Author: John Young

If you or a loved one has suffered a Brain injury, the law provides two potential remedies for the injury.  The first remedy depends on whether the injury was the result of a negligent act of another person.  Examples of negligent actions which might cause a brain injury a auto mobile collisions, motor cycle crashes, drunk driving accidents, semi tractor-trailer collisions, slips and falls, and many more.  We have been representing Hoosiers coping with brain injury for more than 25 years.  John Young is an Emeritus member of the Board of Directors of the Brain Injury Association of Indiana.  He served as chair of the board of Directors for two years, saving the organization from collapse after fiscal problems became intense.  Mr. Young has a family member who has been living with Brain Injury for 30 years.  He has represented many, many Hoosiers coping with Brain Injury to recover the money necessary to put their lives back in order and deal with the long terms effects of brain injury.

The second legal remedy for Hoosiers dealing with brain injury is Social Security Disability.  Every brain injury has different impacts on the person dealing with the injury.  Some folks are fortunate enough to either return to their former job.  Some folks, although unable to return to their former jobs are fortunate enough to return to another full time employment.  There are, unfortunately, those Hoosiers that , try as they might, cannot get back to any type of gainful employment.  For these folks Social Security Disability is a viable option. As you know, the brain is the central feature of the central nervous system.  Thus, if we represent a person coping with brain injury before the Social Security Administration, we turn first to the listing of Impairment dealing with neurological impairments.  The neurological impairment listing, found in 20 CFR Pt 404, Subpart P. App.1 has a specific listing for brain injury.  The Social Security Administration refers to the listing as Sec 11.18 Cerebral trauma.  The listing deals with the impact of the brain injury on the persons overall ability to function, including a review of the ability to perform the activities of daily living, social function, maintaining persistence, concentration and pace, and Episodes of decompensation. As part of our efforts to serve those coping with brain injury, we have studied these rules and regulations carefully and have had great success in using them to help our clients receive the benefits they deserve.

There are 2 different types of disability programs for those who are disabled: SSDI and SSI

Social Security Disability Insurance (SSDI)

SSDI has two requirements:

1. You are disabled for at least 12 months or more.

2. That prior to your disability you worked and paid into the FICA tax system or the self employment tax system.  Think of this contribution as the premium for the disability insurance.

In order to qualify the applicant must have worked 20 out of the last 40 quarters prior to disability.  A quarter is a quarter of the year.  The applicant does not have to work each day of the quarter, but the employment must be substantial. If you are concerned about the number of credits you have, you can obtain a copy o your work history from the Social Security Administration.  I also suggest that you put pencil to paper and record your dates of employment for the last 15 years. You may not have perfect recollection, but do your best.  When you have this complete, I can look at it and help assess whether you really do or do not have enough work credits to qualify.

Supplemental Security Income

SSI is for people who have not worked and contributed to the FICA tax system.  SSI has a number of restrictions and exemptions not attached to SSDI.  It also pays less.  If you are married and your spouse is earning more than say $35K a year, you probably will be disqualified for SSI.

If you are 58 and a widow (or widower), you can draw off your spouse’s earnings history.  If you were married for more than 10 years, are divorced and are 62 or older, you may get benefits based on the ex spouse’s earnings history.  Given all these  options, I encourage you to contact me to talk over the issues.

I have had many, many 62 year old disabled clients ask me why they should file for Social Security Disability when they can just file for early retirement.  The simple answer is because they will be entitled to a greater amount of money through Title II Disability than they would if they just filed for early retirement.  The longer answer is that this person should file for both, and here is the reason why.

Sixty two year old Americans are entitled to apply for and receive Social Security Retirement benefits.  The catch, of course, is that if they elect to take early retirement, their monthly benefits will be less than what they would receive if they wait until their retirement of either 65 or 67.  If that same person, however, becomes disabled in between the ages of 62 and 65, their Social Security Disability benefits are not reduced because they begin their benefits in between those ages.  So, the smart move is, if you find yourself unable to work because of a disability and you are between the ages of 62 and 65, is to file for both early retirement and Social Security disability, at the same time.  This is the smart move because your retirement benefits will start immediately, to provide income while you are waiting for your disability application to be evaluated.  Yes, you will receive less income than if you waited for full retirement, but most people need that money to live on.  Now, you have the early retirement income, and you are waiting for the Social Security Administration to review your application.  The application is ultimately approved.  You start to receive your full monthly benefits.  You do not receive early retirement benefits any longer because you Are receiving Social Security Disability and you cannot receive both at the same time.  However, for those months that you were receiving the lower early retirement benefit you will receive a one-time lump sum benefit made up of the difference between your reduced early retirement benefits and your Disability benefits for those months you were disabled, but your application was pending.

There are a few other factors that play into exactly how much money you will receive.  If you would like to discuss this with me, please feel free to call and I will be happy to advise you on the options that best serve your needs.

In order to qualify for Social Security Disability Income (SSDI), among other things, you must prove that you have a disabling condition that is expected to last more than a year. What about those folks who have a disability that has lasted more than a year, but the disability is not permanent, and they either will be able to work at sometime in the future or have already returned to work, can these folks get disability payments?  The answer is yes.  If you have a disability that is expected to, or does, last more than a year then you can obtain benefits for the months that you are disabled, even if you return to work.  This is referred to as a closed period of disability.  Bear in mind that the first 5 months of any disability period is eliminated.  This means that if you, for example, become disabled on January one, the first benefit you will receive will begin on June 1.  You will then be eligible to receive benefits for each month the disability continued after the five month elimination period, up to the time you return to work.  If you have any other questions about Social Security Disability Income, or SSDI also known as Title II Disability, please give us a call.

If you are thinking that you need to file for Social Security Disability, We suggest that you file sooner rather than later.  It is obvious that you cannot qualify for Disability Benefits if you do not apply.  However, what most folks do not know is the time it takes for the claim to work through the system.  Your initial application for Social Security Disability Benefits generally takes between 100 and 120 days to be processed.  In this time, the Social Security Administration will gather your medical records, and likely ask you to see a doctor of their choosing, as well as fill out additional paperwork about your past work activities and your daily activities.  If you are turned down on your initial application, you have 60 days from the date you are denied to files your Request for Reconsideration.  Again, it generally takes anywhere from 100 to 120 days to process this request.  If you are turned down on the Request for Reconsideration, you have 60 days to file your Request for Hearing Before Administrative Law Judge.  This portion of the application takes longer to process.  In Indianapolis, it used to take as many as 24 months to get a hearing.  However, thanks to diligence in the Office of Adjudication and Disability Review, that wait is down to between 10 and 14 months.  Still this is a long time.

If you need help fining your application, we can help.  If you have filed your application and have been turned down, call me.  I have 23 years of experience with Social Security claims, covering hundreds upon hundreds of claims and hearings.

If you are entitled to Title II Social Security Disability Income, then two years after the date you became disabled, you are entitled to Medicare.  If you are not entitled to Title Two Disability, and you are eligible for Title XVI Supplemental Security Income, then you may be eligible for Medicare.  It depends on how much money you contributed to the Medicare trust fund, through taxation.  If you have never worked, then you are ineligible for Medicare.

So, if you are not eligible for Medicare, what are your options?  Most people who are eligible to receive funds from the SSI program are eligible for Medicaid.  So what is the difference.  The two programs, Medicare and Medicaid are two distinct medical insurance programs.  They are operated by distinct government offices.  Medicare is a strictly federal program and is based on your contributions during your working life.  Medicaid is a State run program.  It consists mainly of federal dollars, with some contribution by the State. It is a need based program.  This means that if you fall below a predetermined income level, and asset level, you are likely eligible for Medicaid.  There are several restrictions on Medicaid, as there are in cases involving SSI.  One such restriction is the amount of assets you are allowed to have.  This is a very low number, and if your assets are above this number, you will have to spend these assets down prior to your eligibility for Medicaid.

I have been representing Hoosiers who are applying for Social Security Disability Benefits  for 24 years.   I have significant experience with the rules and regulations governing eligibility.  I have been to hundreds of Hearing before Administrative Law Judge with my clients.  I know the medicine and I know the rules.  If you require help with your Social Security Disability Claim, give me a call.