Ask Bernie the Attorney
By Bernard A. Kansky, Esq.

2001 Bernard A. Kasky

The questions and answers set forth in this column are an expression and exchange of ideas of a general nature.  The interpretation of laws, rules, and regulations vary from time to time and are based on the particular facts of a specific set of circumstances at any given time.  The law is fluid and can and often does change from day to day.  If you have specific legal questions, it is essential that you consult with your own attorney or send a self-addressed, stamped envelope along with your telephone number to "Ask Bernie the Attorney" to the National CFIDS
Foundation.

Q. Recently I became totally disabled. I applied for Social Security Disability benefits and was told that I have only 18 quarters paid in and that I am 2 quarters shy of the 20 quarters required for coverage and insured status. Because of our household assets and my husband's income, unless I qualify for insured status, I will not be able to receive any Social Security Disability benefits. Is there anything I can do?

A. Yes there are several things which can be done. First, have Social Security mail to you a copy of all schedules upon which they rely to determine that you only have 18 quarters of coverage. Second, carefully examine the schedules and match them up with copies of your W-2
forms and if you have filed any, your self-employment income forms i.e. IRS 1040C and IRS 1040 SE for the full 10 years prior to initial onset date of disability. On the Social Security schedules, each year will be divided into quarters.  For the quarters covered, they will put a capital "C" to indicate covered and otherwise a capital "N" for not covered.  For example if in 1997, you earned $1,340, when a covered quarter required at least $670.of earnings, the Social Security schedule should display the following: "1997-CCNN." If there is a discrepancy between your W-2 and/or 1040SE form or forms for any year and the Social Security schedules, make photocopies of your forms and mail the photocopies to your local Social Security office by Certified Mail Return Receipt Requested along with an explanation of the discrepancy and a request that they correct their records and confirm the correction by reply mail. 

It is important to note that if in 1997 (by way of example) you only worked the first quarter of January, February and March, 1997, and at no other time during the year 1997---but in that first quarter, you earned at least $2,680. i.e. $670 per quarter coverage x 4, then even though you did not work from April through December, 1997, your Social Security schedule should reflect 4 quarters of coverage for 1997 as follows:    "1997-CCCC." 

Third, also check to see that Social Security has counted all earnings from every source. In addition to regular employment which provides you with a W-2 form, many individuals also engage in part-time employment which produces an additional W-2 form for the same year.  Therefore, if one W-2 form does not meet the criteria for a full 4 quarters in any one year, then the W-2 form from the part-time employment (or a Form 1040C and Form 1040SE from part-time, self-employment) in combination with the W-2 form from the regular full-time employment can be counted so that together you may be covered for all 4 quarters in any one applicable year. Also, if you worked for one employer for 11 months of the year and changed jobs effective the 12th month, be sure the W-2 form for the new job is also counted.

Fourth, remember that usual employer sick leave benefits are or should be included in calculating a correct W-2 form. If they have been inadvertently omitted, make sure your employer corrects same, files an amended W-2 form with IRS, with a copy to you and to your local Social Security office.  Therefore, if your last day at work was in December, 1996, but you received sick pay in 1997 which totaled at least $2,680., then you should be entitled to additional coverage for all 4 quarters of 1997 i.e. $670. in earnings or sick pay equals one quarter if received during the year 1997 and $670. X 4 = $2,680. The amount to satisfy a quarter generally increases each year. See chart below.(footnote 1)*

Fifth, If your last regular day at work was in December, 1996 and you were out sick and receiving sick leave for January, 1997 and then felt improved and attempted to return to work in February and March of 1997, even if with accommodations, but your symptoms flared and you were not able to work more than February and most of March, 1997, i.e. less than 3 months after onset date of total disability, this is called an unsuccessful work attempt (UWA) and you should receive credit toward your quarters covered without having to compromise your
initial onset date of total and permanent disability effective January, 1997. Therefore, if between your sick leave pay for January, 1997 and your earnings for your unsuccessful work attempt during February and March, 1997, your 1997 employment income was reported as totaling at least $2,680., ($670. x 4) even if you did not work after the UWA ending March, 1997, then Social Security should record 4 additional quarters for which you were covered for 1997. If you need these 4 quarters to qualify for insured status, speak to the Social Security representative to determine if he or she can lawfully justify and adjust your onset date from January, 1997 to the month after which you last engaged in UWA. In our example, the last month of the UWA was March, 1997.

Therefore, under this hypothetical, a new onset date of April, 1997, if lawful at the time and if approved by Social Security, might enable you to achieve additional quarters as may be needed to achieve insured status. Then as a result of having achieved insured status, you may
be able to receive the more comprehensive Social Security disability benefits provided by Title II and avoid the more restrictive, asset resource and household income limitations applicable to qualifying for the usual and substantially smaller Title XVI disability benefits.

Sixth, as with all rules and regulations, there are exceptions. If you are under 31 years of age, to qualify for insured status, you are only required to have worked and contributed for one-half of the time between age 21 and the age you became totally and permanently disabled. Therefore, if you became totally and "permanently" (12 consecutive months or more or if death in the near future is likely) disabled at age 28 and you worked for 3.5 years of the 7 years i.e. 28-21=7 divided by 2= 3.5 years, you would enjoy fully insured status. If you are the
totally and permanently disabled child of a wage earning recipient of Social Security benefits you may also qualify. Check with your Social Security office for other possibilities or mail your specific questions to "Ask Bernie The Attorney," to the NCF.


*(Footnote 1) Year and Earnings Needed For A Quarter Of Coverage In Each Year From 1978 Through 2000 :
1978-$250 1979-$260 1980-$290 1981-$310 1982-$340 1983-$370
1984-$390 1985-$420 1986-$440 1987-$460 1988-$470 1989-$500
1990-$520 1991-$540 1992-$570 1993-$590 1994-$620 1995-$630
1996-$640 1997-$670 1998-$700 1999-$740 2000-$780 2001-$830

The National CFIDS Foundation * 103 Aletha Rd, Needham Ma 02492 * (781) 449-3535 Fax (781) 449-8606