D.How Other Disability Payments May Affect Social Security Benefits

or illness or to the workers’ dependents if

the worker is killed. Workers’ comp, as it

is known, may be paid by a government

workers’ compensation agency, an employer,

or an insurance company on behalf of

employers. In most states, employers are

required to participate in workers’ compen­

sation insurance programs.

No state’s workers’ comp program covers

all jobs; however, many of the states cover

most jobs. Some states cover only work

considered dangerous; others cover only

employers with a minimum number of

employees. Coverage varies for agricultural

workers and domestic workers, meaning

people who work in private homes doing

work such as cleaning, babysitting,

and cooking. All laws include some or

all diseases attributable to the worker’s

occupation. Most states exclude coverage for

injuries due to the employee’s intoxication,

willful misconduct, or gross negligence.

Other public disability payments that

may affect your Social Security benefits are

those paid under a federal, state, or local

government plan that covers conditions

that are not job related. Examples are civil

service disability benefits, military disability

benefits, state temporary disability benefits,

and state or local government retirement

benefits based on disability.



SEE AN EXPERT

Workers’ compensation and public

disability benefit cases can be legally complex



CHAPTER 2  |  APPLYING FOR DISABILITY BENEFITS  |  77



and vary between states, especially when

combined with Social Security disability benefits.

If you might be eligible for both, consider using

the services of an attorney experienced in the

interaction of Social Security disability and

other programs to make sure you obtain all the

benefits you are entitled to.



a. How Much Your Disability

Benefits May Be Reduced



Your Social Security disability benefit will

be reduced so that the combined amount

of your Social Security benefit plus your

workers’ compensation and public disability

payment does not exceed 80% of your

average current earnings. But the SSA

should deduct legal, medical (including

future medical expenses paid by workers’

compensation), and rehabilitation expenses

from a workers’ compensation award before

reducing your Social Security disability

benefit.

To calculate your SSDI disability benefit,

first the SSA will calculate your average

current earnings. (All earnings covered by

Social Security, including amounts above

the maximum taxable by Social Security,

can be used when figuring average current

earnings.)

Average current earnings are the highest

of the following:

• the average monthly earnings the SSA

used to figure your Social Security

disability benefit



78  |  NOLO’S GUIDE TO SOCIAL SECURITY DISABILITY



• your average monthly earnings from

any work you did covered by Social

Security during the five highest years

in a row after 1950, or

• your average monthly earnings from

work during the year you became

disabled or in the highest year of

earnings you had during the five-year

period just before you became disabled.

The SSA uses your average earnings

and a complex formula to calculate your

disability benefit. Then, your monthly

disability benefit, including any benefits

payable to your family members, is added to

your workers’ compensation or other public

disability payment. If this sum exceeds

80% of your average current earnings, the

excess amount is deducted from your Social

Security benefit. But, the amount of the

combined benefits will never be less than

the total Social Security benefits before they

were reduced. The reduction will last until

the month you reach age 65 or the month

your workers’ compensation and/or other

public disability payment stops, whichever

comes first.

Some states offset (reduce) their worker’s

compensation benefits to account for SSDI,

rather than the other way around. Social

Security will not reduce an SSDI payment

when the state is already offsetting its

worker’s compensation payment.

b. Reporting Other Benefits to the SSA



You must notify the SSA if any of the

following occurs:



• The amount of your workers’

compensation or public disability

payment changes. This may affect

the amount of your Social Security

benefits.

• Your workers’ compensation or public

disability payment ends. If your

workers’ compensation or public

disability payment stops, your Social

Security benefit may increase.

• You receive a lump sum disability

payment. If you get a lump sum

workers’ compensation or other

disability payment to settle your claim,

your Social Security benefits may be

reduced.



2. Railroad Retirement Act and

Social Security Disability

The Railroad Retirement Act (RRA) sets up

a system of benefits for railroad employees

and their dependents and survivors. The

RRA works with the Social Security Act

to provide disability (as well as retirement,

survivor, and dependent) benefits payable on

the basis of a person’s work in the railroad

industry and in work covered by the Social

Security Act.

An important distinction is made

between railroad workers who have

worked less than ten years and those who

have worked ten years or more. The RRA

transfers to the Social Security system the

compensation records of people who, at

the onset of disability, have less than ten







CHAPTER 2  |  APPLYING FOR DISABILITY BENEFITS  |  79



years of work in the railroad industry. This

compensation is considered wages under the

Social Security Act.

The wages of those with ten or more years

of work generally remain under the RRA.

The distinction has primary importance

when you seek survivor’s benefits based on

the death of the insured railroad worker,

and so the details are not covered here. But

if it might apply to you, be aware of the

distinction and ask your local SSA office for

more information.



3. Black Lung Benefits and

Social Security Disability

Black lung benefits are payments to coal

miners—and their survivors—who become

disabled from a lung disease known as

pneumoconiosis as a result of breathing fine

dust-like particles of coal while working

in the mines. The Federal Coal Mine

Health and Safety Act of 1969 assigned

initial responsibility for processing black

lung benefit claims to the SSA. The Labor

Department (DOL) assumed eventual

responsibility.

For many years, the SSA handled some

aspects of the black lung program for the

DOL, such as taking initial applications

and deciding black lung benefit appeals.

However, as of March 30, 2012, the SSA no

longer has any responsibility or involvement

in the black lung program. If you want to

apply for black lung benefits, appeal denial



of benefits, or have any questions about that

program, you will need to contact the DOL.



4. What Payments Do Not Affect Your

Social Security Disability Benefits?

The SSA does not count certain types of

payments in considering whether to reduce

your disability check. These include:

• Veterans Administration (VA) benefits

• federal benefits, if the work you did

to earn them was covered by Social

Security

• state and local government benefits,

if the work you did to earn them was

covered by Social Security

• private pensions or insurance benefits,

and

• Supplemental Security Income (SSI)

payments.



E. Availability and Disclosure

of Confidential Records

Several laws and regulations govern access

to and disclosure of confidential informa­

tion and official records entrusted to the

SSA, the DDS, and other nonfederal

entities or individuals.



1. Your Medical Records

Under the Privacy Act, you or your author­

ized representative have the right to examine

federal government records pertaining to you.



80  |  NOLO’S GUIDE TO SOCIAL SECURITY DISABILITY



(Public Law 93-579; 5 U.S.C. § 552a; 20

CFR §§ 401.30–401.200.) Your authorized

representative is someone you appoint in

writing to pursue your rights under the Social

Security Act. You can name any responsible

person, including a family member, as your

authorized representative.

This right means that you can request to

see the medical and other evidence used to

evaluate your application for SSDI or SSI

benefits. Make this request in writing to

the SSA Field Office handling your claim

(see below for more details on the SSA

procedure for releasing records). Medical

records include:

• records kept by physicians or other

health professionals

• records derived from reports by

physicians or other health professionals

• medical evaluations and

determinations on Social Security

forms, including rationales and

diagnoses, and

• records created by laypeople relevant

to your claim (such as statements by

witnesses who saw epileptic seizures or

signs of mental impairment).

This law concerns your own requests

to see your medical records. You cannot

directly access your child’s medical records.

Instead, you must name a physician or

another health professional (excluding

family members) to receive the records as a

designated representative.



The SSA will release your records to you

as long as the SSA doesn’t think they will

have an adverse effect on you. According

to the SSA, such an adverse effect is an

effect likely to occur if direct access by an

individual to his or her medical records is

expected to:

• disrupt a doctor-patient relationship

• interfere with the patient’s medical

management, or

• negatively affect the patient in some

other way.

Here are some of the SSA’s own examples

of adverse effect.

EXAMPLE 1: You have been diagnosed as



diabetic. The medical record indicates a

good prognosis with treatment involving

medication, diet, weight control, and

exercise. An adverse effect is not likely and

the SSA is likely to release the records.

EXAMPLE 2: You have a severe heart

impairment. The doctor has noted in the

medical record that your knowing the

severity of your condition could cause

complications. An adverse effect is likely and

the SSA is not likely to release the records.



EXAMPLE 3: A doctor has included very

candid remarks in the report that might

incite you to threaten the doctor. An

adverse effect is likely and the SSA is not

likely to release the records.