When you are receiving Long Term Disability (“LTD”) benefits, you are normally required by your LTD insurer to apply for Social Security Disability Insurance (“SSDI”). Your LTD carrier will normally provide you with an option of using a legal representative that they hire. The representative is not always an attorney. Normally it is a national company, and you may never actually have an attorney work on your claim. It is rare that you meet anyone in person from the company that the LTD carrier hires unless you have to attend an Administrative Law Judge hearing. The LTD company will try to entice you to use the firm that they hire with a suggestion that this is a free benefit of your LTD policy.
Most people do not realize that there is a clause in their LTD policy that indicates that if you are approved for SSDI, your LTD benefits will be reduced. Your LTD benefits are normally reduced by almost the entire amount of your SSDI (there is a normally a clause in your LTD policy that states that you will receive a minimum monthly amount of $50-$100, even if your SSDI is greater than your LTD benefit). This is why you are required to apply for SSDI if you are approved for LTD benefits. If you are approved for SSDI, your LTD company will issue an overpayment and require you to repay any amount that you receive in SSDI for the same month that your received LTD benefits.
Most individuals that are approved for LTD benefits sign a form acknowledging that they are being paid at their full LTD rate, but informing them they will be responsible for repaying a SSDI offset if they are eventually approved for SSDI. Once you are approved for SSDI, the LTD company will request a copy of your SSDI Notice of Award, and will compute how much you should have received on a monthly basis in LTD payments if you had received your SSDI payments when they were actually due. You must repay the difference between what you should have been paid by the LTD company and what you were actually paid.
It is important to remember that you do not have to use the legal representative offered by your LTD company. You can hire your own attorney to help you with your SSDI application. I normally recommend that individuals contact their LTD carrier prior to hiring their own attorney. It is important that you receive a written statement from your LTD carrier indicating that if you are approved for SSDI, you will receive a credit for the attorney fee before the LTD overpayment is assessed. If you receive a credit for the SSDI attorney fee, you end up having the assistance of a private attorney for free.
Reasons why you should consider obtaining your own attorney.
- The attorney will work directly for you. They will not represent the interest of your LTD company in any direct way. They will not share information with your LTD company without your authorization.
- You get to choose someone that you are comfortable with. Most of the legal representatives used by LTD carriers are national companies. You normally work with a non-attorney during the SSDI process, and you cannot visit a local office of the person representing you. If you choose your legal representative, you can make sure that you are actually working with an attorney.
- If your LTD benefits are terminated, you may also lose the legal representative that your LTD company hired. The legal representative provided by the LTD company may have a primary responsibility to your LTD company and not to you. If you are no longer eligible for LTD benefits, your LTD company may not have an interest in continuing to pay for your legal representation for your SSDI application.
- National legal representatives do not have local knowledge. The companies used by LTD carriers may not be familiar with the nuances of the local Social Security offices and the Administrative Law Judges in your area. Since they do not represent a large number of individuals in your area, they do not approach your claim with the same unique knowledge that a local attorney has.
- You support your local community. A local attorney normally lives in the same community as you. The local attorney pays local taxes, and uses the money that they earn to help other local businesses prosper. By obtaining a local attorney, you help your own community, and you help the local attorney stay in business so that they can also be available to assist friends and family members with similar issues.
Why it is important to pursue SSDI while obtaining LTD benefits.
Although you are required to apply for SSDI based on your LTD policy that is not the only reason that you should pursue SSDI. There are several other advantages for you if you are approved for SSDI.
- You may be eligible for SSDI longer. Most LTD policies define you disabled for up to 24 months if you are unable to perform the duties of your past work, or if you are unable to work because of a mental illness. After 24 months, you are normally only entitled to continue to receive LTD payments if you have a physical condition that prevents you from performing any full-time work. If you are under the age of 50, you will only be approved for SSDI if you are able to establish that you are unable to perform all full-time work. However, you are entitled to continue to receive SSDI with no time limit even if you are found disabled and remain unable to work solely because of mental illness.
- Medicare Coverage. If you are approved for Social Security Disability, you also become eligible for Medicare after you receive SSDI for 24 months. The only way that you can receive Medicare before the age of 65, is if you are found disabled by the Social Security Administration and receive SSDI.
- SSDI is not reviewed as often. Once you are approved for SSDI, normally the Social Security Administration only reviews your SSDI eligibility every 3-5 years (sometimes longer). Depending on your condition, it is common for LTD companies to review your eligibility as frequently as every few months. I have represented many individuals that have lost their eligibility for LTD benefits while a SSDI claim was still being decided. Since the Social Security Administration reviews claims so infrequently, it is likely that you will remain eligible for SSDI longer than LTD.
- To remain eligible for SSDI coverage. SSDI has a recent work requirement in order to qualify for benefits. You have to have worked in 5 out of the last 10 years prior to becoming disabled in order to qualify for SSDI. If you wait to apply for SSDI for an extended period after you stop working, not only are you potentially losing past-due benefits from SSDI ( you can only receive past-due SSDI payments for a maximum of 12 months prior to your application date), but you also risk losing your SSDI insured status. That means that you may not ever be able to submit a new application for SSDI if you are denied on the first claim you file.
- You protect your Social Security earnings record. If you fail to apply for SSDI and you are unable to work for several years, each of those years will show up with no earnings in your Social Security Statement. This can cause your retirement benefits to be reduced. However if you are approved for SSDI, any year that you are disabled, a “disability freeze” is placed on your Social Security record. In other words, the Social Security Administration will remove any years that you disabled from your earnings statement, and your Social Security Retirement benefit amount will not continue to be reduced for every year that you are not working.
Keep your SSDI attorney advised of any changes in your LTD Benefits
If you are pursuing both LTD and SSDI, it is important to notify your attorney if you are also applying for LTD and if you approved for LTD. It is important to remember that even if you are awarded SSDI, the majority of money that you are awarded in past-due benefits will have to be paid back your LTD company. Your should provide copies of any forms that your doctors complete for your LTD company, to your SSDI attorney. A knowledgeable SSDI Attorney can help advise you of any other issues that you may encounter as you pursue both SSDI and LTD payments, and can provide you with instructions on what to do if you are approved for SSDI and you also received LTD payments.
This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.
Steven has been with the firm since 2003.He has helped over 1,000 clients with Social Security Disability claims, and has represented individuals in several hundred Social Security hearings.
In addition to his legal practice, Steven is avid fan of the Philadelphia Eagles.He is also a runner and enjoys participating in local sports clubs.