If you have been disabled and cannot work, you may be entitled to Social Security Disability benefits in Virginia. During this time, when health issues are pressing and you wait for your next paycheck, you likely have lots of questions and concerns.
At The Law Office of B. Patrick Agnew PLLC, we know that information helps calm fears and relieves stress. Here, our disability lawyer based in Lynchburg responds to some of the most common questions we get when we first meet our clients. To get answers specific to your disability case, contact us or call us at 434-847-9066 to schedule a free consultation.
What are the main sources of disability benefits in Virginia?
There are two main sources of Social Security Disability (SSD) benefits, Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI).
SSDI is based on work credits and disability. A person who has worked and paid a certain amount into social security can qualify for SSDI. A person who has not worked and paid into social security, or has not paid enough into social security, will not qualify for SSDI but may qualify for SSI.
SSI is based on disability, age, income, and other resources.
It is possible, in some scenarios, for a person to qualify for both.
How do I qualify for disability benefits?
Your ability to qualify for SSD benefits will depend on whether or not you are seeking SSDI or SSI. However, to qualify for either or both, you must be disabled. The Social Security Administration (SSA) holds that a person is disabled if they are unable to work because they suffer from a severe medical condition that has either (1) lasted, or will most likely last, for at least twelve months; or (2) will result in death. This is a very strict definition and eliminates a lot of people who need the benefits.
For qualification for SSDI benefits, you must not be able to do the same work that you did before or be able to adjust to another type of work. You must also have earned enough credits and be younger than the retirement age.
SSI recipients have other qualifications they must meet as well, like proving they have limited resources and income.
Who can receive disability benefits in Virginia?
If you qualify for SSDI, it does not matter what state you live in because it is a federal program.
It is also possible that family members will qualify for benefits. Family members who could be eligible include:
- Former spouse
- Adult children who became disabled before the age of 22
In some situations, other family members may qualify. Because the facts matter, it is always important to speak to a disability attorney to ensure everyone who qualifies is able to apply.
Spouses can qualify if they are 62 years old or older unless they are receiving a higher amount through their own social security benefits. A spouse may also qualify if they are caring for your child who is younger than 16 years of age or was disabled before the age of 22.
Your former spouse may qualify for benefits under your SSDI claim if they were married to you for a minimum of 10 years, are a minimum of 62 years of age, have not remarried, and are not eligible for an equal or higher amount on their own, or through someone else's benefits.
Children can also qualify for benefits under your claim if they are not married. They must be under the age of 18, or be between the age of 18 and 19 as a full-time high school student, or be 18 years old or older with a disability that started before the age of 22.
A family member may receive up to 50% of what the disabled family member receives, but there is a limit on the amount a family can receive in total. The SSA will pay family member(s) no more than 150 - 180% of what is paid to the disabled person. Benefits are reduced equally among family members to ensure they do not exceed this amount.
What are common types of qualifying disabilities?
The types of disabilities approved for benefits vary widely, although some are more common than others. All disabilities fall into one of two categories: physical or mental.
Physical Qualifying Disabilities
- Arthritis. Arthritis can be disabling and can keep you from being able to walk or perform job duties, like typing.
- Heart Disease. Heart disease can cause serious symptoms, like pain, weakness, and shortness of breath.
- Diabetes. Diabetes can progress to the point where it is impossible to work. Symptoms include blurry vision, fatigue, and tingling extremities.
- Cancer. Stage III, or more advanced cancers, typically qualify for benefits. Some forms, however, do not have to be that progressed.
- Respiratory Illness. Respiratory illnesses, like chronic obstructive pulmonary disease (COPD), can be debilitating.
Mental Qualifying Disabilities
- Intellectual Disabilities. A person with an intellectual disability often lacks the ability to perform basic daily living functions.
- Anxiety. Severe anxiety can cause a person to not be able to function normally and work a regular job.
- Autism. Autism can prevent a person from being able to work or even perform daily living skills.
What should I expect at a disability hearing?
During the hearing, you will first be sworn in, and then a few other things will occur, like:
- The judge will ask you questions about your disability, treatment, past employment, educational background, and your quality of life as impacted by the health condition.
- If you hired a disability lawyer, they can speak on your behalf to argue your case and persuade the administrative law judge (ALJ). Your attorney may also ask you questions to provide the judge with a deeper understanding of your case.
- If there are expert witnesses, they will provide the judge with additional information on your disability, medical condition, ability to work particular jobs, and what jobs you may be able to perform, if any.
- In the end, the ALJ may ask you if you want to make any additional comments. Your attorney can advise you of the same and guide you through it.
After the hearing, the waiting begins for the ALJ's decision.
Where do I go for the disability hearing?
If the Social Security Administration denies your disability claim, you can appeal by requesting reconsideration. Reconsideration means you resubmit the initial disability claim application. If the claim is denied again, you have the right to file an appeal for a disability hearing in front of an Administrative Law Judge (ALJ). The hearing will take place at one of ten Offices of Hearing Operations, these are regional offices located in the following cities:
- Kansas City
- New York
- San Francisco
You and your attorney will attend the hearing in-person in one of these locations.
What can I do during the hearing to strengthen my disability case?
First and foremost, you want to be respectful in the courtroom. People get nervous and don't always follow protocol. Take it all very seriously. Aside from that, however, there are a few things you can do to strengthen your case.
- Review. The night before the hearing, make sure you review the application and medical report. If there is a red flag in the report, you want to have an answer for it because the judge will ask about it. For example, if the report states you failed to take certain pain management medication, that could indicate you failed to comply with your doctor's orders. You can counter that assumption by stating why you may not have taken it – maybe you had a reaction to it or were afraid of becoming dependent on it.
- Give details. You will be asked about your condition and symptoms. Do not be vague. Vague answers can be interpreted in many ways and, oftentimes, the ALJ's interpretation will not be in your best interest. If you feel pain, what kind of pain? Is it a shooting pain or a throbbing pain? How does it affect you? Do you have to stay home when your child has a soccer game because of the pain?
- Be honest. Add the details but do not over-exaggerate (or understate) your symptoms. If you are not honest, you risk a denial.
Also, do not panic. Everyone at the hearing wants what is best for you.
Does age make a difference in a disability claim?
Yes, age can make a difference. It is often one factor considered when awarding disability benefits. The SSA uses rules in accordance with a medical-vocational grid to help determine if an applicant should be awarded disability benefits. This grid uses a person's age, skill level, education, and Residual Functional Capacity (RFC) to determine if the applicant is disabled or if their disability qualifies. To note, RFC refers to your maximum performance or capabilities despite your physical and/or psychological disability and is assessed on a case-by-case basis after a review of all medical records.
Skill and education are important, but the older a person is, the more lenient the rules are. For example, if you are an applicant whose RFC suggests you can only do sedentary work, plus you have a high school diploma and a history of unskilled work, you may qualify if you are over the age of 50, but you may not qualify if you are younger than 50 years old.
Can I get both workers' comp and disability benefits?
The good news is that it is possible to qualify for workers' comp and disability benefits at the same time. The bad news is that your SSDI benefits may be reduced due to your workers' comp benefits.
What happens if your claim is denied?
You can appeal your disability claim. The last resort is filing a lawsuit in federal court.
Do I have to be out of work to be eligible for disability benefits?
No, you do not have to be out of work to be eligible for disability benefits. If you currently receive or intend to apply for disability benefits, there are two programs to help you: work incentives and Ticket to Work.
Work incentives include:
- Cash benefits, which will continue temporarily while you work
- Medicare or Medicaid benefits, which will continue while you work
- Education, training, and rehabilitation, which are meant to get you started in a new line of work
The Ticket to Work program provides:
- Free vocational rehabilitation
- Job referrals
- Other employment support services
There is a lot more to these programs, so you want to speak with a disability attorney in Lynchburg to make sure you do what is best for you.
Contact a Social Security Disability Attorney in Lynchburg Today
Disabilities and the inability to work can be very frustrating and life-changing for so many individuals and families. At The Law Office of B. Patrick Agnew PLLC, we know because we have seen it first-hand. Contact our office today or by calling us at 434-847-9066 to schedule a free consultation. We will answer your specific questions and guide you through the Social Security disability benefits process to make sure you and your family receive the benefits to which you are entitled.