New York Social Security Disability Lawyer Blog

Many people receive both Social Security Disability and Workers' Compensation benefits. Although we see it far less often than we used to, there are still people who believe they can't receive both, and delay applying for SSD until they settle their Workers' Comp claim. I interviewed a new client recently who told me that his Personal Injury lawyer told him to delay applying!! (I think he was probably worried about a lien on the Personal Injury case, another widely held piece of misinformation.)

When you receive benefits from both sources there is a limit on the total benefit amount, however. The total of your Workers' Compensation and SSD benefits can't go over 80% of your best calendar year's earnings, if that was within the last five years of work. (If your best earnings were before five years from the onset of disability, the 80% amount is calculated differently.)

If the total is greater than this 80% figure, Social Security will first reduce auxiliary benefits (for minor children), if any, and then the primary benefit amount in most states. In some states, called reverse offset states, Workers' Comp benefits are reduced while full Social Security is paid. Whenever there is an offset, any COLA (Cost of Living Adjustment) will still be paid, however.

There are two other scenarios that occur frequently with Workers' Comp offsets. If a Workers' Comp case is settled with a lump sum paid out, Social Security will allocate the settlement over the weekly amount that is indicated or was being paid previously, and thus any offset will continue for the number of weeks the settlement represents. After that time there will no longer be an offset.

The other common scenario is that Workers' Comp stops when a personal injury case is settled. In many cases the Workers' Comp carrier is paid back from the settlement. To the extent that the lien is repaid, Social Security considers that amount of Workers' Comp as if it were never paid to begin with and any offset that might have been taken will be sent as a lump sum to the claimant.

The important points to remember from this are:

For more information on receiving other benefits at the same time as Social Security disability, visit the FAQ page of our website.

Lewis B. Insler, Esq.

Having made court appearances in all of the New York metropolitan Social Security hearing offices, it was with particular interest that I read a story in this morning's New York Times about disability denials by judges in Queens, New York ("Suit Alleges Bias in Disability Denials by Queens Judges" by Sam Dolnick). According to the story, that particular hearing office has the nation's 10th highest rejection rate this year to date, and had the third highest denial rate from 2005 to 2008. A class action lawsuit has now been filed alleging bias by the Administrative Law Judges (ALJs).

Of course, this is no secret to local practitioners who will do all they can to avoid having their cases heard at the hearing office in Jamaica (and previously, Fresh Meadows). I can speak from personal experience as to some of the allegations made in this morning's article. In my 15 years of practice I've personally made well over a hundred appearances before the cited ALJs. As the New York Times states, often claimants and attorneys are indeed exposed to "combative hearings and a tone that one court called 'brusque, intemperate and unhelpful.'" Disability lawyer Troy G. Rosasco---a respected colleague who we at Insler & Hermann work with on a regular basis---was quoted by the Times as calling the Queens hearing office, "the Social Security system's Superfund site." The five cited judges have denied 63% of the claims they hear as compared to the national average of 36%.

Also quoted in the article was D. Randall Frye, President of the Association of Administrative Law Judges, who characterized the allegations of bias as "sour grapes." Speaking from personal experience, I can vouch for not only the high percentage of denials by these ALJs, but also an increased skepticism toward individuals who were not born in the United States or are otherwise unable to communicate in English. This is often reflected in decisions which challenge these claimants' credibility by stating that one cannot survive in this country without a basic knowledge of the English language. I'm sure those claimants would join local disability advocates in calling Mr. Frye's "sour grapes" characterization as more than disingenuous.

Brian M. Anson, Esq.

The New York Times published an article last week on programs that the Social Security Administration has in place to help people receiving Social Security Disability return to work.

While the Ticket to Work program has been in place for many years, I remain hesitant advising my clients to participate in the program unless they are confident that they can work and are willing to risk their Disability benefits.

As the Times article reports, employees of the Social Security Administration are ignorant about the program and how it might impact on a beneficiary's monthly benefits. I would hate for a client to misunderstand the notice and return to work, only to trigger a review of his or her claim due to that work activity. While I know that the Ticket to Work program is specifically designed to avoid triggering a Continuing Disability Review based on work activity, I also know that all it takes is one erroneous computer entry related to that work to initiate that review, thus jeopardizing much needed Disability benefits.

Although a benefits recipient may continue to get SSD benefits while earning about $1000 per month working, it's much more complicated than that. I would advise any Disability Benefits recipient who receives a Ticket to Work to think hard about taking SSA up on their "offer" and to seek guidance from a qualified advisor, whether a work counselor or an attorney.

Gabriel J. Hermann, Esq.

The Social Security Administration has indicated that if there is a government "shutdown" there are certain critical functions that they will continue to perform. The most important ones relating to the disability process are that they will continue to accept and evaluate new applications and will continue to hear cases already scheduled and decide cases that already have had hearings.

However, no new hearings will be scheduled and decisions will not be written (although the claim will be decided), even if the hearing was held before or during the shut-down.

Regular payments will continue to those already receiving benefits, and the state agencies will continue to process initial claims and reconsiderations.

The entire contingency plan can be found here.

Lew Insler, Esq.