Disability Law FAQs

SSDI is an earned benefit that requires accumulating work credits and is based on the average earnings of the recipient. SSI is a need-based benefit that is available to people with limited income and resources, regardless of their work history. A person with a disability could get SSDI and SSI at the same time, although getting SSDI may result in a reduced SSI payment or prevent a claimant from getting SSI.

Yes, you can get workers’ compensation and SSDI at the same time if you meet the requirements of both programs. However, if you get both workers’ compensation and SSDI, the total amount of benefits cannot exceed 80 percent of your average current earnings before the onset of the disability. Any amount beyond 80 percent is deducted from the SSDI benefit.

You can potentially get unemployment benefits and SSDI at the same time. However, this can be challenging because unemployment benefits programs typically require that a claimant or recipient is actively looking for work, while SSDI requires that a claimant or recipient cannot perform substantial gainful activity. Government agencies reviewing each claim may doubt the credibility of a claimant who is also applying for the other type of benefits. You may want to talk to a lawyer if you think that you might be eligible for both types.

A drug problem will not necessarily prevent you from getting SSDI. The Social Security Administration will ask whether the drug use is causing or exacerbating your condition, and whether your condition would improve enough if you stopped using drugs so that you could return to work. If not, you may be able to receive benefits. Substance abuse is not itself a disability.

Yes, you can get SSDI for a mental illness if you are otherwise eligible. A section in the Social Security Administration’s Listing of Impairments describes mental disorders that can automatically make a claimant medically eligible for benefits. Even if their condition does not meet or equal an entry in this section, they still might be able to get SSDI if they cannot perform their past relevant work or adjust to other work.

You can potentially work part-time while receiving SSDI. However, a recipient generally will lose their benefits if they receive monthly income above the substantial gainful activity threshold. Exceptions may apply to people with disabilities who are involved in the Ticket to Work program or other work incentives offered by the Social Security Administration, or who are going through their Trial Work Period.

If your SSDI claim was denied, you can appeal the denial. Many claimants get benefits on appeal after an initial claim was denied. The Social Security Administration provides three layers of administrative appeals: a reconsideration, a hearing before an Administrative Law Judge, and review by the SSA Appeals Council. If you do not get benefits after going through these three stages of appeals, you can bring a case in federal court.

You have 60 days to appeal an SSDI denial after receiving the letter of denial. However, the Social Security Administration generally assumes that a claimant receives a letter within five days of the date on the letter, unless proven otherwise. This means that you likely have 65 days from the date on the letter to appeal. (In limited situations, a claimant may be able to appeal after this date if they can show good cause.)

Yes, you may be able to get retroactive SSDI benefits (known as back pay) for months in which you were eligible to get SSDI but had not yet been approved. However, the entitlement to benefits does not start until the sixth full month after the onset of the disability. A claimant thus would not be entitled to back pay for the first five months.

Most lawyers handle SSDI claims or appeals on a contingency fee basis. This means that you would not need to pay anything upfront. Your lawyer would collect a percentage of any benefits that you recover as their fee.

The first $65 of your wages each month will not count as income for SSI purposes, in addition to half of your wages beyond that amount. (The Social Security Administration also does not count the first $20 of total income that a person with a disability receives each month.)

A first-party special needs trust contains money or assets owned by the person with a disability, while a third-party special needs trust contains money or assets owned by someone else, such as a family member. Only the person with a disability or a parent, grandparent, guardian, or court can set up a first-party trust. Anyone other than the person with a disability can set up a third-party trust.

No, having a power of attorney does not automatically make you a representative payee for Social Security purposes. You will need to directly ask the Social Security Administration for approval, regardless of how close your relationship with the recipient is.

Benefits under your long-term disability benefits policy probably represent a percentage of your pre-disability income. A policy might pay out somewhere between 60 percent and 80 percent of that amount. The policy will provide how long these benefits will last, which may be a certain period of years or until the policyholder reaches a certain age.

Yes, you can potentially get long-term disability benefits for a partial disability. This likely would require getting a residual disability rider, which is an add-on feature to a base policy offered for an extra cost. Benefits under these riders generally are calculated based on the income loss caused by the partial disability and the benefit that the insurer would pay if the policyholder had a total disability.

The denial letter from your insurer should state the reason why your claim for long-term disability benefits was denied. Potential reasons for a denial include a lack of necessary information to make a decision, a failure to meet the definition of a disability under the policy, an insufficient duration of disability, or a disability caused by a condition not covered by the policy, among others.

The states that currently have short-term disability benefits programs are California, Hawaii, New Jersey, New York, and Rhode Island. However, even if a state does not offer one of these programs, an employee may get short-term disability benefits through their employer.

No, you cannot stop paying child support (or alimony) just because you have a disability, regardless of how serious it is. You will need to go to court and ask for a modification of your support payments. Failing to keep up with payments without a court order could result in serious penalties, such as a driver’s license suspension and even jail time in some cases.

The ADA covers employers with 15 or more employees. It protects employees and job applicants who have disabilities or a history of disabilities. The ADA also protects employees and job applicants who are regarded as having disabilities, or who have relationships or associations with people with disabilities.

Not necessarily. An employer may refuse to provide an accommodation to an employee with a disability only if it would create an undue hardship. A small expense is probably not an undue hardship, but a substantial expense could be. The size and resources of the business might play a role in deciding whether an accommodation would be an undue hardship.

Yes, you can have a service animal in your apartment even if the landlord has a no-pets policy. This is because a service animal is viewed as a type of medical equipment, rather than a “pet.”

Your landlord is probably not entitled to see your full medical records if you ask for an accommodation. However, unless your disability and need for an accommodation are obvious, your landlord probably has a right to access information that is essential to deciding whether the accommodation is necessary.

A public accommodation is any entity that owns, operates, or leases facilities open to the public. These include hotels, restaurants, stores, secular private schools, amusement parks, theaters, stadiums, health care facilities, homeless shelters, and transportation hubs, among others.

Your child is entitled to an Individualized Education Program (IEP) if they have one of the qualifying disabilities listed by the Individuals With Disabilities Education Act (IDEA), and their disability adversely affects their educational performance. If your child is not eligible for an IEP, they may be eligible for a “504 plan” under Section 504 of the Rehabilitation Act. This is less structured than an IEP but still can help a child with a disability participate in school and extracurricular activities.

Your child’s school is covered by Section 504 of the Rehabilitation Act if it receives federal funds. Even if your child’s school is not covered by Section 504, though, it may be covered by the ADA unless it is a religious school. This means that some protections for children with disabilities still would apply.

Yes, you can vote even though you have a mental disability. The ADA prohibits states from disqualifying otherwise eligible voters from registering to vote or voting because they have an intellectual or mental disability.

No, you do not have to vote absentee just because you have a disability. If you want to vote in person, you must be allowed to do so.