Social Security disability benefits

Steven V. Modica, BridgeTower Media Newswires

More than ever before, we who practice law limit ourselves to a finite number of areas— and for good reasons. Notwithstanding, people come to us with myriad problems, many of which fall outside our expertise.

Although a little knowledge is a dangerous thing, my goal for this column is to give you basic practical information so that you can assist people who have employment, disability benefit, workers’ compensation and related problems. This information also will help solo and small firm lawyers understand their rights and responsibilities when they employ people.

Here are the basics about Social Security Disability (SSD) benefits:

A client must meet certain medical and non-medical rules to qualify.

To satisfy the non-medical rules, a client must have worked recently (5 of the 10 years before they became disabled) and paid enough into the Social Security system. There is no “needs” test to qualify for SSD; that is, a client can be a billionaire and still collect SSD.

Medical evidence is important but is not the be-all and end-all. The best medical evidence identifies a client’s residual functional capacity (RFC), that is, work-related tasks (job specific and general to all work) that they can and cannot perform.
Social Security considers the client’s age, education, work history (last 15 years) and RFC resulting from their physical and emotional problems.

A client will not get SSD unless they can show that they cannot perform their past relevant work (last 15 years) and that there are no other jobs in the national economy that they can perform given their age, education, work history and RFC.

Adult Career and Continuing Education Services-Vocational Rehabilitation (ACCES-VR) is a free government program that will help determine whether a client can perform other work given their age, education, work history, skills, and physical and mental limitations. They can help a client get more education or training so that they are a better candidate for new work.

A client who seeks unemployment insurance (UI) benefits claims that they are well enough to work but cannot find work. A client who seeks SSD benefits claims that they cannot perform their job—or any other job—given their age, education and work history. Collecting UI is inconsistent with a claim for SSD benefits; however, it is not illegal to seek and collect both.

The SSD benefit amount depends on how much the client paid—and how much the employer paid on the client’s behalf—into the Social Security system.

Minor children of the client—and in some cases the client’s spouse—can collect an auxiliary Social Security benefit over and above what is paid to the client if the client is approved for SSD.

Social Security has what is known as the 80% rule. This rule can reduce the amount of SSD paid to the client (and his/her family) if they stand to collect more than 80 percent of their pre-disability wage when adding together certain specified benefits to the amount of SSD they otherwise would be owed.

Lost income benefits paid under the New York Workers’ Compensation Law are subject to the 80 percent rule. Lost income benefits paid to police officers and firefighters under relevant laws are not subject to the 80% rule.

A client approved for SSD may participate in Medicare no earlier than 24 months from the first month that they are entitled to collect a SSD benefit. No one is paid a SSD benefit for the first five full months they are unable to work due to disability. A client who waits more than 17 months to apply for SSD may lose money and months of Medicare eligibility.

A client should hire a qualified law firm to represent them in a SSD case. If the client does not win his/her case, no legal fee is owed. If the client wins, the legal fee fixed by law is 25 percent of any lump sum of back benefits paid to the client (and the client’s family) but not more than a maximum fee set by law. Right now, the maximum legal fee permitted in a SSD case is $6K.

The Social Security Administration website (http://www.ssa. gov) is an excellent resource.


Steven V. Modica, Esq., is the principal owner of the Modica Law Firm ( He can be reached at (585) 368-1111 or by email at


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