Social Security Disability benefits are predicated on whether or not you can perform Substantially Gainful Activity (SGA), so it makes sense that a disability blog should define that a bit better and provide examples.
Defining Substantially Gainful Activity (SGA)
Social Security bases their definition of disability on your ability to work (or perform tasks like working) that do or could, earn you more than the current monthly income threshold. If you make more than that threshold, you are not seen as warranting disability compensation benefits by the Social Security Administration. You can appeal these determinations.
This can be a bit of a tricky calculation, but here are the basics. If a wage or earnings are not made, the work is not gainful. However, if you do perform some form of activity for pay, then it is considered gainful as long as the expense of doing so is less than the income you receive.
Social Security Administration Definition of Gainful Activity
Work performed for pay or profit; or
Work of a nature generally performed for pay or profit; or
Work intended for profit, whether or not a profit is realized
It is possible you can perform activities that you might do on a regular basis that would require significant physical or mental abilities. These activities could be the basis for employment, as such the value of the activities could potentially factor into the income calculations of an SSI claim.
Example: HR Professional in Spokane
Jane has been an HR professional in Spokane for 20 years. Over the last 5 years, she’s had to reduce her hours significantly due to complications from diabetes. She’s now working about 10 hours per week, earning $15 per hour.
Wage Earnings: $150/week ($600/month)
Jane is unable to work more than this due to increasingly impactful complications. Her employer has made accommodations, including flexible scheduling, work from home, and other allowances. But due to her disabling condition(s) Jane is unable to increase her gainful activity.
The value of Jane’s gainful activity is $600 / month (minus certain expenses). Jane would be eligible for disability due to her inability to meet the SGA monthly income threshold, and her inability to perform supplementary and/or alternatives tasks that would otherwise be substantially gainful.
Example: Car Sales Professional in Spokane Valley
Alan is a car salesman in Spokane Valley. He had a heart attack 3 years ago and has only been able to work part-time since then. He makes about $500 per month working part-time sales.
Wage Earnings: $500/month
When Alan is not working at the car lot, he helps his sister with her home business by answering phones, filing papers, and responding to emails. He does this about 2 hours a day or so.
Non Earning Activity (2 hrs/day) = 40hrs/month
Although the activity Alan performs for his sister’s business is not paid, it is substantial activity that could potentially fetch a wage in the economy.
The Social Security Administration determined that in addition to the $500/month Alan was earning at the car lot, the value of his work demonstrated substantially gainful activity and thus he was not entitled to the disability benefits he sought.
Here’s an excerpt that will help frame the answer to the question above:
Supplemental Security Income (SSI) is a program through the Social Security Administration (SSA) designed to provide a monetary benefit to Americans who are older than 65, blind, or disabled. SSI is needs-based, meaning that the beneficiaries must be below a certain asset threshold. And they must have limited income, and/or income earning potential.
SSI is often paired with Medicaid, administered by individual states. Recipients of SSI often also qualify for food stamps.
Social Security Disability Insurance (SSDI) is similar to an insurance program you might buy into for the contingency that you might become unable to work due to an injury in the future. In actual fact, it is essentially just that – an insurance program. Though, it’s not really opt-in if you’re employed; you pay (or paid) into it through payroll taxes.
The payout for SSDI istypically higher than SSI, but it requires that you have a relatively recent work history, to base the amount of your benefits on. Beneficiaries become eligible for Medicare after two years of being on SSDI.
Are You Eligible for SSDI?
The first question to help you understand whether or not your claim for SSDI is likely to be denied (assuming your application for SSI was denied) is, do you meet the eligibility requirements for SSDI?
We’re keeping it simple here, but here are the two basic qualification criteria for SSDI
Notice that none of these requirements are related to your previous income? Alternatively, to your assets? Unlike SSI, SSDI is not a means-tested/related benefit.
If you were denied SSI due to an asset issue (too much $ or property), you would not be denied from SSDI for that same reason. However, you might be denied for other reasons, including not meeting the criteria listed above.
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Find Out Why You Were Denied SSI or SSDI!
Is There a Reason Why Your SSI Was Denied?
In addition to assessing your basic eligibility criteria for SSDI, you might want to determine why you were denied for SSI in the first place.
If it is a lack of basic eligibility, that is pretty straightforward. We covered eligibility for SSDI above, and because there are a lot of “if/else” caveats to SSI eligibility, we will link to the full eligibility criteria for SSI, here,so that you can review them in-depth.
If your reason for being denied SSI is not due to eligibility deficiencies, then we should look elsewhere to assess why you were denied. Moreover, why you would be looking to SSDI as an alternative to SSI.
It is possible, for instance, that you should have filed for SSDI the whole time and only filed for SSI because of a knowledge gap of the differences between the two programs. This gaffe does happen, and it is easy to see why! SSI & SSDI have a similar name, similar function, and provide support for similar groups of people.
If you’re in the process of applying for Social Security Disability, or if you’ve already applied and are looking to get a bit more help for an appeal – then the following criteria can help you select the best Social Security lawyer for your case.
Work With Someone That Makes You Comfortable
The first and maybe most important factor in picking a Social Security Lawyer is overcoming the initial fear factor of reaching out for help.
Let’s be honest, most of the time the first person called is the attorney with the commercial on TV or that website that shows up on the top of Google. However, as we’ve learned in our firm, a lot of clients gravitate towards representatives that can understand them. For instance, if you’re seeking to claim PTSD and already apprehensive about reaching out for help, getting someone on the other end of the phone that has an imposing persona very easily could lead to trouble at many points during the claims process.
A Social Security claim or appeal can be complex, it’s very important that you have confidence in your lawyer, but also that you have the impression that you can communicate with them or their office without worrying about how they might view, judge, or aggravate your impairments.
Be careful to choose a lawyer that doesn’t intimidate you in any way. You’re going through a tough enough process, keep the barriers to your relationship low and the trust factor high.
Trust w/ Your Social Security Lawyer
The things that generate trust vary widely from one person to the next. However, there are some basic principals that everyone can rely upon when determining if a given Social Security Lawyer is trustworthy.
Ratings & Reviews
Avvo is a great tool for getting straight-forward ratings and reviews of attorneys. They have a proprietary ratings system and review system that they claim can’t be gamed. This is very important, and as you can imagine, review and rating stuffing is common and sadly something that erodes confidence in any rating system.
In addition to Avvo, Google provides a great system for getting reviews of all sorts of lawyers, including disability lawyers. If you do a search for disability lawyers near you, or for a specific disability lawyer, you will likely see their Google ratings & reviews pop-up next to their listing. This is a bit more crowd-sourced than Avvo but is a very valuable tool for both selecting a great disability lawyer, and for reviewing them after you’ve worked with them. Here is an example of ratings and reviews using Google.
The internet has been around for a while at this point. As have digital cameras. The old saying “a picture is worth a thousand words” is just as true today as when it was coined. In fact, it might even be truer today than ever. Consider how a picture helps to establish rapport and trust.
You want a disability lawyer that shows you they know what they’re doing. They are respectable and respected. And they will be the best champion for your fight, right? That’s why every attorney, doctor, consultant, author, etc. has a professional picture of themselves somewhere on their website. But one of the biggest problems is that pictures can (and are) staged. However, an authentic video is much harder to fake.
Check out the prospective disability attorney’s Facebook and YouTube channels. First off, do they even have social media at all? And on those channels, see if they have videos sharing insights, talking to clients, answering questions. Sometimes these videos will also be on the lawyer’s website or blog as well.
Watching how the lawyer answers questions will give you a lot more than a picture – at least in helping you to build an idea of who they are and how they communicate.
Ask yourself, “is this someone that can communicate my challenges, is this someone I can communicate my challenges to?”
A short video will usually give you an enormous amount of insight into answering those questions.
When seeking insight into a disability lawyer’s persona don’t forget to look at the extras on their website. Blogs, especially, will tell you how committed they are to sharing information with you.
Is their website a bunch of short questions with hooks at the end of each one? If so, how does that help you, as a potential client, to understand the processes involved in your claim? Alternatively, do they have a wealth of information about all aspects of your claim, and questions you hadn’t even thought to ask yet in their blog or newsletter? Six months from now when you’re wondering what your chances are of succeeding, this might be exactly what you need to keep your spirits high.
A blog may not be what you initially thought of when thinking, “how do I pick a Social Security lawyer,” but now that you’re in the search, take a look around and see who’s keeping their clients and future clients informed and who’s just fishing for the next client.
Would you rather be a big fish in a small pond or a small fish in a big pond? Think about this for a moment.. this is something that can help you to identify what type of disability lawyer or disability law firm to work with.
One might argue that a huge firm with many thousands of cases is big because they are good. They certainly have the advertising budget to portray that success. However, the continued existence of many hundreds, or even thousands, of community disability lawyers fly in the face of that sentiment. At the end of the day, you can deal with one bureaucracy (huge firm) to fight another one (SSA), or you can work with a personalized firm who remembers your name when you call.
It comes back to that question, big fish or small fish? The small fish sometimes has a hard time being heard.
In response to the big fish/small fish question, you do, at some, point want to consider how responsive your disability lawyer will be to your unique needs. Hint, they have to recognize that you indeed do have unique needs in the first place.
Like a Dr. Office, it’s probably not reasonable that the attorney can stop immediately talking to one patient (client) to take a call from another. That’s why staff and client liaisons exist. However, it is reasonable and should be necessary, to have an attorney that is available to talk, within a reasonable amount of time.
Can you call the firm and get a response from the attorney in a reasonable amount of time? Can you schedule a time to actually come into the firm and talk to the lawyer that’s representing you? Not everyone can…
Being able to communicate, even briefly, is something you’re going to want to do as a disability hearing approaches.
During the course of your claim (or appeal), there will be curveballs thrown your way. Whether those curveballs originate from within the claim itself or they happen to come from directions yet unseen, you want someone on your side that “knows someone.”
One of the best things about working with an experienced and established disability lawyer is that you’re also working with their network. A good lawyer doesn’t gain experience by being an island unto themselves. They often work with partners in similar fiends to increase the effectiveness of their own services.
To you, the client or future client, this means – that when that curveball arrives you can ask for referrals, assistance, resource information, and things like this. Or rather, you should be able to. Unfortunately, this also relies on the idea that your disability lawyer is local, which as we know from previous discussions, is just not always the case.
You bet it does! Though it comes down to the severity and how PTSD presents on a daily basis. We’ve covered the chances of you getting a successful claim through the initial filing process before, and I suspect that some of the reason this question gets asked is that it seems mental health challenges are often mischaracterized in disability reports. To assess the situation from a wholistic perspective consider the following five questions.
How are you sleeping?
If the answer is anything other than, “I get a decent amount of sleep” .. then, you, me, and everyone (SSI/SSDI) needs to know why?
Are you having nightmares, insomnia, lack of consistency, where are you sleeping? Do you need special equipment to sleep? A fan for white noise, the TV turned on, a CPAP machine.
Bottom line, if PTSD is causing trouble sleeping or being made worse by lack of sleep, it has an impact on your health and employability in many different areas.
What motivates you?
It seems a basic question, but this is something that cuts straight to the heart of PTSD and other mental health challenges.
Are you distant, non connected, ambivalent towards goals? Are you hyper focused on a certain subject?
Any of these could be “normal” in the right circumstances, but experiencing PTSD can change the balance of “normal” for anyone.
What do you do for recreation?
This doesn’t necessarily mean, “what do you do for fun,” but you can think about it like that.
If you can’t really answer this question then ask yourself what did you do in the past for recreation? Did you find it enjoyable or fun then? Do you do it now, and if you do, do you get enjoyment from it?
Many times with PTSD a fear of social engagement, or triggers, will cause people to stop doing activities they once found enjoyable. If you can’t engage in recreation, or other enjoyable activity, there’s almost certainly an impact to your ability to work. Clearly, a lot to your story needs to be told.
How do you cope?
Let’s start by dismissing coping as good or bad. Everyone copes with challenges everyday. Being able to identify and put into perspective the level of coping is key in making a compelling description of how PTSD impacts your life.
Coping can almost be anything, some people cope through working out, for instance. But if you’re working out 12 hours a day and your marriage fell apart, and your finances are a mess – it’s obviously become more of a hinderance to your overall state of being than it has a help. The same can be true for alcohol, drugs, excessive sleep, risk taking behaviors, isolation, aggression, social media, eating, the list is endless.
So how are you coping with challenges brought on by PTSD?
Do you have a diagnosis?
Do you believe you have PTSD but you haven’t received a diagnosis? Do you believe you were misdiagnosed? In your opinion did an examiner not ask the right questions to be able to adequately determine if you experience PTSD, and perhaps the level of impairment you might have?
Sometimes this can all be placed in the fact that you might not have PTSD…per a clinical definition. That doesn’t mean though, that you aren’t experiencing clinical anxiety, depression, intrusive memory or hallucinations, ADD, or any number of other symptoms that in themselves are diagnosable mental health conditions.
Sometimes, we focus on labeling too much and not enough on the challenges presented by what we’re experiencing. If we expand the label outwards a little, there may be similar diagnosis that would better match the conditions you might be experiencing.
The Last Question: How Can you Best Tell this Story?
You might have seen the Shared article we placed on Facebook earlier this month regarding the upcoming changes to the Social Security Administration medical Listings for neurological, respiratory and mental health impairments. The new Neurological Impairment listing updates became effective 9/29/16 and new Respiratory Impairment listings on October 7, 2016. The new Mental Health updates won’t become effective until January 2017. That said, really important changes have already occurred under the Neurological and Respiratory updates.
How these new Medical Listings Apply to You
For example, SSA has really broken down neurological conditions and diseases. Whereas certain disorders, like seizure related disorders, were all more generally lumped together, now different types of seizure activity are spelled out. The Disabled Individual claiming eligibility for SSA benefits has the burden to prove that their impairments preclude all substantial work. One of the ways to do this is by providing medical evidence demonstrating that the condition, like epilepsy, meets or equals these medical Listings. A keen eye to detail must be used when analyzing neurology and radiology records. A person with significant limitations due to their neurological disorder may be denied if the decision-maker is not paying close attention to these records in light of the new medical Listings.
Are you the type of person that likes to figure out how everything works? The type of person that seeks to try to first figure things out on your own? If so, you are not alone. A lot of (future) clients tend to work through the disability process on their own.. at first. You will likely have a better chance of success with a disability lawyer on your side up-front, but finding one that will help is difficult. Often, the initial claim is left to go its own way and the results are more or less predictable. It’s not your fault though, the system is not setup to make disability claims easy to obtain. If you’re like the majority, at some point you’ll ask your self, “when should I contact a disability attorney” or “when is it too late to hire a disability attorney?”
Let me try to answer that for you.
When you should Contact a Disability Attorney
As early as you can. You should not wait for a denial to contact an experienced disability lawyer. The risk in waiting for a denial is that when you are denied, you begin racking up due dates. The most important one being your appeal to the denial. If you want more direction on this, you should read, Your To-Do List for Social Security. If you wait too long to hire a disability attorney, you risk being too late to hire a disability attorney at all, at least on your appeal.
When It’s too late to Hire a Disability Attorney
Of course, attorneys exist because things aren’t perfect. You are navigating an imperfect system (Social Security) for a tough benefit to obtain (disability). Timelines get missed, mail gets lost, communication breaks down..so when is it too late to contact and retain a disability attorney?
If you want to know when it’s too late for your claim.. the answer is if your appeal period has lapsed. If you’re in the situation where the points made above don’t apply because you’ve already missed your timeliness, you’re probably already too late.
Even if you are past your appeal period though, you should still contact an experienced disability lawyer. There may be aspects of your claim that changes the situation or extraordinary circumstances that can salvage a claim. Alternatively, there may be a better route to pursue should you seek to go back again for another go-round.
When It’s Too Late…but It’s Not Too Late for Round 2..
Obviously seeking an appeal to a disability denial is the best course of action. But there are a lot of reasons why you might not be able to do this anymore. One reason often cited by clients is the “You Have to Apply Three Times” myth.
Whatever the reason, should your claim be beyond salvaging, you can apply again. A lot of successful claimants have applied several times. You wouldn’t be the first, and shouldn’t shy away from doing this if you need to.
The facts are that you cannot work because of an illness or injury, and you rate SSI or SSDI. You may just need a little extra help making the Social Security Administration understand this.
Lilac City Law advocates on behalf of the disabled in their claims for Social Security Disability and SSI
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If you’re looking for a disability lawyer for a Social Security appeal or a VA appeal, you should think about working with one that does both.
There are a lot of Social Security lawyers, but only a few that really understand and actively practice VA law. On that same note, there are a lot of advocates for Veterans benefits, but only a few with truly in depth Social Security expertise.
As we discussed in a previous article, you have a lot of options for working with advocate. We even discussed to some degree who you might want to work with. There are pros and cons depending on where you are in your disability application. Now we are going to discuss why, if you are a Veteran, you should work with a disability lawyer that practices both VA & Social Security disability law.
Your Disability Lawyer needs to Know how VA & SSA Disability are the Same & how they are Different
Both the Veterans Administration and Social Security Administration have disability benefits. In Social Security there are two programs Supplemental Security Income (SSI) & Social Security Disability Insurance (SSDI). SSI is designed to provide for the basic needs of the aged, blind, and disabled. While SSDI is basically an insurance advance for workers who become disabled before retirement age. These are similar to programs in the VA, the non service connected disability (VA pension), and service connected disability (compensation).
SSI & VA Pension
SSI is very similar to VA non service connected disability, also known as a VA pension. In fact, the basic qualification for a non-service connected disability pension is that a Veteran would otherwise be qualified to receive SSI.
Applying for both is your workaround on this, but it comes at a risk…Overpayments.
There are overpayment risks if you are eventually awarded both SSI & VA pension. You need to have someone who is ready to jump in and advise you through both processes as you go through them.
As much of a risk as overpayment are, if you work with a good lawyer, you can minimize them. And you can do this while literally doubling your chances of success up front. Once you get one success, in VA or SSA, your lawyer will then use it as a fulcrum to start seeking the best possible mix of SSI / VA pension benefits. At least that’s what we would do.
SSDI & VA Service Connection
SSI & VA Pension are much closer to each other than SSDI and VA service connection. In fact, SSDI and VA service connection aren’t altogether similar at all. But they do have one very strong thing in common. Unlike SSI & VA pension, You can collect BOTH SSDI and service connected benefits at the same time.
This is a significant point. The average SSDI award is about $1,300 per month, and VA disability rates can be be more than $3,000 per month in some cases.
The real test of skill and commitment of a VA & SSA disability lawyer is being able tease out the connections between your experiences. Both your experiences in the military and wherever your journey has taken you since your service are material to the success of your claims. When knowing this background information, a skilled disability lawyer will be able to craft a plan that pursues both Social Security and VA benefits. Which will result in you increasing your chances of success and maximizing your benefits awards.
Lilac City Law advocates on behalf Veterans in appeals for Service Connected Disability Benefits and for Social Security Disability Benefits
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