I really enjoy my work as a social security disability lawyer.  One of the many joys is getting to tell my clients that their claim for disability has been approved.  Relief.  Tears.  Joy.

But one thing I don’t like about my daily life is having to tell people that social security disability insurance benefits are not going to solve their immediate problem.  I imagine I have 2 or 3 of these difficult conversations every week.  Let me give you some examples (the identities and non-essential facts have been change to protect confidentiality):

  • Ernest had a stroke and had to leave his job as an auto mechanic in June of this year.  His employer had offered short-term and long-term disability benefits as part of a “cafeteria plan” but he reasoned he is healthy and did not take the disability benefits.  Ernest has no savings and he is the primary income source in his family.
  • Elaine called about her mother who left her job last month due to respiratory symptoms.  She has been diagnosed with COVID-19 and is now hospitalized and on a ventilator.  She is not improving and unlikely to survive.

For both Ernest and Elaine the need is immediate.  Ernest has no money to pay next month’s rent.  Elaine’s mother has worked all her life and is likely dying.  For both I bear the same disappointing news: social security disability insurance benefits are not going to address your immediate need.

Here are the reasons:

Social Security Disability Benefits Duration Requirement

In order to qualify for social security disability insurance benefits you must have a medical or mental condition that (i) keeps you from working for at least 12 months (ii) is expected to keep you from working for at least 12 months, or (iii) is expected to result in death.

5 Month Waiting Period

It has been said there are two things you don’t want to witness being made:  sausage and legislation.  In creating the social security disability insurance program Congress in its infinite wisdom, and in an effort to limit the costs of the SSDI program, created this “deductible”-like feature: no SSDI benefits are payable for the first 5 full calendar months of a disability.

The SSDI Application and Appeal Process is Lengthy

Even social security admits it takes 3-5 months for a decision on a social security disability claim.   In my experience in Texas it is more like 6 months.  In addition, most cases are denied on the first application, and most disability claimants can expect to take the appeal all the way to an administrative law judge hearing.  In which case the total wait is around 2 years.

So in how many heart-breaking ways do I get to tell Ernest and Elaine that the cavalry, in the form of social security disability benefits, is not coming:

  • Both Ernest and Elaine’s mother just left their jobs a few weeks ago.  They are within the 5-month waiting period.  Even if they were approved for social security disability insurance tomorrow no disability benefits would be payable.
  • In Ernest’s case, the social security administration often puts stroke-based claims on “medical bypass”:  they set the claim to the side to see if the claimant improves, because stroke victims – particularly if young – often dramatically improve and are able to return to work with a year.
  • In Elaine’s mother’s case, she sadly could secure social security disability benefits based upon a finding that she is terminal.  Unfortunately, social security disability usually wants to see a doctor’s statement that their patient is not expected to survive.  Securing such a statement in the context of the COVID-19 pandemic can be difficult:  hospital doctors are extremely pressed for time now, and they are often reluctant to speculate about a COVID-19 patient’s survivability.
  • If Elaine’s mother survives and leaves the hospital, she may recover enough with the 12 month duration period such that she can return to work.  Or she might be a so-called COVID-19 “long-hauler” and indeed be a candidate for social security disability insurance benefits if her COVID-19 symptoms keep her from being to work.

Most Americans do not have the ability to survive a few months without a paycheck, much less the year plus that it takes to get social security disability benefits.  For a person that has worked all their life, paid-in to the social security system, and who is now disabled, it is logical to assume social security disability should be available.

But what the public as a whole does not understand is that social security disability is available for long-term, chronic problems only.  The social security administration has done a poor job in informing the public about this fact.  Perhaps Americans would save more in their working years, or make sure they take disability benefits offered by employers, if they knew this sad reality about social security disability insurance.

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