Monday, July 29, 2013

What is Considered a "Substantial Gainful Activity" by the Social Security Administration?

To be eligible for disability benefits, a person must be unable to engage in substantial gainful activity (SGA). A person who is earning more than a certain monthly amount (net of impairment-related work expenses) is ordinarily considered to be engaging in SGA. The amount of monthly earnings considered as SGA depends on the nature of a person's disability. The Social Security Act specifies a higher SGA amount for statutorily blind individuals; Federal regulations specify a lower SGA amount for non-blind individuals. Both SGA amounts generally change with changes in the national average wage index.
Amounts for 2013
The monthly SGA amount for statutorily blind individuals for 2013 is $1740. For non-blind individuals, the monthly SGA amount for 2013 is $1040. SGA for the blind does not apply to Supplemental Security Income (SSI) benefits, while SGA for the non-blind disabled applies to Social Security and SSI benefits. See historical series of SGA amounts below.
Trial work period
After a person becomes eligible for disability benefits, the person may attempt to return to the work force. As an incentive, we provide a trial work period in which a beneficiary may have earnings and still collect benefits.

Monday, July 22, 2013

Reopening a Prior Social Security Disability Claim

Today I received the great news that one of my SSI clients from Springfield, MA was awarded benefits retroactive to 2010, even though her case was filed in 2012.  I was able to get benefits this far back by asking the judge to reopen a prior claim and join it to the new claim that was pending before the administrative court.  
Obviously, my client is delighted since the reopening of the earlier claim will result is substantially more backpay benefits than originally expected.
Reopening a prior claim is one of the most rewarding things that a Social Security Disability Lawyer can do.  Believe me, its not just about the money...  I feel a special sense of accomplishment because reopening a prior claim goes against the concepts of res judicata and issue preclusion that are paramount to our judicial system.  When a lawyer reopens a prior case, he or she has a true feeling of "beating the odds" or "changing the norms" in favor of a disabled person.  Social Security Law is unique with respect to the opening of prior cases and not all lawyers seem to be aware of this peculiarity.  This is why, in Social Security cases, it is always a good idea to hire a Lawyer who spends a considerable part of his or her practice in this area of the law.   In circumstances such as the one mentioned in this blog, an experienced Social Security Disability Lawyer can make a significant difference in the amount of backpay that is awarded to a claimant.
Reopening of prior claims is allowed by virtue of 20 C.F.R. 404.988 for Social Security Disability Insurance Benefits and 20 C.F.R. 416.1488 for SSI claims. 
A prior claim may be reopened within 12 months for any reason.  The 12 month period runs from the date of the initial denial of the prior claim.
A prior Social Security disability claim can be reopened within 4 years if there is good cause.  An SSI claim can be reopened within 2 years for good cause.  One way that a claimant can show good cause is by presenting "new material" evidence to the Social Security Administration. 

Monday, July 15, 2013

SSDI/SSI Representative Payees: Rules to Remember

I often get phone calls from individuals, particularly parents, who serve as "Representative Payees" for Social Security Disability beneficiaries.  They ask me to give them information regarding their duties and responsibilities when they serve in this role.  I will use this blog to provide some basic information regarding the role of Representative Payees in the Social Security Disability Process.
A Representative Payee is an individual or organization appointed by SSA to receive Social Security and/or SSI benefits for someone who cannot manage his or her money. 
It is very important that a Representative Payee keep records of all the expenses incurred on behalf of the Social Security Disability beneficiary, even when the beneficiary is the child of the Representative Payee.  When the SSA requests a report, a payee must provide an accounting to the SSA of how the benefits were used or saved.
It is important to note that having a power of attorney, being an authorized representative or having a joint bank account with the beneficiary is not the same thing as being a Representative Payee.  These arrangements do not give legal authority to negotiate and manage a beneficiary's Social Security Disability and/or SSI payments.  Only persons or organizations that have applied and have been appointed by the Social Security Administration can act as Representative Payees.
As part of his or her duties, the payee should set up a separate bank account.  A checking account is probably best because this way the payee will be able to obtain cancelled checks and/or statements that show how the funds are spent.  When someone is a payee for a child, the Social Security Administration notifies the payee that the funds have to be placed in a dedicated account.  It is probably a good idea to ask the SSA how much money must be set up in this dedicated account.
It is extremely important for Representative Payee's to be aware that the Social Security Administration will send by mail a "Representative Payee Report" once  a year  and that it is important to accurately report all financial information to the Agency.  When the report is received, the Payee should either fill it out promptly and mail it back.  You can also complete the report online if you wish to.  However, you must keep a copy of for your records and have back up documentation showing how the money was spent throughout the year.


Monday, July 8, 2013

Immigration Reform Will Boost Social Security

During the May conference of the National Organization of Social Security Claimants' Representatives ("NOSSCR") in Washington D.C., I had the opportunity to listen to several government analysts and Social Security Disability Lawyers discuss the impact that the passage of immigration reform will have on the Social Security Trust Fund.  Back then, most experts were of the opinion that immigration reform would be beneficial for Social Security.  However, most of the studies conducted on this issue were not yet widely available to the general public and the media. 
Just about a week ago, the independent Social Security Office of the Chief Actuary provided a long-term analysis of the proposed immigration reform bill that demonstrates that immigration reform will bolster the solvency of Social Security over the long-term.  This report follows another recent report generated by the nonpartisan Budget Office which shows the positive impact that immigration reform will have on the general budget.  Almost immediately after these reports were published, the White House issued a statement emphasizing the importance of its findings.  The White House said:  "The Actuary found that the Senate-passed immigration reform bill will keep the Social Security Trust fund fully solvent through 2035."   
The main reason why immigration reform will help Social Security is that a new wave of citizens will balance out the "aging population problem".  As I stated in prior blogs, the greatest problem faced by Social Security is that the population of the U.S. is reaching advanced age at a disproportionate rate.  "Never before in history has the U.S. contained so many older people.  Today, one out of every 9 Americans is "old"."   See Blog from Oct. 22, 2012  Statistically, the immigrants that will be allowed into the country as a result of immigration reform are significantly younger than the rest of the population.  In this respect the White House stated that: "Because most immigrants are young, additional immigration helps balance out the increase in retirees-per-worker that will occur when the Baby Boom generation retires."  Moreover, it also pointed out that the new immigrants will bolster the Social Security Fund when currently undocumented workers start paying their share of payroll taxes once they leave the underground economy. 

Monday, July 1, 2013

Some Clarifications on Creditor Garnishments of SSDI / SSI Benefits

One of the good things of having a blog is that I learn a great deal from the feedback that I receive from its readers.  Last week, a learned a lot from the comments made my Paralegal Jessica Smith regarding my last post.  Jess is awesome!  I don't know what I would without her.  My clients are extremely fortunate to have her on their side. 
Jess pointed out that on May 29, 2013, the Social Security Administration issued some "final" rules regarding garnishment from benefits.  Moreover, she made me aware of the fact the rules regarding garnishments are far more complicated than I originally thought.  Under these rules, your bank may be required to protect only a certain amount of your Social Security Disability benefits.  Generally, the rules are intended to protect the last two payment cycles of benefits received by a Social Security beneficiary.  The rule can be summarized as follows:
Upon receipt of a garnishment order the financial institution must review the history of the account and determine what SSDI or SSI benefits were deposited into the account for the two month period prior to the account review ( the "lookback period").
The lessor of the sum of all benefit payments posted during the lookback period or the balance of the account on the date the account review is performed will be deemed the "protected amount".
The financial institution must notify the account holder of the garnishment order and the protected amount and must allow the account holder full access to the protected funds. In the past if there was confusion related to protected benefits being commingled with other funds the account could be frozen and the account holder would have to contest the garnishment in court before they could have access to their benefit money.
Moreover, it should be noted that if the benefit is directly deposited into a checking account and then transferred into a savings account, only the benefit money in the checking account will be considered protected funds.