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Protecting Supplemental Security Income and
Medicaid Eligibility
December 6, 2012
Anthony J. DeLellis, Esq.
1565 Hotel Circle South, Ste. 370
San Diego, CA 92108
619-278-0900
www.delellis.com
ajd@delellis.com
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SOCIAL SECURITY DISABILITY
Disability:
The inability to engage in any substantial
gainful activity by reason of any medically
determinable physical or mental impairment
which can be expected to result in death or
which has lasted or can be expected to last for
a continuous period of not less than 12
months.
42 U.S.C. 423(d)(1)(A)
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Five Step Sequential Evaluation
1. The Claimant is not engaging in “substantial gainful
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3.
4.
5.
activity” (SGA); and
The Claimant has a “Severe” impairment; and
The impairment meets or “equals” one of the impairments
in the regulations known as the “Listing of Impairments”;
-orConsidering the Claimant’s “residual functional capacity”
(RFC), the Claimant is unable to do “past relevant work”;
-andOther work with the claimant’s RFC, considering age,
education and work experience, does not exist in the
national economy in significant numbers.
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Step 1: Substantial Gainful Activity
• Work must be both “substantial” and “gainful”.
• Gainful work for 2009 was $980 per month and $1000 per
month for 2010 and 2011 and $1010 for 2012. ($1,690 if
blind) Self Employed work is “gainful” if it is the kind of work
usually done for profit, regardless if there is a profit or loss.
• Substantial work means that the claimant is able to do the
ordinary tasks of the job without special assistance or the
claimant is of “little or no use” to the employer. This is
referred to as a “sheltered work environment”.
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Step 2: Severe Impairment
• This step is designed to weed out frivolous claims
involving no medically determinable impairment or
only a “slight” impairment that results in a “minor”
limitation on the ability to work.
• Medically determinable impairments are divided into
two categories:
1. Slight impairments that are referred to as “non-severe”
impairments and
2. All other impairments that are, therefore, “severe.”
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1. The regulations require that the impairment
must be continuously “severe.” This
precludes conditions that wax and wane or
have periods of remission followed by active
periods. However if the remission is for short
periods followed by active periods which
preclude SGA then the duration requirement
is met.
2. A claimant is not permitted to tack together
unrelated severe impairments to get to the
12 month requirement.
42 U.S.C. 423(d)(2)(a)
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Step 3: Listings of Impairments
• A Claimant will be found disabled if the medical
signs, findings and symptoms meet or “medically
equal” one of the disabilities found in the Listing of
Impairments.
• If meet or equals a listing, the Claimant will be found
disabled even if he/she is able to do past work or
hypothetically retains ability to do substantial gainful
activity.
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Step 4: Past Relevant Work
1. The Claimant has the burden of proving that he/she cannot
perform any of the work he/she performed in the past 15
years.
2. If can perform PRW, not disabled. The case may be a
winner at Step 5 but can’t get there if lose at Step 4.
3. The Past Work must have been performed at Substantial
Gainful Activity levels.
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4. Must have been performed long enough to learn that work.
Each job is defined in the Dictionary of Occupational Titles
and is given a specific SVP number from 1 to 8. Unskilled
jobs have an SVP of 1-2 and take 30 days to learn. Semi
Skilled jobs have an SVP of 3-4 and take 30 to 90 days to
learn. Skilled jobs have an SVP of 5-8 and require 6 months
to learn.
5. In evaluating a claim, look through the claimant’s work
history and determine which is the easiest job that they
performed. The burden is to show what medically
determinable impairments preclude him or her from
performing this work now.
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Step 5: Other Work Does Not Exist
If can’t do PRW, the issue at Step 5 is whether there are jobs that
exist in significant numbers that the Claimant has the Residual
Functional Capacity to perform.
Medical Vocational Guidelines, known as the GRIDS are used at
this step. The GRIDS take into consideration the claimant’s age,
education and past work experience. Using this information, a
finding of disabled or not disabled is directed.
Often a Claimant’s impairments do not fall into nice and neat
categories. If so, the ALJ needs to have a vocational expert who
can testify how the impairments erode the occupational base of
jobs which exist. For example, a claimant has a major depressive
disorder, bilateral carpel tunnel and a 10lb lifting limit. The Grids
don’t help but there are no jobs that exist in “significant numbers”
with this combination of impairments.
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Social Security Disability Insurance
• Medical Disability. Use the 5 step sequential evaluation.
• Must have worked for 20 Quarters out of the last 40
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Quarters. Must earn $1,120 to get credit for a quarter.
Earnings Requirement. Must have worked a minimum
numbers of 40 Quarters throughout life. This rule is
relaxed for younger claimants.
Retroactive benefits extend up to 1 year before the
application was filed.
Six (6) month waiting period. (Unless disability on the 1st
day of the month)
Medicare Health Insurance. SSDI waiting period plus 24.
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Additional Requirements for Supplemental
Security Income Claimants
• Medical Requirements. Use the 5 step sequential evaluation.
• Financial Requirements. Cannot have more than $2,000 in
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assets. $3,000 if married. Excludes a vehicle used to
transport to and from medical visits, household furniture and
furnishings and the principal residence.
Deeming. Considering a spouse’s income.
Must be a citizen. If non citizen, must be here legally since
prior to August of 1996 or here as a refugee or has political
asylum.
Retroactive benefits from the date of filing Application
Medi-Cal Health Insurance
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Medi-Cal Program Overview
• Medi-Cal is the California program for Medicaid and
provides health coverage to low income people that meet
minimum asset levels and are disabled.
• Medi-Cal will pay for “medically necessary” health care
including physician visits, X-Ray and lab tests, nursinghome care, home health care, prosthetics, medical
equipment and prescription drugs not covered by
Medicare Part D.
• Medi-Cal will pay for Medicare Part A and B deductibles
and copayments.
• Medi-Cal will pay for the monthly Medicare Part B
premium.
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Medi-Cal Qualifications
• Supplemental Security Income (SSI). If you qualify for
SSI you automatically qualify for full Medi-Cal coverage.
• Your monthly income must not exceed $830 for one or $1,407 for a
couple.
• Aged and Disabled Federal Poverty Level Program
• If 65 or disabled but not eligible for SSI can still qualify if income is
less than the federal poverty level of $1,161 for one or $1,571 for a
couple. Must still meet SSI resource limits.
• Medi-Cal with a Share of Costs
• If your income is higher than the Federal Poverty Level but you
meet the asset level requirements, eligible for Medical with an
SOC. Take your income and subtract $600 ($934/couple). This is
the monthly deductible.
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Medi-Cal Qualifications (Cont.)
• 250% California Working Disabled Program
• You must meet the requirements of the Social Security Disability
program for a “medical disability”.
• Your income is less than 250% of the federal poverty level which is
$2,328/$3153 per month, and
• You meet the SSI Resource Limits
May qualify to purchase Medi-Cal by paying a monthly premium
based on a sliding scale.
For more information or to apply on line: www.sdcounty.ca.gov
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Resolving Claims when your client is
receiving SSI Benefits or Medi-Cal Benefits.
• Utilizing the SPEND DOWN option
When an SSI/Medi-Cal recipient receives a lump sum settlement they
must either establish a special needs trust or do a spend down of the
funds. The failure to do so will terminate benefits for your client and/or a
disabled child. If the settlement is relatively small or there is a need for
the purchase of a high ticket item, the spend down option may be most
favorable.
The funds must be spent on exempt resources and the items purchased
must be used for the benefit of the beneficiary. The following is a list of
exempt expenditures:
 Purchase a home, pay off mortgage, pay rent for that
calendar month
 Modify a home to accommodate an individual’s disability
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Purchase an interest in child’s home if parent intends to
live there
Purchase home furnishings or appliances
Home repair and deferred maintenance including
landscaping
Medical expenses/bills not covered by Medi-Cal
Dental Expenses, eye glasses, physical therapy, support
services not covered by any benefit program
Education expenses including a computer, software, and
books
Entertainment/recreation expenses such as books,
movies, concerts and tickets
Vacation travel including airline tickets, bus and train
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 Attorney fees for estate planning and Medi-Cal planning
 Pay off unsecured debts such as credit cards and loans
with supporting documentation
 Pre-pay burial arrangements
 Personal hygiene (haircuts, manicures)
 Purchase an automobile, pay for registration and
insurance
 Purchase clothing
Practice Tips:
• Provide the settlement funds at the beginning of the
calendar month to give your client time to spend down
• Advise the client they must receive Fair Market Value for
each transaction. If not, there will be a period of
ineligibility from 1 month to 36 months.
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• Advise the client to maintain copies of all receipts
• If a home was purchased they must have their name on
the title
• If a vehicle was purchased they must have their name on
the certificate
• If auto insurance was purchased, they must be the loss
payee
• The spend down must be reported by the 10th day of the
following month. They will have to repay Social Security
for their SSI payment during the month(s) in which they
had excess resources.
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• Utilizing the SPECIAL NEEDS TRUST option
The SNT is an irrevocable trust that holds title to the
property or settlement for the benefit of the person who is
disabled. The SNT can be used to provide for the needs of
the disabled person to supplement SSI and Medi-Cal
benefits. The SNT can hold cash, personal property and
real estate and be the beneficiary of a life insurance policy.
The general rule is that a SNT pays for items other than
food and shelter. These items could be paid for but the
purchase of “in kind support and maintenance” and will
create a reduction up to $252.66 per month.
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Items that can be paid for by the SNT include:
• Furniture and furnishings
• Clothing
• Entertainment
• Education including books, tuition, tutors and supplies
• Computers and printers
• Cable T.V.
• Internet Services
• Household supplies and cleaning products
• Health care expenses not covered by Medi-Cal
• Medical supplies and equipment not covered by Medi-Cal
• Life and Health insurance premiums
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• Phone and mobile phones
• Vision and eyeglasses
• Dental
• Medical procedures even if not medically necessary
• Travel expenses
• Vacations
• Exercise and physical therapy equipment
• Tools used for home repairs
• Companionship