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The CDR Guide to Disability Rights
(and dealing with the system)

Social Security Benefits

by Theresa M Varnet, an attorney practicing in both MA and IL

What Social Security benefits are available to persons with disabilities?
If you are disabled and incapable of substantial gainful employment, you may be eligible for either Supplemental Security Income (SSI) or Social Security Disabled Income (SSDI). Both of these programs pay money to persons who are disabled and incapable of substantial gainful employment (substantial gainful employment is defined as the ability to earn up to $700 per month in earned income. Advocates are attempting to have this amount raised to $800 but as of this time, an individual is only allowed to earn $700 and still be considered incapable of gainful employment). If you have a physical or mental impairment which prevents you from doing any job that will enable you to earn at least $700 per month, you are eligible to apply for either SSI or SSDI if you meet the other requirements of the programs.

What are the SSDI requirements?
In addition to being disabled, an individual applying for SSDI must have worked and paid into social security for a minimum number of work quarters, if s/he is drawing on his or her own social security account (the minimum number of quarters is determined by oneís age and the number of years s/he worked prior to becoming disabled).

If the individual is to draw on a parentís account, the individualís work record is not applicable. There is no deeming of oneís assets (i.e., you will not be asked questions about bank accounts, savings bonds, etc.) in order to determine eligibility for SSDI.

All that is required is that the individual is disabled and no longer capable of substantial gainful employment and has paid into social security for the required number of quarters if s/he is drawing on his or her own account.

If an individual is collecting SSDI under his or her parentís work record, s/he must have been disabled prior to the age of 22, be single, and be incapable of substantial gainful employment. In order to collect on a parentís work record, the parent must have died, retired or become disabled. In other words, a dependent adult child can collect SSDI based on his or her parentís work record if the parent is eligible for social security administration benefits.

What are the SSI requirements?
SSI requires that in addition to a person being disabled and incapable of gainful em ployment, s/he must be poor and have very little income and very few resources. The following is a list of resources that an individual is allowed to retain and still be eligible for SSI:

  • savings accounts to a maximum of $2,000 for a single person or $3,000 for a couple;
  • life insurance with a face value of up to $1,500;
  • burial plots for you and your immediate family;
  • burial funds up to $1,500 for you and $1,500 for your spouse;
  • your car, if it has a maximum fair market value of less than $4,500, or has been adjusted to accommodate a disability, or is needed for employment purposes, medical treatment of a specific problem, or essential daily activities;
  • furniture and household goods worth up to $2,000 fair market value for a single adult or child, or $3000 for a couple (in Massachusetts there is no limit on the amount of furniture and household goods);
  • your house, regardless of its value, if you live there and do not receive any income from it.

In addition Social Security does not count the following income in deciding SSI eligibility:

  • the first $20 per month of most income from any source;
  • the first $65 per month of most earned income, and half of any earned income over $65 per month;
  • food stamps;
  • home energy assistance under certain conditions;
  • food, clothing, and shelter from certain private non-profit organizations approved by your local Social Security office.

Once you are found eligible for either SSI or SSDI, your eligibility may be reviewed every year or every 2-3 years if there is an expectation that your disabling condition may improve over time. Even if you have a long term disability, SSI requires your case be reviewed every 3 years to determine that you still meet the eligibility criteria.

The amount of SSDI you receive depends upon the number of years you worked and paid into social security, the rate of pay, and your age when you became disabled.

The amount of money you receive under SSI is limited to the maximum of $484 per month except in those states that supplement the Federal SSI payment. Illinois is not one of the states that supplements the Federal contribution.

There are other ways you can maximize the amount of money you receive under SSI. These include being knowledgeable about deductions allowed for "Impairment Related Expenses" and about SSIís Deeming requirement if you are living in the home of another and you are receiving free or "in kind" support. The following is a more detailed explanation of each.

Impairment related work expenses are those costs for services and items that a person needs in order to work. The costs of these items and services must be paid by the disabled individual and not be a cost that is reimbursable by Medicare, Medicaid, or private insurance. Examples of impairment related expenses are as follows:

  • attendant care services;
  • transportation costs;
  • medical devices;
  • prothesis;
  • work related equipment of services (such as typing aids, page turning devices, telecommunications devices for the deaf, seeing eye dog, medical supplies such as elastic stockings, catheters, incontinence pads).

SSI will decrease the amount you receive by one-third if it is determined that you are receiving "in-kind support" from your parents or a friend or relative. This means if you are living in the home of another and they are not charging you room and board, then SSI assumes that they are making a voluntary contribution towards your support. Regardless of the dollar value of this in-kind support, SSI regulations "deems" this in-kind support to be equal to one-third of your SSI payment and reduces your payment in kind.

In order to avoid losing one-third of your SDSI check you must be able to show that you are either paying rent or that you are contributing your "fair share" toward the cost of maintaining your household. To determine whether or not you are paying your fair share of your householdís expenses, SSI officials will require you to itemize your householdís expenses and divide those expenses by the number of people living in the home. Household expenses include total monthly expenditures for food, rent, mortgage, property taxes, heating fuel,gas, electricity, water, sewerage, and garbage collection. If the amount of expenses divided by the number of people in the home is less than $484, SSI will allow you to keep your whole SSI check. If the amount is greater than $484, (even if only over by a few dollars), SSI will deem this excess amount as a voluntary contribution toward your support and will reduce the SSI check by one-third.

What are the basics of the appeal process?
If you are denied eligibility for either SSI or SSDI, you can appeal this decision. Instructions on how to file an appeal are given on the back of your notice of denial from Social Security. You will have a much greater chance of winning an appeal if you consult an attorney, advocate or other professional who is familiar with SS regulations and appeals procedures. Some attorneys will accept your case on a contingency fee arrangement. That is, they will get paid only if they win your appeal and will accept 25% of your back payment as full payment for their legal fees.

This material is intended to offer general information to clients and potential clients of the firm which information is current to the best of our knowledge on the date indicated below. The information is general and should not be treated as specific legal advice applicable to a particular situation. Spain Spain & Varnet PC assume no responsibility for any individualís reliance on the information disseminated unless, of course, that reliance is as a result of the firmís specific recommendation made to a client as part of our responsibilitites to the client. Please note that changes in the law occur and that information contained herein may need to be reverified from time to time to ensure that it is still current. This information was last updated June 3, 1997.

For additional information:
Social Security Administration

Council for Disability Rights

Knowing your rights is the easy part. Exercising them can be a bit trickier.

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