How much does it cost to hire an attorney?
There is no upfront cost; Kirsch & Clark work on a contingent fee basis (we don’t get paid unless you receive benefits). The Social Security Administration sets our fee, which is the lesser of 25% of your back award, or $7,200. The back award is the past due benefits that should have been paid from the start of your eligibility to when the decision on your case is made. The Social Security Administration withholds the attorney fee from your past due benefits and pays it directly to your attorney. A few weeks later, the Administration will send the balance to you. If you have debts to the Federal Government or owe back child support, some, or all, of your past due benefits will pay those debts before the money is sent to you. We will only receive an attorney fee if you win your case.
In order to represent you, we often incur out of pocket expenses which include copying, medical record fees, and sometimes consultative visits or doctor’s fees. These costs, generally a few hundred dollars, will be billed directly to you after your case is resolved, and regardless of the outcome. You can call Kirsch & Clark at any time to find out what the current balance on your costs account is. Before we incur any costs outside of the ordinary, we will talk with you.
What is the difference between SSI and SSDI?
There are two programs run by the Social Security Administration that award benefits for disability: Title II (also known as SSDI, SSA, or Disability Insurance) and Title XVI (also known as Supplemental Security Income or SSI). These two disability programs differ in that SSDI is an insurance program based on your past work; SSI is a need based or welfare program. SSDI recipients receive Medicare, beginning 2 years after the date the person became eligible for disability benefits (generally 5 months after becoming disabled). SSDI is paid regardless of money earned by other family members or assets owned.
SSI, in contrast, does not require a work history. The SSI benefit amount depends on resources and house-hold income (income eligibility varies based on how many people are in your household). SSI benefits are set each year by law; the maximum benefit for 2023 is $914 per month for a single person, and $1371 for a couple. SSI eligibility also makes you eligible for Medicaid. Disabled children can receive SSI, depending on family income and resources. Sometimes, individuals can qualify for both SSI and SSDI, depending on the amount of their SSDI benefit, and other financial factors. Both SSDI and SSI use the same definition of “disabled.”
What is the Social Security Administration’s Definition of “Disabled”?
For Social Security purposes, persons are “disabled” if they have one or more medically determinable impairments that have lasted or are expected to last 12 months or result in death, and have prevented or will prevent the person from working. Social Security must take into account age, education, and work experience. Unlike Workers Compensation or Veterans Disability benefits, SSDI and SSI do not have partial disability options: either you can work or you cannot.
In order to prove that you are disabled, you must show, with objective medical or mental health evidence, that your medical or psychological condition is severe enough to prevent you from working. You must prove that you can’t return to work you have done in the past, and that you cannot perform any other work on a full time basis. That means you must show you cannot do a simple unskilled job in which you can sit throughout the day. The rules are more lenient for individuals over age 50.
What are the stages of appeal of a denial of benefits?
Initial. The Initial application stage involves applying for SSI and/or SSDI benefits. If this is difficult for you, we can help you complete the application and accompanying forms. You can also go directly to the Social Security Administration. After applying, it may take the Social Security Administration 2 to 12 months to process your application. Many people, who are otherwise deserving of benefits, will be denied at this stage because the Administration does not have enough evidence. You should definitely appeal if you feel you cannot work. Make sure that the Administration has all of your relevant records. After the first denial Kirsch and Clark can help prepare your appeal.
Reconsideration. The Reconsideration stage involves the Administration collecting more records (if you alert them to the existence of new records) and reviewing your case. This review will generally take 2 to 12 months. In the Eastern Washington/Idaho Panhandle region, most claimants are generally denied again at this stage. Again, if you feel that you cannot work, you should ask for a hearing. If are not represented prior to this time, it is an excellent idea to get legal help at this point.
Hearing. In the Eastern Washington/Idaho Panhandle region, claimants generally wait an average of 12 months for a hearing, after requesting one. Your lawyer uses this time to gather evidence and prepare for your hearing. It is important for you to get all the medical and psychological help that you need to manage your condition, and keep your lawyer updated about new records of your care. If you attempt working, you should contact your lawyer. The Administration will alert you of the time, date, and place of your hearing about two to three months before the hearing. You will meet with your attorney several weeks prior to your hearing. It is important to arrive 30 minutes prior to the start of your hearing.
Decision. Some judges will make a decision at the hearing. Other judges will take 6 to 8 weeks to decide. Either way, a written decision is sent to you which explains the reasons supporting the decision. If you win, you will begin the process of being “placed in pay.” It often takes 6 to 12 weeks to get monthly benefits started, and a few months longer to get your full back award. (SSI past due benefits are paid in installments, not as a lump sum.) If you do not win, your attorney will discuss whether an appeal is an appropriate option.
Appeals Council and Federal Court. If you do not win at the hearing level, your attorney will advise you about whether an appeal to the Appeals Council is appropriate. The Appeals Council can take 1 to 2 years to review a case. The Appeals Council can agree with the judge and affirm the decision, remand (send back) the decision for a new hearing, or, decide you are disabled and award benefits. Those denied by the Appeals Council can appeal to Federal Court. The attorneys at Kirsch and Clark have successfully represented clients at all of these levels.
Each case is evaluated at each step of the appeal process to determine if it is possible to win.
How long will it take to resolve my claim?
Typically, the multiple stages of appeal result in a process that can last up to about 2 years. Much of the delay is because there are many claims too few staff to process them. This has a lot to do with the Federal budget and the changes in our country due to the aging of the baby boom generation. We will try to get you benefits as soon as possible.
Some people I know are getting disability payments, but I am much worse off and I have been denied. Why?
We have noticed a universal tendency among all human beings to minimize others’ pain while being acutely aware of their own pain. Many disabilities are not immediately noticeable to the casual observer but are severe enough to disrupt a person’s ability to keep a job. Though we work with people with disabilities every day, we are often surprised by the seriousness of people’s problems after we gather all the information. That is one of the reasons why we take almost any case in which people claim that they cannot work, regardless of our, or the Social Security Administration’s, first impression. Each case is unique and must be decided on its own merits. Do not assume your case is exactly like someone else’s. Do not assume you know all the reasons another person was found disabled. However, if you suspect Social Security Fraud, you can call the Inspector General’s Fraud Hotline at 1-800-269-0271.
Can I work and get benefits?
It depends. You are almost always better off working full-time than getting Social Security benefits. However, you can sometimes work part time and still receive benefits. The Administration has currently set a $1470/month (2023) threshold for “substantial gainful activity” (SGA). Gross earnings over this amount will cause you to be denied benefits because of the ability to work. Your earnings may be reduced if your employer has given you special considerations that make your work worth less than what you are paid, or, you have significant work-related expenses which allow you to keep doing your job.
Once you are found disabled, the Administration allows a trial work period of 9 months of work before your income can be used as proof that you are no longer disabled.
You should always contact your attorney for specific advice that applies to your situation when you decide to work, and keep your attorney updated on monthly earnings, hours, duties, and any special accommodations your employer makes for you. How work income is handled depends on whether you have an SSI, SSDI, or SSI/SSDI claim. Ask for an individualized explanation of the differences and how they apply to your case.
What will I get, if I am found eligible for benefits?
If you are eligible for SSI only, your monthly benefit will be no more than $914 per month (as of 2023), and Medicaid. You will also receive a back-award for the months after you applied for benefits or were found disabled (whichever is most recent), minus your attorney’s fee.
If you are eligible for SSDI only, your monthly benefit will be based on your earning history and number of dependents in your home. You can receive a back award for benefits beginning 5 months after the date you could no longer work because of your disability (but no farther back than 17 months prior to your date of application for benefits), minus the attorney’s fee. To find out the amount of potential monthly benefit, you can ask for your Social Security Statement online (see www.socialsecurity.gov) or contact your local Social Security office. Your monthly disability payment will be roughly the amount you would get at full-retirement age. If you have children under 18 or in high school, they will also receive a monthly benefit. Your lawyer will have some rough information about your monthly benefit, but not until close to the time of your hearing. Persons eligible for SSDI are eligible for Medicare two years after the date they became eligible for disability benefits payments.
If you are eligible for both SSDI and SSI (i.e., are “insured” because of your work history and previous earnings and have low/no household income and few assets), your monthly benefit will be no more than $914 (2023) per month. You will be eligible for Medicaid. You will also be eligible for Medicare (after the two-year waiting period).
Confusing? Your attorney will put all of this in writing for you if you win your case.