What is the name of your state? IL
My brother has just gotten a small settlement for an injury that he sustained on the job a couple years ago. He had slipped and fallen in a dishroom at a restaurant and cut his hand bad enough that he was airlifted to a hospital about 90 miles away. Even after surgery, he can’t do nearly as well as he used to.
I was advising him to try getting on disability, but he said his lawyer who was trying to help him in his case for a settlement told him that getting disability at that time could negatively affect his case for a settlement. So he waited until now, and has consulted with a disability lawyer who didn’t seem interested in helping him. He was asking my brother questions about why he isn’t working 40 hours, or isn’t working a second and third job. If a person has a debilitating injury, it’s hard to work any job at all. A lawyer should be able to understand that, so it seemed that he just wasn’t interested in taking the case for whatever reason.
Is a lawyer really needed for filing for Social Security disability? Or is it just “strongly advised”? Also, what basis does a disability lawyer get paid for? Is it a specified amount, or some percentage of the monthly disability payment? I’m asking these questions because my brother doesn’t have very good access to the internet to do any research on the subject. Also, he’s not all that bright.
Also, he's 60 years old and is thinking about just waiting until he's 62 to get on Social Security pension. But disability would go a long ways toward helping out in the meantime.
There is no simple answer for your questions.
1. A lawyer is not required ever. A lawyer may not even do much work for a claim at the initial level and the reconsideration level for a variety of reasons. One is that a lawyer is paid up to 25% of retroactive benefits (some call it back pay) if a claim is approved (capped at $6000) and if the claim is approved quickly, then the lawyer may do a bunch of work for little pay. Also, the lawyer is more effective at the second appeal level because the Administrative Law Judge is also a lawyer. A finding that a person is disabled is really based on how to correctly apply the law to the medical evidence. There are appeals that can be done outside of SSA, but that pretty much does require an attorney to file the correct papers and make the correct legal argument. Personally, I would always hire an attorney for the hearing level, but not for the initial or recon because they could get paid without doing anything at all, based on the contract. Other people feel better if they get an attorney from the beginning. I think it would be foolish to go to a hearing without an attorney, because you are only guaranteed one shot at a hearing. And many attorneys will not take a case to the higher appeal levels if they did not represent at the hearing level.
25% of retroactive benefits (up to $6000) may sound like a large fee, but claims with attorneys at the hearing level do have a higher rate of approval than claims without attorneys. 75% of something is much better than 100% of nothing.
2. Have you read the process by which SSA makes their decision? I include a link to one discussion of the five step Sequential Evaluation Process.
https://www.ssa.gov/oidap/Documents/Social Security Administration. SSAs Sequential Evaluation.pdf
If your brother is not working, he passes step 1. If he is working, how much money is he making and is he fully earning that amount of money? The dollar amount of wages are the primary determination of whether or not work is Substantial Gainfull Activity. If he has a diagnosed condition with severe limitations, he passes step 2. Few people are approved at step 3, but some are. People think they meet one of the listings, but the requirements are very specific and it is not just a diagnosis. Steps 4 and 5 use factors other than medical reports. That is when his age of 60 is to his advantage. SSA assumes that as one gets older, it is more difficult to transition to a less strenuous type of work.
3. You said he is not that smart. Having a low enough IQ (or another cognitive test) can lead to an approval all by itself. But since he has worked (most of his life?), his cognitive ability is probably in the average (or maybe low average) range which is not severe enough. But he may never have been tested for any of this. How low is his cognitive ability?
4. Does his condition prevent him from doing any simple, repetitive, entry level type of work? SSA will look at whether or not he can do a simpler, easier job than the one he has always done. Even if the pay is substantially lower. Even if he would have to move to find such a job. Even if he doesn't want to do it.
5. If he ends up at a hearing, the judge will also ask those questions - why are you unable to do any kind of work. Specifically, what are his limitations? How long can he stand in an 8 hour work day, how long can he sit, how far can he walk, how much can he lift, how limited does this injured hand make him, what can he use his hands to do? What exactly can he not do because of it? What other physical problems does he have that limit his ability to perform work tasks. Of course a debilitating injury affects someone, but that is not proof that he cannot work at all. Details matter.
The claim can be filed online. You can help him, but he has to be the one who makes the decision to file and does the electronic signature. You should start by opening a MySSA account at socialsecurity.gov. Then he can look at his earnings record, can get a benefit estimate, and file a claim.
What is his date of onset of disability? Probably the date of the injury. How much work did he do after that? How many months/days? Was he fully performing his job duties, or maybe only 75%. Why did he stop? There is a form that would need to be completed about all work after date of onset. Also, in the 10 year period before his date of onset, did he work at least half of the time? If he has more than 5 years of zero earnings in the 10 year period before date of onset, then he will not qualify for SSDI.
A disability report will also need to be completed, listing the names and addresses of all treating sources, after the date of onset, as well as approximate dates and procedures. Do not delay filing while you are trying to obtain the records. SSA will request them from the source, if you provide the right information. Most of the time SSA can get all records, but it is a good idea to make sure.
Lots of forms. Lots of questions. Lots of requirements. And he may not prevail at the end. He may be turned down. At the initial level, it is about 1 out of 3 claims that are approved. At the hearing level, the percentage increases, mostly because time has passed, there is more evidence, and a lawyer who knows how to make the right argument. But it can take several years to get to that point.
The entitlement date of the claim can be up to one year before filing. So continued delay can cost him months of entitlement. Also, no one gets paid for the first five months of entitlement. But that is not determined until SSA finds that he is disabled.
My advice? File an online claim this month. Be thorough in answering questions. Expect to get more questions and forms to fill out, like what does he do all day? Does he cook, clean, take care of animals or people, do chores? What modifications has he made? How much longer does it take than before? Does he socialize, and if so, how much? Can he count money and make change and pay his bills?
The claim may well be denied initially and he can file an appeal. Get an attorney for the second appeal level. The initial and recon levels can take 3 to 6 months for each. If the disability claim is still pending when he turns 62, if he is not working, he can file a retirement claim, but it will have a permanent 30% reduction than the disability claim or if he waited for full retirement age. If the disability claim is later approved, SSA will pay him that 30% for months he got retirement after 62. Also, being on disability does allow for Medicare coverage after two year of entitlement and he would not have to wait until age 65.
If he is expecting a worker's comp settlement, SSA has to be informed at all steps. He cannot be paid more than 80% of his average current earnings from WC and SSDI at the same time. There can be an offset imposed on the SSDI.
Other than paperwork and bureaucratic complexities, there is no downside to filing a disability claim now and a retirement claim at age 62. The worst that can happen is a denial. The best that can happen is more money per month for the rest of his life, for more months and Medicare before age 65.
No reason not to file now, (unless he is working the same job for the same pay) IMO, although he should at least advise his WC attorney that he is doing it. And then he can shop around for an SSDI attorney in case one is needed for a hearing.
PS I missed the later post that indicates he is still working at this time. I assume his employer is paying him the same as they pay the non-disabled. So if he is able to keep that same job and get paid the same amount, SSA will find him not disabled because he has proven he can work despite his impairment. If he then stops work (because he was fired or quit), that will become his date of onset of disability, not the date of the accident. It is almost always financially advantageous to keep working as long as he can, even if it means dragging yourself to work and having no life except work and sleep. Stopping work almost always means less money to live on.
