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Should I File for Disability? — A Difficult Question

Disability can strike anyone at any time. Statistically, the older you are, the more likely you are to become disabled. As the “Baby Boomer” generation ages, an increasing number of individuals will be confronted with the question of whether they should apply for disability benefits. The current figures from the Social Security Administration predict a 40% increase in disability applications during the period from 2000 – 20010.

Whether or not an individual is applying for disability benefits immediately, a review of the concepts behind disability insurance coverage is always helpful. Coverage under Social Security comes in the form of Social Security Disability (SSD) and Supplemental Security Income (SSI). SSD is available to individuals who have worked and paid a minimum of twenty (20) quarters over the course of the past ten (10) years. Persons failing to pay into the system sufficiently may be entitled to SSI as long as they do not reside in households with income of greater than twelve thousand dollars ($12,000.00) each year earned by a relative. The Social Security Administration (SSA) employs a medical and age-based analysis which imposes greater restrictions on an individual’s ability to work as a person ages. A person under the age of fifty (50), for the most part, will be expected to prove disability from all work whereas a person age fifty-five (55) or older, in many cases, will need to prove only the inability to perform their prior or similar work. This takes into account the difficulty an older individual would have in learning an entire new set of work skills or having to perform work requiring similar or greater exertional demands. In this system, physical and mental disabilities are treated similarly for the purpose of benefits coverage.

Private disability policies employ somewhat different medical and vocational concepts and do not make any allowances for a presumption of age-related disability. A typical policy purchased by an individual will require that the insured demonstrate the inability to perform his/her own occupation due to illness in order to collect disability benefits. Employer-sponsored plans typically employ a similar definition of disability in terms of proving an individuals inability to perform their past work, This “own occupation” disability period is limited to a certain time period, typically twenty-four (24) months. After cessation of the “own occupation” period of disability, the insured must demonstrate disability from any work for which he/she is qualified for by virtue of their education and work experience in order to keep collecting disability benefits. For this reason, this definition of disability changes to “any occupation” disability coverage at that point. Many policies further limit benefit payments by restricting payouts for mental disabilities to a certain period of time, commonly twenty-four (24) months of coverage.

A person considering application for disability benefits should seek a series of consultations prior to finalizing their decision. First, a potential claimant should review the terms of any private disability policy under which he/she is covered. Then, the individual should discuss their medical situation with their treatment provider(s). A fully supported medical record is essential for the purpose of applying for disability. For this reason, all consults with specialists in order to confirm a definitive diagnosis should be undertaken before making an application for benefits. This is extremely important when private disability policies are concerned since an claimant must satisfy the applicable definition of “disability” within a specific waiting period (varying from sixty (60) to one hundred and eighty (180) days). Therefore, it is risky to assume that an incomplete diagnosis will be satisfactory to a claims reviewer for either private insurance of Social Security disability. Once medical support for disability is established, the next consultation should be with a lawyer who has substantial experience in disability law. This consultation will assist the claimant in clarifying any remaining medical and legal issues and can give greater guidance in coordinating a better presentation of an individual’s disability claim. This becomes even more important where difficult or unusual medical or psychiatric conditions are involved.

The decision to stop working is economically and emotionally difficult. Much of our identity revolves around our work. To stop working means losing not only daily contact with familiar persons and places, but also facing isolation and uncertainty. Further, the average Social Security disability case can take up to a year or more to resolve, resulting in economic deprivation. Private policies, depending on the length of waiting period or resistance from the insurer, can take similar lengths of time, if not longer to pay benefits. Given the economic risk involved, an individual cannot be too careful in this process as claims denials can result in many months to years of delay with uncertain results.

Scott Elkind is a principal with Elkind & Shea, a law firm whose work focuses on disability and medical issues. He can be reached at 301-495-6665.

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