Can I Apply For Both Early Retirement And Disability Benefits At The Same Time?

If you are between 62 and 65 years old and currently have either a physical and/or mental disability that is preventing you from working you may want to consider Social Security Disability. Many individuals who have reached 62 or are approaching 62 years old never even consider applying for disability benefits. They know that they have to stop working due to their disabilities so they simply apply for early retirement through Social Security.

If you want to know your full retirement age, then you can view that on the Social Security website.

According to Social Security:

You can retire at any time between age 62 and full retirement age. However, if you start benefits early, your benefits are reduced a fraction of a percent for each month before your full retirement age.

It's important to note that if you receive early retirement, the reduced monthly benefits that you receive are the benefits that you will receive for the rest of your life. So, if you receive 25% less benefits than you would at full retirement age, you will receive 25% less until the day you die. Some people think that the penalty is removed once they reach full retirement age but that is not the case. 

Those who are between the ages of 62 and 65 years old have the ability to file for Social Security early retirement benefits and also apply for Social Security disability benefits at the same time. What happens is you start receiving the reduced monthly benefits through early retirement and if you are eventually awarded Social Security Disability benefits your monthly benefits will be increased to your full retirement amount. (If your Social Security Disability application is denied however you are stuck receiving the reduced early retirement benefits).

If you apply for early retirement while waiting for your disability application to be processed then if you are eventually awarded disability you may be able to recover the difference in benefits retroactively for the months that the disability application was being processed by Social Security.

What Is The Difference Between SSD And SSI?

There are several different types of Social Security Disability benefits/programs. The two most common types are Social Security Disability Benefits (SSD) and Supplemental Security Income (SSI). When most people refer to Social Security Disability benefits they are referring to SSD.

To qualify for Social Security Disability Benefits (SSD), an individual must have enough work history credits which are acquired by paying into the Social Security system while you work. In general, in order to have enough work history credits an individual needs to have worked in five out of the ten years prior to becoming disabled.

In addition to having enough work history credits, an individual must prove that they are disabled. An individual must have a medical condition(s) that meets Social Security's definition of disability. It must be expected that you will be unable to work for at least a year due to your disabilities.

A common misconception is that in order to be eligible for any disability benefits from Social Security that you must be poor, or have very limited assets. This is not true. If you are disabled and applying for SSD, how poor or rich you are is completely irrelevant. I tell my clients that the "D" in SSD stands for "Donald," because even Donald Trump (if he were disabled) could qualify for SSD benefits as long as 1) he has earned enough work history credits, and 2) he meets Social Security's definition of disability.

Supplemental Security Income (SSI) is a separate Social Security program. The major difference between SSD and SSI is that SSI does not require work history in order to qualify. SSI is for individuals who have limited income and resources who are either older than 65, blind or disabled.

For the purposes of this blog, if you are a disabled individual with limited income and resources you may qualify for SSI, even if you have little or no work history.

After Social Security determines that you meet their financial criteria, they will decide whether or not you meet their criteria for disability. Social Security has the same definition of disability for those applying for SSD and SSI.

Social Security looks at the total income, finances and resources of the household when determining whether an individual meets the eligibility criteria for SSI. If a person is married, Social Security will take their spouse's income into consideration. SSI is the only disability benefits program available for children under age 18.

Sticking to the Donald Trump analogy, Mr. Trump certainly would not be eligible for SSI, no matter how disabled he was.

How Much Back Pay Can I Get From Social Security?

When you are awarded disability benefits by Social Security you will receive a set amount of money each month for as long as Social Security considers you to be disabled. Those who are receiving SSD benefits receive an amount of money each month based on their work earnings record and those receiving SSI benefits receive an amount equal to the maximum amount allowed by Social Security minus set amounts for income or resources.

If you apply for Supplemental Security Income benefits today, then today is the first day that you could possibly receive any back payment once you are awarded. So, if you apply for SSI on December 1, 2011 and you are found to be disabled by Social Security on June 1, 2012 you will receive a check for those months while you waited for your case to be decided. In this example, if Social Security determines that your onset date was December 1, 2011 and you meet the other criteria that the SSI program has (financial component), then you will receive back payment for six months. You will not receive back payment for any months that you do not meet the financial criteria for SSI. Since you first applied for SSI on December 1, 2011 that is the earliest month that you could receive benefits for. This is the case even if your disability began in December, 2008.

It is not as straight forward for those who are applying for SSD. If you have applied for SSD, Social Security allows you to receive retroactive payment for up to twelve months prior to the date that you filed your SSD application (assuming you can prove you were disabled that far back). However, Social Security regulations require that the first five months that you are considered disabled you do not receive any retroactive pay, there is a waiting period.

Using the same dates as above, assume that someone has been disabled since December 1, 2008 but does not apply for SSD until December 1, 2011. If Social Security agrees that the person's onset date is December 1, 2008 it is possible for the applicant to receive retroactive benefits from December 1, 2010 (one year before the initial application was filed). In this situation, the applicant does not lose five months of payment, because their onset date was more than five months before the person was first eligible to receive retroactive back payment.

In both examples you can see why it is very important to file for benefits with Social Security as soon as you know that you are expected to be out of work for at least a year.

This is a complex topic and can be even more confusing if you are applying for both SSD and SSI at the same time.

Onset dates can be a confusing but important issue in any Social Security disability case. If you are applying for SSD and/or SSI and are unsure what date you should use then you should contact an experienced disability lawyer.

Do Attorneys Slow Down The Social Security Disability Process?

I've had clients say to me before that they felt that their prior lawyer was slowing down the process to delay a decision from Social Security in order to increase any fee that they would receive if the client were eventually to be found disabled. I've also had clients ask me if our firm ever stalled the Social Security Administration in order to obtain larger retroactive benefits and therefore increase the fee that we received for assisting the client obtain either Social Security Disability benefits or Supplemental Security Income.

Tomasz Stasiuk, a Social Security Disability attorney in Colorado wrote an excellent blog post on this a few months back.

I agree with his opinion wholeheartedly that:

there is lot a lawyer can do for you: obtain evidence, file briefs, perform analysis, prepare you for your hearing. However, one thing a lawyer cannot do for you is make Social Security move faster than it wants to. No one can force SSA to make a decision before it is ready. The reason Social Security cases take so long is that there an enormous backlog of cases waiting to get through the system.

When you hire a representative, you are hiring someone to stand in line with you and help get you ready while you wait to get to the front. However, they cannot make the line move faster. If you change the person you’re waiting with just before you get to the front, it’s not the change that caused you to get to the front of the line. It is that your turn finally came up! The problem is that you don’t see the line in a Social Security case. You don’t know how many people are in front of you. All you know is that you waited a year with the old attorney, and only a couple of months with the new one.

 Related posts:

What Can A Social Security Disability Attorney Do For Me?
How Long Does It Take To Receive A Decision?

If I Am Awarded Social Security Disability, Do I Still Have To Pay Child Support?

Typically this is the type of question that I would direct a client to ask a family law attorney, especially if they already have one for a prior divorce or for child support issues.

However, as a New Jersey Social Security Disability attorney I like to keep up on news that relates to Social Security Disability. A recent New Jersey Superior Court decision (Gilligan v. Gilligan) states that an SSD award alone is not enough in itself to automatically relieve a parent of paying any child support.

The New Jersey Court held that a prior decision (Golian v. Golain) does not hold that an "SSD award letter itself is automatically sufficient for the family court to conclude that the party cannot work in any capacity or earn any income to pay child support or arrears."

In addition to the Notice of Award  from the Social Security Administration:

when a party alleges a post-divorce disability that renders him or her unable to work at all and pay any child support, that party must provide more evidence to the court than simply the SSD award letter itself to prove his or her case.

A parent who claims that a disability prevents him or her from paying child support or arrears has an obligation to provide the other parent with the opportunity to review the underlying medical reports upon which the in the SSD award was based, along with any additional medical reports regarding the nature and extent of the disability, diagnosis, and prognosis relative to engaging in employment."

When the SSA declares a person disabled and eligible for SSD benefits, such a finding cannot, without further inquiry, automatically be considered tantamount to a finding by the SSA that the person cannot work or earn any money at all.To the contrary, under the SSA’s own definitions and regulations, a disabled person may work and earn up to a maximum amount of income each year whiles till qualifying for benefits and maintaining his or her disabled status.

A declaration of disability by the SSA is a determination that the applicant cannot engage in substantial employment or gainful activity (SGA), which is distinguishable from being unable to work and earn any money at all. If a person claims that he or she cannot work at all, as opposed to being onl yunable to engage in any substantial work activity, it is that party’s burden o fproof to produce supporting and substantiating evidence of the validity of this claim beyond mere submission of the SSD award itself.

While some persons may be unable to engage in any income-producing work at all due to the nature of their disabilities, not every disability is the same. Other disabled persons may in fact be able to earn some degree of income under SGA levels and generate supplemental income, which can be used to help support a dependent child and pay back existing child support arrears. A family court may consider a disabled obligor’s potential ability to earn additional income under SSA regulations in determining the level of his or her ongoing child support obligation and schedule for repayment of accrued arrears.

This recent New Jersey decision basically means that if you are awarded Social Security disability, you are not automatically released from the obligation of paying child support. The family court will have to make a decision because it is a fact sensitive issue that will vary based on each individual's disabilities and ability to earn any amount of money.

To read the full Gilligan v. Gilligan decision click here.

What Does Social Security Consider An Acceptable Medical Source?

As mentioned in another post, medical records are extremely important in your attempt to prove to Social Security that you are disabled.

According to Social Security, the following are acceptable medical sources:

• licensed physicians (medical or osteopathic doctors);
  
  
• licensed or certified psychologists including school psychologists (and other licensed or certified individuals with other titles who perform the same function as school psychologists in a school setting) only for purposes of establishing mental retardation, learning disabilities, and borderline intellectual functioning ;
  
  
• licensed optometrists only for purposes of establishing visual disorders (except in the U.S. Virgin Islands where licensed optometrists are acceptable medical sources only for the measurement of visual acuity and visual fields);
  
  
• licensed podiatrists only for purposes of establishing impairments of the foot, or foot and  the ankle, depending on whether the State in which the podiatrist practices permits the practice of podiatry on the foot only, or the foot and the ankle; and
  
  
• qualified speech-language pathologists only for purposes of establishing speech or language impairments. For this source, “qualified” means that the speech-language pathologist must be licensed by the State education agency in the State in which he or she practices, or hold a Certificate of Clinical Competence from the American Speech-Language-Hearing Association.