Letters to the Next President

I recently came across this letter on the Letters to the Next President site:

I would like to know about changes in social security-specifically disability. … I worked as an LPN for over 30 years. I started having back, neck and arthritic probelems, and after several years of pain I applie for social security disability. The process was long. It took approximately 2 years from the time I applied untill I was finally approved, and then receive a paycheck. If it had not been for my family helping me financially, I don’t know what I would have done. Isn’t there any way to speed up this process for other people who may desperately need money?

I wish I could say this was the exception, but as most of us know, long wait times are unfortunately the norm in Social Security cases.  

Send your Social Security stories to the president, or leave them in the comments.

Social Security benefits stop for fugitive felons

I previously wrote about how Social Security disability benefits stop during incarceration.

However, your Social Security disability benefits can also stop if you labeled a “Fugitive Felon.”

Fugitive felons is anyone who is

  • Fleeing to avoid prosecution for a crime which is a felony; or
  • Fleeing to avoid custody or confinement after conviction for a crime which is a felony; or
  • Individuals receiving Title XVI payments or Title II benefits who are violating a condition of probation or parole imposed under Federal or State law.

Read more at Social Security (link removed – Social Security took down the page).

Celiac Disease

Bob Kraft’s PISSD is one of my favorite disability blogs.  Bob recently wrote an article about Celiac Disease awareness:

Celiac disease is a hereditary allergy to gluten. In its worst forms it can be crippling. But more and more doctors are becoming aware of this disease and making proper diagnosis of it in their patients. Until only a few years ago, the symptoms frequently went undiagnosed.

Correction: while the exact cause of Celiac disease is not known, it is often considered an auto-immune disorder (not an allergy).

Having helped suffers of Celiac Disease with their Social Security cases in Colorado, I have seen first hand the impact of this condition and the difficulty trying to get Social Security to accept that it is disabling.

Here is an introduction to Celiac Disease and its symptoms:

Did you know there is a celiac group (Happy Celiacs) on YouTube.  If you need support or recipes, take a look.

What kind of experiences have you had with Celiacs? Have you found any great sources of support?  Tell me in the comments.

Social Security Rulings – an inside look at Social Security’s thought process

Gordon Gates has a great post tackling Social Security Rulings and how they can be used in a Social Security disability case:

Social Security Rulings are policy interpretations issued by the SSA. Social Security Rulings are binding on all components of the SSA, and are to be relied upon as precedents when adjudicating other cases. See 20 CFR 402.35(b)(1).

The value of the Rulings is that they explain how Social Security is supposed to interpret and apply its own regulations.  

These are especially useful when you are writing an appeal and disagree with the Judge on a point of law. If you have a Ruling on your side showing that your interpretation is correct, you are much closer to winning your appeal. Continue reading Social Security Rulings – an inside look at Social Security’s thought process

Social Security hearings in jail or prison

The second part of Gordon Gates’ article on whether you can receive Social Security disability benefits while incarcerated, talks about hearings in prison.  

The problem – incarcerated claimants often do not get treatment from physicians who are very interested in filling out forms or helping the prisonor/claimant. Further, judges tend to be somewhat skeptical about the credibility of an imprisoned claimant.

I have done hearings in prisons and I agree with his concerns.  

It is much harder to prove a case for someone who is incarcerated. Continue reading Social Security hearings in jail or prison

Does a felony conviction prevent you from getting disability benefits / SSI?

I saw this question in the comments on Jonathan Ginsberg’s site, Social Security Disability Blog:

I would like to know if a convicted felon, who is not incarcerated, can receive Title 16 SSI disability?

This is a great wrinkle on our current discussion on the effect of incarceration on Social Security disability benefits, including SSI.  I encourage anyone interested in this topic to bookmark this link and check back as I will be adding articles to the subject in the days and weeks to come.

As a Social Security lawyer in Colorado, I have worked with a number of individuals with felonies and helped them get their Social Security benefits including Title 16 SSI benefits.

I am not aware of any circumstance where the fact of a prior felony prevents someone from receiving Social Security disability benefits as a result of the charge being a felony rather than a misdemeanor.

Keep in mind that we are talking about a past conviction. You cannot receive Social Security  benefits while you are incarcerated.

There may be some circumstances which would change this, but I cannot think of one.  So, “yes,” you can get SSI benefits even if you have been convicted of a felony in the past. However, you still have to qualify for SSI and there has to be no other problem that might keep you from getting benefits.

Can you receive Social Security while in jail / prison?

Jonathan Ginsberg of the Social Security Disability Blog writes about what happens to your Social Security benefits if you are in jail/prison.

I recently received an email question from a blog reader about the eligibility of a convicted felon for Social Security disability benefits.  There is a simple answer here – you may not collect disability benefits during the time you are incarceratedSocial Security ruling 83-28 addresses this situation directly.

Via May an Incarcerated Felon Receive Social Security Disability Benefits?.

SSR 83-28 notes that Congress intended to deny prisoners Social Security disability benefits during incarceration because, “prisoners … do not need a continuing source of income because their basic needs are already furnished at public expense.”

This seems pretty cut and dried.  However, the more I look at this issue, the more I wonder if benefits can be paid to an incarcerated individual while incarcerated, but before a conviction, or while incarcerated for a misdemeanor.

The Social Security regulation on this topic 20 CFR 404.468 states:

(a) General. No monthly benefits will be paid to any individual for any month any part of which the individual is confined in a jail, prison, or other penal institution or correctional facility for conviction of a felony. This rule applies to disability benefits (§404.315) and child’s benefits based on disability (§404.350) effective with benefits payable for months beginning on or after October 1, 1980. For all other monthly benefits, this rule is effective with benefits payable for months beginning on or after May 1, 1983. However, it applies only to the prisoner; benefit payments to any other person who is entitled on the basis of the prisoner’s wages and self-employment income are payable as though the prisoner were receiving benefits.

(b) Felonious offenses. An offense will be considered a felony if-
(1) It is a felony under applicable law: or
(2) In a jurisdiction which does not classify any crime as a felony, it is an offense punishable by death or imprisonment for a term exceeding one year.

(c) Confinement. In general, a jail, prison, or other penal institution or correctional facility is a facility which is under the control and jurisdiction of the agency in charge of the penal system or in which convicted criminals can be incarcerated. Confinement in such a facility continues as long as the individual is under a sentence of confinement and has not been released due to parole or pardon. An individual is considered confined even though he or she is temporarily or intermittently outside of that facility (e.g., on work release, attending school, or hospitalized).

(d) Vocational rehabilitation exception. The nonpayment provision of paragraph (a) of this section does not apply if a prisoner who is entitled to benefits on the basis of disability is actively and satisfactorily participating in a rehabilitation program which has been specifically approved for the individual by court of law. In addition, the Commissioner must determine that the program is expected to result in the individual being able to do substantial gainful activity upon release and within a reasonable time. No benefits will be paid to the prisoner for any month prior to the approval of the program.

In summary, this regulation says:

  1. A disabled individual’s Disability Insurance benefits are stopped while incarcerated for a felony conviction.
  2. Benefits remain stopped during intermittent release such as work release, school or hospitalization.
  3. Auxiliary benefits (benefits to spouse or children) continue during the incarceration.
  4. Benefits can continue during parole.

But what about benefits during incarceration, but prior to conviction for a felony?

What if the conviction is for a misdemeanor?

20 CFR 404.468 only stops SSDI benefits for a felony conviction.  This suggests that benefits could possibly continue before the conviction (despite incarceration) or if the conviction is only for a misdemeanor.

So, does SSR 83-28 trump 20 CFR 404.468 and stop benefits in these instances?

Here is another interesting wrinkle: 20 CFR 416.1339 deals with suspension of Supplemental Security Income (SSI) benefits (note: not SSDI benefits) for fugitive felons:

(a) Basis for suspension. An individual is ineligible for SSI benefits for any month during which he or she is—

1) Fleeing to avoid prosecution for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which the individual flees (or which, in the case of the State of New Jersey, is a high misdemeanor under the laws of that State); or

2) Fleeing to avoid custody or confinement after conviction for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which the individual flees (or which, in the case of the State of New Jersey, is a high misdemeanor under the laws of that State); or

2) Violating a condition of probation or parole imposed under Federal or State law.

Basically, your SSI benefits are stopped while avoiding arrest for a felony warrant (before conviction) or for a felony conviction, or while violating probation or parole.

Do your benefits stop and return between arrest and conviction?

How about this fact pattern: let’s say you pick up a felony charge on January 1. You are arrested on February 1. And you are convicted on March 1.

Does this mean your benefits stop between January 1 – January 31 for fleeing to avoid prosecution for a felony crime? It looks that way.

Once you are in custody, do your benefits resume between February 1 – February 28 because 1) you are no longer fleeing, and 2) even though you are in custody, you have not been convicted of a felony?

Finally, are benefits stopped at all, regardless of conviction or incarceration, if the charge/conviction is for a misdemeanor?

Updated 09/10/10: The general rule of thumb is that an individual is not eligible to receive Social Security disability benefits (SSDI or SSI) during incarceration. It does not matter if the conviction is for a misdemeanor or a felony.

However, when benefits stop differs depending on whether you are receiving SSDI or SSI. As a result, individuals may receive Social Security benefits for a short time after incarceration. Click here for more information.

Social Security Announces Benefit Increase for 2009

Social Security benefits will be going up in 2009.

Monthly Social Security and Supplemental Security Income benefits for more than 55 million Americans will increase 5.8 percent in 2009, the Social Security Administration announced today.  The 5.8 percent increase is the largest since 1982.

Social Security Announces Benefit Increase for 2009.