Stephanie O. Joy, Esq.
The Vital Review of Concurrent Claims: SSI & SSDI
Updated: Jun 15, 2021
Myth: I shouldn’t file an SSI application for my client if his SSD amount, once received, will null it out.
Joy Disability’s SS Truth: Often not the case. If there is a chance it can result in ANY extra dollars in your client’s pocket, it is incumbent to properly consider. In addition, it can actually save his case if he has a remote DLI or one occurs before decision.
First, if an SSI claim is warranted based on current 'poverty' at the time of a Title 2 filing, I’d generally always encourage filing the SSI application. If it turns out that the AOD you used is a winner, you may just have bought your client 5 months of SSI for those 5 months of waiting period while he has no entitlement to SSDI benefits. Not only can he potentially land an additional $4000-ish, let’s face it, he’d appreciate it if that goes to your fee and his SSDI back benefits need not be used for that. But even if the SSI application is filed 2—4 months in, perhaps because he had more than $2000 in the bank until it was spend on survival, my guess is your client will prefer that extra $800, $1600, $2400 or $3200. That can pay off a credit card or two perhaps.
Why has this been a question? The theory by some to not bother with the concurrent filing is flawed, and goes like this:
· Client was allegedly disabled 5/1/2020.
· Attorney is now representing him, in 5/1/2021 and files T2 on that date.
· The Alleged Onset Date (AOD) of 5/1/2020 is asserted.
The attorney plans on winning with that AOD. So, his theory is that when he does win at some future date, say, in 12/2021 with the AOD of 5/1/2020, the 5-month waiting period would not provide for SSI benefits b/c the SSI application didn’t occur til 5/1/2021 and it never provides for back benefits. That is accurate. It is true that the SSDIB benefits will go back to circa 11/2020, b/c the first 5 full months of disability – June-Oct, 2020 are not payable. And because there was no pending SSI application back in that 5-month prior time period, the later-filed SSI application would not be able to pay for that prior period when he didn’t get SSDI. All true. However, he is making a pretty hefty presumptions I don’t think we should be making.
No Crystal Ball
Yes, if your “Plan A” to win your chosen AOD pans out, this is true that the SSI in the above situation would have gained nothing. But what if Plan A doesn’t happen? What if the evidence does not establish that as the determined onset date (DOD) as of 5/1/2020, but not until a later date. What if your AOD fails, as they sometimes, or often, do and different one, the DOD, is established?
Let’s say the SSA determined onset date (DOD) ends up being not your Plan A of 5/2020, but 8 months later, on 1/15/2021. The waiting period is then Feb-June 2021. The first T2 payment would be due for July 2021. If a concurrent SSI filing had been done when you filed the T2 in 5/1/2021, the client would get June’s SSI payment because he was still poor enough to meet the financial criteria for the SSI because he gets no SSDI for that month. That’s almost $800 for him.
Now, let’s say the SSA DOD was even later, 11/2021? Then the 5-month waiting period would be Dec, 2021-April, 2022. If SSI application HAD been filed on 5/2021, it covers this time period and therefore you client is eligible for 5 months of SSI or about $4000. If you decided that one form was too much work, you just lost your client $4000.
Remote DLI or future potential of a remote DLI
Another reason I think it important to file an SSI application if the financials suggest it could be so or could become so. Let’s imagine the case is very drawn out and the client’s DLI passes before decision. If the he decision maker decides there is not sufficient evidence to find disabled status before the end of the DLI, the case ends. Zip. However, if there were an SSI claim filed (even if denied due to financials at first, but duly appealed to keep it pending), the decision maker would be required to continue to look at subsequent evidence after DLI, for the SSI claim. Even if the evidence is not very different after the DLI, sometimes an age change alone will mean a finding of disabled – and SSI benefits, even though no SSD benefits. It prevents a claimant having to file all over again, this time for SSI, after losing his T2 due only to DLI.
Attorneys and Non-Attorney Representatives - If you have any additional reasons while it is vital to keep an eye on and/or file for SSI in addition to SSDI, feel free to post or email me and I will add - crediting YOU of course. Thanks in advance!