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Social Security Disability Blog

Gap In Medical Treatment And Effects On Social Security Disability Benefits

Thursday, June 30, 2016

Medical records are the focus of every social security disability case. The Social Security Administration (SSA) will thoroughly comb through your medical records to assess the extent of your treatment in order to determine the severity of your disability.

In many instances in a social security disability case, a claimant will stop treating with a doctor. The reasons for the gap in treatment are important. If the medical records are devoid of the reason that treatment stopped, SSA may assume that the symptoms have improved and that you are no longer disabled. It is imperative that, whatever the reason, you have discussed the reason with your doctor so that it appears in your records.

Maximum Medical Improvement

If you stop treatment because you have exhausted the many different treatments recommended by your treating physician and there is no improvement in your symptoms, it can be argued that you have reached medical maximum improvement and there is nothing else your doctor can do for you. In this instance, SSA will use all of the relevant medical records to access your eligibility for benefits.

Financial Problems

Another reason for ceasing treatment is a claimant may not be able to afford treatment. This is true for many claimants and SSA understands that you are not working and your financial situation may not allow for you to treat. Thus, SSA cannot make a negative inference from your lack of treatment due to inability to access low-cost medical care or not having sufficient health insurance.

Reluctance to Have Surgery

You may have been recommended for surgery by a doctor but you refuse to go through with the surgery. Your refusal to treat in this situation, can be seen as a refusal to comply with medical treatment. However, your medical history and treatment can support your refusal to comply with treatment. For instance, if you have already had 3 surgeries without improvement it may be reasonable to decide not to have a 4th surgery.

Mental Impairments

For individuals with a mental disability it is understood by SSA that there may be periods of failing to seek treatment. This could be a symptom of your mental disability so failing to seek treatment in this scenario would not, in and of itself, be a deciding factor as to your eligibility for benefits.

Any claimant who has a situation where they have or intend to stop treatment must ensure their reasoning is a valid reason for which SSA will accept and not hold against you. After all, your medical records are the source of accessing your credibility, as well as the nature and extent of your disability. Without this information SSA can infer that your symptoms are not severe enough to warrant you seeking medical help, thus it is not severe enough to prevent you from working.

By Patricia Zeleznik

3 Suggestions To Increase Your Chances Of Winning A Claim For Social Security Disability Benefits

Monday, August 04, 2014

The Social Security Administration (SSA) denies a whopping 72% of the initial disability benefit applications and denies about 90% of reconsiderations (the first level of appeal). (Annual Statistical Report, 2011). Though these numbers might make you think poorly of SSA, in most of these cases the evidence in SSA’s record just does not support a claim for disability. You may, in fact, be disabled but theevidence in SSA’s possessiondoes not support disability. If you are applying for disability benefits or at an appeal stage, below are three suggestions to increase your chance of success.

1. Make sure medical provider information is accurate and current

Your application for disability benefits requests the dates, names and addresses of your medical providers. This is because SSA will contact the providers and request your medical records. This is a blessing and a curse. It’s great that SSA takes on the headache of getting copies of your medical records and even pays the medical records copy fees. But it’s a curse because SSA may not have all of the medical records to support your claim for disability in the record.

An incomplete medical record at SSA is typically because of one of two reasons. First, the medical provider may not have responded to the record request. Unfortunately, this is fairly common. SSA does not have the personnel to pester medical providers who fail to respond to medical records requests. Second, you may have failed to provide accurate and/or current medical provider information. If you do not provide the SSA with accurate addresses or current information about your treatment, they obviously will not be able to obtain those medical records.

So my advice is to be diligent about providing the correct names and address of all of your medical providers to SSA. And for those truly motivated individuals, you might request a complete set of your own medical records and provide copies to SSA. In this way you can be the one to pester your doctors for not providing copies of medical records.

2. Obtain specific work restrictions from your treating doctor

Even if SSA does get all of your doctor’s reports, the reports they receive may not be enough to prove you are disabled. The doctor’s diagnosis of failed back syndrome, bipolar disorder, or muscular dystrophy is often not enough to prove that you are unable to work. Standard medical records contain four basic sections: complaints, examination findings, diagnosis, and treatment. There is no section of a standard medical report for the doctor to provide information regarding your ability to work. Thus, try to get your treating physician to indicate in writing your restrictions as a result of your medical condition and submit this information to the SSA. By restrictions I mean how much you can lift, how long you can sit or stand, etc. A doctor’s note that simply states you are unable to work is rarely persuasive to the SSA.

3. Hire an attorney

I know it sounds self-serving, but consider hiring an attorney. A competent attorney who practices before SSA can be an invaluable resource in making sure the evidence that SSA uses to make its decision is sufficient and complete. An attorney is also a good idea if you are heading to a hearing before a federal administrative law judge.

The numbers seem to support the idea that hiring an attorney might be a good idea. The Social Security Advisory Board found that people who had an attorney at the initial application stage were more likely to be awarded benefits. (SSAB, 2012). And the Government Accounting Office found that people who had an attorney at their hearing were more likely to win their case. (GAO, 2003).

By David Galinis

How Does The Social Security Administration Evaluate Disability Claims Based On Fibromyalgia?

Monday, August 26, 2013

Early in my career, I used to warn potential clients that fibromyalgia was a “diagnosis of exclusion.”Many physicians seemed to be making the diagnosis of fibromyalgia, when everything else was ruled out.There did not seem to be actual objective evidence of fibromyalgia, just an inability to diagnose anything else.Proving disability in these cases was bound to be difficult due to the lack of objective medical evidence. The Social Security Administration also picked up on the lack of standards in making the diagnosis of fibromyalgia and seemingly never granted disability on that diagnosis alone.

In July 2012, the Social Security Administration issued a new ruling with regards to the evaluation of fibromyalgia.(See SSR 12-2p).This ruling recognizes that the diagnosis of fibromyalgia is no longer just a diagnosis of exclusion, is medically accepted, and has objective measures.The ruling’s primary purpose is to provide guidance as to determining whether fibromyalgia is a medically determinable impairment (MDI). If you look at my prior posts, you will see that I have not spent any time on whether a medical condition is a MDI.That is because in most instances, it is a non-issue.The question of whether the claimant has a MDI is actually a prerequisite to the five step sequential evaluation process.(See 5 Step Disability Evaluation Process).The fact that this ruling focuses on whether fibromyalgia is a MDI shows you just how difficult it still is to claim disability based on fibromyalgia alone.

Is the claimant’s allegation of fibromyalgia a medically determinable impairment (MDI)?

A licensed physician (medical or osteopathic) must make the diagnosis of fibromyalgia.Thus, it cannot be made by a nurse practitioner, physician’s assistant or chiropractor.Moreover, the treatment notes must support the diagnosis of fibromyalgia.The notes must contain evidence of generalized widespread pain for a minimum of three months.The treatment notes must also reflect that other causes have been ruled out (e.g., blood tests to rule out lupus, rheumatoid arthritis, etc.).Assuming that the treatment notes contain everything mentioned above, they also must contain evidence of either:

  • eleven positive tender points,or
  • repeated manifestations of at least six of these symptoms:fatigue, cognitive problems, memory problems (i.e. fibro fog), waking unrefreshed, depression, anxiety, irritable bowel syndrome.

How does fibromyalgia factor into the 5 step disability evaluation process?

So once fibromyalgia has been accepted as a MDI, the disability claim can be evaluated.(See 5 Step Disability Evaluation Process).In step two, the SSA will determine whether the fibromyalgia is a “severe” medical impairment. So long as the fibromyalgia causes more than a minimal impact on a claimant’s ability to do basic work activities, it will be considered to be “severe.”Most claimants do not have difficulty at this step.

The third step is to determine if the medical impairment meets or equals one of the Listings of Impairment. Fibromyalgia is not a listed impairment.A claimant alleging fibromyalgia alone cannot win at step three of the analysis.

In order to determine if a claimant can perform their past work or any other work (steps four and five), the SSA will determine the claimant’s residual functional capacity (i.e., what the claimant can still do, despite their medical impairment). This is where the SSA will use the medical evidence and testimony from the claimant to determine to what extent the fibromyalgia affects the claimant’s ability to work.

How do you prove inability to work in fibromyalgia claims?

In my experience, the reason why my clients with fibromyalgia cannot work is because of the “non-exertional limitations.”(See What Are Non-Exertional Limitations?).We don’t win because of the claimant’s reduced ability to lift heavy things.We win these claims based on the loss of productivity associated with fatigue, the affects of pain on the ability to work at a consistent and reliable pace, and cognitive problems (i.e., fibro fog).

The proper medical evidence is crucial in proving the severity of these non-exertional limitations. First, the medical records from the weekly or monthly doctor’s visits must consistently describe such symptoms.Second, the medical records containing this information must document that these problems have been present over a sufficiently long period of time — a minimum of three months, best case scenario at least twelve months.Finally, the treating physician who made the MDI-sufficient diagnoses of fibromyalgia needs to be willing to provide their written opinions as to these non-exertional limitations and how they affect the claimant’s ability to work.

By David Galinis

The Effect Of Drug Addiction Or Alcoholism On A Claim For Social Security Disability

Monday, March 25, 2013

On March 22, 2013 a new Social Security Ruling regarding drug addiction and alcoholism (DAA) went into effect. (SSR 13-2p). While the ruling does not dramatically change the way that SSA evaluates DAA in disability cases, I thought this was a good time to write on the topic.

What is DAA in the Social Security Disability Context?

The SSA considers DAA to be “maladaptive patterns of substance use that lead to clinically significant impairment or distress.”Thus for DAA to be an issue in a case, the claimant must have both a pattern of substance use and impairment as a result. Thus, self reported occasional drug or alcohol use or an arrest for “driving under the influence” are not enough to find DAA as these are not a “pattern.” There needs to be objective medical evidence of DAA before SSA is allowed to consider DAA in its analysis. Second, the substance use must also cause some medical impairment. Typical impairments as a result of chronic use of drugs or alcohol involve the cognitive functioning of the brain such as dementia and memory problems.

Can DAA be the basis of a claim for disability?

The short answer is: no. Although drug addiction and alcoholism are generally considered “diseases” in the medical community, federal law prohibits an award of disability benefits based on drug addiction or alcoholism.

Can someone be found disabled if they suffer from DAA?

Yes, but the DAA cannot be “material” to the finding of disability. In other words, the claimant must suffer from another condition or conditions which would be disabling by themselves, in the absence of DAA. In evaluating these cases, the SSA determines what the claimant’s impairments would be in the absence of DAA. If the claimant is still disabled, then the claimant will be granted disability benefits even though drug addiction or alcoholism is also present.

Specific Examples from My Practice

Drug Addiction. I represented a Vietnam War veteran in his claim for disability benefits based upon his severe post traumatic stress disorder (PTSD). The veteran also was a habitual user of heroin. I argued that the heroin use was simply his way of “self-medicating” and that the PTSD was serious enough to prevent work regardless of the heroin use. We were successful.

Alcoholism. I have represented numerous individuals with alcoholism. Some of them have presented with cirrhosis of the liver as a result of a lifetime of alcohol abuse. Cirrhosis of the liver is a very serious condition which is ultimately fatal. It causes serious fatigue, malaise, illness, loss of energy, and dementia. Advanced cirrhosis typically prevents all work activity. Other individuals have presented with peripheral neuropathy as a result of alcohol abuse. Peripheral neuropathy causes loss of feeling in the hands, arms, feet, and legs. Again, this condition can certainly have a significant impact on the ability to work in any capacity.

These two alcohol-related examples are different than the drug addiction example because the DAA (in this case alcoholism) actually caused the disabling conditions. We have, nevertheless, prevailed in both of these scenarios. The key to the analysis is whether these conditions would be disabling if the claimant stopped drinking. In both of these examples, the alcohol-related damage is already done. While it may be advisable to stop drinking, that will not cause the impairments from the cirrhosis or peripheral neuropathy to stop. Thus the DAA is not material to the finding of disability.

By David Galinis

The Importance Of The “Disability Onset Date” In Social Security Disability Decisions

Wednesday, January 09, 2013

The “Disability Onset Date” (DOD) is the date that the Claimant has met the evidentiary requirements to prove “disability” as defined by the Social Security law. This date is extremely important in evaluating disability cases. For instance, if the DOD is after the Claimant has turned 50 years old, the Medical Vocational Guidelines might mandate a finding of disability. (See Age: A Crucial Factor in Your Social Security Disability Case). Conversely, if the DOD is after the “date last insured” then it doesn’t matter how disabled the Claimant is, because the Claimant is not insured, the Claimant is not entitled to Social Security Disability Benefits. (See Have I Worked Long Enough to Qualify for Social Security Disability Benefits?).

How is the Disability Onset Date Established?

In the initial application for disability benefits, the Claimant is asked for the date that they became unable to work. The response to this question will be referred to by SSA as the “alleged” DOD. The SSA will evaluate your case to determine if the Claimant meets the criteria for disability as of the date alleged. When considering how to answer this question, the Claimant should provide the date that their condition prevented them from working, not the date that the disabling condition started or was diagnosed. Thus, the alleged DOD should not be the date the Claimant was diagnosed with multiple sclerosis but the date the condition finally stopped them working.

Amending the Disability Onset Date

The Claimant can always amend their alleged DOD. Often this is done at the request of counsel after reviewing the medical records and discussing the case with the Claimant. Situations in which the Claimant may need to amend the alleged DOD are:

  • the Claimant worked after the alleged DOD,
  • a later onset date after the age of 50 will allow for the application of the Medical Vocational Guidelines (typically making it easier to establish disability), or
  • to conform to subsequent medical conditions which occurred after the alleged DOD (i.e., a new traumatic injury occurred after the original condition which combined with the original condition may make it easier to establish disability).

Frequently, the issue of amending the DOD is raised by the Administrative Law Judge (ALJ) at the hearing. The ALJ may have reviewed the evidence and may believe that a different (usually later) DOD may allow for a favorable decision in the case. Choosing to amend the DOD, especially at the hearing, needs to be considered carefully. On the positive side, if the ALJ has raised the issue, it most likely means that the ALJ believes that the Claimant will have met the evidentiary requirements to prove disability as of that date. Thus, amending the DOD to this new date may result in a favorable decision.

However, changing the DOD may result in a decrease in benefits. First, there may be a loss of past due benefits. For example, if the original DOD was 1/1/2010 and the Claimant amend to 1/1/2011, the Claimant may have lost out on 12 months of past due benefits. (See How do I Calculate My Past Due Benefits for Social Security Disability?). Second, by changing the DOD the Claimant may delay Medicare eligibility. Medicare benefits begin 24 months after the Claimant is first entitled to monthly disability benefits. Using the original DOD in the previous example, 1/1/2010, monthly benefits would begin in June 2010 because of the 5 month waiting period. This means that the Claimant would be entitled to Medicare in June of 2012 because of the 24 month waiting period for Medicare benefits. But if the Claimant amended the DOD to 1/1/2011, the Claimant would have to wait until June 2013 for Medicare eligibility.

Partially Favorable Decisions

The SSA sometimes unilaterally amends the DOD through a “partially favorable decision.” In these cases, the Claimant receives a partially favorable decision indicating that the SSA has decided that the Claimant is disabled but that the disability is not established until a later date — not the alleged DOD from the initial application. Typically this occurs for one of two reasons. First, the new date reflects an actual change in the Claimant’s condition as reflected in the medical records. This could be the date of a new injury, the date of a surgery, or simply a date in the medical records when the doctors indicate a definite worsening of condition. Second, the SSA may have amended the DOD to take advantage of the Medical Vocational Guidelines which make it easier to establish disability after the age of 50. In these circumstances the new DOD may just be the Claimant’s 50th birthday.

A partially favorable decision can be appealed. However, upon appeal the SSA will re-examine the entire case and consider all the issues again. The next decision could actually take away the benefits the Claimant was just awarded in the partially favorable decision. Any decision to appeal a partially favorable determination should be handled with extreme caution. The risk of losing a guaranteed source of monthly income and medical insurance benefits may outweigh the chance for some additional money in past due benefits.

By David Galinis

Can I Apply For Social Security Disability Benefits If I Am Still Receiving Workers’ Compensation?

Tuesday, November 27, 2012

There are no prohibitions against receiving both Social Security Disability (SSD) benefits and workers compensation (WC) benefits. The law merely provides that there may be a reduction in your monthly SSD check because of the simultaneous receipt of WC benefits. In this post I will explain the calculation of that reduction, reasons for and against applying for both benefits and some issues to consider if you do receive both benefits.

Calculation of Workers Compensation Offset

The workers’ compensation offset (WCO) is the amount that your monthly SSD check is reduced as a result of WC benefits received. In general the reduction is calculated using the following rule:

Your monthly SSD benefits and monthly WC benefits cannot be more than 80% of your monthly Average Current Earnings.

If the rule is violated, then the SSD benefits are reduced to comply with the rule.

To determine your WCO, you will need to know your monthly SSD benefit amount, monthly WC benefits, and your monthly Average Current Earnings (ACE). Your specific monthly SSD benefit amount is based on the amount of money you paid into the Social Security system and varies from person to person. My last post was about how to find out your benefit amount. Your monthly WC benefits are just that, the total received per month in workers’ compensation. Your monthly ACE is calculated by dividing by 12 the greater of your: 1) last year of earnings, 2) highest year of earnings in the last 5 years, or 3)highest average earnings over any 5 year period.

Let me give a few examples of the WCO in action.

Example 1: SSD benefit – $1000/month,WC benefit – $1000/month,ACE – $2000/month.

In this example, the SSD and WC cannot be more than 80% of the ACE – which means that the total cannot be more than $1600/month. Thus because you are currently receiving $1000/month from WCC, you can only receive $600 a month from SSD. Thus your WCO or reduction is $400 month from your Social Security Disability check.

Example 2:SSD benefit – $1000/month,WCC benefit – $600/month,ACE – $2000/month

In this example, the total of the two benefits can be no more than $1600, just like as in Example 1. But this time, there is no reduction in the SSD benefit because the total of WC and SSD is not more than $1600.

Example 3:SSD benefit – $1000/month,WC benefit – $1600/month,ACE – $2000/month

In this final example, there is a complete reduction of the SSD benefit. The WC benefit is exactly 80% of ACE, thus the SSD benefit per month is reduced to zero.

Given the WCO, should you even apply for Social Security Disability?

  1. WCO only applies to overlapping months

    The WCO only applies to months in which you received both SSD benefits and WC benefits. Thus it only applies when the benefits overlap. Assuming that WC benefits will stop at some point, the WCO will no longer apply and the SSD benefit will resume at the full amount.

  2. State specific workers’ compensation issues

    The laws in your state may make it advantageous to wait until after the workers’ compensation claim is concluded to pursue Social Security Disability. For instance, if you are already receiving SSD benefits, it may be more difficult to obtain a permanent total disability award in your workers’ compensation case. This seems counter intuitive. It is important to talk to your workers’ compensation lawyer about the ramifications on your workers’ compensation case. Regardless of the strategy though, there are time limits to applying for Social Security Disability benefits. If more than 5 years elapse while on workers’ compensation, you may no longer be able to claim SSD benefits because you would no longer be insured.

  3. WCO is rarely complete

    In the overwhelming majority of cases, even if there is a WCO, it is rarely a complete offset. Thus most people still receive some additional money from SSA while also receiving WC benefits.

  4. Advantages even if complete WCO

    There are still benefits to being granted SSD benefits even if there is a complete offset. First, the WC benefits may not last forever. Once they stop, SSD benefits would then resume. Second, once found entitled to SSD benefits you are also entitled to Medicare benefits. Third, even with a complete offset, if there are cost of living adjustments, you receive those. For example, let’s say in 2012 you were granted SSD benefits with a complete WCO, thus you are receiving nothing from SSD each month. In 2013 SSA issues a cost of living adjustment. This would have resulted in $79 more to you each month if there had not been a complete WCO. The law provides that despite the WCO, you still get the $79 each month.

Considerations if Receiving Both SSD and WC benefits

  1. Reporting workers’ compensation to SSA

    If you are granted SSD benefits it is your responsibility to report to SSA any WC benefits you are receiving. This applies to settlements as well. If you settle your workers’ compensation case, those dollars are also considered by SSA in calculation of the WCO. Finally, it is important that you also notify SSA of any changes in your WC benefits. If the benefits are reduced or stopped, advise SSA so that they can potentially increase or resume your SSD benefit checks.

  2. Unfortunate tax consequence

    Finally there is one unfortunate tax consequence of pursing SSD benefits and WC benefits simultaneously. As you may be aware, WC benefits are not taxable. That’s a good thing. SSD benefits, however, are taxable depending upon your personal or family income. If the WCO applies and your SSD benefits are reduced, the SSA will send you and the IRS a 1099 reporting the income you received from SSA including the amount that they did NOT pay you as a result of the WCO. In essence a portion of your non-taxable workers compensation benefits are converted into taxable SSD benefits!

    And on that lovely note, I will sign off for now.

By David Galinis

How To Find Out Your Monthly Social Security Disability Benefit Amount

Friday, June 22, 2012

Each year the Social Security Administration (SSA) used to send out statements to each taxpayer. These statements would indicate what earnings had been reported to the SSA, whether the taxpayer had contributed enough to qualify for benefits, and what the monthly benefit would be for both disability and retirement benefits. As a cost saving measure in March 2011, SSA stopped sending out those statements to anyone under the age of 60. This was frustrating for younger individuals who were deciding whether to apply for Social Security Disability as they had no idea what their monthly disability benefit would be.The good news is that as of May 2012, the statements are once again available – but now in an online version. Visit the “my statement” page on the Social Security website, create a user ID, and you will know precisely the amount of your monthly disability benefits if you are found to be disabled.

By David Galinis

Liver Disease, Alcoholism & Social Security Disability

Thursday, May 24, 2012

The most common forms of liver disease I see in my disability practice are liver cancer, hepatitis, cirrhosis, and alcoholic liver disease. All of these medical conditions can be severe enough to prevent a person from working. This post describes the most common types of liver disease and how they may be used as a basis for social security disability benefits.

Liver Cancer

Assuming they are not working, a person diagnosed with liver cancer should apply for social security disability benefits. The Social Security Administration (SSA) has promulgated regulations that provide for the expedited evaluation of claimants diagnosed with liver cancer. Liver cancer is one of over 100 medical conditions on this “compassionate allowance” list. Not only should the claim be handled quickly, but the claimant should be granted benefits so long as the diagnosis is clear in the medical records.

Hepatitis

A diagnosis of hepatitis means that the liver has become inflamed. The cause is usually a virus (hepatitis A, B, C) although it can be caused other ways, including alcohol consumption. Most of the claimants I have represented with hepatitis generally complain of intense fatigue and weakness. Some have also complained of loss of appetite, jaundice, and being prone to sickness.

If you recall, there are two primary ways to prove disability. (See 5 Step Disability Evaluation Process). One way is to prove that your condition meets the medical criteria as defined in the Listing of Impairments. The other way is to prove that your medical condition creates symptoms which prevent you from being able to work.

Most of the claimants with hepatitis in my practice have not been able to meet the Listing of Impairments for liver disease. Instead we usually prove that the claimant is unable to work because of a decrease in productivity. The argument is that overwhelming fatigue will lead to frequent absences from work and will also impair productivity while at work. If the productivity is decreased by 20% or more, then the worker would not be able to sustain gainful employment.

Some claimant’s may also be disabled due to the treatment for hepatitis. The treatment regimen usually involves being medicated with interferon and ribavirin for 12 months. The side affects of the medications (think chemotherapy type side effects) during those 12 months are usually much worse than the actual symptoms of the hepatitis. During those 12 months of treatment it is often easy to prove disability. The problem is that the impairment must last at least 12 months, so a successful course of treatment may end a claim for social security disability benefits.

Cirrhosis

Cirrhosis occurs when the liver tissues die and are replaced by fibrous tissues. Cirrhosis can be caused by many things including chronic hepatitis and alcohol use. The symptoms include fatigue, malaise, weakness, nausea, loss of appetite, jaundice and altered mental status (e.g., when the liver function is severely impaired, the person can appear to be intoxicated).

Claimants with cirrhosis can often meet the Listing of Impairments criteria. This can often result in decisions without the need for multiple appeals or hearings. To meet the listing criteria, a claimant must either be awaiting a liver transplant and/or be diagnosed as having “end stage liver disease.” Whether one has end stage liver disease involves the results of lab results measuring creatinine and bilirubin levels. The precise levels and the computations can be found in the Listing.

For claimants who don’t meet these listings, all is not lost. The symptoms associated with cirrhosis are usually more severe than those claimants with hepatitis alone. The symptoms will often be severe enough to decrease productivity enough to prevent all work.

Alcoholic Liver Disease

Over-consumption of alcohol can cause both hepatitis and cirrhosis. It can lead to all the conditions and symptoms described above. Can a claimant who suffers from both liver disease and alcoholism obtain social security disability benefits?

SSA rules provide that if substance use/abuse is material to the finding of disability, then the claimant is not entitled to disability benefits. This might lead you to the conclusion that those with alcohol induced liver failure cannot be granted disability benefits. This is not the case. If the reason for the disability is a poorly functioning liver (as a result of any cause) then the claimant is entitled to disability benefits. If the reason for the disability is alcoholism, the claimant is not entitled to disability.

Let me illustrate. If the person’s productivity has been reduced because they are frequently late and/or absent due to the abuse of alcohol, then they are not considered disabled. Frequent benders cannot be the basis of disability. In this case, alcoholism is “material to the finding of disability.” However, if the alcohol abuse has caused a condition, like cirrhosis, which by itself causes the decrease in productivity – the claimant is entitled to the disability benefits. In the latter case, the use of alcohol is not “material” to the disability.

By David Galinis

How Do I Calculate My Past Due Benefits For Social Security Disability?

Thursday, March 29, 2012

The primary benefit to being awarded either Social Security Disability (SSD) or Supplemental Security Income (SSI) is a monthly check from the United States Treasury. Besides those monthly checks, most people also get a bigger (sometimes much bigger) first check which represents their “past due benefits.” This post attempts to shed some light on exactly how the amount of past due benefits is determined.

Amount Per Month

So “past due benefits” are your monthly benefit amount, multiplied by the number of months you have been entitled to benefits when the decision is made. As a mathematical formula:

past due benefits = monthly benefit amount * number of months entitled to benefits before the decision.

To determine the monthly benefit amount, you first have to determine if your disability claim is for SSD, SSI or both. (See Have I Worked Long Enough to Qualify for Social Security Disability Benefits for a description of the difference between the programs). For those eligible for SSD, the amount per month varies per individual. This is because the SSD system pays out monthly benefits based upon the amount of contributions made into the SSA system. Every year SSA used to send out statements to everyone estimating their monthly retirement and disability benefit amounts. Unfortunately, they no longer send them out to individuals younger than 60. On SSA’s website, you can use their Retirement Estimator to estimate your monthly benefit amount.

The amount per month for SSI benefits is not based upon any contributions into the SSA system. It is based upon whether the individual meets certain income and resource criteria. Many disabled people do not qualify for SSI benefits at all. Because SSA considers the “household” income and resources when determining eligibility, often a working spouse will result in SSI ineligibility. If eligible, each state has established a maximum amount of benefits per month. In Maryland in 2012 the maximum SSI monthly benefit is $678 per month.

Number of Months of Past Due Benefits: SSD

Once you have figured out your benefit amount, you then have to determine when you first became entitled to benefits to calculate the past due benefits. The date your disability began, or onset date, is not the date when your benefits begin. In SSD cases, you are first entitled to benefits starting the sixth month after the onset date. This is sometimes referred to as the “5 month waiting period.” Besides the waiting period, the other limitation is that you can get past due benefits for at most 1 year before the initial application for benefits. The interplay between these two limitations can best be seen by example.

In each of the following examples we are going to change the date on which the SSA has determined that the Claimant became disabled, the “onset date.” While the onset date will change, the following will not:

  • Claimant’s monthly SSD benefit is $1000,
  • Claimant applied for SSD benefits on April 1, 2011, and
  • Claimant received a favorable decision on April 1, 2012.
  1. Claimant is determined to be disabled on April 1, 2000

    In this example, the SSA determined that the Claimant was disabled 10 years before their application. Using just the 5 month waiting period, the Claimant theoretically could be entitled to benefits beginning on October 1, 2000 (six months after the onset of disability). However, because of the 1 year limit on past due benefits, the first month of entitlement is actually April 1, 2010 (1 year before the application for benefits). The past due benefits would be from April 1, 2010 through April 1, 2012. This is 24 months which multiplied by $1000 per month amounts to past due benefits of $24,000.

  2. Claimant is determined to be disabled on April 1, 2010

    Here, the Claimant is determined to be disabled exactly 1 year before his application. Consequently, the 1 year limit on past due benefits has no affect. The 5 month waiting period does limit the past due benefits. The first month of entitlement is not until October 1, 2010. The past due benefits run from October 1, 2010 through April 1, 2012. This amounts to 18 months of past due benefits, or $18,000.

  3. Claimant is determined to be disabled on March 1, 2012

    In this final example, the SSA has determined that the Claimant is disabled after the actual application for benefits. This can happen if the Claimant reaches an age, after applying for benefits, that precipitates a determination in their favor. (See Age: A Crucial Factor in your Social Security Disability Case). In this example the 1 year limit has no effect as the benefits do not begin until after the application. Applying the 5 month waiting period, though, means that benefits are not payable until September 1, 2012. Thus although there is a favorable decision, there are no past due benefits and the monthly benefits do not even begin for another 5 months!

Number of Months of Past Due Benefits: SSI

SSI cases have only one limitation on past due benefits: no money before the application for benefits. There are no past due benefits beyond the date of the application. There is also no five month waiting period. Thus the first month of eligibility for benefits is the onset date, so long as it is not before the date of the application.

Potential Deductions

The first check you receive, however, may still be less than the amount you calculated using the above analysis. There are a few deductions that may be taken from past due benefits before your check is issued. First, if you had representation, SSA will typically hold out an attorney’s fee equal to 25% of the past due benefits up to $6,000. This money will usually be sent directly to your attorney. Second, if you received state or local cash assistance while waiting for the SSA decision, you may have to pay back the local or state agencies. SSA will pay those local or state agencies directly out of your past due benefits. Finally, if you were receiving workers’ compensation benefits, there may be a reduction in the monthly benefit amount, which would reduce the amount of past due benefits. This workers’ compensation offset will be the topic of a future post.

By David Galinis

Navigating Through The Social Security Disability Claims Process

Tuesday, January 31, 2012

A claim for Social Security Disability benefits could take anywhere from 6 months to 6 years! During that time, the claimant will have to complete an application, and possibly navigate his or her way through 3 levels of appeals at the Social Security Administration (SSA) and another 3 levels in Federal Court. What follows is an explanation of the major steps along this arduous path.

Application for Disability Benefits

Three forms are required to be completed to start the claims process for Social Security Disability Benefits: a Disability Benefit Application, Adult Disability Report, and a medical release form. These forms can be obtained at your local SSA office. However, SSA would much rather you apply online. While you can use an attorney to assist you at this stage of your claim, one is not required. In my experience, most individuals apply for benefits without an attorney and seek representation if their claim is denied.

The information requested in these forms falls into four basic categories:

  • work history
  • educational background
  • medical conditions, and
  • medical providers’ names and address.

With this information, SSA will open an official claim and begin the process of evaluating disability.

Disability Determination Services

Once a claim is initiated, SSA transfers your case to a state agency which gathers the evidence and makes the initial determinations as to disability. In Maryland, this state agency is known as Disability Determination Services (DDS) and is located in Timonium. A primary function of DDS is to request your medical records from the medical providers you identified in your initial application for benefits. If DDS finds that the medical records are lacking in some respect, they may scheduled an appointment with a doctor selected and paid for by DDS. This is called a “consultive examination.” This doctor will not provide treatment to you and will typically not provide any information to you. DDS will evaluate the medical evidence received from your medical providers along with any consultive examinations to make their determination. This process from completing the application for benefits to the initial determination usually takes between 3 to 6 months.

Despite what many believe, about 40% of the initial applications are approved at the DDS level. Why are the other 60% rejected? Please refer to my first post 3 Reasons Your Claim Was Denied.

Reconsideration

If your initial claim is denied, you have 60 days to file an appeal, a Request for Reconsideration. This is the juncture at which most people seem to hire an attorney. Two forms need to be filed to perfect the appeal: a Request for Reconsideration and an Adult Disability Report – Appeal. In the Request for Reconsideration form you indicate that you want an appeal and a brief reason. I say “brief” because the form itself only allows for a couple sentences. In the second form you note any changes in medical conditions or providers since the initial application.

Upon receipt of the 2 forms, your case is again transferred back to DDS. If additional medical treatment or providers were listed on the disability report, DDS will request those additional medical records. DDS may again schedule a consultive examination. A different person (or people) will evaluate your case. The decision usually takes another 3 to 6 months from the filing of the Request for Reconsideration. In the overwhelming majority of cases, the reconsideration is usually denied, usually for the same reasons.

Hearing

As with the last appeal, the Request for Hearing must be filed within 60 days from when the reconsideration was denied. Along with the request, another Disability Report must be completed with new conditions, treatment, and/or medical providers. Upon receipt of the required forms, your case is transferred to your local Office of Disability Adjudication and Review (ODAR). Once at ODAR, the case is assigned to a federal administrative law judge. That judge’s assistant requests the additional medical records necessary to bring the evidence up to date. Many times an “Attorney Advisor” will review the file to determine whether a hearing before a Judge is needed. In some cases the Attorney Advisor will issue a favorable decision without the need for a hearing.

If your case goes to a hearing, that hearing usually takes place within 9 to 12 months from when the Request for Hearing was filed. The hearing will be conducted by a federal administrative law judge. This hearing is your first (and potentially last) opportunity to actually testify. All the prior decisions were made solely on the basis of a document review. As you can imagine, the hearing level is very important as it is your opportunity to speak to and argue your case to the person making the decision.

Sometimes the judge will issue a decision from the bench. More often, though, the Judge’s decision comes in writing within 30 days. If you were adding up the time it takes at each of the stages, you will see that if the case goes to a hearing, a decision in your case could easily take 2 years from the initial application.

Post Hearing Appeals

And still there are more levels of appeals. The judge’s decision can be appealed to the SSA Appeals Council within 60 days. The Appeals Council will review the evidence (including a transcript of the hearing) and decide whether an error of law was committed. It can take a very long time, some times as long as 2 years, to get a response from the Appeals Council. If the Appeals Council does not reverse the judge (or remand it for another hearing), the case can then be appealed to United States District Court, then to Circuit Court, and potentially even to the United States Supreme Court.

On a final note, it is very important to be aware that all of these appeals are on the record. This means that even though your case may take 6 years with 3 SSA appeals and 3 federal court appeals, your hearing in front of the administrative law judge was your one and only opportunity to speak to the person making the decision and explain the nature of your disability.

By David Galinis

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