Author: David Wolowitz & Michael O'Connor, Prairie State Legal Services
Last updated: August 2010

(Chapter 7 Section 1 from Guidebook of Laws and Programs for People with Disabilities)
 

 

What Is It? Social Security Disability Insurance (SSDI) is an insurance program that provides income to workers who become "disabled" (or who retire), and to their dependents and survivors. Supplemental Security Insurance (SSI) is a needs-based program that provides a basic income for people with disabilities who meet specific low-income guidelines.

Where to Apply? The Social Security Administration local office in your area, or by calling toll-free 1-800-772-1213.

Who May Be Eligible? Social Security: workers who become "disabled" (or who are at least 62 years old), and their spouses, and dependents of workers who are "disabled" (or retired or deceased). SSI: People of any age who are needy and are blind or "disabled" (or who are at least 65 years old).

I. Your Legal Rights

The Differences Between Social Security Disability Insurance and SSI

The Social Security Administration
The Social Security Administration (SSA) is a federal government agency that administers benefits for people with disabilities. Although SSA also runs programs for people of retirement age, the focus of this section is on people with disabilities.

People with disabilities may be eligible under either the "Social Security Disability Insurance" (SSDI) program, or the "Supplemental Security Income" (SSI) program. When you apply for benefits, the Social Security Administration will inform you whether your benefits will come from SSI, SSDI or both.

Social Security Disability Insurance (SSDI) is an Insurance Program
Most workers pay into Social Security while they are working. Your pay stub will show deductions for FICA, which stands for Federal Insurance Contributions Act. These deductions are the "premiums" or money which you pay into the Social Security system. Your employer also makes a contribution on your behalf, equal to your contribution.

To become eligible for SSDI disability benefits, you must have worked for a minimum length of time before claiming benefits. The amount of time depends on your age at the time you become "disabled." If you become "disabled" before reaching age 22, you may be able to receive SSDI benefits based on the earnings record of your parent, stepparent, or adoptive parent, if they receive Social Security disability or retirement benefits or if they are deceased.

The amount of SSDI benefits you receive is based on the amount of your contributions. If you became "disabled" before age 22 and are receiving benefits based on the earnings record of a parent, stepparent, or adoptive parent, your SSDI benefit will be one half of their benefit amount.

If you are found eligible for SSDI, you may be entitled to a retroactive benefit. In general, you are entitled to receive benefits going back to the first month following the end of a "waiting period."

The waiting period is the 5 month period starting with the first month in which you were both insured for disability and "disabled." However, the waiting period can start no earlier than the 17th month before the month you apply, no matter how long you were "disabled" before then.

Supplemental Security Income (SSI) is a Financial Aid, or "Needs Based" Program
You can receive SSI benefits even if you have never been employed and regardless of your age when you become "disabled." However, the amount of benefits you can receive under SSI usually is less than what you can receive if you qualify for SSDI. For an individual, the SSI benefit level is $674 per month as of January 2010. It goes up every year, and may change depending on the area where you live.  Call 1-800-772-1213 to find out the amounts for your state.

If you are eligible for SSI, you also may be entitled to receive a retroactive benefit. In general, you are entitled to receive benefits going back to the first full month following the month in which you filed your application for SSI.

If you are entitled to SSDI benefits in an amount less than the current SSI benefit amount, you may receive an SSI payment for the difference between your SSDI benefit and the SSI benefit amount, plus $20.

Income and Asset Limits for SSI
Income Limits. Because SSI is a needs-based program, your benefits may be reduced or you may not be eligible at all if you have other sources of income. Social Security considers many types of resources to be "income."

"Income" includes the following things, among others:

• Money that you earn from employment;
• Pensions, alimony, and interest;
• Food, clothing, or shelter that is given to you on a regular basis;
• An amount of money that Social Security assumes is given to you by your parent (if you are a minor child) or by your spouse if they live with you and have their own income.

In general, Social Security does not count the first $65 per month in earned income and the first $20 per month of unearned income. They also do not count certain types of income, such as the value of food stamps, energy assistance, Pell grants or other federally funded student assistance programs, and federally subsidized housing assistance.

Asset Limits. You may have no more than $2,000 in assets ( $3,000 in the case of a married couple where both receive SSI). Social Security does not count some types of property in determining whether you meet the asset limit. These assets are considered "exempt." Exempt assets include:

• The home in which you live;
• Your household goods and personal effects (to the extent that their equity value is less than $2,000);
• The value of your car or truck, if it is necessary for medical care, employment, or essential daily activities for you or any household member, or if the car is modified for a person with disabilities. If the car is not totally excluded for one of the above reasons, then one car may be excluded to the extent that its market value is under $4,500. Social Security counts the market value in excess of $4,500 toward the asset limit. They also count the equity value of any additional cars toward the asset limit.

Income and Asset Limits for SSDI
There are no asset limits under the SSDI program. There also are no limits under the SSDI program on the amount of unearned income you may receive. However, employment earnings can effect eligibility for SSDI. This is discussed below under the heading "Working While You Receive SSI or SSDI."

Proving Disability to Qualify for Benefits

Who is Considered "Disabled" for SSI or SSDI benefits?
To receive disability benefits under either program, you must meet the Social Security Administration's definition of "disability."

The term "disability" under Social Security law means that you are unable to work because of a physical or mental impairment which has lasted or is expected to last for at least 12 months, or is expected to result in death.

Proving Disability for Adults
In deciding whether you have a disability, SSA uses a five-step analysis:

Step One: If you are working and performing substantial gainful activity, then you are considered able to work and therefore not "disabled." If your average monthly earnings are over $940 per month, you are probably not eligible. If you are not earning significant income, proceed to step two.

Step Two: You must have a "severe impairment." This means that you must have a medical problem which significantly limits your physical or mental ability to perform basic work activities. If you have a severe impairment, proceed to step three.

Step Three: Social Security has determined that certain medical conditions are automatically presumed to be disabling. These conditions include:

• Amputation of a leg at the hip;
• Allegation of total deafness;
• Allegation of total blindness;
• Allegation of bed confinement or permanent immobility;
• Allegation of a stroke with difficulty in walking or using a hand;
• Allegation of cerebral palsy, muscular dystrophy or muscle atrophy;
• Allegation of down syndrome;
• Allegation of severe mental deficiency;
• Allegation of ALS. 

While not automatically presumed disabling, conditions related to renal disease, the central nervous system, malignant neoplasms, or HIV and AIDS are typically presumed to be disabling.

Social Security describes these conditions in a part of their regulations called the "Listing of Impairments." Many other conditions are considered "disabled" under the Listings, but you need to have the required type of medical proof and the indicated level of severity for your particular illness.

If you have impairments that are similar but not identical to those included in the Listings, or if you have a combination of illnesses, SSA will consider you "disabled" if your condition is considered to be "comparable" to those included in the listings, and is of equal severity.

If your condition does not meet or equal one of the conditions in the Listings, proceed to step four.

Note: If your disability is not apparent, you will need to provide medical evidence or other information that shows that you are blind or disabled. Typically, respiratory impairments, back impairments or less than severe mental impairments will not qualify for presumptive SSI.

Step Four: If you are physically and mentally able to return to a job that you have held within the last fifteen years, then SSA considers you "not disabled." In general, SSA considers only those jobs which you held for more than a few months and in which you earned over $300 per month. If you cannot perform any of your past jobs, proceed to step five.

Step Five: If you cannot perform your past work, then Social Security decides whether you are able to perform other types of work.

At step five, SSA will consider your physical limitations, your age, education, the type of work skills you have acquired, and any mental limitations on work activities.

Proving Disability for Children's SSI Disability Benefits
As with adults, Social Security has a process for determining whether a child has a disability and whether that child is eligible for benefits. But, the evaluation process for children is different from the evaluation process for adults. In deciding whether your child has a disability, SSA uses a three-step analysis:

Step One: If your child is working and performing substantial gainful activity, then SSA considers the child to be "not disabled." SSA considers the child to be performing substantial gainful activity if the child is earning at least $940 per month. If your child is not earning at that level, proceed to step two.

Step Two: Your child must have a "severe impairment." This means that your child must have a medical problem which causes more than minimal problems with respect to the child's ability to perform basic physical or mental activities. If your child has a severe impairment, proceed to step three.

Step Three: As with adults, SSA has determined that certain medical conditions are automatically disabling for children. These conditions are set forth in a part of the Social Security regulations called the "Listing of Impairments for Children." The Listings indicate the type of medical proof needed and the level of severity required for a particular illness to be considered disabling. SSA considers your child to have a disability if the child has an impairment of the severity indicated in the Listing.

SSA can also find children to be "disabled" if their impairments are "medically equal" in severity to a listed impairment.

The term "medically equal" means that your child's medical findings are equal in severity and have lasted as long as those in the Listing of Impairments for Children.

If your child's condition does not meet or medically equal one of the conditions in the Listings, SSA can find the child to be eligible if the child's condition is "functionally equal to the listings."

The term "functionally equal" means that the child's impairment or combination of impairments causes "marked and severe" limitations in the child's level of functioning.

In determining whether your child has a marked and severe limitation in functioning, SSA will consider several factors:

• whether the child has an extreme limitation in a specific type of activity, such as walking or talking, or a combination of such limitations;
• the degree to which the child is limited in several areas of broad functioning, including: motor skills; social functioning; personal functioning; cognitive development and communication; and concentration, persistence and pace. SSA will consider the child to be "disabled" if there is an extreme limitation in one broad area of functioning, or there is a marked limitation in two broad areas of functioning;
• whether the child has an episodic impairment, in which there are frequent illnesses or attacks followed by periods of remission. In these cases, SSA will consider whether the impairment causes a marked and severe impact on the child's functioning over time;
• whether the child's treatment itself causes marked and severe limitations.
  Example: SSA may find a child who requires multiple surgeries over the span of more than one year to have a marked and severe impairment during that period.

Applying for Disability Benefits
You should apply for benefits at your local Social Security Administration office. Automatically disabling conditions will be approved at the local office. If your condition is not one that is automatically considered disabling, you will have to consult with the DDS office in Springfield. DDS in Springfield can approve Presumptives for any condition. To locate that office and for other information, you can call Social Security toll free at 1-800-772-1213.

When you apply for disability benefits, you will be asked to explain why you have a disability. You also will be asked to name the doctors, hospitals and other medical providers who have treated you. SSA will contact them to obtain your medical records to confirm how serious your impairments are.

If you have not received medical care recently or your records do not contain the necessary information, SSA may pay to send you to a doctor for a "consultative examination."

Following this review of your medical records, SSA will then send you a notice telling you whether or not they find that you are "disabled." The notice will explain whether or not you will receive benefits, and if so, in what amount.

If you disagree with the decision made by Social Security, you can appeal. Your appeal rights are explained later in this section.

Working While You Receive SSI or SSDI Benefits

While you are receiving disability benefits under either SSI or SSDI, you are allowed to work a limited amount and still receive benefits. In calculating your earnings to see if you have earned your limit, SSA will deduct from earnings any of your work expenses that are related to your disability.

These deductions include any items or services that you need to work, even if the item or service is useful to you in your daily living. If you are blind, SSA deducts most work expenses, including those not related to your disability, from your income.
Examples of disability-related expenses: A seeing eye dog, prescription medicines, a wheelchair, specialized work equipment, a specialized desk, chair or computer, and a personal attendant or job coach.

There are some differences in the rules of the SSI and the SSDI programs, as to the way that working affects benefits. Those differences are explained below.

Note: The rules are very detailed. It may be wise to check with the local Social Security office about the rules that apply in your specific situation.

How Working Effects SSI
If you work, you can continue to receive SSI until the amount of your countable income is greater than the amount of your SSI benefit. SSA will not count the first $65 per month of earned income, so those earnings will not effect your SSI benefit.
Example: If you receive SSI and earn $65 per month, you remain eligible for a full SSI benefit, without any reduction.

However, if you earn more than $65 per month, SSA will reduce your SSI benefits by $1 for every $2 that you earn over and above the $65.
Example: If you earn $100 per month, SSA will reduce your SSI benefits by $1 for every $2 earned between $65 and $100, which comes to a monthly reduction in your SSI benefit of $17.50.

If the reduction exceeds your monthly benefit, you no longer qualify for SSI.
Example: Assuming you have no other source of income, you would not lose your entire SSI benefits during 2000 until you earned $1,089 per month.

If you lose your job or your wages are reduced, SSA can increase your SSI because of your reduced income. If SSA stops your SSI payments because of your earnings and you then lose your job or your wages are reduced, your SSI benefits will start again without the need for a new application if it has been less than 12 months since you received your last SSI check. If it has been more that 12 months since your SSI stopped, you will need to file a new application for SSI and you may need to prove that you are still "disabled."

Plan for Achieving Self Support (PASS)
A Plan for Achieving Self Support (PASS) is a special program that allows SSI recipients to set aside income and assets needed to achieve a specific work goal. The money and assets set aside will not act to reduce your SSI payment. The goal of your plan may be to start a business or get a job.

To develop a plan, you first set a work goal, find out what is needed to reach that goal (such as training, materials, tools, education, etc.), and determine how much these items or services will cost. You then complete the PASS application. You can get help with setting up the PASS plan from a vocational rehabilitation counselor, an organization that helps people with disabilities, the local Social Security office, or anyone else who is willing to help. You then submit the completed application to the local Social Security office.

An SSA caseworker will then review the plan to determine if it is reasonable. The caseworker should work with you, discussing the plan and making changes if necessary. The completed plan must be in writing, state your work goal, contain a reasonable time frame for completion, and include the expenses that are necessary to achieve your work goal. If your plan is not approved, you can appeal that decision, or you can submit a new plan.

If your plan is approved, you can then set aside some of your income and/or assets to be used toward meeting your PASS goals. You should place the money in a separate bank account so that you will be able to easily account for the funds. You should always keep a receipt when you use the money for expenses allowed under your PASS plan. SSA may contact you from time to time to make sure that you are doing what the PASS plan says and that you are on track to reach your goal. If you need to change your PASS plan, you must tell the SSA office in writing about the changes and the reasons, and receive approval.

You should contact your local SSA office if you would like more information about creating a PASS plan.

How Working Affects Medicaid
If you are eligible for SSI benefits, you will usually also be eligible for Medicaid coverage. For information about Medicaid, see the section of this guidebook titled "Medicaid for Adults," in Chapter 9, Health Care. However, Medicaid is a "needs based" program, which means that you can lose your coverage or a have a "spend-down" if you have income other than SSI. Under a special program called "1619(a)," you can continue to get Medicaid coverage without a spend-down, if you are working.

To be eligible for 1619(a) Medicaid coverage, your earnings must be more than $940 per month and you must still be receiving some SSI benefits. When this happens, SSA should automatically put you in the 1619(a) program and should notify the Department of Public Aid of your participation. Public Aid should continue your Medicaid eligibility without a spend-down. You should seek legal help if your Medicaid is stopped or you have a spend-down.

There is another special program called "1619(b)" which can enable you to keep your Medicaid coverage without a spend-down even if you earn up to $26,298 per year. To be eligible under 1619(b), you must:

• Have been eligible for SSI for at least one month before starting work;
• Continue to be "disabled;"
• Need Medicaid coverage to be able to work;
• Earn less than $26,298 (in 2010); and
• Continue to meet SSI rules on assets.

If you think you might be eligible for 1619(b) benefits, you should ask your SSA caseworker to perform an evaluation. Your Medicaid benefits should not be terminated until SSA makes a 1619(b) determination.

How Working Effects SSDI
Under SSDI rules, you can have a "trial work period." This means you can test yourself to see if you can work without having to worry right away that you will lose your disability benefits. The trial work period can be no longer than nine months, during which time your benefits will not be affected no matter how much you earn.

The nine months do not need to be consecutive. A trial work month includes any month in which you earn more than $720 (as of January 2010, with automatic yearly increases), or in which you spend more than 40 hours on the job if you are self employed.

Once you have completed nine trial work months in any 60-month period, SSA will review your earnings to determine if you remain eligible for SSDI. The significant factor will be whether your average earnings during the trial period were greater than $1000 per month.

If your average earnings have been at least $940 per month on a sustained basis: In this situation, SSA will continue your benefits for three more months and then will cut off all benefits. SSA can reinstate your benefits in full anytime within the next 36 months, if your earnings go down below the $1000 level. This period is called the extended period of eligibility because during these 36 months, you can receive your full SSDI check for any month that your earnings fall below $1000, or if you lose your job.

If your average earnings have been less than $1000 per month on a sustained basis: In this situation, your SSDI benefits will be unaffected. You will continue to receive your full SSDI payment in addition to your earnings.

How Working Affects Medicare
If you are eligible for SSDI benefits, you will usually also be eligible for Medicare coverage. There are two parts to the Medicare program: Part A Hospital Insurance, and Part B Medical Insurance. SSDI recipients usually receive free Part A coverage, and pay a monthly premium for Part B which is deducted from their SSDI check. For more information about the Medicare program, see the section of this guidebook titled "The Medicare Program," in Chapter 9, Health Care.

If you return to work, you will stay eligible for Medicare during the 9 months of "trial work." Thereafter, if your SSDI benefits stop because your earnings are too high, you will continue to receive free Part A coverage for 39 months as long as you are "disabled." As of October 1, 2000, free Part A coverage can be extended for another 4 years. During the extended period, you also can receive Medicare Part B coverage, but you will have to pay the monthly premium at all times.

After the period of free Part A coverage ends, if you are still "disabled" but not yet age 65, you may buy Medicare Part A and Part B coverage. This will cost the same as the amount paid by uninsured, eligible, retired beneficiaries.

Working After the End of the Trial Work Period
Under the SSDI program, if you work on a sustained basis after the end of the nine-month trial work period, it can affect whether or not SSA still considers you to be "disabled." If you have average monthly earnings over $700 after the trial work period, then the SSA may decide that you are no longer "disabled," and may terminate your eligibility for benefits.

If you receive SSI or SSDI, it is wise to contact your local Social Security office before you start working, so that you can receive specific information about how it will affect your case.

Having a Representative Payee

In certain situations, SSA will send the benefit payments to a "Representative Payee" instead of to you. This occurs when SSA awards SSDI or SSI benefits to someone over age 18 who is mentally or physically unable to manage his financial affairs, or who has a legal guardian.  Likewise, SSA will send payment to a representative payee if the benefits are for someone under 18 years of age.

Selecting the Representative Payee
The SSA seeks to appoint the person who is best able to serve your interests.

If you are under age 18: For a child with a disability, the natural or adoptive parent or legal guardian caring for the child is the preferred payee. If that person is not appropriate, the SSA may consider a parent or adoptive parent who is not living with the child but who is helping support the child or is otherwise strongly involved with the child. The SSA may also consider another relative or stepparent who is caring for the child or is concerned with the child's well being. If no such person is available, the SSA may appoint a social agency or institution as payee.

If you are over age 18: For adults with a disability that require a payee, the preferred payee is the legal guardian, spouse or other relative who lives with or who has a strong concern for the person's welfare. If no such person is available, the SSA will consider making a close friend the payee. If no such person is available, SSA may appoint an agency or institution as payee.

Compensating the Representative Payee
It is sometimes difficult for SSI or SSDI recipients to find someone who is willing and able to be their payee. When that happens, a social service agency may be available to be the payee. In order to encourage these agencies to serve as payee, the SSA will allow them to charge a fee of up to $25 per month. The agency must get written approval from the SSA before the agency can collect any fee.

The SSA rules do not allow any type of payee other than an approved social service agency to collect any fee for their services as payee.

Objecting to Representative Payment
If the SSA plans to make representative payment, they will send you a written notice telling you about the proposed Payee. If you feel that you do not need a Payee, or if you object to the proposed Payee, you may request a personal conference with staff at your local SSA office to present more information. You will then receive a written determination. If you disagree with the determination, you may request Reconsideration, and pursue an appeal through all of the stages of appeal, described below.

Ending Representative Payment
At any time, you can ask the SSA to terminate representative payment if you can show that you are physically and mentally capable of handling your own funds. You will be required to present a statement from your doctor or other proof. If you have a legal guardian, SSA cannot stop representative payment unless you obtain a court order restoring your legal right to handle your funds.

Changing the Representative Payee
SSA may appoint a new payee if the payee dies, is unable to serve, or simply no longer wishes to be the payee. Also, the SSA may remove the payee at any time that the payee fails to properly serve your interests, or if a more appropriate person to serve as payee becomes available.

You should notify your local SSA office if you feel the payee should be changed. Your benefits may be interrupted if your payee is removed and a new one is not immediately available to take his or her place.

Payee Responsibilities
Your "Representative Payee" must use the money for your benefit. If the benefit payments exceed your needs, the payee is required to save the extra money, usually in a separate bank account. The SSA can require the payee to file periodic reports explaining how the money has been spent or invested, and can require receipts or other proof.

A Representative Payee must notify the SSA about any facts that may affect your eligibility for benefits or the amount of benefits. This includes such things as other sources of income you receive, changes in address, work activity, death, marriage, or if you move to or from a hospital, nursing home or other institution. SSA can seek to hold a payee personally responsible for benefits that are overpaid due the payee's failure to provide such notice to SSA.

Special Rules for the Representative Payee of a Child Receiving SSI
A Representative Payee caring for a child who receives SSI has the responsibility to make sure that the child receives medically necessary care for the disabling condition. SSA can remove the payee if he or she fails to seek this care without good cause.

Dedicated Accounts for Retroactive SSI Benefits of "Disabled" Children
When a child's claim for SSI is approved, SSA must determine whether the child is eligible for retroactive SSI benefits. If the child is eligible for a period of six months or more of retroactive SSI benefits, those benefits must be placed into a special separate bank account. This special account is called a "dedicated account." The parent or payee cannot place any other money into the account. Any interest earned must remain in the account.

The parent or payee may use the money in the account only for items or services directly related to the child's disability. This includes medical care, education and job skills training, modifications to a home, personal needs assistance, special equipment, therapy or rehabilitation care.

Before a parent or payee takes any money from the account for an item or service other than those listed above, they should obtain pre-approval from the local SSA office. The parent or payee can be required to personally repay any money used from a dedicated account that SSA determines is not related to the child's disability.

Overpayment of Benefits

It is fairly common for SSI and SSDI recipients to receive a notice that they have received benefits to which they were not entitled. This is called an "overpayment." Usually, SSA will require you to pay back any overpaid benefits, and they will reduce your current benefits until the money is paid back. Overpayments commonly occur when recipients acquire new sources of income and their benefits are not promptly reduced. Overpayments can also occur when SSA is not promptly informed of changes in living arrangements, marital status, or employment changes.

If you receive a notice of overpayment, you have the right to appeal. You should file an appeal if you believe that SSA is wrong in saying that you received an overpayment, or if you believe that the amount of the overpayment is less than they allege. You must file an appeal in writing within 65 days of the date of the notice of overpayment.

Even if you agree that you received an overpayment, you can ask that you not be required to pay the money back. This is called a "Request for Waiver of Recovery of Overpayment," commonly called a "waiver." You may request a waiver at any time, by completing a written form available at your local SSA office.

In order to qualify for a waiver, you must prove that you were not responsible for causing the overpayment. In other words, you must show that you did your best to properly report all necessary information to SSA, and that you did not accept benefits that you knew you were not entitled to receive. In addition, you must also show that it would be unfair to make you pay back the money, either because you cannot afford to do so, or because you have taken certain actions thinking that you were entitled to the overpaid benefits.

You should clearly explain your side of the story when you file a request for a waiver. Staff at the SSA office can help you complete the form. You are entitled to file an appeal if your request for a waiver is denied.

II. How to Protect or Enforce Your Rights: Appeals

Decisions That You Can Appeal
The SSA turns down many applications for disability benefits, even for people who truly have disabilities and are eligible for benefits. This often occurs only because there was not enough medical evidence to prove that a person has a disabling problem. Therefore, if SSA denies your claim, you may want to strongly consider filing an appeal.

You also can appeal if you believe that SSA wrongly reduced or terminated your benefits. You also can appeal if SSA takes other wrongful actions against you, such as finding that you owe an overpayment or requiring a representative payee.

Requests for Reconsideration
Whenever the SSA decides to deny your application, or to reduce or terminate your benefits, the agency will send you a notice. You have 65 days from the date on the notice in which to make a written "Request for Reconsideration." The SSA will then review your claim again, and may ask you to submit to further medical examination. If you request, you may receive a personal conference with the SSA staff to try to resolve the matter.

The ALJ Hearing
If you are denied after Reconsideration, the SSA will send you another notice. You have 65 days from the date on that notice to make a written request for a hearing before an Administrative Law Judge (ALJ).

If you request an ALJ hearing, you can appear with witnesses and testify about your problems and how they affect you. There may be a doctor or a vocational expert present at the hearing who also can offer their opinions to the ALJ. The ALJ will run the hearing.

It is wise to have a lawyer represent you at the hearing because of the complexity of the process.

A large percentage of cases are approved at the ALJ hearing stage of the appeal process. Whether you win or lose the ALJ hearing, you will receive a written notice about the decision.

The Appeals Council
If the ALJ decision is not favorable, you can appeal again to the Appeals Council. You have 65 days from the date of the ALJ's notice to make a written request for review by the Council.

If you make a timely request, the Appeals Council will review the ALJ's decision. They will determine whether the ALJ fairly considered all of the evidence and properly applied the Social Security law and regulations to the facts of your case. You may submit a written argument in support of your claim, and you may submit new evidence for the period up to the date of the ALJ's decision. In rare cases, the Appeals Council will allow you or your representative to personally appear before them to present your case.

The Appeals Council can approve your claim, or they may remand your case back to the ALJ with instructions on how the ALJ should handle your case.

Lawsuits in U.S. District Court
If the Appeals Council upholds the ALJ's denial of your claim, you have 60 days to file a lawsuit. Any lawsuit you file starts with a written complaint in the appropriate United States District Court.

The judge will review your case to see if the Appeals Council fairly considered all of the evidence and properly applied the law. In general, you cannot introduce new evidence at this point. You are entitled to file a written argument in support of the case.

The judge can approve your claim, deny your claim, or remand your case to the ALJ to be evaluated in accordance with the judge's instructions.

Missing an Appeal Deadline
At each stage of the appeal process described above there is a time limit within which you must file an appeal. If you miss that deadline, the SSA will consider your appeal only if you show that you had "good cause" for the delay.

Good cause includes such things as serious illness which prevents you from attending to your business, a death in the family, or a fire or other emergency which disrupts your home. Good cause also includes situations where you do not understand or know about the need to file an appeal because of your physical or mental condition, or because of your inability to read or communicate.

If you realize that you have missed an appeal deadline, you should file your appeal in writing as soon as possible. You should include with your appeal a written explanation of the reason why the appeal was not filed in time and a request for an extension of time in which to file the appeal.

Representation in the Appeal Process
You may be represented by a lawyer, a paralegal, or a friend or relative in the appeal proceedings. Only a lawyer can represent you in proceedings in federal court. If you do not have a lawyer, you can ask the judge to appoint a lawyer.

Fees for Legal Representatives
Your representative may charge you a fee for services. The representative must file a written request with the SSA seeking approval for the amount of the fee. The representative cannot collect a fee in an amount greater than the amount approved. The SSA will consider the complexity of the case, the amount of time involved, and your representative's skill when deciding the amount of the fee.

If you are represented by a lawyer who helps you obtain SSDI benefits and you are awarded retroactive benefits, the SSA can pay your lawyer directly out of your retroactive benefits. The amount withheld for your lawyer's fee will be no more than 25% of your retroactive benefits.
Example: If in October 1999, the SSA decides that you were eligible for SSDI benefits as of October 1998, in the amount $600 per month, you will be entitled to $7,200 in retroactive benefits. The SSA can pay your lawyer up to $1,800 directly out of your retroactive benefits.

Because of the possibility of a retroactive award, many lawyers are willing to represent people in claims for SSDI benefits even if the client is unable to pay a fee in advance.

The SSA will not pay your lawyer directly out of your SSI benefits. Therefore, fewer lawyers are willing to represent clients in SSI cases. SSI applicants may be eligible for representation from their local legal services office. See the section of this guidebook titled "Legal Advocacy for People with Disabilities," in Chapter 16, Miscellaneous Rights.

III. Impact of the American Recovery and Reinvestment Act (ARRA) on SSI

The ARRA provides a one time stimulus payment and other relief in the form of funds to SSA to expedite processing of claims which are now taking on appeal and average of two years:

$250 one-time payment goes to almost everyone who receives:

• Social Security,
• Supplemental Security Income (SSI), and/or
• Railroad Retirement Benefits, and Veterans, Disability Compensation or Pension Benefits.

• You owe state or federal agencies money or are delinquent in child support – money will be offset
• You are not legally a US citizen
• You live overseas
• You are on SSI in a nursing home or governmentally run facility
•  You were denied benefits because you made false or misleading statements
• You are in prison or violated parole or probation
• You are a child receiving Social Security (through a deceased or disabled parent)

Will be received by first week in June 2009 and there is NO need to file a tax return. SSA is making the payment automatically and the one-time payment will be made separately from regular monthly benefit payments. Payment method will be the same as for monthly benefit (direct deposit or mailed check).

• Payment won’t count as income for purposes of determining eligibility for or amount of any federal, state, or local benefit. Payments are not taxable income and there is no tax return required in 2010 because of getting this one-time payment.

IV. Where to Go for More Information

Statutes and Regulations
The federal statute relating to the Social Security Disability Insurance (SSDI) program can be found at 42 USC § § 405, 423. The federal regulations for that program can be found at 20 CFR 404.

The federal statute relating to the Supplemental Security Income (SSI) program can be found at 42 USC § 1381.

The federal regulations for that program can be found at 20 CFR 416.

Other Information
To apply for benefits or to file an appeal, contact your local Social Security office, or call (800) 772-1213(v) or (800) 335-0778 (TTY) for information and assistance.

You may also wish to contact a legal services office (listed in the Appendix) for advice and assistance.

More information can be found at the Social Security Administration's website.

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