Who is potentially eligible for disability benefits from the Social Security Administration?

The Social Security Administration has two programs that provide benefits to individuals found to be disabled under the Act: Social Security Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI).   For both DIB and SSI, the standard for determining whether a claimant is medically disabled is the same.

Disability Insurance Benefits (DIB)
 are governed by Title II of the Social Security Act (the “Act”) and consist of payments to individuals who are disabled and who are insured under the Act by virtue of their contributions to the Social Security trust fund through Federal Insurance Contributions Act (FICA) taxes. 

There is a five (5) month waiting period for DIB.  In other words, no benefits are paid for the first full five months after a claimant’s onset date.  DIB can be paid up for up to one year prior to the application date, and DIB can be paid for a closed period of disability that lasts at least one year.

DIB recipients become eligible for Medicare benefits after receipt of 24 months of DIB benefits (or 29 months from onset of disability due to the 5 month waiting period).

To be fully insured, a claimant must have one quarter of coverage for every calendar year after the year in which he or she turned 21.  20 C.F.R. §§ 404.101 and 404.132.  In addition, attaining disability insured status for those over 31 years of age requires 20 quarters of coverage out of the 40 calendar quarters before they became disabled.  20 C.F.R. § 404.130.  After 1978, to earn a quarter of coverage, a worker must earn the required minimum amount at any point during the calendar year. 20 C.F.R. §§ 404.143 – 146.  For example, if the amount needed to earn a quarter of coverage is $500, and a worker earns $2,000 at any point during the calendar year, the worker has earned four quarters of coverage for that calendar year.  For those workers who become disabled under the age of 31, there are abbreviated requirements regarding quarters of coverage.   20 C.F.R. § 404.130 and POMS RS 00301.140.

Title II also provides for payment of benefits to auxiliary beneficiaries.  To receive auxiliary benefits, the Act requires that you not be entitled to a higher benefit amount based on your own earnings record.  Typically, auxiliary benefits are a reduced percentage of what would be paid to the insured worker.   Below is a summary of the auxiliary beneficiary requirements.

Child’s benefits. 20 C.F.R. §§ 404.350 – 404.368.
1.  You are the insured’s child (natural, legally adopted, stepchild, grandchild, stepgrandchild, or equitably adopted)
2.  Dependent on the insured
3.  Unmarried
4.  Under age 18 (unless full time student or disabled before age 22)
5.  Available whether insured is alive or dead

Spousal benefits. 20 C.F.R. § 404.330.
1.  Married for at least one year or natural parents of a child
2.  Age 62 or older (or caring for minor or disabled child)

Divorced spousal benefits. 20 C.F.R. § 404.331.
1.  Married for at least 10 years
2.  Not currently married
3.  Age 62 or older
4.  Divorced for at least 2 years

Mother’s or father’s benefits. 20 C.F.R. §§ 404.339 – 404.342
1.  Married to or divorced from deceased insured
2.  Mother or father of insured’s child
3.  Unmarried
4.  Insured’s child in your care and under 16

Parent’s benefits. 20 C.F.R. §§ 404.350 – 404.368
1.  You are parent of a deceased insured
2.  62 or older
3.  You have not married since the insured’s death
4.  You were receiving at least one-half of your support from the insured

Widow’s or widower’s benefits. 20 C.F.R. § 404.335 – 404.338
1.  Married at least 9 months prior to insured’s death (with exceptions)
2.  Unmarried (or meet exceptions)
3.  Age 60 or at least 50 and disabled
4.  Benefits also available for divorced widows and widowers who were married at least 10 years

Supplemental Security Income (SSI) is governed by Title XVI of the Act and provides for payments to individuals who are disabled and have limited income and resources.  SSI may not be paid prior to the date of application; no retroactive benefits are available.  Recipients of SSI benefits are concurrently eligible for Medicaid benefits.

The SSI resource guidelines are quite detailed; however, generally speaking, the current asset limit is $2,000 for an individual and $3,000 for a couple.  Several assets are excluded, the most significant of which is a home (any value) and one car (any value) if it is used for work or to obtain medical care.  20 C.F.R. §§ 416.1100 – 416.1266.  Additional excluded resources are listed at POMS SI 01110.210. 

With regard to income, parental income is deemed to disabled children, and a spouse’s income is deemed to the disabled spouse.  Generally speaking, if a family’s income from wages or other benefits (for example, VA benefits) puts them over the resource guidelines, then family members are ineligible for SSI.  SSI benefits are available to both disabled adults and children.

National Social Security Disability Law Conference

I just returned from the Spring Social Security Disability Law conference presented by the National Organization of Social Security Claimants’ Representatives (NOSSCR).  The four-day conference was held in Baltimore, Maryland, and included presentations by some of the most prominent Social Security Disability Law attorneys in the nation.  I found the session on Appeals Council arguments by appellate attorneys Sarah Bohr and Charles Martin particularly useful.  In addition, appellate attorney Carolyn Kubitschek and Professor Jon C. Dubin gave a very helpful presentation on recent developments in Social Security Disability Law in Federal Court.  Representatives from the Social Security Administration (SSA) also made presentations at the NOSSCR conference regarding SSA’s technological developments and new policies and procedures.  Thus, attending the NOSSCR conference provided me with invaluable information and education that will enable me to become an even better advocate for individuals seeking Social Security Disability Insurance Benefits or Supplemental Security Income.

My Opposition to Congress’ Attempt to Limit Social Security Claimants’ Ability to Appeal Adverse Decisions in Federal Court

Earlier today, I wrote to express the following thoughts and opinions to Senator Mary Landrieu, Senator David Vitter, and Congressman Charles Boustany:

Dear Elected Representatives:

I am writing to respectfully urge you to oppose Amendment 195 to the House’s Continuing Resolution.  Amendment 195 would temporarily suspend the payment of attorneys’ fees under the Equal Access to Justice Act (EAJA), 5 U.S.C.A. § 504.  The passage of Amendment 195 into law would make it nearly impossible for Social Security claimants to appeal adverse decisions by the Social Security Administration (SSA).

When your constituents apply for Social Security Disability Insurance Benefits (DIB), SSA, an executive branch agency, makes an administrative decision on the application.  On occasion, SSA renders fundamentally flawed decisions that violate a claimant’s right to due process.  The only way to remedy these violations is to file a civil action in a United States District Court against SSA.

I am one of the few attorneys in Southwest Louisiana that routinely represents Social Security claimants in federal court, and I prosecute these cases on essentially a contingent basis.  If the claimant prevails, then under EAJA, I can petition the court to be paid on an hourly basis for my time.  If the claimant loses, I receive no fee at all.  Accordingly, I only bring meritorious cases.

My clients do not have the means to pay me out of pocket to appeal a case to federal court because they are all out of work and have no income.  To be eligible for disability benefits, claimants must be out of work for at least one year; thus, without the availability of EAJA fees, disabled workers have no way to seek redress in federal court for the SSA’s violation of their due process rights.  This is of particular concern since DIB is financed by FICA taxes deducted from every paycheck a worker earns.  In other words, after SSA takes hard-earned money out of a worker’s paycheck to fund DIB, it can then can arbitrarily deny a worker’s claim after he or she becomes disabled.  Without the availability of EAJA fees, SSA’s arbitrary violations of claimants’ due process rights will go unremedied.  

EAJA was passed to correct this very problem, because as you know, a right without a remedy is no right at all. Yes, economic times are tough, but stripping fundamental protections from disabled workers is not the solution.  So long as SSA decides claims in a reasonable fashion and in accordance with due process, there is no need to bring cases to federal court or to pay EAJA fees.  Allowing Amendment 195 to pass into law, however, will remove a necessary check on SSA, will undermine the separation of powers between the executive and judicial branches, and will leave some of your most vulnerable constituents with no practical way to remedy violations of their right to due process under the U. S. Constitution.

If you or your staff would like further information on the issues discussed herein, please feel free to contact me or the National Association of Social Security Claimants’ Representatives (NOSSCR), of which I am a sustaining member.

In closing, I respectfully urge you to oppose Amendment 195 to the Continuing Resolution. 


Matthew D. Lane, Jr.


Fifth Circuit Disability Law Conference

Nancy Goodwin and I recently attended the 2011 Social Security Disability Law conference hosted by the Fifth Circuit Organization of Social Security Claimants’ Representatives (FOSSCR). FOSSCR’s membership includes representatives from Louisiana, Mississippi, and Texas, which are the three states within the appellate jurisdiction of the United States Court of Appeals for the Fifth Circuit.

This year’s conference was held in Natchez, Mississippi at the Eola Hotel and was hosted by Ms. Angela Davis-Morris of the Davis-Morris Law Firm. Notably, the 2010 FOSSCR conference was held in Lafayette, Louisiana and was hosted by Bill Ziegler. Bill was sorely missed at this year’s event, which was dedicated to his memory. I spent a good bit of time at the conference reminiscing with former friends and acquaintances of Bill, and I was once again made aware of how fortunate I am to have been his friend and law partner.

On Friday, January 28, 2011, I participated in a panel discussion on ethical issues that Social Security attorneys encounter in their daily practice. Paul Burkhalter served as the moderator, and Gary Parvin (Mississippi) and Laura Sigaud Hernandez (Texas) accompanied me on the panel. We discussed six factual scenarios and analyzed the applicable ethical rules in each State. My thanks go out to Paul, Gary, and Laura for inviting me to participate in the lively panel discussion.

Finally, on Saturday, January 29, both Nancy and I were elected to serve as Louisiana representatives on FOSSCR’s 2011 Board of Directors. We are excited and honored to be members of FOSSCR’s Board and look forward to the 2012 conference in Texas.