Military Service and Social Security Disability Claims

Military Service and Social Security Disability Claims
By Pitt Dickey

This column will examine the Social Security Administration's (SSA) policy in evaluating disability claimants who are involved in certain work therapy programs in the military. It is not unusual for a service member with serious health problems to be placed in "medical hold" while be processed for possible discharge from the military due to health problems. In medical hold the service member may be assigned very light or no duties to perform during the period he is being evaluated for a medical discharge from the military. 

The test for eligibility for SSA disability insurance benefits can be briefly summarized as follows: the claimant must have a condition that can be expected to last at least twelve months and the condition prevents the claimant from performing any type of full time work that exists in the national economy. The SSA uses a term called "substantial gainful activity" (SGA) to determine if the claimant has the ability to work 40 hours per week.  As a general rule, a claimant who is performing substantial gainful activity is not eligible for disability insurance benefits no matter how bad his health problems may be. Substantial gainful activity is defined as work that "involves doing significant physical or mental activities that is the kind of work generally done for pay." The SSA has issued a specific ruling (SSR 84-24) that controls the evaluation of SSA disability claims of service members who are involved in certain military work therapy programs as a result of severe health problems.

Normally substantial gainful activity is determined by the amount of income that a person is earning. The amount for SGA in 2002 was $740 per month. As a general rule this means that if a person was earning more than $740 per month in 2002 then by definition he was not disabled under SSA regulations. The amount of the SGA is adjusted upwards slightly each year based on inflation.

The SSA ruling essentially states that in the case of a service member who has a severe health impairment, that it is not appropriate to use the person's military pay as a guideline for determining if the person met the SGA test. The reason for this ruling is that a person on active duty in the military who is working in a therapy program can continue to receive his full military pay despite not performing regular military duties. The military can assign a member with severe health problems to a limited duty status while the member continues to receive his full military pay. If the test for SGA for active duty military were based solely upon receiving income instead of actually performing work, then the service member would always be deemed to be performing SGA as long as he was on military duty.
 
The SSA ruling makes it clear that the test for SGA for a military member is not based upon the amount of pay received by the member. The SSA evaluates whether the military member is performing SGA based upon nonmonetary SGA criteria to determine if the member is actually performing work activities which would constitute work in a civilian environment. Frequently a military member with serious health problems may be assigned to a military hospital with limited duties or be assigned to a health therapy program. The SSA will not automatically exclude the member from eligibility for SSA disability insurance benefits because he is continuing to draw military pay during his medical hold period.

The test the SSA uses to evaluate whether the military member is capable of performing SGA is done by comparing the "real value of the work effort within the military setting and then equate its value to similar work in a nonmilitary setting." The SSA will compare the work actually performed by the service member on medical hold with comparable work performed in the civilian world to determine if the service member's work would constitute SGA.

The Regulation states in some cases the SSA representative making the decision about the service member may be able to understand the job requirements being performed by the member in such jobs as clerk-typist, mechanic or other common type jobs. The SSA can also review military occupation manuals if there is no comparable job in the civilian community for the service member's assignment while on medical hold.

A veteran who is ultimately medically discharged from the military will typically go through a process of requesting VA disability benefits which can be quite time consuming. If the Veteran is ultimately awarded VA disability benefits, that is a factor that the Social Security Administration will consider when evaluating the veteran's Social Security disability claim. Although the U.S. Department of Veterans Affairs disability determination rating of 100% disabled is not binding on the Social Security Administration (20 CFR 404.1504) this determination by the Veterans Affairs is entitled to be given weight by the SSA since the VA decision is based upon an assessment of the claimant's overall ability to function as demonstrated by the totality of the VA medical record.

In a nutshell, a VA rating of 100% does not mean an automatic favorable decision by the Social Security Administration that the veteran is disabled for SSA purposes. However the SSA is required to give weight to the VA rating decision in making the determination about the veteran's pending SSA disability claim. In practice it is not uncommon for the SSA not to have a copy of the VA disability rating decision in the veteran's SSA claim file when evaluating his claim. It is very helpful to make sure that the VA disability rating decision is provided to the SSA in its decision making process.

Pitt Dickey has practiced law in Fayetteville since 1978. He has handled SSA disability claims for over twenty years.