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.

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. 

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.

   

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. 

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.

Can a Creditor Garnish Your Social Security Disability Benefits?

It is common for SSDI and/or SSI beneficiaries to contact their Social Security Disability Lawyers when they are hounded by bill collectors.

Social Security Disability Lawyers are often asked whether credit card, mortgage or auto loan companies can garnish Social Security Benefits to pay a debt. 

Fortunately, the answer to this question is: No.

If a creditor other than the federal government tries to garnish your Social Security benefits, you should inform them that such actions are in violation of federal law.  Section 207 of the Social Security Act (42 U.S.C. 407)

Section 207 bars garnishment of your benefits.  It can also be used as a defense if your benefits are incorrectly garnished.  Our responsibility as Social Security Disability Lawyers is to prevent abuses from creditors against Social Security beneficiaries.  We get a lot of calls regarding these type of problems and can't always provide those in need with legal assistance.  If you live in Connecticut and creditors have tried to garnish your Social Security Disability benefits, we suggest you contact the Connecticut Department of Banking and complete the form on this link.  In you live in Massachusetts, you can consider filing a complaint with the Attorney General's Public Inquiry and Assistance Center.

NOTE: That Supplemental Security Income (SSI) payments cannot be levied or garnished.

Will Medical Marijuana Hurt Your Chances of Obtaining Social Security Disability Benefits?

Over the past few weeks, I have been asked --on several occasions--, to comment on the implications of the use of medical marijuana in the Social Security Disability process.  This is definitely a hot new issue.  I'm sure that there is going to be a lot of debate on Medical Marijuana (MMJ) and SSDI in the upcoming months.  I'm particularly curious as to what other Social Security lawyers are telling their clients and whether disability claimants are fully aware of the possible implications of MMJ in their cases.   

I must confess that I am not particularly thrilled about the use of marijuana by some of my clients, regardless of whether the use is medical or recreational.  Its not that I'm old fashioned or uncool.  (Am I?)  It's that I'm a pragmatic kind of guy.  My role as a Social Security Disability lawyer is to obtain for my clients the maximum amount of benefits allowed by law, not to make political statements or to advocate in favor of alternative medical treatments.    

Due to these concerns brought recently to my attention, I would like to use this week's blog to discuss some of the pros and cons of medical marijuana in the context of SSDI or SSI cases.

Some of the Cons...

• Bear in mind that Social Security is a federal program and that federal law does not recognize the use of medical marijuana.  Understand that under federal law the use of marijuana is still illegal.  Social Security judges (ALJ's) are required to abide by federal law.  Potentially, an ALJ could find that a claimant and/or a doctor who repeatedly breaks federal law is not totally credible.
• I usually like to argue that medication side effects are contributing to my client's disability.  Given the fact that marijuana is not a legal medication under federal law, I don't think I'm going to be able to argue that being constantly "high on pot" is a symptom that contributes to my client's disability.   
• I believe that, in many instances, medical marijuana can be very detrimental to a claimant who is seeking to obtain benefits based on a mental disability.  I often argue that my client's unusual behavior is evidence that he or she suffers from mental illness.  Unfortunately, if a person is under the influence of MMJ, it might be harder to asses the real reason why the person is acting strangely.  Keep in mind that there is a the popular belief that people act "weird" when they smoke marijuana if even when that is not the case in most circumstances.

Some of the Pros

• I am convinced that, in some instances, pot is the only medication that really works.  Under these circumstances, the claimant must be prepared to tell the judge that he or she tried all other traditional medications available and that none of them offered any relief of the symptoms.  This scenario could ultimately bolster a Social Security Disability claim.  However, it is important to point out that under these circumstances, the claimant must have sufficient medical records to be able to make this argument.
• Finally, under the latest Social Security ruling on drug addiction and alcoholism (SSR 13-2p), marijuana use is not material to a Social Security Disability case unless its use is considered an addiction and is "a contributing factor material to the claimant's disability".   (See my blog from Feb. 25, 2013)  I would argue that under this ruling, a judge cannot consider medical marijuana at all when making a decision, unless there is evidence that the marijuana use raises to the level of an addiction and that marijuana is contributing to the claimant's limitations.