I am seeing in more and more of my cases that the Social Security Earnings Record is an issue in and of itself. It isn’t that Social Security is getting it wrong. It is that the individuals have not checked to see that it is right. Having an incorrect earnings record can hurt in many ways. In a SSDI case, a claimant needs to be “insured” (have sufficient quarters of coverage from earnings) in order to be found eligible to collect disability insurance. If your earnings record does not accurately reflect all of your earnings, you may not be considered insured and therefore lose out on a benefit that you might otherwise be eligible for.
In both SSI and SSDI cases, the issue of earnings arises at the first step of the disability evaluation. The adjudicator is required to determine if the claimant is working and if so, to determine whether it is substantial gainful activity. (In 2014, substantial gainful activity is equivalent to earnings of $1070 a month, for a non-blind person.) It is not uncommon in a disability case for a claimant to have stopped working but then again resume working at a reduced level of hours. If the person is making over $1070 a month, he or she is not considered disabled. (There are exceptions to this, of course.) The adjudicator will look to the earnings record as well as other earnings information to make this determination.
The earnings record also comes up at the third step in disability evaluation when the adjudicator is trying to determine what kind of work you did in the past. The adjudicator will look back to the last 15 years. I have now seen cases in which employment was listed that my client did not perform or vice versa, employment was not listed but my client had performed it.
As background, the SSA in November 2010 released a report on its strategy to reduce initial disability claims. They outlined a four part plan: (1) increase staffing at Disability Determination Services (“DDS”), (2) improve efficiency through automation; (3) expand the use of screening tools to streamline claims likely to be allowed, and (4) refine policies and business processes to expedite cases.
“Are you married?” This is the question I asked today of my client when we were filling out her form for disability insurance benefits. In the past, I would not bother asking that question when my client was in a same-sex relationship; I always indicated “single,” on the application. Today I paused. I asked my client and her partner when they got married. It turns out they were married in California during that short window of time in 2008 when it was legal. Now it is legal again.
The US Supreme Court today struck down the Defense of Marriage Act (“DOMA”), a law that denied federal benefits to same-sex partners. They also found a ban on gay marriage to be unconstitutional by deciding that supporters of Proposition 8 did not have standing to appeal a federal district court ruling that struck the ban down. By their decision, the
justices permitted a lower-court ruling to stand that had found the ban
unconstitutional. It is a coincidence that I happened to see my clients today, on the same day the Supreme Court issued their decisions.
I later had to call Social Security about this case. The claims representative asked me why my client was not applying for SSI. I explained that her partner was working and earned too much money – was over the resource limit. I could tell he was puzzled by all of this. Well, you take the bad with the good. Some individuals who may have otherwise been eligible for SSI because they were indigent, may no longer be if they are married and their partner is working.
My client does not want to be applying for disability at this point in her life. She would be rather be working and she is extremely depressed. Nevertheless, saying that she was “married,’ brought a smile to her face. Mine too.