How Does The Social Security Administration Define a Disability?

For a person to be receiving either SSI or SSDI, there must first be a determination of disability by the Social Security Administration (SSA).  The beneficiary of a self-settled special needs trust must be disabled. A third party special needs trust could be established with the anticipation that the beneficiary may become disabled in the future.  On occasion a Self-Settled Special Needs Trust is established in anticipate of a determination of disability by SSA.

• Definition. The definition of disability for Special Needs Trusts is the same definition contained in the Social Security Act for determining eligibility for SSI or SSD. The Act provides:

[A]n individual shall be considered to be disabled for purposes of this subchapter if he is unable 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 twelve months. The impairment must be so severe that the claimant is unable to do his or her previous work or any other “substantial gainful activity” which exists in the national economy.[1]

Substantial gainful activity (SGA) is the ability to earn $940 per month in the workplace effective January 2008 if disabled or $1570 per month if blind. [2] This is indexed for inflation. In the future, SGA will be determined by the ratio of the national average wage index for the previous two years, comparing that amount to the current SGA level and taking the greater of the two.

• Under Age 18. A child under the age of 18 is considered disabled if the child has a medically determinable physical or mental impairment that results in “marked and severe functional limitations.”[3]
• Over Age 65. It is possible for a person over age 65 to be determined to be disabled. Generally, if a person is receiving Social Security retirement income, this replaces income from SSD or SSI. However, full retirement age is being phased in so that it gradually increases from age 65 to 67, so it is possible that someone over age 65 will not be eligible for full retirement benefits. In addition, under the Balanced Budget Act of 1997, certain qualified aliens are entitled to benefits if they are disabled or blind. Some of these qualified aliens are not eligible for Social Security retirement or have paid in so little that the retirement benefit would be less than the SSI benefit. It is also possible that U.S. citizens who have little work history may be entitled to SSI, because the Social Security retirement benefit is less than the SSI payment.

Generally, the regulations and procedures for determining disability for adults under age 65 are used in determining whether an individual age 65 or older is disabled. If a person age 72 or older has a medically-determinable impairment, that impairment will be considered “severe.” Generally, adjudicators use the rules for individuals age 60-64 when determining whether an individual age 65 or older can adjust to other work.[4]

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[1] Id. at  §1382c(a)(3)(A) and (B).
[2] 72 Fed. Reg. 60703 (Oct. 25, 2007).
[3] 42 U.S.C. §1382c(a)(3)(C).
[4] SSR03-3p (Nov. 10, 2003).