If you cannot return to work due to an illness or injury, contact the Social Security Disability lawyers from Fusco, Brandenstein & Rada, P.C. for assistance applying for Social Security Disability benefits. If you have already filed a claim and received a denial, we can review your case to determine if you can file an appeal.

Social Security Disability supplements lost wages for disabled individuals who can no longer maintain gainful employment and earn a living. Whether you have been out of work for a year or many years, you deserve the benefits that may be available.

You may have heard that it’s not easy to get Social Security Disability or that it’s a minefield stacked against the claimant. The regulations are very strict, and that’s why you need someone with the knowledge and experience to help you navigate the process. Our attorneys use their expertise to overcome hurdles, ensuring well-documented applications and persuasive appeals for your deserved benefits.

Our team of Security Disability lawyers in New York is led by Victor Fusco, a Past-President of the New York Social Security Bar Association as well as the National Organization of Social Security Claimants’ Representatives and author of numerous articles, and Milan Rada, a former Attorney-Advisor at the Social Security Hearing Office.

Our Security Disability lawyers in New York will fight to protect your rights. We even handle cases for clients in surrounding states. We aim to ensure your disability doesn’t negatively impact your financial status or result in additional hardship. Call Fusco, Brandenstein & Rada, P.C. for a free consultation at 516-496-0400.

Table Of Contents

What Is Disability?

According to the Social Security Administration, a “disability” means the inability to participate in gainful activities due to a medically diagnosed physical or mental impairment lasting at least twelve months or resulting in death. Medical evidence must show physiological, anatomical, or psychological condition(s) documented by clinical, laboratory, and electro-diagnostic diagnostic testing. Your statement about your symptoms is insufficient to prove a disabling physical or mental impairment.

Common conditions typically covered by Social Security Disability include:

Traumatic Injuries
Spinal disorders
Significant dysfunction of major joints
Severe amputations
Tissue injury or dysfunction needing multiple surgeries
Inflammatory Disorders
Cardiac Diseases
Lung Disorders
Cancer
Kidney Disorders (Renal)
Hepatic Disorders (Liver)
Gastro-Intestinal Disorders
Blood Disorders
Neurological Disorders
Brain Injuries / Strokes
Auto-Immune Conditions, such as Lupus
Mental Disorders
Neurocognitive dysfunction
Hematological Conditions
Visual Disorders
Dermatological Conditions
Diabetes & Endocrine Disorders
And Many Other Conditions

If you have been diagnosed with any of these conditions, or the many others that can affect your ability to work, you may be eligible for Social Security Disability benefits. Contact our New York Social Security Disability claim lawyers today to speak with a qualified attorney.

Differences Between Social Security Disability and Supplemental Security Income

Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) are different federal programs that provide wage replacement benefits for injured and ill workers.

Social Security Disability Benefits come from Social Security taxes taken out of each paycheck when you work. When you apply for disability, there’s a five-month waiting period before you can collect benefits.

Your benefits depend on the average of your total wages before you became disabled and the number of years in which you maintained gainful employment. The more extensive your work history, the higher your benefit will be. Once you have been disabled for 30 months, you become eligible for Medicare coverage. In many cases, your spouse and children under age 18 may also recover SSDI benefits on your account.

The general tax fund funds Supplemental Security Income (SSI). Although the disability criteria are consistent with Social Security Disability, eligibility for SSI is also contingent on your income and resources. There is no long waiting period with SSI. Most people receive their first benefit payments effective the month of application, assuming they have proof of disability from the beginning of the impairment. For example, a person injured in a sudden accident might be able to prove they immediately became disabled.

Whether you can get SSI depends on your “income and resources.” An individual may have no more than $2,000 in assets and earn a limited income for SSI approval. If you’re part of a couple, you may only have a maximum of $3,000 in assets. However, many exclusions exist from the list of items considered “resources.”

You might be able to apply for food stamps and Medicaid while you’re receiving disability payments through the Supplemental Security Income program as well as other benefits offered through your county Department of Social Services, which is not to be confused with the Social Security office.

Other Benefits

Mother’s Benefits, if you become disabled, depending on your benefit rate, your family may be entitled to auxiliary benefits in a total amount of up to 50% of your benefit. Your children and their mother (if not working) are entitled to a portion of those benefits.
Grandchildren and Stepchildren can additionally receive dependent or auxiliary benefits through your SSDI account if the child’s parent(s) are disabled or deceased, the child is 18 years old or younger and lives with you, and you funded at least half of the child’s support in the year before your disability eligibility date. If the child is under one year of age, you must have provided at least half of his or her financial support since birth.
There are also disabled adult child benefits. If you get a disability and have an unmarried disabled child over 18 years of age, he or she could qualify for benefits as a “disabled adult child,” provided it can be proven the child has had a disability that began before reaching age 22. Frequently, this is a difficult test. Our firm handles such cases.

Why Income Is Important When Calculating Benefit Payments

If you have a physical or mental impairment that prohibits you from completing job-related duties, you might qualify for disability. Even if you’re doing some minimal work, you might be a candidate for disability benefits. If you are working and your average earnings are more than $1,260 a month, the Social Security Administration will likely deny your claim. However, that dollar amount is adjusted annually.

Other than limitations to income, you must have an impairment (or combination of impairments) that:

Has lasted longer than one year or is expected to last at least one year, or
Will likely lead to death.

Other eligibility requirements that could affect your SSI claim include:

Your age on the date you claim to have become disabled;
Your education;
Your recent work history, (usually within the last 15 years);
Your ability to do types of work different from that which you used to do;
Total Social Security credits you’ve earned
Whether your disability arose during the period in which you had insured status for Disability Benefits (usually – but not always – within 5 years of the month in which you last worked).

If your income has been limited and/or you don’t have a substantial employment history, you may be unable to collect SSDI benefits. However, you might nevertheless be eligible for SSI payments. New York State supplements these benefits. Your New York Social Security Disability lawyer will review your case to determine which program would work best for your situation.

When Should I Begin the Application Process for SSDI?

To be eligible for SSDI benefits, you must have a qualifying long-term or permanent disability. Because the disability must last or be expected to last more than one year, you can wait a sufficient time to permit proof of its permanency. However, applying is complicated and can take some time to complete.

In most cases, it’s in your best interest to begin immediately because it can take months for the Social Security Administration to decide your claim. In other cases, an early application may be your worst mistake. That is where the expertise of an experienced disability attorney can be the key to whether your application will be successful. You can receive up to 12 months of retroactive benefits on a well-timed application.

After you file your application, the Social Security Administration will review everything you provided to determine if you qualify for benefits. This also is where an attorney’s expertise can be of great benefit. At this stage, an attorney will gather all your relevant evidence and submit it with your application. Once the application goes to the District Office (usually electronically these days), the medical portion of the claim will go to your State Office of Disability Determinations, where an analyst will take into account:

Whether you’re currently employed, and if not, when you last worked
The reason(s) you stopped working.
What your doctors have documented in the medical evidence provided
Whether they want to send you for an examination by one of their doctors
Whether your condition meets certain Social Security medical guidelines for medical approval
Which work-related tasks you can perform despite your medical conditions (if any)
Whether there are jobs you might be able to Whether the disabling medical condition is serious enough to prohibit you from maintaining gainful employment
Social Security does not have to show “job openings,” only that suitable jobs exist
Social Security does not consider that the “suitable jobs” do not pay the type of wages you are used to earning

Because your application is important, Fusco, Brandenstein & Rada, P.C. handles Social Security Disability cases at the initial application level. Many claimants who begin the process can readily appreciate the potential pitfalls and thus seek to have attorneys prepare their Social Security Disability Applications, as so much is at stake.

After the State Disability Determinations agency approves or denies your claim, the Social Security Administration will review their decision and agree or disagree with it. Social Security will mail you a written denial if they deny your claim. You must appeal it (i.e., “Request Reconsideration”) within 60 days.

You might want to supplement the evidence in your file when you “Request Reconsideration.” If the reconsideration also results in a denial, you must “Request a Hearing” within 60 days.

If Social Security approves your claim, you will receive a “Notice of Award.” Sometimes these “favorable notices” do not give you everything you requested, and you should review it with an attorney. For example, in an application filed on July 5, 2020, you may have claimed you became disabled after an accident on January 5, 2019. Instead, the Social Security Administration determined your disability did not begin until December 2020. You will have lost 17 months of past-due benefits, even though your decision is “favorable.” You may want to appeal that decision by amending your “onset date.”

Frequently, the onset date can affect your entitlement to other benefits, such as pensions or insurance claims. This is another reason why a Social Security disability lawyer’s careful fact-gathering at an initial consultation and careful review of your decision(s) is important when dealing with Social Security claims.

How to File a Social Security Disability Claim

There are various methods to file your claim for SSDI or SSI benefits. Our office files most claims electronically. We do not file until we have assembled enough evidence to support a claim, as our goal is to try and win your case as early as possible.

If you choose to do it yourself, you can submit information online, by phone (1-800-772-1213), or by appointment at your local Social Security District Office. During the COVID-19 Pandemic, many Social Security Offices are closed to the public. Check with Social Security to see if your office is handling in-person appointments.

Social Security provides a disability starter kit for anyone interested in applying for benefits by themselves. It includes a checklist of information you need to file your claim and documents you must provide to prove your disability.

If you retain Fusco, Brandenstein & Rada, P.C. to represent you, our attorneys and paralegals will walk you through applying for benefits from start to finish. We will file your application and ensure all deadlines are met. Equally important, we will ensure the self-reported statements in your application support a compelling argument for disability, as do the medical and other evidence needed to support your claim.

Medical evidence is crucial when you are applying for Social Security Disability benefits. It will have a significant impact on the outcome of your claim. Medical records are especially useful during the application process. But equally critical are medical reports by your doctors documenting the disabling effects caused by your medical conditions(s) and how they prevent you from performing any work.

Sometimes your doctors need to be provided with the correct forms to document your disability. Sometimes doctors must be informed of what should be in the medical evidence submitted for your claim. Educating your doctors is one of the most important things our attorneys do.

Common Reasons Social Security Disability Claims Are Denied

In processing Disability claims, the Social Security Administration requires that you meet all deadlines and provide complete and accurate information about your disability. A small mistake could delay the process or cause a denial.

Here are some common reasons for SSDI and SSI denials.

Failure to Comply

A denial or dismissal of your claim might result if you miss a step, fail to produce or complete documents requested, or fail to follow a direction.

Deadlines

There are deadlines you must follow throughout your claim. They are strict. Failure to take timely action might result in dismissal of your claim.

You’ve Recovered

If you no longer have a disability, you might not qualify for disability benefits. The Social Security office will periodically check on your condition to confirm that you still can’t work due to your injury or illness. If Social Security determines that you no longer have physical or mental limitations, they might deny your claim or cease sending payments. However, even if you have recovered, if you were disabled for 12 or more consecutive months, you may be entitled to a “closed period” of benefits. If you recover while your claim is pending, ask for a closed period.

Prior Denial

If you previously applied for benefits for the same period and your application was denied, you’ll likely get denied a second time if you try to file again. Instead of filing another claim, your best option is to file a timely appeal if you get a denial. Sometimes, a new application for a later onset of disability might be advisable. Get an attorney’s advice about this.

Missed Consultative Examination

If you did not attend the required appointment with the Disability Determinations Consulting doctor, this could result in an automatically denied claim. If you decide not to show up, they won’t have the documentation needed to complete work on your claim or might deny the case for “failure to cooperate.”

Lack of Medical Evidence

Medical records are an essential part of any case. If you skip appointments with your treating doctors or if there are significant gaps in treatment or missing records, Social Security analysts might conclude you didn’t suffer a disabling injury or your condition is not serious enough to require medical treatment.

Definition of Disability

You must have a qualifying condition to be eligible for benefits. If your injury or illness does not match the Social Security Administration’s complex disability definition, your claim will be denied. Social Security’s Disability determination considers factors such as age, education, work experience, and medical condition. So, in deciding your claim, in most cases, “Disability” is not merely a medical condition.

Income

Your income is important for determining your eligibility or benefit rate in a Social Security Disability case. If your income is very low, derived from past work, or from a pension, it may not negatively impact your “disability” claim. Your income information is also vital in determining whether you meet the requirements for collecting Supplemental Security Income payments. You won’t receive coverage if you earned more than the maximum limit.

Levels of Appeal

If the Social Security Administration denies your claim, you can appeal. You have only sixty days from the denial date to file. When you receive the letter with the SSA’s decision, it should include the reason for denial and instructions on how to file an appeal. There are four levels of appeal:

Reconsideration

If Social Security denies your claim for a medical reason, you can appeal the decision online. For non-medical determinations, there’s another link you can go to for instructions on submitting an appeal and the evidence you need to provide. Our firm handles “Reconsideration Requests.” If your reconsideration request is denied, the next step is a hearing before an Administrative Law Judge. Most denials are considered “medical determinations” even though other factors may have been considered.

Hearings

If your reconsideration is denied, the next step is (within 60 days) to request a hearing before an Administrative Law Judge who has not been involved in the original or reconsidered denial of your claim. You’ll receive a confirmation packet with detailed information about the hearing process. The Hearing Office will choose a date, time, and location to listen to your arguments and review the documentation you provide.

You must appear either in person before the judge or through a video link to a judge. During the COVID-19 Pandemic, many Administrative Law Judges are conducting hearings over the telephone. In either event, you get to tell the judge your side of the story. However, because the judge is a “neutral arbitrator,” he or she must also develop evidence favorable to Social Security. The judge may call such experts as a Medical Advisor and/or a Vocational Expert. Frequently, such expert testimony is not in the claimant’s interest. Vigorous cross-examination of such experts may be necessary. Thus it is crucial to have an attorney to help you present a strong case before the judge. Our attorneys handle several hundred hearings annually and win most of their cases.

Appeals Council Review

If you are dissatisfied with the decision made by the Administrative Law Judge, you can request a review by the Appeals Council. It is our practice to submit legal briefs to the Appeals Council to point out errors in the judge’s decision. The Appeals Council will decide whether it will review your case. The denial will stand if the Council concurs with the Administrative Law Judge’s decision. However, if your case merits a second look, it will return to an Administrative Law Judge to resolve outstanding issues.

Review by Federal Court

Suppose the Appeals Council agrees with the decision to deny benefits. In that case, you can bring a civil suit in the United States District Court to have a Federal Judge review the Social Security Administration’s final decision. The legal standards in Federal Court are very technical. An experienced appellate attorney should represent you. You must file your case within sixty days of the Appeals Council’s decision. Fusco, Brandenstein & Rada, P.C. has successfully handled such cases since our founding in 1978.

Fusco, Brandenstein & Rada, P.C. Will Help You Fight for the Benefits You Deserve

Our New York Social Security Disability lawyers understand what you’re going through. Disability can be a stressful experience. It’s overwhelming when you’re hurt and unable to earn a living. How do you pay for necessary medical treatment? How do you support your family?

Our Social Security Disability lawyers are here to handle every aspect of your claim or appeal so you can focus on treating your disability.

We have in-depth knowledge and understanding of how the Social Security Administration handles claims. Several of our staff members worked for them. That experience is invaluable in helping our clients move forward with their cases, answering all their questions, and reaching favorable outcomes. When you retain Fusco, Brandenstein & Rada, P.C., we’ll assist you in navigating the process from the application forward, obtain sufficient evidence that proves you have a disability, and ensure there are no missed deadlines.

If you’ve been denied Social Security Disability Benefits at any level – application, reconsideration, hearing, or Appeals Council, Fusco, Brandenstein & Rada, P.C. can become involved in your case to handle a hearing or appeal. We have expertise in the intricate laws related to Social Security Disability benefits. We know how to best handle Social Security’s complicated procedures. Our team will advocate for your rights and fight for the Social Security benefits you deserve. Additionally, we will clue you into additional benefits for which you may also be eligible. You should not have to suffer through this ordeal alone. We’ll be by your side every step of the way to provide guidance and support.

If you have a disabling medical condition that keeps you from working, call Fusco, Brandenstein & Rada, P.C. today at 516-496-0400. One of our New York Social Security Disability lawyers will happily meet you for a free consultation.

You Can Afford Us!

The U.S. Supreme Court has characterized the Social Security Disability process as a “maze!” In dealing with the complexities of Social Security Disability, you deserve a law firm that knows the ins and outs of Social Security Disability cases, as we have since 1978. In most Social Security Disability cases, we operate on a “contingency” basis, meaning we only receive payment if we win.

When we win, we ask the Social Security Administration to approve a fee payable from your past-due benefits. The Social Security Administration typically withholds 25% of your past due benefits from which attorneys’ fees will come. Only the Social Security Administration can determine and fix your attorney’s fee. While we must submit a work effort listing in certain cases, only the Social Security Administration (or a Federal Court) can decide the attorney’s fee.

Since you only pay a fee if and when we win, you have nothing to lose and everything to gain by retaining experienced Social Security Disability lawyers to help you with such a claim.

Social Security Disability FAQs

Below are some straightforward answers to some of our most frequently asked questions about Social Security Disability in New York.

Can You Apply for Social Security Disability After Retirement?

Yes, applying for Social Security Disability (SSDI) benefits after retirement is possible in New York. However, various factors could affect your eligibility, including how soon you choose to retire.

Retiring after you reach full retirement age (FRA) changes your eligibility significantly. After reaching FRA, you automatically qualify for Social Security retirement benefits. Consequently, you can’t apply for SSDI benefits at this age because your disability payments automatically convert to retirement benefits. Fortunately, the amount typically remains the same.

Before FRA, however, you can still apply for and collect SSDI benefits. If you have a medical condition preventing you from working, you could qualify for disability benefits. The Social Security Administration (SSA) assesses your disability and work credits to determine eligibility. If approved, you can receive disability benefits until you reach FRA.

However, applying for SSDI can be challenging. The SSA uses strict criteria to assess the severity of your condition. It’s important to have extensive medical documentation to support your claim. An experienced New York SSDI attorney can assist in optimizing your application for a favorable outcome.

Can You Work While on Social Security Disability?

Yes, it is possible to work while receiving SSDI benefits. But you should know there are strict rules, including those that involve the following:

Trial Work Periods: Beneficiaries can have a trial work period (TWP), during which they can work for nine months within a 60-month period while receiving full benefits.
Earnings Limits: After the TWP, there’s a limit on how much you can earn. If you earn above the limit, it could cause your benefits to cease.
Substantial Gainful Activity (SGA): You cannot engage in substantial gainful activity, which means earning a certain amount by working while receiving SSDI benefits. As of 2023, engaging in SGA involves earning more than $1,470 a month (or $2,460 for blind individuals).
Reporting Income: You must report all earnings to the SSA.
Expedited Reinstatement: If your benefits stop due to earnings, you have a five-year period to request reinstatement if you can’t continue working.
Work Incentives: SSA provides work incentives to help beneficiaries transition back to work while maintaining access to healthcare and benefits.

Do You Pay Taxes On Social Security Disability?

SSDI benefits can be taxable, but it depends on your total income and filing status. If you receive income from other sources, it might push you above the threshold at which your benefits become taxable.

Let’s say you file as an individual with a combined income between $25,000 and $34,000. In this context, your combined income includes your adjusted gross income, nontaxable interest, and half of your SSD benefits. With a combined income in this range, you would pay taxes on up to 50 percent of your benefits. But if your combined income exceeds $34,000, up to 85 percent of your benefits could be taxable.

For couples filing jointly, up to 50 percent of SSDI benefits might be taxable if your combined income is between $32,000 and $44,000. If your income exceeds $44,000, up to 85 percent can be taxable. A knowledgeable disability attorney can determine how much of your benefits could be taxable based on your specific financial situation.

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