June 2016 Legal Report

Legal Report

By Milan Rada, Esq. with John Hewson, Esq.

We have not written about Social Security Disability Benefits with the same frequency as accidental and performance of duty disability benefits (3/4 and ½). Nevertheless, Social Security Disability Benefits can be just as important a part of post retirement financial planning as many of the other sources of income such as Workers’ Compensation, Accidental or Performance of Duty Disability Benefits or Service Retirement Benefits. Also, Social Security Disability Insurance Benefits can be even more relevant to everyone in the Department simply because this benefit is universal. Obtaining Social Security Disability Benefits not require an accident or even a line of duty injury at all. Thus, the facts of how someone became injured and disabled are less important than the fact of how the injury came about. A claimant can qualify for Social Security Disability Benefits on the basis of an impairment, such as a heart condition, neurological condition or immune system disorder, among others. Having a severe impairment that prevents a claimant from being able to perform substantial gainful activity is enough.
Social Security Disability uses an entirely different standard for determining disability than do Workers’ Compensation, Accidental, Performance of Duty and General Municipal Law Sect. 207-c.Whereas the Retirement System requires the applicant to be permanently disabled from performing the full duties of a police officer, Social Security requires that the claimant is not capable of working and has the inability to work lasting more than twelve months. In fact, depending on the situation, Social Security might be examining whether the applicant can work at even the most simple, unskilled and non-exert ional job. Thus, Social Security Disability is much more of an analysis of employability as opposed to an analysis of disability or impairments alone.

Employability encompasses many different factors in addition to the physical ability to actually perform work related activities. An applicant’s age, education level, and past relevant work skills may be even more important towards a favorable decision on a claim than the injuries themselves. Understanding the importance of these factors can be the difference between winning and losing these benefits. Further, keep in mind these benefits can be lucrative given certain situations.
As you know, on an Accidental Disability pension, the applicant who is successful in his/her claim will be paid 3/4 of his or her final average salary for the rest of his or her life (and perhaps a spouse or other beneficiary if that option is chosen for the pension). Social Security benefits are not quite as high, but we have had successful clients that receive monthly checks from Social Security of over $2,700 per month. These benefits are in addition to any pensions, such as Accidental or Performance of Duty or Service Retirement benefits that our client may also be receiving. Further, if the disabled person has any auxiliary dependents, the Social Security Administration also provides for a monthly check for the dependents as well. So, a disabled member who successfully wins Social Security Disability Benefits may also be receiving his or her New York State Police and Fire Retirement pension check, with a Social Security Disability check on top of this with further benefits for qualified dependents. Auxiliary beneficiaries of the disabled claimant can receive a check which can be up to half of the disabled claimant’s primary amount as well. In this example the member might receive over $4,000 per month from Social Security. This is certainly an amount of money that you would not want to risk by putting together a poor application for Social Security Disability Insurance Benefits.

Traditionally, the Social Security Administration has made it very difficult to obtain these benefits. The vast majority of applicants nationally are denied benefits on the application level. These numbers tend to be artificially inflated due to a number of different factors. As mentioned above, Social Security requires a claimant to have an impairment which is expected to last for 12 months. Therefore, a large number of claims are rejected initially because they are filed too early after a claimant stops working and Social Security will take the position that the impairment will not last for a period of 12 months. This gives Social Security an easy explanation to reject a case on the basis that Social Security does not feel the disability will last long enough. Further, some unscrupulous lawyers fail to inform their clients of this fact simply because when a case is rejected and necessitates a hearing, the lawyers can be entitled to a greater fee on the case. Other cases are rejected due to poor development of the cases or missed opportunities to prove the disability early in the application process. If someone files on his/her own or uses an inexperienced representative, some of the more complex arguments regarding employability based on age, education, or work factors will often be overlooked. Also, Social Security will not do the development or make the arguments for a claimant because Social Security would rather reject a claim and hope the claimant is forced to return to work as opposed to paying out thousands of dollars in benefits.
Our goal is to assist our clients to obtain the benefits to which they are entitled as quickly as possible with the most advantageous arguments used to achieve that goal. Every case is different and must be analyzed by an experienced professional to achieve a successful result. To this end we develop every case with the best arguments in mind. The most disabling medical condition may not be the best argument for a Social Security Disability claim, and the facts that help win a Disability Pension (3/4 or ½) might be irrelevant to the Social Security Disability case. We treat each of these cases separately but equally. Knowing the differences matters. With our ability to keep the cases under one umbrella, our client will get the expertise of knowing what works on a Workers’ Compensation claim, what works for a Disability Pension claim, and what works for a Social Security Disability case, all from one law firm.
Of course, not every case is successful on the initial level. Social Security loves it that way. The wait times for hearings in the Social Security system are almost all over one year. For an applicant that cannot afford to wait for benefits, this can be devastating. However, with proper representation, nearly every case has a chance to be successful at the hearing level.
The other important thing to keep in mind is that not only are Social Security Disability Benefits something that are a very realistic possibility for nearly every police officer that retires, these benefits are available whether the member is awarded a Disability Pension or not. You read that correctly. YOU DO NOT NEED TO RECEIVE A DISABILITY PENSION TO BE A CANDIDATE FOR SOCIAL SECURITY DISABILITY INSURANCE BENEFITS. Therefore, it is in every retiring officer’s best interest to at least look into whether or not they might have a solid case for Social Security Disability Insurance Benefits.

As the summer approaches, we wish every member the best and safest summer months. With the weather improving, the public will be more and more active, and thus, the risks become greater. Please keep yourselves safe while you keep all of us safe. As always, it is our honor and privilege to represent NC PBA members and their families in any legal matter that might arise. If you have any questions or issues, contact us anytime at 516-941-4403 or by e-mail at mrada@fbrlaw.com.