Buying a home is always an intimidating and daunting task for any potential buyer. If a disability recipient can afford it, it will not affect their ability to receive Social Security Disability. SSI, however, has different rules and parameters.
Social Security Disability is a benefit for those who worked and paid into Social Security System over a prolonged period (generally) and earned 40 credits. You may be eligible to receive Social Security Disability if your spouse had paid into the system or you are the child of a parent who had paid. Social Security Disability can only be offset by worker’s compensation payments or state disability. A recipient of Social Security Disability can have a million dollars in the bank and own ten houses without it negatively impacting the claimant’s ability to receive the benefits. SSI is different.
SSI has an asset cap. SSI is for those who haven’t paid into the system. A recipient of SSI cannot have more than $2000 in assets ($3000 if married). Virtually everything counts as an asset. Money in the bank, life insurance, stocks, and bonds all count as assets. If a claimant’s assets exceed the allowable maximum, he or she will not be able to receive SSI.
It is important to note; however, there is an exception. Claimants who receive SSI are allowed to have one house and one car and still receive SSI. One house and one car will not be counted as assets. An issue arises when an SSI recipient exceeds the asset cap while trying to save for a down payment to buy a house.
Most SSI recipients who own a home obtained it before becoming disabled or inherit the house from a deceased relative. Bottom line: Those receiving Social Security Disability can purchase a house without issue. Those receiving SSI can buy a house but must be careful not to exceed the asset cap.
Cases that are denied often land in front of a judge when appealed. As I’ve said before, judges are human. They suffer from bad days, where they woke up on the wrong side of the bed. Conversely, they are sometimes susceptible to good days where everything seems grand. Generally, however, Judges have their personalities and tend to fall into one of a few categories. In this article, I will discuss the various categories judges tend to fall into and the traits aligned with each. I will discuss the landmines and the best ways to deal with the difficulties arising from each personality.
THE NEW JUDGE
With the recent increase in hiring, this specific kind of Judge is becoming very common. Like anyone who starts a new career, the new Judge tends to be very nervous and uncertain. They usually have a script and they adhere to it religiously. They have heard horror stories back in training of mistakes other judges made and been frightened into following policies with compulsion. Picture a baby calf learning to walk and being too scared to run.
The worst mistake is to be impatient or condescending to this new Judge. A wise man once said to me, “no one wants to look stupid.” This is all too true with new judges and is often their biggest fear. There can be a temptation to take over the courtroom in the name of efficiency. The new Judge will quickly become threatened and hostile. They are the ultimate authority and will lash out suddenly reminding you they are in charge. This will not serve the claimant well.
Instead, be patient. Let the Judge run the courtroom as he or she sees fit. If you have a suggestion, make sure your delivery is as respectful as possible. Proposals as to how the hearing should proceed should be stated in a manner that highlights the authority of the court and does not make the Judge’s knowledge appear deficient. Start by saying, “I know your honor already knows this….” or “I’m sure the court has already thought of this, but I’ll bring it up anyway.”
When leaving, make sure to compliment the court on the experience and tell them it was a pleasure to appear in front of them. Do everything you can to not leave on a negative note. If, however, the court’s conduct interferes with the ability to receive a fair hearing, then always do whatever is necessary to preserve a fair process.
The veteran is the Judge who has been hearing cases for decades. This Judge has figured out exactly how they want things to run and usually conducts Social Security Disability hearings with efficiency. This Judge will often be very laid back, but frequently will have their mind made up about the case before the claimant walks in the door. This can work for you, but it can also work against you.
If the Judge has made up their mind about the case before the attorney has said a word, it can be an uphill battle towards winning. The key is to know the sensitivities of each Judge. As previously discussed in prior articles, judges have their opinions about various conditions. If you have a case in front of a judge who isn’t sympathetic towards mental disorders, point to the items in the record about physical ailments to which that particular court is sympathetic. Dig into the file and focus on the issues that move the court hearing your case. To do this it is necessary to have an attorney who knows each Judge well.
The Veteran Judge also has a good memory. They know the attorneys they enjoy seeing, and they know the attorneys who aren’t as pleasant. In a close case, a good relationship with the court can be the difference between winning and losing your Social Security Disability or SSI case.
The academic Judge doesn’t want to hear sad stories or emotional struggles. This Judge wants nothing other than the law and the citations in the record that apply. Any attempt to pull on the academic’s heartstrings will be met with annoyance and disfavor.
The key to winning in front of this Judge is competence. They expect you to know the file by memory and appreciate deep legal reasoning. This Judge wants a concise, thoughtful, reasoned argument. They will often spar with you and challenge your theory, but this exercise will probably be for sport as this Judge like intellectual stimulation. If you can prove to be competent, this Judge will always be happy to see you, and the reward of respect will come with favorable decisions.
THE JUDGE WHO WANTS TO DO THE RIGHT THING
This Judge looks more to the spirit and purpose of the law of disability programs than the precise text of the regulations. In front of this court, the more profound stories of struggle and medical symptomology can weight heavily and guide the result.
If the claimant is sympathetic, it is incumbent on counsel to bring out the tales of daily struggles. The Judge should be made aware of the claimant’s difficulties doing simple things (buttoning a shirt, getting out of bed, showering). A comparison of the claimant’s current state should be made against his or her prior capabilities. The court should be made to see that a denial of social security disability benefits would be an injustice.
If the claimant is not sympathetic is can be necessary for counsel to become a surgeon with the law. “Your honor, I understand where the court is coming from, but in the end this is a court of law, and we must follow it” is a phrase I have said countless times. Counsel should seek to cut off all avenues leading to an unfavorable decision.
THE NOTHING TO LOSE JUDGE.
This is the Judge who denies almost everyone for every reason. In front of this Judge, it won’t matter what you say or what you do; the court’s mind is made up. In such a case, a positive relationship with the court will garner you nothing, but will only make it easier for the denial of benefits.
In front of such a court, cover every single base for appeal. Ask every question possible and cover every piece of law. If the court becomes agitated, it is of no consequence. At this point, counsel is no longer trying to persuade the “nothing to lose judge,” but rather the judges who will hear the next appeal.
The strategy of each case is wholly reliant on the court hearing it. The most critical decision a claimant will make is choosing an attorney who knows the courts and all the judges within.