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Social Security Disability Blog

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

What Are Non-Exertional Limitations?

Friday, December 09, 2011

More often than not, it is my client’s non-exertional limitations that win their case. In prior posts I have described SSA’s analysis of disability cases using exertional limitations. (See What Are “Exertional Levels” and Why are They Important in a Social Security Disability Case?). Exertional limitations are limitations on the ability to sit, stand, walk, lift, push and pull. Any other limitations are called non-exertional limitations. The following table describes some common impairments and associated non-exertional limitations:

Impairment Non-Exertional Limitations
Crohn’s disease Frequent trips to the bathroom and the necessity of having a bathroom readily available
Carpal Tunnel Syndrome Difficulty grasping, handling or fingering (due to numbness)
Fibromyalgia Difficulty maintaining attention or concentration (due to pain or fatigue)
Peripheral Edema Necessity to elevate legs
Bipolar Disorder Difficulty performing activities within a schedule, maintaining regular attendance, and being punctual

The presence of non-exertional limitations is very important because it forces the SSA to change the way it evaluates disability. If the claimant only has exertional limitations, the SSA can use a portion of the law called the Medical Vocational Guidelines (“Grids”) to decide the case. Using the Grids, a 45 year old literate claimant that has exertional limitations restricting them to sedentary work would automatically be found not disabled. Add in a non-exertional impairment and the Grids, by themselves, cannot be used to decide the case. For example, let’s assume that, in addition to the exertional limitations, the claimant has the following non-exertional limitation: difficulty maintaining attention or concentration due to pain and/or the side affects of narcotic pain medication. While the SSA would use the Grids to begin its analysis, the SSA would need expert testimony from a vocational expert as to the affects of the non-exertional limitations on the ability to perform sedentary work. The Grids by themselves could not be used to make a decision.

Whether the non-exertional limitations are enough to win the day depends on a couple factors. First, do the claimant’s medical records document the level of pain and/or side affects from the medications? Do the treating doctors indicate that the pain and/or side affects affect the ability to concentrate? Second, is the claimant believable? Non-exertional limitations, like the effect of pain on the ability to concentrate, are inherently subjective. Thus, whether the judge finds the claimant’s testimony to be credible is of supreme importance.

By David Galinis

What Are “Exertional Levels” And Why Are They Important In A Social Security Disability Case?

Wednesday, November 23, 2011

The amount of exertion (or effort) required in a particular job is a key component in the Social Security Administration’s (SSA’s) analysis of every disabilityclaim. The SSA classifies each job by how much exertion is required. For example, work that requires very little effort or exertion is considered to be “sedentary.” While, at the other end of the spectrum, jobs which require extreme exertion are classified as “heavy.”

The following illustrates what I consider to be the most important differences between the different exertional levels:

  • Sedentary work involves no lifting of anything heavier than 10 pounds. It also is mainly performed sitting with up to 2 hours during the day of standing or walking around.
  • Light work requires a little more exertion. These jobs involve lifting of up to 20 pounds and the majority of the day is usually spent standing or walking.
  • Medium jobs can involve lifting up to 50 pounds. Workers in these jobs are usually on their feet almost all of the day and are also expected to be able to frequently bend or stoop.

There is really no point in discussing heavy work. If the claimant could perform heavy work it would be extremely difficult to prove disability.

The exertional levels are used in three different steps in the disability evaluation process: determining residual functional capacity, evaluating whether the claimant can perform their past work, and, if not, whether they can perform some other type of work.

Residual Functional Capacity

The very first step in determining whether someone is “disabled’ is to determine what level of exertion they can still perform, despite their disabilities. This is referred to as their residual functioning capacity (RFC). Can the claimant still perform sedentary work? Light work? Medium work?

Past Work

Once the RFC is determined, the next step is to determine whether this RFC would preclude them from performing their past relevant work. So let’s say SSA has determined that a claimant has a RFC to do sedentary work. SSA will then examine the jobs the claimant has had for the last 15 years. In this review, the SSA will classify those jobs by their exertional levels. (For example, if the claimant had performed construction work for the last 15 years the exertional level would be heavy.) If any of the past work was performed at the sedentary exertional level, the SSA will most likely deny the claim because the claimant can return to their past work. If the past relevant work was all more than sedentary, the evaluation of the claim continues.

Other Work

So once the SSA has established that the claimant cannot perform their past work, the question then becomes would the claimant be able to work at another job given their sedentary RFC. This analysis focuses on the claimant’s age, education and work experience, with age being by far the most important factor. (See Age: A Crucial Factor in Your Social Security Disability Case). For a claimant with the RFC for sedentary work, the determinative factor is usually age:

  • If the claimant is over 50, then it will be presumed that he or she will not be able to transition to this new exertional level unless the claimant has special skills through work experiences or education that would allow for employment at that level.
  • If the claimant is under 50, it will be presumed that regardless of education or work experience, the claimant is young enough to learn the skills necessary for sedentary work.

The analysis is similar if the claimant’s RFC is determined to be either light or medium. Disability in both of those situations, though, becomes more difficult to prove.

One final note regarding exertional levels. The analysis above only applies to the claimant’s exertional (effort-based) limitations. These are limitations in the ability to lift, sit, stand, and make various postural movements. In most cases there are also non-exertional limitations - such as the affect of pain on the ability to concentrate while at work. For more on these non-exertional limitations see What Are Non-Exertional Limitations?

By David Galinis

Eliminate The Early Retirement Penalty With Social Security Disability Benefits

Wednesday, October 12, 2011

While it’s possible as early as age 62, choosing to receive Social Security retirement benefits before your normal retirement age is penalized. The “early retirement penalty” can amount to a 30 percent reduction in your monthly benefit. And what’s worse is that the penalty is permanent. Thus, although your monthly benefit will change with cost of living adjustments, the initial reduction as a result of the penalty will continue even past normal retirement age. As a general rule, you should wait until your normal retirement age (66 or 67) or, even better, get an increased monthly benefit by delaying your retirement until age 70.

But what if you simply cannot work until your normal retirement age? If you are under 62, it is probably time to apply for social security disability benefits. These benefits are calculated using your normal retirement age. Thus there is no early retirement penalty.

If you are 62 or older you have a few more issues to consider because you can apply for both disability benefits and early retirement benefits. Applying for both programs has its advantages. First, you receive early retirement benefits each month while your social security disability claim meanders through the disability evaluation process. This process can sometimes take two years. Second, if you are found disabled and entitled to disability benefits before your early retirement benefits began, the early retirement penalty disappears. Not only will your monthly benefits be increased but you will receive money for the preceding months in which you were received less than your full disability benefit amount.

Unfortunately, there are disadvantages to applying for both programs. First, you could lose your claim for disability benefits. If so, you would be stuck with the early retirement penalty for life. Second, you could win your disability claim but the SSA could find you entitled to disability benefits after you began receiving your early retirement benefits. In this scenario there would be a reduced permanent benefit – although not as severe as the early retirement penalty.

One final item of good news is that if you are in your 60’s its going to be easier to prove disability. Remember that for those under age 50 the standard for disability is an inability to do any kind of work – not just the kind of work you have done in the past. (See Age: A Crucial Factor in your Social Security Disability Case). While the rules do relax at age 50, they relax even further at age 55. And at age 60, the battle is mostly won if we can prove an inability to do your prior work.

By David Galinis

Social Security Benefits For Stay-At-Home Parents

Friday, September 02, 2011

Stay-at-home parents face a serious problem obtaining social security benefits. To qualify for benefits, they had to have paid into the social security system. For disability benefits, the disabled person must have worked 20 of the last 40 quarters (5 of the last 10 years) before their disability began. (See Have I Worked Enough to Qualify for Social Security Disability Benefits?) By definition, the stay-at-home parent does not pay into the social security system while raising the children. As a result, they often do not have enough (or any) work credits to be insured for disability benefits.

This unfortunate fact has not been missed by the lawmakers. Although far from perfect, there are situations in which the stay-at-home parent is eligible for social security benefits. The law provides that, in certain circumstances, the stay-at-home parent can use their spouse’s earnings record as the basis for benefits. In this post I describe those circumstances.

Divorce

This story is all too common. One spouse stays at home and raises the children only to see the marriage end once the children are grown. At this point the stay-at-home spouse probably does not have the necessary work credits to qualify for disability benefits. The law was written to afford some measure of protection to the stay-at-home spouse by allowing them to access the ex-husband’s (or ex-wife’s) work credits. Interestingly, the requirements vary depending upon whether the ex-spouse is living or deceased. If the ex-spouse is still living the requirements to access their work credits are:

  • The marriage had to have lasted at least 10 years,
  • The stay-at-home spouse has not remarried,
  • The stay-at-home spouse is 62 or older, and
  • The ex-spouse is entitled to retirement or social security disability benefits.

If the ex-spouse is deceased:

  • The marriage had to have lasted at least 10 years, and
  • The stay-at-home spouse is age 60, or
  • The stay-at-home spouse is 50 and disabled.

(I make no comment on the wisdom of making it easier to obtain the benefits if your ex has deceased!)

Widows or Widowers

If their spouse dies, a stay-at-home spouse may be entitled to widows or widowers benefits. These benefits are based on the work credits of the deceased spouse – not of the stay-at-home spouse. Widows or widowers can access their deceased spouse’s earning records in a couple of ways. First, if the surviving spouse is over 60 and did not remarry they can claim widow’s benefits. Second, they can claim benefits if they are at least age 50, disabled, and have not remarried. Third, if the stay-at-home parent is still caring for the deceased spouse’s child who is either under age 16 or disabled.

Caregiver

So what about those who are still married to living and breathing spouses? For those under age 62, the law provides only a single method of accessing the spouse’s work record. If the spouse is receiving retirement or disability benefits from the SSA, the stay-at-home spouse can receive social security benefits based on the spouse’s work credits if they are caring for the spouse’s child who is either under 16 or disabled. For those stay-at-home spouses 62 and over, if the spouse (with a sufficient earnings record) is disabled or has retired, they can access their earnings records. In other words, there is no requirement to be a caregiver if the stay-at-home spouse is at least 62. (Thanks Joanne.)

By David Galinis

Have I Worked Enough To Qualify For Social Security Disability Benefits?

Tuesday, August 09, 2011

The Social Security Administration (SSA) implements two separate programs that provide cash benefits to disabled individuals. The primary focus of this blog is on Disability Benefits (aka “Disability Insurance,” “DI,” “RSDI,” and “Title II benefits”). The other type of benefit is called Supplemental Security Income, “SSI” or “Title XVI benefits.”

Both programs use the same definition of disability and identical rules and regulations to determine disability. (See 5 Step Disability Evaluation Process) SSI benefits are less money per month and, most importantly, means tested. Thus a claimant must meet certain income and resource qualifications tobe eligible for these benefits — besidesproving disability. Disability benefits, on the other hand, have no means testing. Your current income or resourceshave no bearing on your eligibility. In addition to the absence of means testing, disability benefits are more desirable as they are typically more money per month and include health insurance coverage through Medicare.

Insured Status

Disability benefits, however, are only paid to those who become disabled while they are “insured.” The social security disability system is designed to function like insurance. To be covered, premiums must be paid. For social security disability, the premiums are the social security taxes taken out of your paycheck while working. To be insured under the disability benefits program, the disabled individual must have worked 20 of the last 40 quarters (i.e., payed premiums for 20 of the last 40 quarters). For those who worked consistently (without gaps) this means that they must prove disability within 5 years from when they stopped working.

In every claim for social security disability benefits, SSA calculates the “date last insured” or DLI. This is the last date that the claimant met the insured status based upon their quarters of work. The claimant must prove disability before that date.

Application Date versus Onset Date

Please note that there is no requirement that the application for benefits be filed before the DLI. The application can be filed well after the DLI. However, the claimant will need to prove that the disability began before the DLI. In the application, the claimant is asked for the date when they became unable to work. This is called the “onset date.” So long as the onset date is before the DLI, the claimant is insured and thus eligible for disability benefits.

Applications filed well after the DLI are notoriously difficult to win, however, as the evidence to support the disability is often hard to find. Medical providers routinely destroy older records. Doctors who treated the claimant before the DLI have retired or died. Finally, current medical providers may not be able (or willing) to provide evidence to support an onset date at some point in the past before they began treating the claimant.

By David Galinis

Age: A Crucial Factor In Your Social Security Disability Case

Friday, July 01, 2011

While the severity of the impairment is the most significant factor in Social Security Disability cases, age follows right on its heels as the second most important factor. The reason is simple – the law is different for people of different ages. The younger a person is, the more difficult it is to prove an inability to work. Conversely, every year older will make the case for disability a little bit easier.

 

The basic idea is that as we get older, the real opportunity to change careers diminishes. As an example, consider a 55-year-old construction worker who has only worked in construction his entire life. Let’s further assume he has an impairment that prevents him from working construction but would permit him to work in an office, a sit down job with very little lifting. The problem is that at 55 he probably will not be able to make the transition to working in an office. It’s too late in his working career to learn a completely new set of skills. Recognizing this fact, the Social Security Administration’s (SSA) rules separate the world into three different age groups and treats each differently.

Younger Persons

I have some good news for all you 49ers out there, the SSA considers anyone under the age of 50, to be a “younger person.” The bad news is that as a “younger person,” the SSA has determined that you are still able to learn how to do a completely new job. In considering our construction worker, let’s say he is 45 when he becomes unable to work in construction. SSA would deny his claim for disability because as a “younger person” he does have the ability to learn how to do a desk job.

Closely Approaching Advanced Age

Claimants between the ages of 50-54 are considered to be “closely approaching advanced age.” According to SSA rules, these individuals will have some difficulty transitioning to new types of employment but this difficulty will only partially limit their ability to transition. For the construction worker who now is limited to sedentary work (no lifting over 10 pounds), the SSA will find that he cannot make the adjustment to that type of work and consider him disabled. However if that same construction worker can do light work (no lifting over 20 pounds), SSA will find that he can make the transition to light work and will deny benefits.

Advanced Age

The good news for you unfortunate souls 55 and over is that if you cannot perform your prior work, you are probably entitled to benefits. This is an oversimplification but it is not far from the truth. In the construction worker example, even though he may still be able to do light work (lifting up to 20 pounds), at age 55 SSA will find him disabled. Any claimant who is over 55 years old and cannot perform the work they have performed for the past 15 years has a very good claim for benefits.

Sometimes 49 Equals 50

Regardless of vanity, I may argue to the SSA that you should be considered to be 50, even though you are only 49. There is a rarely used portion of the Social Security regulations that provides that age categories should not be applied “mechanically.” 20 CFR § 404.1563(b). Thus if the law would grant you disability benefits at age 50 but you are only 49 and 6 months, SSA may “deem” you to be 50 and grant the benefits. Don’t worry – your “deemed” age is a part of attorney client privilege. What happens at the hearing, stays at the hearing!

By David Galinis

Can I Work While Receiving Social Security Disability Benefits?

Thursday, June 02, 2011

Unfortunately, many of my clients find the monthly check they receive from the United States Treasury is too small to live on. I am always receiving calls from former clients asking if they can return to work part time and still receive their Social Security Disability benefits? The answer is not simple. And, in classic lawyer fashion, it depends.

Substantial Gainful Activity

Social Security Disability benefits are only eligible for those that are not able to engage in substantial gainful activity (SGA). Thus if you return to work that is SGA, then the Social Security Administration (SSA) will most likely conclude that you are no longer entitled to benefits.

What work would be considered SGA? Whether a particular work activity is SGA is up to debate. However, SSA has provided guidelines on the amount of wages that it presumes to be SGA. In 2013, if you make more than $1,040 in a month, that is presumed to be SGA. This amount changes from year to year and can be found on the SSA website. (SGAAmounts).

Thus if you are making $800 per month, SSA presumes that you are not engaged in SGA. However, the analysis does not end there. As it turns out, earning $800 per month for a long enough period of time could ultimately terminate your benefits.

Trial Work Period

The SSA encourages disabled individuals to go back to work. One of their methods is the Trial Work Period (TWP). This is a period of time when you are allowed to go back to work and still receive your Social Security Disability benefits. The TWP lasts for 9 months. The TWP is designed to give the disabled individual the opportunity to try to work without the fear that their entitlement to benefits will be immediately terminated.

So when does the TWP begin?In 2013, it begins in any month that you earn more than $750. The amount that triggers the TWP changes every year and can be found on the SSA website. (TWPAmounts). The months also do not have to be consecutive. Thus if you make $800 in January of 2011 and $800 in May 2012, you are 2 months into your 9 month TWP.

What happens when the TWP is used up? After the 9th month, SSA will send you a letter that you are no longer considered disabled. However, for the next three years they will continue to pay you Social Security Disability Benefits for any month in which you make less than the SGA amount. This is called the Extended Period of Entitlement. Any work above SGA after the 3 years has expired will terminate your entitlement to benefits altogether. At this point you must re-apply for disability benefits. The only good news is that this process should theoretically be quicker as you can file for expedited reinstatement of your entitlement to disability benefits.

Recall the individual above who has returned to work part time making $800 a month, which is below SGA and theoretically “safe.” If that individual continues to make $800 per month for the next 9 months they would continue to receive their disability checks but would exhaust their TWP. If they then continued to make $800 a month for the next 36 months they would continue receiving their disability benefits because $800 is not SGA. Moreover, if they continued to make that amount even beyond the 36 months they would still continue to receive benefits. However, if they worked just one month above SGA after the 36 month period had expired, the checks would stop.

My Advice

If all of the SGAs and TWPs sound confusing, it’s because they are! Trying to calculate the precise amount of money you can earn every month to continue your disability benefits is a daunting task.

I advise my clients that any work, at any income level, can be used as evidence that you are able to work. While your work may be at amounts that are below SGA and TWP, it is conceivable that the work activity itself could be used as a basis for determining that you are no longer disabled. SSA regulations indicate that even if your earnings are less than SGA:

“[i]f there is evidence, however, showing that an individual may be engaging in SGA, or appears to be in a position to defer compensation, or by special arrangement is able to suppress earnings, develop fully the facts concerning the comparability of the employee’s work to that of unimpaired individuals, and the worth of the employee’s work . . . .”

While the above may lead you to the conclusion that I encourage my clients not to attempt to return to work, nothing could be further from the truth. In my observations, working people are happier people. I always encourage my clients to return to work if they believe that they can.

Update

Well the good news is that this blog post has been my most successful blog post ever. I receive comments, emails and telephone calls daily about this post. I truly appreciate the enormous interest. The bad news is that I do not physically have the time to respond to all the inquiries and also represent my current clients. Please understand that the information I provide in this post is really the extent of the advice I can offer on this subject. It is a very gray area with little authoritative guidance available.

By David Galinis

Crohn’s Disease And Ulcerative Colitis As Basis For Social Security Disability

Friday, May 13, 2011

Crohn’s disease and ulcerative colitis are both included in a larger set of conditions known collectively as Inflammatory Bowel Disease (IBD). Over the years I have assisted many clients obtain social security disability benefits on the basis of their IBD alone. In this post, I discuss these conditions as well as how the conditions can support a finding of disability.

What is IBD?

Simply put, IBD is a chronic inflammation of the gastrointestinal tract. This chronic inflammation causes symptoms such as:

  • Abdominal pain and cramping,
  • Persistent urgent diarrhea,
  • Bloody stools,
  • Weight loss,
  • Fatigue, and
  • Fever.

The diagnosis of IBD is usually confirmed by colonoscopy, sometimes including a biopsy. There is no known cure for IBD. Treatments include dietary changes, medications, and sometimes hospitalization including surgery to remove part of the bowel.

Disability Evaluation

IBD is one of the Listed Impairments. Thus if the severity of the Claimant’s IBD meets the description in the regulation, the Claimant is entitled to disability benefits at the third step in the evaluation process. (See 5 Step Disability Evaluation Process). In my years of experience I have yet to have a single Claimant meet the required severity of the listing. For those who enjoy reading government regulations I have provided the actual listing below:

5.06 Inflammatory bowel disease (IBD) documented by endoscopy, biopsy, appropriate medically acceptable imaging, or operative findings with:

  1. Obstruction of stenotic areas (not adhesions) in the small intestine or colon with proximal dilatation, confirmed by appropriate medically acceptable imaging or in surgery, requiring hospitalization for intestinal decompression or for surgery, and occurring on at least two occasions at least 60 days apart within a consecutive 6-month period.

    OR

  2. Two of the following despite continuing treatment as prescribed and occurring within the same consecutive 6-month period:
    • Anemia with hemoglobin of less than 10.0 g/dL, present on at least two evaluations at least 60 days apart; or
    • Serum albumin of 3.0 g/dL or less, present on at least two evaluations at least 60 days apart; or
    • Clinically documented tender abdominal mass palpable on physical examination with abdominal pain or cramping that is not completely controlled by prescribed narcotic medication, present on at least two evaluations at least 60 days apart; or
    • Perineal disease with a draining abscess or fistula, with pain that is not completely controlled by prescribed narcotic medication, present on at least two evaluations at least 60 days apart; or
    • Involuntary weight loss of at least 10 percent from baseline, as computed in pounds, kilograms, or BMI, present on at least two evaluations at least 60 days apart; or
    • Need for supplemental daily enteral nutrition via a gastrostomy or daily parenteral nutrition via a central venous catheter. (See Listing of Impairments).

Remember that all is not lost simply because the Claimant’s impairments do not meet those described in the regulation. The more frequent rationale for a finding of disability is not that the Claimant meets the Listed Impairment but that the Claimant’s condition prevents them from being able to return to any type of work at step five of the evaluation (See 5 Step Disability Evaluation Process).

In my practice, I focus on the following three symptoms in IBD cases: abdominal pain and cramping, excessive fatigue, and persistent urgent diarrhea. The abdominal pain and cramping interfere with the ability to focus and concentrate at work. Anyone who has ever attempted to work through pain understands this all too well. It is difficult to stay on task and to complete tasks in a timely manner when in excruciating pain. Excessive fatigue interferes with completion of tasks in a timely manner as well. It also has the tendency to cause excessive absences, which can preclude work.

The persistent urgent diarrhea is one of the few IBD symptoms that have a demonstrable, quantifiable affect on the ability to work. In order for the Claimant to be able to work in any capacity they are going to need immediate access to a restroom. So all jobs without immediate access to a restroom are out. In addition, the Claimant must have a job such that will permit them to take breaks at will and often urgently. A job, for instance, that would require the Claimant to occupy a post for an hour without backup would be precluded. Finally, there is the number of trips to the restroom. A Claimant who must make 8-10 urgent trips to the restroom during an 8-hour day, each visit taking 10-15 minutes, will be unable to hold down any sort of employment.

The evidentiary proof needed in these cases involves both the Claimant’s testimony and the medical records. It is important that the Claimant be able to quantify for the Administrative Law Judge at the hearing a) the urgent nature of the trips to the restroom, b) the number of such trips during a typical day, and c) how long would be spent not working during each trip. The medical records from the treating physician also have to support the Claimant’s testimony as to these urgent trips and, hopefully, the number of trips as well. It is also very helpful if the medical records revealed persistent weight loss and surgery for IBD.

By David Galinis

Can You File For Unemployment And Social Security Disability Benefits?

Tuesday, April 05, 2011

The application process for Social Security disability benefits can take years. During that time period the claimant is – by definition – not working. (See 3 Reasons Your Claim Was Denied). How does the claimant pay for food and shelter during that long wait? Some claimants are fortunate enough to have spouses or family members who can help them until they ultimately receive benefits. But many claimants have no such support. There are state and local assistance programs that can help with some amount of cash assistance and food stamps. In Maryland you can contact the Department of Human Resources. In addition to these benefits, many claimants also want to file for unemployment benefits while their disability claim is pending.

In the application for Social Security disability benefits the claimant will be asked for the date that that he or she became “unable to work” (the alleged onset date). In the application for unemployment benefits the claimant will be asked whether he or she is “ready, willing and able to work.” If you answer that you are not “ready, willing and able to work,” then you will be denied unemployment benefits. Unemployment benefits are for people who have lost their job and are still capable (and looking for) other employment. Thus, in order to receive unemployment benefits you have to complete the application indicating that you are “ready, willing and able to work” and to apply for Social Security disability benefits you have to claim that you are unable to work. These two applications appear to be inconsistent with each other.

The agencies administering the unemployment benefit programs will provide benefits if you are otherwise eligible and indicate that you are “ready, willing and able to work.” They will not terminate or refuse to grant benefits based upon a claim for Social Security disability benefits.

Many administrative law judges (ALJs), however, do consider your claim for unemployment benefits when evaluating your Social Security disability case. In recent years, the Social Security Administration (SSA) indicated that the receipt of unemployment benefits should not be considered, by itself, as evidence that the claimant is not entitled to Social Security disability benefits. In my practice, the receipt of unemployment benefits has been handled one of three different ways by ALJs at hearings.

1. The Claim for Unemployment Benefits is Ignored

Many ALJs simply do not inquire about unemployment benefits. They apparently do not think it is relevant to the claim for Social Security disability benefits. This could be for a couple of reasons. First, the ALJ may just be cognizant of the fact that the claimant has been attempting to survive during the lengthy period in which the SSA was making a decision about their claim. Second, it could be that the ALJ understands that the claimant may believe they can still work but that in reality, and under SSA rules, they will be determined unable to work. For instance, a 55-year-old construction worker suffers a serious back injury and now can only lift 10 lbs. The worker is theoretically able to work with a 10 pound lifting restriction (e.g., like in an office). The SSA rules recognize that such a claimant, at age 55, with only construction experience is not going to be able to make the transition (or be hired for) a desk job. Thus the Claimant is legally considered to be “unable to work.” The claims for unemployment benefits and Social Security benefits are, therefore, not inconsistent with each other.

2. The Claim for Unemployment Benefits Destroys the Claimant’s Credibility

Some ALJs always ask about the claim for and receipt of unemployment benefits. It is their position that the claimant told one government agency (unemployment) that they were “able to work” and at the same time told another government agency (SSA) that they were “unable to work.” These are inconsistent statements. These ALJs are of the opinion that these inconsistent statements seriously damage the claimant’s credibility. At the hearing the ALJ may disregard some of the claimant’s testimony as a result of this damage to their credibility. This, in turn, can lead to a denial of disability benefits.

3. The Claim Is Not the Problem But the Receipt of Benefits Is

Some ALJs take a hybrid approach. They do not consider the claim for unemployment benefits to be an inconsistent statement and, therefore, will, not let that influence their determination of the claimant’s credibility. However, these ALJs believe that a claimant should not be receiving unemployment benefits at the same time that they are receiving disability benefits. Thus, the ALJ will often request that the claimant amend their onset of disability to a date after unemployment benefits had ceased. Perhaps these ALJs believe that the claimant should not receive disability benefits while they were still actively looking for work – a requirement while receiving unemployment benefits.

I have had hearings in which unemployment benefits were treated in each of these three very different ways. As the claimant has no control over the choice of judge, the choice to apply for unemployment benefits is indeed risky.

By David Galinis

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