15 Questions - Disability: Working Your Way Through the System

(October 2010) Disability law attorney Sheri Abrams answered 15 questions about disability and other benefits issues for people with lupus.

1. Does a person with lupus have to be completely unable to work to receive disability income?  If not, what are the guidelines?  Hoffman Estates, IL

A person with any condition or disorder including lupus has to be unable to work at SGA for them to receive Social Security Disability benefits.  Social Security deems you to be working if you are able to make more than $1000 gross each month, which is called SGA (Significant Gainful Activity).  The issue in a Social Security disability claim is whether you are totally disabled and are unable to perform any type of work. It does not matter whether the work you can do pays well or is a job that you like. If you can still work on a sustained basis, even at a lower level job, you are not disabled under Social Security.

2. What is the difference between permanent and long term disability? I am on LTD for my lupus but not sure what the distinction is and how I can get on permanent disability.

There really is no such thing as “permanent” disability.  Long term disability is just the name of the insurance that you or your company has purchased to pay you for as long as you are deemed disabled by the insurance company, LTD is different from Social Security Disability.

3. I was told I can get disability payments but could not get health insurance for 24 months. Is this normal?   Washougal, WA

Yes this is normal.  If you get Social Security Disability you need to receive this benefit for 24 months in order to get Medicare. 

4. I am very close to being approved for disability 10 years after diagnosis with Lupus and other connective tissue diseases.  My question is why does it take 2 years to receive Medicare benefits?  If you are too sick to work and cannot afford health insurance but still own a home and have a family what is one to do?  Louisville, KY

The U.S. Government made this Medicare-24 month rule.  There has been talk of changing this, but as of yet it is the law.

5. What is the best way that I can appeal the SS decision in order to receive the greatest benefit?  What additional information (beside medical) should I provide to prove that lupus has disabled me?  Sister Bay, WI

I suggest that you talk to the lawyer you have hired to help you regarding this.  In every area of the country there are different things you can or should do in an appeal.  Your local attorney should know what these are.

6. I have applied for disability due to my Lupus, Fibromyalgia and RA.  Today I had a mental exam with a doctor that works for the Social Security Department and next week I have a physical/health exam also provided by the Social Security Department.   Is this a good sign that I may be covered since they are sending me for evaluations by their doctors or is this pretty common?  Indianapolis, IN

I am not sure it is “common” as it depends on where you live in the country.  In my area of the country it is pretty common and usually does not mean it is either a good or a bad sign.

7. This has been the hardest time of my life.  My income is so low; I must work at least part-time.  I run out of food by the 15th of each month, I have many medications that I must buy each month to live.  Whenever I take a job, I hear from Social Security.  They want to see if I've recovered.  I tell them, I need to eat!  I fill out all these forms and am advised to stop working because the programs have changed.  What can I do just to be able to buy food each month?  Hamlet, NC

I am so sorry that you are in this situation.  It is always a very sad situation when a person cannot live on the amount of Social Security Disability they receive.  If you work you do run the risk of being reviewed by Social Security or even losing your benefits.  I suggest that you check with your State to see if you qualify for welfare or food stamps in addition to your Social Security Disability benefit.  Also you may want to investigate local food banks or churches for food donations.

8. I have been out of work since 2003, due to lupus and diabetes; I was denied benefits in 2004. I was so disheartened I didn't follow up with an attorney or other agency because I believed they might have been right, I wasn't truly disabled, just sick and I'd get better, Do I have any chance of reopening a claim 6 years later. Or am I still out in the cold? Van Nuys, CA

You cannot re-open your claim for Social Security Disability benefits from 6 years ago.  You can, however, file a new claim for benefits.  Please note that you are only fully insured for Social Security Disability benefits for 5 years after you stopped working. The general rule is that to be eligible for Social Security Disability benefits (SSDI) you have to have worked and paid FICA taxes for 20 quarters of the 40 quarters prior to the date you became totally disabled. It is often easier to think of this as requiring that you worked and paid FICA taxes for 5 of the 10 years prior to the date you became totally disabled. That rule is slightly relaxed if you are under 28 years old. So in your case you would probably need to be able to prove that you were unable to work by 2008. If you do not qualify for SSDI benefits because of this date last insured (DLI) issue, you should see if you quality for SSI benefits.  SSI (Supplemental Security Income) is the welfare version of Social Security Disability. There is the same disability requirement but no work requirement or time frame.  There is, however, an income and asset limitation. If you are not sure if you qualify for either program you should apply for benefits at your local Social Security office who will give you your actual work figures.

9. I am a 58 year old woman who has two chronic diseases, Discoid Lupus and a Neuromuscular Disease.  I have been working full time for years while suffering with side effects brought on by both ailments.  However, the worst is the chronic fatigue.  I have my doubts that I am going to make it to a retirement age of 66.  What are your suggestions on getting started with the disability process and filing a claim?  Brenham, TX

I suggest that as soon as you are unable to work and actually stop working that you file a claim for Social Security Disability benefits.  It is easier to apply online at www.ssa.gov if you do not have any specific issues or questions. In general if you believe that you will be off of work for a year or more and are not collecting unemployment insurance, you should apply for Social Security Disability benefits immediately.

10. I moved to the lower peninsula of Michigan,  I had to try to get my disability as I was unable to work anymore, I fought them tooth and nail for 5 years and I was denied ever time even though their own doctor that was in the court room said I could not work.  I was wondering what to do as I stopped fighting with them as it was making my Lupus worse because of the stress.  I worked 2 and 3 jobs most of my adult life and I was wondering if I tried again to do this as I am now having more problems if they would still be able to approve me for disability and not SSI, as I have not worked now since 2004?  Barryton, MI

Sorry, I only practice in Virginia, DC and Maryland. However, I suggest that you contact a attorney who does a lot of these cases as Social Security is not an area that you can dabble in. For a referral I suggest that you contact www.nosscr.org or your State or local Bar Association.  All Social Security Disability lawyers charge the same fee which is set by the U.S. Government. That is we charge 25% or $6000 whichever is less of your back benefits, none of your future benefits. So if you get $4000 back benefits, we get $1000. If you get $100,000 we get $6,000. It does not matter at which stage you hire an attorney the fee is the same.  If you are unable to find an attorney who will help you I suggest that you contact your local legal services office.

11. I recently became unable to work due to the pain and fatigue from lupus and fibromyalgia. I have also been depressed and started having panic attacks about one month ago. I just received my denial letter from social security last week and have contacted a lawyer to see if they will help me appeal my claim. I would like to know how difficult it is to get approved for social security disability benefits after an initial denial. What information should I be expected to provide for my lawyer? I have been diagnosed with SLE, fibromyalgia, depression/anxiety, avascular necrosis in both femurs/knees.  Beaver, WV 

It depends on many factors, including your age, in determining how difficult it will be to get disability benefits from Social Security. SLE is a disease that does get approved for Social Security Disability benefits. However, normally it takes a year and a half to get through the process and get approved for benefits. Yes it is a fight to get benefits but it is a winnable fight.

12. Is it true that the SSA will now consider the fatigue as a deciding factor in their deliberations?  Westbury, NY

It is not really “new” that Social Security will consider fatigue in determining if someone is disabled.  Social Security considers many factors in their deliberations, including pain.

13. I have been living with lupus and RA.  I have been denied disability 3 times now waiting for court hearing.   What happens if I am denied at the court hearing? Oklahoma City, OK 

If you are denied at the hearing before the Administrative Law Judge (ALJ) you can appeal your case to Social Security’s Appeals Council.  If are denied at the Appeals Council you can appeal to the Federal Courts.

14. Which states have wider income guidelines for former workers on disability, so that being on SSDI I do not run up such huge debts? PA was able to provide Medicaid to me to cover what Medicare does not.   NC is NOT friendly with guidelines. I feel I am being discriminated against for working before my disability and thus being denied Medicaid. Please alert us to best states for fair Medicaid guidelines.  Pittsboro, NC

It is true that each state’s Medicaid rules are different, however, I have never heard of any type of list of the best States to get Medicaid.

15. I got denied twice in the social security building for disability.   Should I get a Disability Lawyer?  Atwater, CA

In my opinion it is always better to use an attorney for Social Security Disability cases.  Depending on the case, I usually take cases at the first appeal stage or after the first denial. All Social Security Disability lawyers charge the same fee which is set by the U.S. Government. That is we charge 25% or $6000 whichever is less of your back benefits, none of your future benefits. So if you get $4000 back benefits, we get $1000. If you get $100,000 we get $6,000. It does not matter at which stage you hire an attorney the fee is the same.

16. I was once on disability; went into remission and started back working.  I worked for 10 hours a day and have to take off every 4-6 weeks for stiffness, Raynaud’s and Systemic Lupus can I re-apply for social security disability again?  Decatur, GA

You can apply for Social Security Disability benefits again. However you would need to stop the amount of work you are doing in order to have a chance to qualify. You probably are making more than SGA ($1000 a month) even though you need to take so much time off from work.