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GUEST COLUMN: What Do I Do Now!? Social Security Disability and Other Mysteries

GUEST COLUMN: What Do I Do Now!? Social Security Disability and Other Mysteries

June 22, 2010

QUESTION:  I CANNOT WORK DUE TO MY MEDICAL CONDITION.  HOW LONG SHOULD I WAIT BEFORE I APPLY FOR SOCIAL SECURITY DISABILITY (“SSD”)?

ANSWER:  YOU CAN APPLY SOONER THAN YOU THINK.

Joe, a Traffic Enforcement Agent, was working the intersection at the Manhattan Bridge when a drunk driver and a 18-wheeler made a sandwich with him in the middle.

Before you could say Social Security Disability, Joe looked like the Mummy, but in traction.  The good news was all the necessary Workers’ Compensation papers were filed immediately.   The bad news was that Joe would need more than a year and a half to regain the use of his legs and his left shoulder.  The Mild Traumatic Brain Injury (MTBI) would take much longer to heal.

Joe was devastated.  And very, very worried how he and his family would get by as he recuperated.   The doctor, however, pointed out that because Joe would be unable to work in any capacity for more than 12 months, Joe could file for Social Security Disability (SSD).

The Social Security Administration (“SSA”) requires an injured worker to prove that they have been disabled under their rules for at least 12 months.  This does not mean she or he must wait until the 13th month to file.  So when does someone like Joe file?   Because Joe’s doctor was very clear that Joe would be disabled and unable to work at least a 12-month period, Joe could have filed the day he stopped working.

However, Joe spoke to a lawyer and chose to not file until he had been out of work between five and seven months.   Why did Joe wait?  Joe and his doctors decided to evaluate how long his disability would keep him out of work. This process can sometimes take several months.  Many medical conditions improve within a one-year period allowing a person to return to work before the 12th month.  If this is the case, returning to work prior to the 12th month would make them ineligible for the benefits.

The best way to know whether or not to file on the last day of work or on the fifth to seventh month is to get the professional medical opinion from the doctor in charge.  The doctor’s opinion on whether a disabling medical condition will meet this durational requirement is one of the most important pieces of evidence an injured worker can submit to SSA.

Sometimes after an accident or illness, things get overwhelming and filing paperwork can easily be forgotten.  What if Joe had been out of work for a prolonged period (greater than 12 months) due to his disability, and hadn’t yet filed for SSD? In that situation, SSA would only pay Joe retroactive benefits for 12 months prior to his filing for benefits.  So if Joe became disabled on 1/1/08, and didn’t apply for benefits until 1/1/10.  SSA would only pay him benefits back to 1/1/09.

In order that all back benefits are captured, make sure to file within 17 months of the day you stopped working due to your disability.  Why 17 months, and not 12 months?  SSA will not pay benefits for the first five months you are found disabled.  This is called the five month waiting period. SSA’s policy ensures that during the early months of disability, they do not pay benefits to persons who do not have long-term disabilities.

DISCLAIMER: This article is designed to provide general information.  Although this article has been prepared by professionals, it should not be used as a substitute for professional services.  If legal or other professional advice is required, the services of a professional should be sought.

Barbara Tilker, a partner at Brecher Fishman Pasternack Walsh Tilker & Ziegler, has over thirty years experience in the practice of Social Security Disability (SSD) law. She has served two consecutive terms as President of the New York Social Security Bar Association and is presently a Trustee of this organization.  Her articles on SSD have been published in the New York State Trial Lawyers Quarterly and the Bill of Particulars.  A panel member of the New York City Bar Legal Referral Service, Mrs. Tilker has been named as a Super Lawyer in the Metro region for the years 2007-2010 in her area of expertise.  If you have Social Security Disability questions call at 516/742-3773.

June 22, 2010

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