Join Maser, Amundson & Boggio attorney Randy Boggio in his interview with lawyer Ed Olson of Disability Attorneys of Minnesota as they dive into the many different aspects of social security. Ed has over 30 years of legal experience, specializing in social security disability. Throughout the interview, Ed discusses social security disability law, particularly the benefits and who can receive them. To find out more on this topic and to ensure you don’t fall victim to the loopholes in the system, watch the video or read the transcription below.

Randy: Hello, I am Randy Boggio, and I am a shareholder at Maser, Amundson & Boggio. I’ve been practicing for about 38 years, and my two main areas of practice are Elder Law and Special and Supplemental Needs Trusts. In those two areas, we come across questions on a daily basis regarding Social Security benefits. We are okay on the basics but when it gets too complicated, we call in our friend Ed Olsen to help out. Ed’s been a friendly colleague for a number of years. So, Ed, why don’t you tell us a little bit about yourself and practice.

Ed: Thank you Randy! My name is Ed Olson. I am with Disability Attorneys of Minnesota; I have been practicing for about 30 years now, concentrating in the area of Social Security disability. So, I represent people claiming Social Security disability benefits.

Randy: Good. And that’s really the focus of your practice, correct?

Ed: Correct.

Randy: Alright. Ed, what I’ve done is I’ve put together a few questions here, and the questions are really crafted with how our practices overlap — the kind of questions that we have for you and kind of questions that our clients have when dealing with the possibility of applying for or losing your Social Security benefits. So our first question is: “Is it possible for a child who is under the age of 18 to receive Social Security benefits? If so, what type of benefits is the child looking at and how do they qualify for those benefits?”

Ed: Okay, so, Randy, let me start at the very beginning. Social Security administers two different types of disability  benefit programs: The Supplemental Security Income program and the Disability Insurance Benefit  program. Both of these programs have the same basic medical requirements: an individual has to have a medical impairment that causes more than a minimal effect on their ability to engage in work activity, and it’s lasted for at least 12 months. But the programs have significantly different non-medical requirements, and I’m going to start with Supplemental Security income because that one is a little easier to explain.

Supplemental Security income is a need-based  benefit; it is means tested. So, if an individual has assets or income, they can be disqualified from Supplemental security income — regardless of their medical condition. Now, a child or an adult can be eligible for Supplemental Security income. I’ll tell you what the interesting thing about this is that the standard for children to meet for SSI is actually a little more difficult than the standard for an adult, okay? Childhood SSI cases are difficult to prove.

Now, the other benefit is disability insurance benefits, and the most important non-medical requirement for disability insurance benefits is the individual that is applying has to have worked enough to pay into the system to be covered. As the name implies, it is like an insurance program. That FICA tax you see coming out of your paycheck every two weeks is, in effect, paying the premium on a long-term disability policy.

Now, generally, children under the age of 18 haven’t worked enough to be insured for the disability insurance benefit program. But if they have a parent who is disabled or deceased, they —  a child under the age of 18 — may be eligible for benefits based on that parent’s earnings record. Children under the age of 18 can qualify for Supplemental Security income based on their own medical problems.

Randy: If we are looking at qualifying a child for assets SSI, Supplemental Security Income, and they meet the definition of a disabled individual, do we also have to look at what the parents’ income is in order to determine if they qualify?

Ed: Yes, that is the non-medical requirement. The parents’ assets are examined to see if they have too much, and if they do, then the child will be disqualified from supplemental security income based on the parents income or assets. That’s what social security calls deeming. They deem the assets of the parents to the child. Now, should that situation occur, that’s where somebody like Randy comes in to help those parents structure their assets so that the child might qualify for SSI. 

Randy: So really for SSI, no matter how extreme the disability is for the child, if their parents are making a certain amount of income or have a certain amount of assets, that child is not going to qualify for SSI?

Ed: Correct, they will be disqualified based on the non-medical requirements.

Randy: Okay. And for individuals that are over the age of 18, but under retirement age, under what circumstances would an individual qualify and receive social security benefits?

Ed: Okay, so the basic definition – the way social security goes about determining eligibility for disability benefits… The first thing they ask is if an individual is working. If an individual is working and making a certain amount of money (this year, that is $1,310 or more per month) (and that is gross, not net, before taxes) you are disqualified from benefits regardless of your medical condition. That pertains to disability insurance benefits. You have to show that the individual claiming benefits has the medical impairment that has lasted, or is expected to last, 12 months or more resolved in an early death, and causes more than a minimal impact on the ability to engage in work activities. 

In other words, if you get a hangnail, sprained thumb, or bump on the foot, that is probably not going to meet the durational or severity requirements. Social security has developed what they call their listings of impairments. A colleague of mine used to describe the listings  as a cook book, it’s got certain criteria, or ingredients, and if you have one of those listed conditions, and you have all of the ingredients, you’ll meet the other criteria, social security will find that you are disabled and entitled to benefits. A brief example, if you have, say a bulging disk in your back, and we can show on x-ray that the disk is impinging a  nerve, and because of that you have experienced muscle atrophy in one of your legs, with reflex loss and loss of strength, then you will be entitled to benefits. You will have met the criteria in the listings. If you don’t meet the criteria in the listings, that doesn’t mean you lose. That means we keep moving. 

At this point, the social security administration tries to determine the individual’s residual functional capacity, and what that means is “what can the person still do despite the limitations of their impairments?”. Once the residual functional capacity is determined, then social security will match that up against the requirements of the work the individual has been doing. And if the individual can show that, because of their residual functional capacity, they cannot perform the work they were doing before, then we move to the next step… If that residual functional capacity would allow for the performance of past work, then the inquiry is stopped and the individual is found to not be disabled. So, let’s move on, we get the residual functional capacity – the persons restricted to lifting 10lbs occasionally and cannot be on their feet for more than a couple of hours out of an 8 hour day, and the work they were performing was heavy construction work – so obviously these limitations keeps them from being able to do their construction work – does that mean they’re entitled to disability benefits? Not yet! We now have to find if that person is not capable of performing any other work that exists in significant numbers in the national economy.

If an individual can do sedentary work, they are not going to be disabled. However, one of the few things social security has done right in their disability determination process is that they realize that as we grow older, our ability to adapt to different types of work situations decreases. We cannot teach an old dog new tricks. So, the rules change once an individual reaches 50, and then again once an individual reaches age 55. As we get older, it becomes easier to meet the standard of finding a disability. 

Randy: So, if somebody is applying for social security benefits in this age group, do they have to show that they do not have very many assets or sources of income?

Ed: Okay, that’s a good question. For supplemental security income to be eligible for SSI, yes. You would have to show that you meet the non-medical requirements, or that you do not have disqualifying assets or income. Now for disability insurance benefits it’s a completely different story. You could have millions of dollars of assets, millions of dollars of income, as long as that income is passive – it is not from work, you could still be eligible for disability insurance benefits.

Randy: Looking at the disability insurance, it is, as you described, more of an entitlement program. You are really paying the premium on the insurance.

Ed: Correct.

Randy: If you get to a certain point, now you can be eligible if you meet the medical disability and with the supplemental security income, that’s needs-based (you still have to meet the medical requirements). But then, they are going to ask you how much you have in the bank, etc.

Ed: Of course.

Randy: Got it. Are there situations where, say an individual is on SSI and then a parent dies or retires, will their benefits change at that point?

Ed: Yes. That situation can occur. Randy, the social security administration – it’s almost like Dante’s Inferno – when you go to the social security administration you are abandoning reason and  all logic. They used to have, the way they named the benefit program before made more sense to me. It was called the Disabled Adult Child Benefit. It is now called Child’s Insurance Benefits. The former made more sense to me. Say, we have an individual who is on Supplemental Security Income, beginning at age 21, and they have been collecting their SSI for 15, 20, 25 years. Then, a parent who was insured for disability  benefits passes. Now this individual can collect benefits based on the parent’s income, and this becomes a disability insurance benefit. So, now there are no  restrictions on assets. There are no restrictions on income – well there are some, but they don’t have those. The key here is that we have someone who became disabled before the age of 22, has never engaged in what social security defines as substantial gainful activity after age 22, and has not been married. 

Randy: Wow. So, as these benefits are all set forth and you set forth the process for receiving them – what is the process if a person applies for benefits, but is denied by the social security administration? Do they just have to give up, or is there a process you can summarize for us that a person would go through? And then, as a side note, how can an attorney like yourself fit in?

Ed: Sure, oh boy is there a process, you better believe it. An individual who is denied social security disability benefits has appeal rights. The process is very structured. An individual makes an application for benefits. If that application is denied, the social security administration has to send the person a denial notice. It will say “notice of disapproved claim”, and that is the same whether it’s for supplemental security income, or disability insurance benefits, or child’s insurance benefits, or all 3 of them – you get a notice that says “notice of disapproved claim”. 

The individual has 60 days from the date of the notice to make an appeal. There are several ways to appeal. They can do it online if they are computer savvy. They can call the social security administration toll free number. Or really the best way, is to call a competent, qualified attorney and have them help you with the appeal. That’s the best way. Social security has several levels of appeal. There is a request for reconsideration which is the first one. 

Then, there is the administrative law judge hearing, which is the step in the process where an individual stands the greatest chance of being successful in their claim for benefits. That administrative law judge hearing level is also the step in the process where a competent attorney can be of the most assistance. The reason it is important to have competent representation at that administrative lodgedge hearing, is because with each successive appeal after that, your appeal rights are restricted. If things are not done properly at the hearing and if the record is not properly made and protected, that will make it very difficult to be successful at any appeal stage after that administrative hearing. 

Randy: Is there a general percentage of denials on applications? Is there a number where you can say, “well, out of all the applications filed, 30% are denied at the first application, or is that not really…?”

Ed: Yes, that’s every year social security publishes statistics and they call it, The Waterfall Chart. Here is the thing, over the last 10-15 years, these statistics have been fairly consistent. At the initial stage for the application, roughly ⅔ of all applications across the country for all ages, and all types of benefits, are denied. 

Randy: Wow.

Ed:  When you file a request for reconsideration, roughly 9 out of 10 requests for reconsideration are denied. I know that the obvious question is, “Why do I even do that? Why don’t I just request the hearing from the administrative law judge?”. Well, you can’t. It’s the process that you have to go through. The one good thing about that request for reconsideration is that it does not take very long.  From the time you file the appeal until you get a determination, I have gotten some in 2-3 weeks. It doesn’t take long. 

Randy: Wow, it doesn’t take long for them to say no. They are efficient at it.

Ed: Right.

Randy: I think that’s all the time we have today. We may do this again at some other point, and maybe pick one of the benefit areas or situations and go into it in more detail. I really appreciate your time today in going through this. I am hoping that it’s helpful for people that are watching the video, or reading it, to at least help them start off in the right direction, or have a general understanding of social security benefits. 

Ed: Randy, thank you for having me, and if you decide to do it again I would be happy to participate. 

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