
It can, especially for SSI, the need-based program. How much income you earn impacts the amount of SSI you receive per month. If you don’t report your income, that can result in receiving benefits that you’re not entitled to. If that’s the case, SSA is going to want that money back from you. For SSDI, an increase in your income could affect whether or not SSA thinks that you’re still disabled. Again, depending on your situation, you could end up with money that you have to pay back to Social Security. Which is why reporting any changes to your income, resources, and assets are so important.
If someone else reports to SSA that I’m earning a little extra money on the side, does that trigger a review?
It could. It’s really important you report your income, assets, and any changes to SSA as soon as possible because you don’t want to jeopardize your benefits. SSA can look at your tax returns, employment history, and investigate allegations of fraud. They can pull records years later, and determine you owe money that shouldn’t have been received. It’s best to avoid that upfront, by reporting information yourself.
If you receive an overpayment, or are under investigation – how would you know?
Social Security is required to give you notice of overpayment. It’ll be a letter from SSA stating how much you owe, why they think that, and what period of time they’re looking at. It’s really important you read that letter closely to understand your rights. Don’t ignore it, because it will not just go away.
Are there steps you can take, if you do receive an overpayment?
Absolutely. First, read the notice of overpayment fully. If you don’t understand it, talk to an attorney or someone you trust who has knowledge on social security to help you. You can appeal the overpayment, request a waiver, or both.
Is appealing the overpayment, and requesting the waiver the same thing?
No, they’re two different processes. You can choose to do only one, or choose to do both.
So what is overpayment recovery?
It’s when SSA withholds some of your monthly benefits because of the overpayment you received. If you’re receiving SSI, they can only take 10% of your monthly benefits, or take 10% of what the maximum monthly benefit would be until your overpayment is paid back. That may last months, or years depending on how much is owed. If you’re receiving SSDI, they can withhold your entire check until that overpayment is paid, but you can request a change in their recovery rate. If you’re no longer receiving SSDI or SSI, SSA can withhold your federal tax return to repay the overpayment.
If someone is already receiving SSI, what is the benefit of also applying for SSDI?
If a person is getting SSI, they would automatically receive Title 2 disability, if they have worked enough and paid enough into the system, and had enough credits of coverage. At least, that’s the general rule for the majority of people. The benefit amount for SSDI is likely to be greater than the monthly payment for SSI. So if you have a choice (a lot of folks do not), SDI could be a larger monthly payment. Keep in mind, when you’re applying for one, you’re most of the time applying for both. If someone is medically disabled for SSI purposes, typically that means they weren’t covered for SSDI purposes.
Is it correct that a child doesn’t have to have a disability, to receive Medicaid?
Correct. For North Carolina, you have to be in certain categories to qualify for Medicaid. It’s not just enough to be below a certain income. So one of those categories is children. Children whose families have incomes below a certain level can qualify for Medicaid. For adults though, they have to be in an additional category like being pregnant, disabled, or elderly.
If you qualify for SSI, does that automatically qualify you for Medicaid in North Carolina?
Yes, as an adult receiving SSI, you’ll automatically receive Medicaid.
How difficult is it for kids to get SSI and why don’t we see more of it?
That’s a hard question to answer. It’s a complicated process. It’s abstract when we talk about the standard of disability. What you might see with kids, would not be similar to a 55-year-old who has been working for 35 years and they have a degenerative condition that won’t get better. With kids, the issues are different (ADHD, Anxiety, Bipolar) and could improve over time. Additionally, since SSI is a needs-based program, SSA also looks at income and resources of the parent as well. If a child has a severe disability, but their parents are working and earn a decent income, they may not qualify.
Is there a hard number of how much an individual can have in savings, and receive SSI?
For SSI, the total resource limit is $2,000 for accountable resources. Remember, that’s not counting your home or primary vehicle. That doesn’t count furniture, medical equipment, etc. But if you have $500 cash in a savings account, and a second car worth $2,000 – they are going to add both together, and the $2,500 combines would put you over the limit.
What is a “trial work period?”
Generally speaking, if a person with a disability takes the proper steps, they can work. If you do things correctly by communicating with SSA, you can work and earn money while still getting your disability benefits. If medically you think you’ve reached a point where things have gotten a little better (physically, mentally, emotionally, psychologically), SSA wants to encourage you to go back to work. But they expect you to follow some steps and guidelines they have in place. If you are unable to work after your “trial,” you can continue receiving benefits without penalty.
Does SSDI consider what resources you have?
No, SSDI does not look at your resources. The only thing that really matters for SSDI is if you have income while you are receiving benefits. Example would be a billionaire like Elon Musk or Bill gates. If they became disabled, they could receive SSDI. They most likely would not receive SSI.
Using the example above, would their children get SSI?
For minors, they’re going to look at the parents’ income and resources. So, for Elon Musk’s child, they probably are not going to qualify for SSI. But, when that child becomes an adult, they may qualify because SSA will only look at the individual’s income and resources. If they meet the disability, income and resource requirements, they could receive SSI as an adult.