Disability Onset Date in Subsequent Applications

 Posted on March 14, 2010 in Social Security Disability

I recently read a very good article in the January edition of the National Organization of Social Security Claimants' Representatives (NOSSCR) Forum written by Peter Young that I think applies to many of my readers. The issue discussed in the article is when the alleged onset date should be in subsequent applications. In other words, if a claimant has been denied Social Security disability benefits previously and wishes to apply again, when should he or she allege disability. Since this is an issue that occurs over and over with my clients, I wanted to share most of the article with you below:

Question: What do you advise clients to allege as the alleged onset date in a subsequent application after an unfavorable determination? (A) Same as the previous application now on appeal? Or (B) The day after the unfavorable determination now on appeal?

Answer: As a basic rule, keep the "correct" onset date based on the medical facts. Stipulating to a later (and fictional) onset date can lead to exposure for you and harm to the client. We have all given in to an ALJ's pressure to amend the onset to a later date to obtain a partially favorable decision sooner, but review all potential side effects with your client and document your file.

(1) Impact on other benefits. Make sure the stipulation for a later onset does not harm the client's position in a companion claim for long term disability (LTD) or other disability benefits, e.g., union plans, worker's compensation.

(2) Worker's compensation reduction. Most workers have their best earnings in the years just prior to disability onset and benefit most from the "high one" calculation when facing a worker's compensation reduction. A delayed onset can move their best year of earnings beyond the reach of the calculation.

(3) Impact on PIA (benefit rate). Retroactive cash SSDI will be paid for the maximum 12 months where onset is fixed at least 17 months prior to the application date. However, a delayed onset stipulation can reduce the size of the retroactive lump sum and ongoing monthly benefits.

(4) Concurrent claims. When an ALJ is willing to pay an SSI claim, but wants a delayed onset after the date last insured in the companion Title II claim, accepting the later onset must never be accompanied by a stipulation to withdraw the Title II claim.

(5) Impact on COBRA eligibility. Qualified employees can keep their group health coverage beyond the usual 18-month COBRA extension for an additional 11 months, bridging the gap until the start of Medicare if: (a) disability onset is established by SSA as of a date that is no later than 60 days after the "COBRA qualifying event"-normally the end of employment, and (b) the Social Security determination is presented to the plan before the end of the original 18-month COBRA period. Consider requirement (a) before stipulating to a later date for disability onset.