The Elder Law Forum

The Elder Law Forum by Professor Michael Myers Editor's Note: The Elder Law Forum is a public service of the University of South Dakota School of Law, an extension of the SENIOR LEGAL HOTLINE available at no cost to persons 60 and older at 605-677-6343 and mmyers@usd.edu during regular business hours. The Elder Law Forum delivers information and educational material by radio, a weekly newspaper column, and Law School research papers placed on the USD School of Law Web site. Professor Myers teaches Elder Law at the School of Law.

Mental Illness Constitutes SSA Disability

Sioux Falls Attorney Barbara Flynn Dinsmore continues to serve in an area most lawyers have abandoned: helping the disabled secure Social Security benefits on a contingency fee basis.

"I obtain a great deal of satisfaction in helping these people," said Dinsmore. "Usually their backs are against the wall and they have nothing. If I get paid I get paid, if I don't I don't. I don't worry about it."

Apparently the Social Security Administration worries about it. It has restrained attorney fees to the point where today most applicants are turned down without the benefit of legal representation. It limits fees to 25 percent of retroactive monies owed to the beneficiary up to one year, if the appeal is successful. Most of the time the cost of representation exceeds the fees.

I called Dinsmore after receiving a Senior Legal Helpline call (1-800-747-1895; mmyers@usd.edu) from a woman who said, "I am calling on behalf of my sister. She has been diagnosed with a bipolar disorder that prevents her from working. She is in her mid-50s. Could she qualify for Social Security disability?"

Her sister's application had been rejected. "This is conjecture," I said, "but it appears that the Social Security Administration is denying most initial applications. It may be a reflection of the federal budget deficit."

"She should move to the second phase and ask for a reconsideration. And, I recommend she schedule an interview with Barbara Flynn Dinsmore."

Mental illness can form the basis of a bona fide disability within the context of Social Security disability, which is defined as the inability to engage in "substantial economic activity." The disability must be "severe," which may apply in the case of a woman who has been unable to hold down a job over the past several years.

However, Social Security benefits, whether based upon retirement or disability, are dependent upon an active work record during which FICA taxes are paid. If a person remains substantially outside the workforce for five years, eligibility is terminated.

Accordingly, a person struggling with a disability should be mindful of the five-year limitation. Delay can be costly. And legal representation of the type offered by Dinsmore could make a difference.

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