General Practice, Solo & Small Firm DivisionMagazine
Volume 17, Number 5
SOCIAL SECURITY A PRIMER FOR LAWYERS
BY Margy LaFond
At some point in your career, you probably have been or will be approached by a potential client about Social Security benefits. The system is complex but navigable. Social Security encompasses more than retirement programs for older workers. Younger workers and their families receive valuable disability and survivors insurance protection. In fact, about one in three Social Security beneficiaries is not a retiree.
As America's "family protection plan," Social Security pays survivors benefits to more than 7.5 million people, and more than 6 million disabled workers and their families receive disability benefits. In addition, the Social Security Administration (SSA) is responsible for the Supplemental Security Income (SSI) program, which pays benefits to more than 6 million of America's most vulnerable population. So, you can start to see why the system may seem daunting at first glance.
New laws and regulations continue to be enacted. With a 65-year-old program that spans from the Great Depression to our thriving twenty-first century economy, Social Security has had to be responsive to the changing conditions and needs of the public.Social Security Credits
First, you need to find out if a client walking through your office door qualifies for any of the SSA's programs. To begin with, as people work and pay Social Security taxes, they earn a maximum of four "credits" each year. In 2000, one credit is earned for each $780 of earnings.
- Credits needed for retirement benefits depend on the date of birth (for example, those born in 1929 or later need 40 credits);
- Credits needed for survivors benefits depend on the age workers are when they die-the younger, the fewer credits needed;
- Credits needed for disability benefits depend on the age the worker became disabled.
Retirement benefits. In this year alone, Social Security will pay benefits to more than 28 million retirees and their families. Full retirement age has been age 65 for many years. However, beginning with people born in 1938 or later, that age will gradually increase until it reaches 67 for people born after 1959.
Retirement benefits can be paid as early as age 62, but the benefit amount will be less than the full retirement benefit amount. Delayed retirement credit is given for retirement after the full retirement age and increases benefits.
Entitlement to retirement benefits also qualifies some members of workers' families to benefits. If there's a spouse age 62 or older, he or she can receive a benefit up to one-half of the full retirement amount. Benefits can also be paid to a spouse at any age if he or she takes care of a worker's child who is either under age 16 or disabled. An ex-spouse may qualify for benefits.
Biological, adopted, or stepchildren may also qualify for benefits. Even a dependent grandchild may qualify. To receive benefits, the child must be: unmarried, under age 18; or be 18 to 19 years old and a full-time student (no higher than grade 12); or be 18 or older and disabled from a disability that started before age 22.
As noted earlier, the laws do change. As of January 2000, if a worker is below full retirement age, $1 in benefits will be deducted for each $2 earned above the annual limit. For 2000, that limit is $10,080.
Survivors benefits. Not everyone realizes that when a worker dies, Social Security survivors benefits can be paid to a widow(er) who is at least 60 years old; or if the surviving spouse is disabled, benefits can begin at age 50. Benefits can also be paid to qualified children.
Disability benefits. Disability determinations are made by state agencies and are based on an inability to work. To be considered disabled, the worker must be unable to perform his or her previous work and/or adjust to other work because of a medical condition. The disability also must last or be expected to last a year or to result in death.
After receiving disability benefits for 24 months, beneficiaries become entitled to Medicare Health Insurance. Additionally, Social Security periodically reviews continuing eligibility for disability benefits. If the medical condition improves to the extent that a beneficiary can return to work, he or she can generally work up to nine months and still receive disability benefits. If disability benefits stop because of earnings, but the beneficiary is still disabled, free Medicare insurance can continue for at least eight years. After that, individuals can pay for Medicare coverage.
Social Security has other incentives to encourage people with disabilities to return to work, including paying for vocational rehabilitation or other services. Families of workers who become disabled can also receive benefits.
Supplemental Security Income. To get SSI, a person must be 65 or older or blind or disabled, using the same definition used for Social Security disability benefits. Children as well as adults can get benefits because of disability or blindness, but by looking at how his or her disability affects everyday life rather than employment.
Whether SSI benefits can be paid also depends on income and resources. A spouse's income and resources, and a parent's in the case of a child, will also count to determine eligibility.The Appeals Process
Now that you have the basic structure of the system, let's look at an area of special interest to you-appeals. While Social Security is diligent about determining benefits, if the claimant disagrees with a decision, it can be appealed.
There are four levels of appeal. Reconsideration is a de novo review of the claim by someone who didn't take part in the first decision. All the evidence submitted when the original decision was made is considered, as well as any new evidence. If the claimant disagrees with the reconsideration decision, a hearing can be requested. An administrative law judge not involved previously will conduct the hearing. The claimant and his or her representative may attend and explain the case in person, along with witnesses who can testify. They may also look at the information in the file and provide new information.
If a person disagrees with the hearing decision, a review by the SSA's Appeals Council may be requested. The Appeals Council looks at all requests for review, but it may deny a request if it believes the hearing decision was correct. If the Appeals Council decides to review a case, it will either decide the case itself or return it to an administrative law judge for further review. Lastly, in the event of disagreement with the Appeals Council's decision, or if the Appeals Council decides not to review the case, individuals may file a lawsuit in a federal district court.Attorney Representation
At any time in the process, a person can choose to have a representative help them pursue a claim before the SSA. Representatives cannot charge or collect a fee for administrative-level services without first getting written approval from the SSA, even if the claim is denied. However, the representative may accept money in advance as long as it's held in a trust or escrow account. More than one lawyer in a firm, corporation, or other organization can be appointed by an individual as a representative, but someone cannot appoint the firm, corporation, or organization itself. Claimants who choose a representative must notify the SSA in writing as soon as possible.
In order to charge a representation fee for administrative services, you first must file either a fee agreement or a fee petition with the SSA. A representative cannot charge more than the fee amount approved. If either the client or a representative disagrees with the fee approved, they can ask SSA to review it. A representative who charges or collects a fee without SSA approval, or charges or collects too much, may be suspended or disqualified from representing anyone before the SSA, and may face criminal prosecution.
If the representative and the client have a written fee agreement, the representative may submit it to the SSA at any time before the claim is favorably decided. At the time of the favorable decision, the SSA will usually approve the fee agreement if it calls for a fee of no more than 25 percent of past-due benefits, or $4,000, whichever is less. If not approved, the representative must file a fee petition.
A representative may file a fee petition detailing the time spent on each service provided, when he or she has finished working on a claim. The representative must give the client a copy of the fee petition and each attachment. If the client disagrees with the information shown, he or she must contact the SSA within 20 days. The SSA will then set a fee based on the services rendered and notify the client and the representative of that fee. Either the client or the representative may appeal the amount of the fee within 30 days.
When the representative is a lawyer, SSA usually withholds 25 percent of a client's past-due benefits to pay toward the fee and pays the attorney fee from this money. If this happens, under a new law, the SSA is required to assess the lawyer up to 6.3 percent of the fee to help defray administrative costs.
The client is responsible for directly paying the representative any monies owed but not withheld. Benefits are not withheld when the representative is not a lawyer or when SSI benefits are involved.
Also, the client is responsible for direct payment of the fee if SSA withheld the fee but later paid the client because the lawyer did not respond in a timely manner to the SSA's notice directing the lawyer to either ask for approval or tell the SSA that he or she planned to ask for a fee.
Additionally, the client must pay directly for out-of-pocket expenses the representative incurs or expects to incur, such as the cost of getting doctor or hospital records. Approval is not needed for those expenses.
Hopefully, this brief overview is a place for you to begin when representing clients who are applying for Social Security benefits or appealing decisions on benefits. The SSA's goal is to provide world-class service. Lawyers can have a role in any of these processes-but the key, as in any situation, is to know the process and the law. For even more information, please visit www.ssa.gov and, while you are there, subscribe to Social Security's e-news, an electronic newsletter, to ensure that you have the most up-to-date information about Social Security to better serve you and your clients.
Margy LaFond is Associate Commissioner for the Office of Communications Planning and Technology at the Social Security Administration.