Applying for disability with a cervical spine discectomy and fusion

I have been off work since October 21 2014 for cervical spine discectomy and fusion and I am receiving short term disability from my workplace, but I do not expect to be able to return to work since the surgery did not repair my problem.

Providing I am off the amount of time required by Disibilty Law, If I apply now will I have to terminate my employment before being approved? Thank You.

You can apply for disability at anytime after you stop working, or when your work provides income that is under the SGA limit.

According to the SSA definition of disability, you can work and file for disability, or even work and receive disability as long as their earnings are under the SGA limit. So, you see, it is about whether you are employed or unemployed. It is about whether your condition prevents you from working and earning at least a "substantial and gainful" amount.

Note: people sometimes mistakenly believe that they have to wait until they have been away from a job for one year before applying, but this is not the case. Social Security will evaluate a person's medical evidence to determine, or project, whether a person's condition will meet the duration requirement of one year as specified by the SSA disability definition. By the same token, however, SSA may also look at a claimant's records and determine that the condition will improve to less than disabling in that time and thus issue what is known as a durational denial.

If your impairment is not going to last that long (at least one full year), there would be no sense in filing for disability since there is a five month waiting period for which you are not paid benefits (it begins the month after the month you stopped working unless you stopped on the first of the month). The five month waiting period is similar to an elimination period for a private insurance plan. Essentially, it simply means that your first five months of benefits will be withheld by the Social Security Administration.

As was stated, you do not have to terminate your employment at anytime during the disability process; the rules just requires that you are not working and earning at least the SGA amount that we mentioned and which is linked above.

In most instances, cases are initially denied and because of this the Social Security Disability process may last months or even years if you have to use the Social Security Disability appeal process.

Additionally, it is not a sure thing that you will be approved even if you go through the entire process to an administrative law judge disability hearing (although the odds do favor claimants who go as far as the hearing level). You could still be denied and have to begin the process again if you are still not working. Also, please keep in mind the fact that Social Security Disability requires that you not only be disabled from performing your past work but that your limitations prevent you from doing any other job that you might otherwise be suited for.

I hope this answers your question and that your have the information you need to make your decision. Good luck.

About the Author: Tim Moore is a former Social Security Disability Examiner in North Carolina, has been interviewed by the NY Times and the LA Times on the disability system, and is an Accredited Disability Representative (ADR) in North Carolina. For assistance on a disability application or Appeal in NC, click here.

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