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Social Security Disability Q&A


What geographical areas does Mr. Lutkenhaus represent?
What are Social Security Disability Benefits?
What are some Examples of Disabilities?
Social Security Disability v. SSI: What’s the Difference
What is the Earliest Age you can Receive Disability?
Who Qualifies?
What if I Qualify for Disability?
How Much Money will I Receive if I Qualify?
Can my Monthly Benefit Increase if my Disabilities Worsen?
Will my Worker’s Comp Affect my Disability Benefits?
How long will I be able to Receive Benefits?
When should I Apply?
How do I Apply?
What if I am Denied?
Do I Need an Attorney?
When should I Contact an Attorney?
What would my Attorney do to Represent Me?
How Much does it Cost to Hire an Attorney?
How Do I Calculate My Disability Benefit?


WHAT GEOGRAPHICAL AREAS DOES MR. LUTKENHAUS REPRESENT?

I represent claimants with Social Security Disability hearings at the Office of Hearings Operations (OHO) in Richmond, Charlottesville, and Norfolk; video hearings at SSA Farmville and SSA Newport News; and I represent disabled workers with active SS Disability claim denials at the following SSA Field Offices:

OHO Richmond
services the following
SSA Field Offices:
OHO Charlottesville
services the following
SSA Field Offices:
OHO Norfolk
services the following
SSA Field Offices:
SSA Farmville*
SSA Fredericksburg
SSA Midlothian (Chesterfield)
SSA Petersburg
SSA Richmond (Downtown)
SSA Sandston (East Richmond)
SSA Charlottesville
SSA Culpeper
SSA Harrisonburg
SSA Staunton
SSA Hampton
SSA Newport News*
SSA Norfolk
SSA Portsmouth
SSA Suffolk
SSA Virginia Beach

Your SSA field office is based on the zip code of your residence address. If you move, notify SSA of your new address immediately. If your SSA Field office is Richmond (Downtown), Midlothian (Chesterfield), Sandston (East Richmond), Petersburg, or Fredericksburg, your hearing will most likely be at OHO Richmond. If your SSA field office is Charlottesville, Culpeper, Harrisonburg, or Staunton, your hearing will most likely be at OHO Charlottesville. *If your field office is SSA Farmville, your hearing will most likely be at SSA Farmville. If your SSA Field Office is Hampton, Norfolk, Portsmouth, Suffolk, or Virginia Beach, your hearing will most likely be at OHO Norfolk. *If your field office is SSA Newport News, your Disability Hearing will most likely be at SSA Newport News. If you don’t see your SSA Field Office listed above, please call us to see if we can represent you or refer you to another attorney closer to you.

Find your local SSA Field Office: www.ssa.gov/locator

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WHAT ARE SOCIAL SECURITY DISABILITY BENEFITS?

Social Security Disability is a benefit received from the Social Security Administration by disabled workers and in some cases their dependents, similar to those received by retired workers.

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WHAT ARE SOME EXAMPLES OF DISABILITIES?

Anxiety
Arthritis
Asbestosis
Asthma
Back/Neck Pain
Blindness
Cancer
Carpal Tunnel
Chronic Fatigue
Chronic Regional Pain Syndrome
Depression
Diabetes
Emphysema/COPD
Epilepsy/Seizures
Fibromyalgia
Hepatitis C
Herniated Disc
High Blood Pressure/Hypertension
Hip/Knee Replacement
HIV/AIDS

Joint Pain

Leukemia
Lupus
Mental Retardation
Migraine Headaches
Multiple Sclerosis
Stroke

Complete Social Security Disability Impairment Listing:
www.socialsecurity.gov/disability/professionals/bluebook/AdultListings.htm.

The Listing of Impairments describes the criteria to evaluate disability for each major body system. However, the absence of a listing-level impairment does not necessarily mean the individual is not disabled. Rather, it merely requires the adjudicator to move on to the next step of the process and apply other rules in order to resolve the issue of disability.

165 Compassionate Allowances that may get you immediate disability:
www.ssa.gov/compassionateallowances/conditions.htm.

Compassionate Allowances (CALs) are a way to quickly identify diseases and other medical conditions that, by definition, meet SSA’s standards for disability benefits. These conditions primarily include certain cancers and adult brain disorders. The CAL initiative helps SSA reduce waiting time to reach a disability determination for individuals with the most serious disabilities.

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SOCIAL SECURITY DISABILITY V. SSI: WHAT’S THE DIFFERENCE?

Both programs are administered by the Social Security Administration (SSA). The medical criteria is the same, but the non-medical requirements are different. Social Security Disability Insurance (SSDI) is an earned benefit based on the worker’s “work quarters” or “work credits.” Whereas SSI is a form of welfare, so the claimant must meet the low household income/resources limit.

Social Security Disability Insurance (SSDI, DIB, or Title II) is a program financed with Social Security taxes paid by workers, employers, and self-employed persons. SSDI benefits are payable to disabled workers, disabled widow(er)’s, and adult children disabled before age 22. Auxiliary benefits may be payable to a worker’s dependents as well. SSDI benefits begin 5 full calendar months after the date SSA finds you disabled but no more than 1 year before the date of application. The monthly SSDI benefit payment is based on the Social Security earnings of the insured worker on whose Social Security number the SSDI claim is filed. The SSDI benefit is equal to what the worker would get at Full Retirement age. After twenty-four (24) months of receiving SSDI benefits, you are entitled to Medicare. Medicare Part A Hospital Insurance is free. Medicare Part B Medical Insurance premiums are deducted from your benefits (at $135.50 per month for 2019) 1 month in advance, unless you complete and return the opt-out card. Medical Part D Prescription Drug Plan is optional.

Supplemental Security Income (SSI, Title XVI, or Title 16) is a welfare type program financed through general tax revenues. You can be eligible for SSI even if you have never worked or never paid taxes under FICA. SSI benefits are payable to disabled adults and disabled children who do not have over $2,000.00 in total countable resources, income, and assets. If your spouse works, some of your spouse’s income can de deemed to you and reduce your disqualify you for SSI. No Auxiliary benefits are paid with SSI. The federal maximum SSI benefit amount for an eligible individual is $771.00 per month for 2019. Some states supplement SSI payments, but Virginia does not. If someone else is providing you free shelter/food, there is a one-third (1/3) deduction of SSI benefits. If eligible, SSI begins 1 full calendar month after the date SSA finds you disabled but not earlier than the date of application. If you receive SSI, you are eligible for Medicaid. You can apply for Medicaid with your local Department Social Services office.

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WHAT IS THE EARLIEST AGE THAT A PERSON CAN RECEIVE SOCIAL SECURITY DISABILITY BENEFITS?

There is no minimum age for Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) benefits.

However, to qualify for SSDI benefits, you must have worked long enough and recently enough under Social Security. You can earn up to a maximum of four (4) work credits per year. The amount of earnings required to earn one credit increases each year. The number of work credits you need for SSDI depends on your age when you became disabled. Generally you need a total of forty (40) credits with twenty (20) credits earned in the last ten (10) years ending with the year you became disabled. However, some younger workers, depending on their age, may qualify with fewer credits.

For Adult Child Disability benefits, the claimant must be found disabled by SSA before age 22.

For Widow(er)’s Disability, the disabled widow(er) must be at least 50 years old. But a disabled widow(er) at ANY age can receive Widow(er)’s Disability if the widow(er) is caring for the deceased’s child who is under age 16 or disabled and receiving benefits on their record.

There is a maximum age, which is Full Retirement age. A claimant cannot apply for Disability once he/she reaches Full Retirement age. This is because SSDI benefits are equal to Full Retirement benefits and you can’t get both. So Full Retirement is the maximum benefit you can receive. If you are on SSDI and reach Full Retirement age, then your SSDI benefit will automatically change to Full Retirement, but the benefit amount will stay the same.

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WHO QUALIFIES?

To receive benefits under the Social Security Disability program, you must have a physical or mental health problem (or a combination of problems) severe enough to keep you from working in any regular paying job for at least one year or result in death. The test isn’t whether or not you are able to go back to your old job, and the test isn’t whether or not you have been able to find a job lately. Rather, the test is whether you are capable of doing any job available in the national economy (even if this job involves different skills or pays less than your previous work.) By using an extensive set of regulations, the Social Security Administration takes into account your medical condition, your age, your abilities, your training and your work experience in deciding your case.

The Five Step Evaluation that Social Security uses to determine if you are disabled is as follows:

  1. Are you working?  If you are working and earning more than the current Substantial Gainful Activity (SGA) amount, you generally cannot be considered disabled.  For 2018, the SGA is $1,180 per month for non-blind individuals, and $1,970 per month for blind individuals.
  2. Is your condition severe?  Your impairment must be expected to last at least 12 consecutive months or result in death, and interfere with basic work-related activities.
  3. Is your condition found in the list of disabling impairments?  Social Security maintains a list of impairments for each of the major body systems that are so severe they automatically mean you are disabled.  If your condition is not on this list, Social Security has to decide if it is of equal severity to an impairment on this list.  If it is, your claim is approved. If it is not, Social Security goes on to the next step.
  4. Can you do the work you did previously?  Does your condition prevent you from doing any work that you did in the last fifteen (15) years.  If it does not, your claim will be denied.  If it does, your claim will be considered further.
  5. Can you do any other type of work available in the national economy?  Social Security considers your age, education, past work experience, and transferable skills against the job demands of occupations as determined by the Department of Labor.  If you cannot do any other kind of work, your claim will be approved.  If you can, your claim will be denied.

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WHAT IF I QUALIFY FOR SOCIAL SECURITY DISABILITY BENEFITS?

If you are found eligible for Social Security Disability Insurance (SSDI), benefits will start 5 full calendar months after the date SSA finds you disabled but no more than 1 year before the date of application. After 2 years of receiving SSDI, you are automatically eligible for Medicare. Medicare Part A Hospital Insurance is free. Medicare Part B Medical Insurance premiums are deducted from your benefits (at $135.50 per month for 2019) 1 month in advance, unless you complete and return the opt-out card. Medical Part D Prescription Drug Plan is optional.

If you are found eligible for Supplemental Security Income (SSI), benefits will start 1 full calendar month after the date SSA finds you disabled but no more earlier than the date of application. However, any month you do not meet SSA’s low household income/resources financial criteria, you will not receive SSI benefits. If eligible for SSI, you can apply for Medicaid with your local Department of Social Services.

If you are found eligible for both SSDI and SSI, then you will typically receive the higher benefit (usually SSDI) for any overlapping period.

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HOW MUCH MONEY WILL I RECEIVE IF I QUALIFY FOR SOCIAL SECURITY DISABILITY BENEFITS?

A disabled claimant will receive the same monthly benefit that he would receive had he retired at full retirement age (65 years old or more depending on year of birth). The sum of money received will depend on one’s previous work record.

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CAN MY MONTHLY BENEFIT INCREASE IF MY DISABILITIES WORSEN?

No. Your Social Security Disability Insurance (SSDI) benefit is based on the amount of your lifetime earnings prior to your disability and not the degree of your disability. Your Supplemental Security Income (SSI) benefit is based on the current federal maximum ($771.00 per month for 2019) plus any state supplement (Virginia does not supplement SSI).

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WILL MY WORKERS’ COMPENSATION PAYMENTS AND OTHER DISABILITY PAYMENTS AFFECT MY SOCIAL SECURITY DISABILITY?

Ordinarily, disability payments from other sources do not affect your Social Security Disability benefits.

However, your and your family’s Social Security benefits may be reduced if the disability payment that you receive is Workers’ Compensation or another public disability payment (such as some civil service disability benefits, some military disability benefits, or some Federal/State/Local government retirement benefits based on disability).

If you receive workers’ compensation for the same period as Social Security Disability, your SS Disability benefit will be reduced so that the combined amount of the SS Disability benefit you and your family receive plus your Workers’ Compensation payment and/or public disability payment does not exceed 80% of your average current earnings.

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HOW LONG WILL I BE ABLE TO RECEIVE SOCIAL SECURITY DISABILITY BENEFITS?

Your benefits will not run out. You will receive Social Security Disability Insurance (SSDI) benefits as long as you remain disabled and unable sustain substantial gainful employment. You will receive Supplemental Security Income (SSI) benefits as long as you remain disabled AND you do not exceed $2,000.00 in total countable resources. Excluding the first $20 of monthly income, there is a dollar for dollar reduction of SSI for any monthly income you receive.

However, SSA can perform a Continuing Disability Review (CDR) on previously approved SSDI/SSI case to see if you are still disabled under their rules. The Hearing Decision and/or Award Notice might recommend a CDR within a certain number of years. If you are under age 55 and SSA expects you to improve, the CDR is usually done about every 3 years. If you are over 55 and less likely to improve, the CDR is usually done about every 5 to 7 years. The CDR is not necessary once you reach Full Retirement age. SSA will send you a letter before they start the CDR. If SSA finds you still disabled under their rules, your benefits will continue. If SSA finds you no longer disabled under their rules, your benefits will be cutoff. If you are cutoff by a CDR cessation decision, to request your benefits continue during the appeal process, you must file the following three forms within 10 days of receiving the cessation decision (any decision is presumed received within 5 days of the date of the decision unless you can prove otherwise):

  1. SSA-795, Benefit Continuation Election Statement (form not available online, ask SSA 1-800-722-1213 for form); AND
  2. Request for Reconsideration appeal (either form 789 or 561 below):
    1. SSA-789-U4 Request for Reconsideration – Disability Cessation – if you were cutoff because SSA found you are no longer disabled because your medical condition improved; OR
    2. SSA 561-U2 Request for Reconsideration – if you were cutoff due to non-disability issues, like you worked over Substantial Gainful Activity (SGA), etc; AND
  3. SSA-3441-BK Disability Report – Appeal

However, if you lose your cessation appeal, SSA will ask you to repay these benefits. If you miss the 10-day deadline to continue benefits, you should still appeal the cessation decision within the standard 60-day deadline to keep your claim going. If you miss the 60-day deadline, you must provide “Good Cause” to submit a late appeal (see POMS GN 03101.020, HALLEX I-2-0-60, and §404.911). If you do not have Good Cause for late appeal, then you can file a new application for Disability benefits if you still have enough work quarters/credits to apply for SSDI. If your benefits were stopped because SSA alleged your medical condition has improved AND you appealed correctly, you can get an in-person hearing with a Disability Hearing Officer (DHO) at Disability Determination Services (DDS) even at the Reconsideration stage.

If your Request for Reconsideration of the cessation decision is denied, then you have 10 days to file the SSA-795 Benefit Continuation Election Statement and SSA-3441 Disability Report (both forms per above) and form HA-501-U5 Request for Hearing to keep your benefits going while waiting for a hearing (even if you did not elect continuing benefits with your Request for Reconsideration). If you miss the 10-day deadline, your benefits will not continue while waiting for a hearing but you should still file the Request for Hearing appeal within the standard 60-day deadline to appeal the decision to keep your claim going.

In addition to CDRs, SSI recipients can also be subject to SSI Re-Determinations to review the beneficiary’s income, assets, resources, living arrangements, marital status, etc. Because SSI is basically welfare disability, any time a beneficiary’s total countable resources exceed $2,000, the benefit will be cutoff. Re-Determinations are usually done every one to six years OR whenever there is a change in income, living arrangement, or marital status, etc.

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WHEN SHOULD I APPLY FOR SOCIAL SECURITY DISABILITY BENEFITS?

You should apply for Social Security Disability/SSI benefits as soon as possible after you become disabled and unable to sustain gainful employment (unable to work). You do NOT need to wait 12 months to apply, your disability need only be expected to last for at least 12 consecutive months without improvement despite compliance with regular medical care (or will result in death).

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HOW DO I APPLY FOR SOCIAL SECURITY DISABILITY/SSI BENEFITS?

You can fill out an application for Social Security Disability/SSI benefits online at https://www.ssa.gov/benefits/disability/, by calling 1-800-772-1213, or at the local SSA office nearest to your residence.

Information you need to complete the application for Disability/SSI benefits:

  1. Birth and Citizenship – permanent resident card number if you are not a US Citizen
  2. Marriage and Divorce – name of current spouse, prior spouse if married over 10 years or ended in death, spouse’s date of birth and SSN, start and end date of marriages, place of marriages
  3. Names and Birth Dates of Children who became disabled before age 22, OR are under age 18 and unmarried, OR are age 18 to 19 and still attending high school full-time
  4. US Military Service – type of duty and branch, service period dates
  5. Employer details for last 3 years – employer name, start and end dates, total earnings
  6. Direct Deposit – account type and number, bank routing number
  7. Alternate Contact – name, address, and phone of someone SSA can contact who knows about your medical conditions and can help with your claim
  8. List of your Medical Conditions
  9. Doctors, Healthcare Professions, Hospitals, and Clinics – name, address, phone, patient ID (optional); dates of examinations and treatments, dates of medical tests; names of prescription and non-prescription medications, reason for taking them, who prescribed them, and any side effects
  10. Information about medical records from other places – like vocational rehab services, workers compensation, public welfare, prison/jail, attorney/lawyer, etc.
  11. Job History – date your medical condition began to affect your ability to work, jobs you had in the past 15 years before you became unable to work due to your medical condition, dates you worked at these jobs, duties performed
  12. Education and Training – highest grade in school you completed and date you completed it; name of special job training, trade school, or vocational school and date completed; special education school name, city, state, and date completed

File copies of any medical records you already have (can be filed separately from application if needed, keep the originals for yourself). Please note, however, that you should not delay filing for benefits if all documents are not immediately available. Print out a copy of your application and confirmation that SSA received it. SSA should mail you an Application Summary a couple weeks after you filed.

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WHAT IF I AM DENIED BENEFITS?

Appeal within 60 days! Many disabled people become disheartened and frustrated after they receive a disability benefits denial notice and do not appeal. This is often a mistake. Nationally, about 75% of all applicants are denied initially and about 90% are denied at the first appeal stage–Reconsideration. But many of these people ultimately receive their benefits, nationally about 70%.

What may be most frustrating about applying for Social Security Disability benefits is the process itself.  Those who apply are often made to feel like they are asking for something that they do not deserve, and nothing could be further from the truth. Social Security Disability is not a welfare program; these benefits are paid for by you and were intended to act as a financial buffer in case you or a family member became seriously ill or injured.  Therefore if you are unable to work, but you have been denied benefits, you should appeal.

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DO I NEED AN ATTORNEY?

You have the right to have an Attorney represent you in your Social Security Disability case. Statistics have shown that claimants represented by Attorneys have been much more successful than claimants without representation. You should seriously consider the advantages of having a Lawyer who specializes in Social Security Disability/SSI represent you.

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WHEN SHOULD I CONTACT AN ATTORNEY?

Contact a Social Security Disability attorney as soon as your initial application for Social Security Disability/SSI is denied. An Attorney will then be able to start assisting you in determining if you are disabled as defined by the Social Security Act. You will then be able to decide whether or not you want to pursue the first appeal stage–Reconsideration; and your Attorney can begin developing ways to prove to SSA that you are disabled.

Attorneys in Social Security Disability cases do much more than sit in at a hearing and ask a few questions. Much pre-hearing preparation, analysis, and evidence gathering go into adequate representation for your case. For this reason you should not wait until a week or two before your hearing to contact an Attorney. The earlier an Attorney is able to start working on your case, the better your chances of winning.

Please note that not all Attorneys practice before the Social Security Administration. You will do best to find an Attorney familiar with the complex Social Security Disability regulations and the somewhat unusual Social Security Disability procedures.

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WHAT WOULD MY ATTORNEY DO TO REPRESENT ME IN MY SOCIAL SECURITY DISABILITY CASE?
Every case is different.  Your Attorney’s role depends on the particular facts of your case. However, a few of the things an Attorney may do are:

  • Analyze your case under Social Security Regulations
  • File Request for Reconsideration appeal and Request for Hearing appeal
  • Gather medical and other evidence
  • Assist you in gathering Witness Support Letters
  • Request reports from your doctors that show you meet a Disability Impairment Listing and/or show what functional limitations prevent you from sustaining gainful employment
  • Request reports from your doctors refuting an unfavorable Consultative Exam (CE) by an SSA doctor
  • Ask that a prior application for benefits be reopened
  • Advise you whether to object to a video hearing
  • Obtain documents from your SSA electronic file
  • Develop a strategy specific to your judge
  • Prepare you (and any witnesses) to testify at your hearing
  • Protect your right to a fair hearing by objecting to improper evidence and procedures
  • If you win, make sure that SSA calculates your benefits correctly
  • If you lose the hearing, possibly Request a Review of the hearing decision by the SSA Appeals Council
  • If you lose at the Appeals Council, possibly represent you in a Federal Court review of your case

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HOW MUCH DOES IT COST TO HIRE AN ATTORNEY?

Most attorneys, including myself, will accept Social Security Disability cases on a contingent fee basis of 25% of any past-due benefits not to exceed $6,000. That is, there is no fee unless you are successful, although you will be obligated to pay any out-of-pocket expenses incurred by the attorney in your representation. Such expenses usually involve charges for making payments to doctors and hospitals for medical records and reports, and other miscellaneous charges. Total expenses are usually less than $300.

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HOW DO I CALCULATE MY DISABILITY BENEFIT?

If approved for Social Security Disability Insurance (SSDI), how much money will I get?

If you have enough work quarters/credits and your SSDI claim is approved, SSDI benefits begin 5 months after the the date SSA found you disabled but no earlier than ONE YEAR BEFORE THE DATE OF SSDI APPLICATION. For example, if SSA found you disabled on June 15, 2019, then your benefits would start in December 2019.  You are eligible for Medicare 29 months after the date Social Security finds you disabled under SSDI.  For example, if SSA found you disabled on June 15, 2019, then you would be eligible for Medicare in December 2021.

The amount of your monthly SSDI benefit is based on your LIFETIME AVERAGE WORK-RELATED EARNINGS subject to Social Security taxation, and is equal to what your SS Full Retirement benefit would be.  Each year Social Security mails you a projected estimate. You may create a free my Social Security account to view your Social Security Statement online.  Also, you may use the Social Security online Benefit Calculators.  For the “retirement date,” type the month and year you became disabled and stopped working into the calculator.  Remember that these figures are ESTIMATES!

If approved for Supplemental Security Income (SSI), how much money will I get?

SSI benefits start the month after you are found disabled by SSA, but past-due benefits cannot go back further than the DATE OF SSI APPLICATION. The maximum federal SSI payment for 2018 is $750 per month for an eligible individual (and $1,125 per month for an eligible individual with an eligible spouse). The monthly amount may be reduced by subtracting any “countable income” (anything you receive during a month that you can use to meet your needs for food or shelter). For example, if you are single and living with another person rent-free, then Social Security will deduct about one-third (1/3) from your monthly SSI check as countable income for the free shelter you are receiving.

You cannot receive SSDI and SSI during the same period of time; you will receive the higher benefit for which you are eligible. 

Benefits are paid the month after they are due. For example, a December 2017 benefit would be paid in January 2018, and so on. Once approved, Social Security will mail you an Award Notice explaining your benefits.  If you did not sign up for Direct Deposit when you applied, you should do so via my Social Security account OR you should take your Award Notice and bank account information to your local SSA office to do so. If you don’t already have a bank account, some financial  institutions offer a low-cost Electronic Transfer Account (ETA) or you can sign up for the Direct Express® debit card.

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