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Social Security Disability Blog

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 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

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

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