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Is it possible for somebody to be able to work and not be able to work, at the same time?

Surprisingly, yes. Here’s some background.

Under the Americans with Disabilities Act, and possibly under other state or local laws, your employer must provide you with accommodations (such as a wheelchair ramp, for example) that assist you in doing your work, unless your employer can demonstrate that doing so would cause undue hardship. Whether an employer is required to provide a particular accommodation or not is a complex area of law.

Although employers are generally required to provide accommodations only to qualified employees (that is, those who can work), and Social Security disability benefits are available only to those who are incapable of substantial gainful employment (that is, those who can’t work), the Supreme Court has ruled that applying for Social Security benefits does not automatically exclude you from the protection of the Americans with Disabilities Act.^[1] This is because there are workers who are able to work only with accommodations from their employers. If you believe that you may fall into that category, then in order to preserve your rights under both sets of laws, it is very important that you obtain legal advice.

To preserve your claim, it is also important to be honest at all times. Our firm can assist you with your application for Social Security disability benefits while you continue to seek accommodation from your employer or former employer.

^[1]See Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999).

If your disability “meets or equals” one of the Social Security Administration’s medical listings, then you very likely are unable to work, and therefore, your claim should have a better chance of being approved. Initial decisions are based, in part, on your medical records. In addition, sometimes the disability determination service or the Social Security Administration may ask you to attend a “consultative examination,” where a doctor examines you specifically for the purpose of determining whether you are disabled.

To maximize your chances of a favorable decision from the disability determination service:

• If you are severely disabled and your doctor thinks you “meet or equal” a listing, then ask your doctor to provide a copy of your medical records to the Social Security Administration or to the disability determination service.
  • To find the address to send the records to, call the Social Security Administration at 1-800-772-1213 (TDD 1-800-325-0778).
  • If you are a Bill Gordon client, you can send the medical records to us, and we will send them to the appropriate agency on your behalf.
• If you are terminally ill and your records clearly indicate the severity of your condition, then ask your doctor to provide a copy of the medical records to you directly, and you can include them with your application.
  • if you apply in person or if the Social Security Administration asks you to come in for a face-to-face interview, you can bring a copy of your medical records with you.
  • If you apply over the phone, you can mention to the representative that you already have copies of medical records, and offer to send the copies in.
  • If you are a Bill Gordon client, please call us at 1-800-819-8123 to find out the address where you should send the records.
• See your doctor as often as is necessary for the proper treatment of your condition. Some people suffer for long periods of time without seeking medical assistance, but the Social Security Administration thinks that anybody who is really disabled will be seeking treatment for their condition.
• If you receive a notice asking you to undergo a consultative examination:
  • Keep the notice, so you will know the date, time and place; however, if you are a Bill Gordon client, you can also find out the time and place of the exam by calling us.
  • If you can’t attend, then follow the instructions on the notice to request that the exam be rescheduled. If you have trouble arranging for an agreeable time and place, then call us.
  • During the examination, be cooperative; if there is a problem between the doctor and you, or if the exam is not thorough, then call us at 1-800-819-8123 for assistance.
  • Sometimes it is possible to get your own doctor to do the consultative examination; call us for more information.
• Be honest always.

Disabilities that are less severe are harder to prove. Your disability must prevent you from working in order for you to be awarded benefits.

Social Security Disability Insurance and Supplemental Security Income are not the only benefits that are available for the disabled. You may also have private long-term disability insurance through a recent employer, for example. Some of these private insurance plans require their members to apply for Social Security Disability Benefits even though the private insurance plans generally have a less rigorous definition of “disability,” or cover partial disability (which SSI/DIB do not). The fact of them requiring this is highly controversial; feel free to contact our firm for advice if you have any questions.

If you became disabled as a result of serving in the United States Armed Forces, you may be eligible for veterans’ disability benefits. Because some veterans’ benefits are available for partial disability, whereas Social Security provides benefits only in the case of total disability, it may be easier to gain veterans’ benefits than Social Security disability benefits. A pension is available for veterans with limited income who are either permanently and totally disabled or are at least 65 years of age. Contact the U.S. Department of Veterans Affairs at 1-800-827-1000 for more information.

State governments often provide vocational rehabilitation services that may assist you in returning to work. If you are able to work, we recommend that you contact the vocational rehabilitation service in your state for more information. The Social Security Administration maintains a list of government-sponsored vocational rehabilitation services, work incentives planning and assistance programs, and protection and advocacy programs. Your local or county government may also be able to provide you with medical or financial assistance.

The “trap” hidden inside workers’ compensation

If you are disabled as a result of your work, you are probably eligible to receive workers’ compensation benefits. Contact your state government for information. Please note that receiving workers’ compensation benefits may affect the amount of Social Security benefits you can receive; specifically, the sum of public disability benefits including Social Security Disability Insurance and Workers’ Compensation (but not Supplemental Security Income) benefits payable to you and your immediate family generally cannot exceed 80% of your “average current earnings.” The calcuation of “average current earnings” may be complex in some cases, so please contact a lawyer for more information.

If you were laid off from a job, you may be eligible for unemployment benefits. You apply for unemployment benefits through your state government. Generally, in order to receive unemployment benefits, you must be able and available to work, whereas to receive disability benefits, you must be unable to work. If you were laid off and are not sure whether your medical condition allows you to do other work, consult with your physician and, if still in doubt, feel free to contact a lawyer.

Finally, if you are a Supplemental Security Income (SSI) applicant, you must inform the Social Security Administration if you are eligible for any other benefits or payments. Generally, you should apply for any other benefits you may qualify for. If the Social Security Administration tells you to apply for a benefit, you must do so.

This list is not exhaustive. There may be other benefits you may be eligible for. Contact your local government or other local organizations for more information.

Social Security Disability Insurance benefits work much the same way as Social Security retirement benefits, in that if you work, you pay a substantial amount of money as Social Security tax. By paying Social Security tax, you earn “work credits,” by which you become legally entitled to receive benefits; however, the number of credits required differs based on whether one is applying for retirement benefits or disability benefits. A worker can earn up to four “work credits” per year. The exact number depends on how much money you make; in 2009, for example, you would receive one work credit for every $1090 you make, up to a maximum of four credits for the whole year. If you have earned 40 “work credits,” then when you reach retirement age you will be eligible for retirement benefits.

For the “work credits” to count towards disability benefits, however, they generally must have been earned within the last 10 years. The Social Security Administration website explains how many work credits you need.

Social Security Disability Insurance and Supplemental Security Income: what are they, and what’s the difference?

You probably already know about Social Security. Congress passed the Social Security Act in 1935 to provide for the needs of workers when they retire, and also to establish a system of unemployment insurance. Social Security retirement benefits are administered by the Social Security Administration, now an independent Federal agency; unemployment insurance is administered by State governments. The Act also provided a system of grants to state governments for disabled, blind, or aged individuals with lower income.

In 1956, Congress amended the Social Security Act to provide benefits to severely disabled workers who were least 50 years of age; in 1960, the law was amended again so younger workers could obtain disability benefits. In 1972, the Federal government took over the system of grants for low-income individuals who are disabled, blind or aged; this system is now known as Supplemental Security Income. Thus, there are two Social Security programs for the disabled: Social Security Disability Insurance Benefits (DIB), and Sup­plemental Security Income (SSI).

• Eligibility for Social Security Disability Insurance Benefits (DIB) is based on work history.
• Eligibility for Supplemental Security Income (SSI) is based on financial need.

To be eligible for Disability Insurance Benefits, you must also be disabled; to be eligible for SSI, you must be disabled or blind, or have reached the age of 65. Much of the remainder of this discussion explains what it means to be “disabled” under Social Security law.

If you receive Social Security disability or retirement benefits, the following members of your family may also receive benefits:

• your spouse, if
  • the spouse is at least 62 years of age, or
  • caring for a child under age 16, or
  • caring for a disabled child who receives Social Security benefits
• your divorced spouse, if
  • the marriage lasted at least 10 years, and
  • the spouse is at least 62 years of age, and
  • the spouse is not married to somebody else, and
  • the spouse is not eligible for an equal or higher benefit amount based on their own, or anybody else’s, Social Security earnings record (see “work credits,” above).
• your child, if:
  • under 18 years of age, or
  • under 19 years of age, and a full-time student no higher than the 12th grade or
  • disabled, if the disability began before age 22.

Likewise, if you became disabled before the age of 22, you may be eligible to receive Social Security benefits based on your parents’ work “credits”. Children and adults who became disabled as children may also be eligible for Supplemental Security Income.

In a nutshell

Social Security offers benefits for the retired, the disabled, and members of their families. Disability benefits include both Social Security Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI).

Social Security Disability Insurance

• Social Security Disability Insurance Benefits (DIB) are based on Social Security (payroll) taxes, so to qualify, you must have accumulated “credits” resulting from work experience.
• To receive benefits you must also be so severely disabled that you cannot do “substantial gainful” work.

Supplemental Security Income (SSI)

• To qualify for SSI, you must have severe financial need.
• To receive SSI benefits, you must also be:
  • blind, or
  • so severely disabled that you cannot do “substantial gainful” work, or
  • at least 65 years of age.

If you can work but only with accommodation from your employer, you can still apply for either (or both) of these disability programs. A lawyer can assist you in avoiding any traps or pitfalls that may occur.

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