Author name: patrick@greemantoomey.com

You might hear the term “Date Last Insured” or its acronym “DLI” being used when attorneys and the Social Security Administration (SSA) discuss an individual’s eligibility for disability benefits. This is the last date a disability is covered by Social Security Disability Insurance Benefits (DIB).  The disability must be present (but not necessarily diagnosed) on or before that date. That means you can still be eligible for DIB even if you apply years after your DLI has passed. For example, the author of this article has a DLI of June 30, 2016. The calculation the SSA uses to determine an individual’s DLI involves whether the individual has recently paid enough into Social Security through FICA or Social Security self-employment taxes. As the “I” in its name implies, DIB is similar to a private disability insurance policy and our FICA and Social Security self-employment taxes are similar to the monthly payments made to maintain an insurance policy. The SSA uses “Quarters of Coverage” (QC or more commonly known as “Social Security credits,” “work credits,” and “credits”) as the method to determine whether the individual has paid enough into Social Security. An individual earns a credit when the individual’s annual earnings on reach an amount set by the statutes governing Social Security. The required amount of earnings is determined using a formula that compares the current average wage index against the average wage index in 1978 and adjusts the required amount accordingly. $1,130 in annual earnings is the minimum amount to earn a credit in 2012. The SSA keeps a historical table that shows the amount of earnings needed from 1978 to the present on its website. An individual can earn up to four (4) credits in a single year; thus, an individual who earns $4,520 in 2012 will earn four credits as will an individual who earns $10,000, $50,000, or even $250,000 in 2012. The number of credits an individual has earned in the last ten years and how many credits an individual has earned total in his or her lifetime are both important to determine whether the individual is eligible for DIB. For individuals at least 31 years old, 20 credits must have been earned in the past ten years; individuals under the age of 31 require fewer credits to qualify. Also, individuals over the age of 42 need to have earned more than 20 credits over their lifetime, but 20 of those credits must have been earned in the past 10 years – the SSA has a table on its website that explains how many credits an individual has earned in his or her lifetime to qualify for DIB.

If you receive an unfavorable hearing decision from an Administrative Law Judge, there is one more level of appeal within the Social Security Administration’s adjudication process. This final step is called Appeals Council, or AC, review. If you do not want to file an appeal with the AC, your other option is to re-file your claim, which means starting over by filing a new claim with your local Social Security office. The most important thing to know about taking your claim to the Appeals Council is that, as of 2011, most people cannot both file a new claim and file an appeal with the AC. Because of the new Social Security Ruling 11-1p, you cannot have two claims for the same type of benefits pending at the same time. So for most people, when they get an unfavorable hearing decision they have to choose between appealing that decision to the AC or filing a new claim. Each option has different implications for your case. Talk to your attorney to see what he or she recommends before you make a decision. If you appeal your case to the AC, you are sending your appeal to one national processing center where everyone in the United States of America has to send their case if they are unhappy with the outcome of their hearing. The headquarters for the Appeals Council is in Falls Church, Virginia, outside of Washington, D.C., but there are some satellite offices in other parts of the Washington D.C. area. The Appeals Council says it received over 128,000 requests for review in the 2010 fiscal year. Because there is only one Appeals Council for the entire country, your appeal is likely to take over a year. The AC says that the average processing time for a case in the 2010 fiscal year was 345 days (Id.). The amount of time it takes to hear back from the AC can be a major consideration for claimants deciding whether to re-file their claim or appeal it. Once the Appeals Council does finally adjudicate your case, there are three possible outcomes: you may get a denial notice, a remand notice, or a decision. Again, each of these documents has unique legal implications, and you should talk to your lawyer as soon as you get your Appeals Council notice. The implications of each of those types of Appeals Council documents will be the topic of a later post, but for now, remember that if you are unhappy with the outcome of your hearing, there is a final step for administrative review. Although this step is likely to take over a year, it sometimes has legal benefits that make it better for your case than re-filing a new claim would be. Be sure you examine all of your options before you make a decision.

Many disabled workers are injured on the job and apply for worker’s compensation benefits. During this same time, or shortly after, if it is determined a disabled worker will be unable to work for at least 12 consecutive months, the disabled worker may decided to apply for Social Security disability benefits – Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) or both. If an applicant is receiving or has received worker’s compensation benefits and is awarded Social Security disability benefits, the Social Security program, as of 1965, requires Social Security disability benefits to be reduced so that the combined amount of worker’s compensation and Social Security disability payments does not exceed 80 percent of the disabled worker’s most recent earnings. If an injured worker is paid in a lump sum settlement for a worker’s compensation case, that amount is prorated to reflect what the monthly rate would average out to be. According to Social Security, “the intent of the offset provision is to ensure that the combined benefits from worker’s compensation and Social Security are not excessive.” This offset rule impacts a large portion of Social Security disability applicants. According to Social Security, in 2003, 1.7 million (17 percent) of the 7.6 million SSDI beneficiaries had some connection to worker’s compensation or public disability benefits. It is important to note that the percentage of SSDI recipients with concurrent worker’s compensation claims varies from state to state guidelines. Worker’s compensation law is left up to the state while Social Security is a federal program. Although worker’s compensation benefits impact SSDI benefits, many other types of benefits, such as Veteran’s Administration benefits, SSI payments and some other state and local benefits are not affected by worker’s compensation benefits. For more information about how worker’s compensation payments impact SSDI visit: http://www.socialsecurity.gov/policy/docs/ssb/v65n4/v65n4p3.html.  

If you filed an appeal with the Social Security Administration (SSA) Appeals Council you may receive in the mail a Notice of Remand. This means that the Appeals Council has transferred your claim back to the SSA Hearing office for another hearing. The Appeals Council typically chooses to remand a claim if the Council finds that the hearing decision contains a significant error of law or is not supported by the substantial weight of the evidence. Claims may also be remanded if newly submitted evidence indicates that further actions Administrative Law Judge (ALJ) is required.  Rules on Appeals Council Remands are found in 20 C.F.R. § 404.977. The remanded hearing is scheduled by the Hearing office and typically takes place within four to six months of the Notice of Remand being issued. It is the Hearing office and ALJ’s responsibility to take any necessary action outlined by the Appeals Council. For example, the Appeals Council may request that the claimant have a Consultative Examination set up and paid for by SSA.  When a claim has been remanded, the hearing is frequently scheduled with the previous ALJ. Receiving a Notice of Remand is very encouraging and many remanded cases are awarded at the second hearing. But having your claim remanded does not automatically mean you will receive a favorable decision this time around. After the hearing, the ALJ will issue a new decision. Hearing decisions are normally issued within one to three months after the hearing. If you receive a favorable decision you will then be eligible to receive benefits. If you are denied you would have the option to file another appeal with the Appeals Council or file a new claim.

Medical evidence is a cornerstone in proving a Social Security disability claim. However, some individuals are sometimes not able to receive the necessary treatment due to various factors including lack of medical insurance or other economic barriers. Social Security Ruling 82-59 addresses the issue of failure to follow prescribed treatment. The ruling states in pertinent part: An individual who would otherwise be found to be under a disability, but who fails without justifiable cause to follow treatment prescribed by a treating source which the Social Security Administration (SSA) determines can be expected to restore the individual’s ability to work, cannot be [sic] virtue of such “failure” be found to be under a disability. (SSR 82-59). In order to establish that an individual has failed to follow prescribed treatment, it must be shown that treatment which is clearly expected to restore capacity to engage in substantial gainful activity has been prescribed by a treating source, and the evidence of record discloses that there has been refusal to follow prescribed treatment. The Social Security Administration must determine whether the prescribed treatment can be expected to restore the claimant’s ability to work. If it is not found that the prescribed treatment is expected to restore the claimant’s ability to work, then the SSA may not use the “failure” to follow prescribed treatment as the basis for denying a claim. Further, where the SSA makes the determination of “failure,” a determination must also be made as to whether or not failure to follow the prescribed treatment is justifiable. If a claimant is able to prove their inability to follow through with prescribed treatment is justifiable, then again, the SSA may not use the “failure” to follow prescribed treatment as the basis for denying a claim.

This is the second installment in the blog series titled “Classifying the Physical Demands of Occupations.”  When evaluating a claim for Social Security disability benefits and/or Supplemental Security Income the Social Security Administration (SSA) must classify the physical demands of your past relevant work and potentially the physical demands of other jobs that exist in the national economy.    To do this the SSA relies on the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (SCO). The physical demands of occupations are evaluated in relationship to twenty different factors.  Two of the factors used are “Climbing” and “Balancing”.  The SCO notes either the presence or absence of “Climbing” and “Balancing” in every job that potentially exists in the national economy.    If either of these activities is required, the SCO will rate the frequency under one of three categories:  occasionally (activity exists up to 1/3 of the time); frequently (activity exists from 1/3 to 2/3 of the time); or constantly (activity exists 2/3 or of the time). Climbing typically refers to “ascending or descending ladders, stairs, scaffolding, ramps, poles and the like using feet and legs or hands and arms.”  An example of a job that requires occasional climbing would be a Real Estate Sales Agent.  In order to perform the job duties of a Real Estate Sales Agent, one would typically require the ability to occasionally ascend and descend stairways while showing houses. Balancing is described as “maintaining body equilibrium to prevent falling when walking, standing, crouching, or running on narrow, slippery, or erratically moving surfaces; or maintaining body equilibrium when performing gymnastic feats.”  A majority of jobs that exist in the national economy do not require “Balancing” as defined in the SCO.  Jobs that typically do require some degree of “Balancing” are construction jobs and some equipment operating jobs. If a claimant’s impairment results in a limitation in either “Climbing” or “Balancing” it is essential for the Social Security Administration to determine if these activities are required in that claimant’s past relevant work and possibly other jobs that exist in the national economy.  

The Sequential Evaluation Process When evaluating a claim for Social Security Disability or Supplemental Security Income, the Social Security Administration (SSA) applies a step-by-step process involving five questions, or steps. (20 CFR §§ 404.1520a; 416.920). This is commonly referred to as the “sequential evaluation process: At step one of the sequential evaluation process the SSA inquires whether the individual applying for benefits is working. If the individual is currently working the SSA will examine how much the individual is earning per month. Typically if an individual’s monthly gross (prior to taxes being taken out) income in 2012 is greater than $1,010 he or she will not be considered disabled. There are exceptions to this rule, which will be addressed in another blog post, however, this is the general rule. If the person is not working or earnings are below the $1,010 cut-off, the SSA proceeds to step two. At step two, the SSA will determine if the individual applying for benefits has what is referred to as a “medically determinable impairment” that is severe, or a combination of impairments that are severe. An impairment, either mental or physical, is considered “severe” if it significantly limits an individual’s ability to perform basic work activities. (20 CFR §§ 404.1521; 416.921). Some of the basic work activities considered are physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling. The SSA will also consider mental work activities such as understanding, carrying out, and remembering instructions; the use of judgment; and the ability to respond appropriately to supervision, co-workers and usual work situations. If an impairment, or combination of impairments is “not severe” (i.e. there is no more than a minimal effect on an individual’s ability to work) the SSA will conclude the individual is not disabled. If the individual does have a severe impairment, or combination of impairments which are severe, the SSA proceeds to step three. At step three, the SSA will determine if the individual’s impairment, or combination of impairments, is found to “meet or equal” specific criteria found in the SSA’s Listing of Impairments. The Listing of Impairments outlines conditions which the SSA considers severe enough that they prevent an individual from engaging in gainful activity. Each impairment contained in the Listing of Impairments consists of specific criteria the SSA considers in determining if the impairments “meet or equal” the definition. In order to “meet” the criteria of a specific listing, an individual must have all of the specific requirements of that particular section. If an individual does not have all of the specific requirements of a particular listing, he or she may still “equal” the listing. An impairment can be found to be medically equivalent to a listed impairment even if it does not meet all of the specific criteria, if it “is at least equal in severity and duration to the criteria of any listed impairment.” (20 CFR § 404.1526). This analysis can be very complex and confusing and will be addressed in greater detail in a future blog post. If it is determined that an individual’s impairment or combination of impairments meets or medically equals the criteria of a listing and the impairment has lasted, or can be expected to last at least 12 months, the individual will be found to be disabled. If not, the SSA proceeds to step four. At step four the SSA will assess an individual’s residual functional capacity, or RFC. Please see the previous blog post entitled “Step 4: Determination of Residual Functional Capacity” for an in-depth look at what is considered in determining an individual’s RFC. After determining an individual’s RFC the SSA will determine whether the individual has the ability to engage in work he or she performed in the last 15 years. This is referred to as the individual’s “past relevant work,” or PRW. If the individual has the ability to do his or her PRW, the SSA will conclude the individual is not disabled. If the individual lacks the ability to perform any of his or her PRW, the SSA proceeds to the next step. At the fifth, and final step of the sequential evaluation, the SSA will determine whether an individual has the ability, or RFC, to engage in any work aside from his or her PRW. At this step the SSA will consider factors such as an individual’s RFC, age, education, and work experience. If it is determined an individual has the ability to engage in other work in the national economy, the SSA will generally determine the individual is not disabled. If this determination is made, the SSA must provide evidence that such work exists in significant numbers in the national economy. If it is determined the claimant cannot engage in any other work the SSA will determine he or she is disabled.