Author name: patrick@greemantoomey.com

Lots of people speculate about the link between the economic downturn and the recent spike in Social Security disability applications. A few insightful academics and journalists are examining this issue in more depth, and are looking into the role employers play in the recent surge of Social Security applications. David Autor and Mark Duggan published a paper examining why SSDI awards are rising as the health of Americans improves, stating that SSDI “appears in practice to function like a nonemployability insurance program for a subset of beneficiaries.” (The Growth in the Social Security Disability Rolls: A Fiscal Crisis Unfolding, NBER Working Paper No. 12436, August 2006. Available online at http://www.nber.org/papers/w12436). But why are so many disabled individuals currently considered unemployable? If more individuals with long-term medical problems were able to remain in the labor force, it would lessen the current strain on the SSDI system and, as discussed previously on this blog, help many SSDI applicants hold down the jobs they so desperately want. One idea is from Richard Burkhauser, a policy professor at CornellUniversity, and Mary Daly, the associate research director at the Federal Reserve Bank of San Francisco. They published a paper in the Spring 2012 issue of the Journal of Policy Analysis and Management that proposes raising taxes on businesses with a larger share of former employees on SSDI. This would provide an incentive for these companies to offer employees better accommodations and rehabilitation programs. A recent Bloomberg news article paraphrases Burkhauser and Daly’s article, and concludes that employers might be responsible for some of the Social Security Administration’s inefficiencies by failing to accommodate the long-term disabled. Another way that employers might be contributing to the rise in SSDI applications is by what Neal Grunstra, the president of Mindbank Consulting Group, calls “looking for a unicorn.” The Wall Street Journal recently wrote about employers developing absurdly specific job requirements and refusing to hire anyone who would require training or reasonable accommodations. Peter Cappelli, a professor at the Wharton School of the University of Pennsylvania, spoke to the Wall Street Journal about the long-term trend of employers getting pickier and pickier throughout the economic downturn. Professor Cappelli’s new book explores this issue in much greater depth. This trend, if true, places job-seekers requiring medical accommodations at a huge disadvantage. Choosing to buck this trend is yet another way employers could do their share to help SSDI applicants get back to work. This would lessen the current burden on the Social Security Administration, and shorten the wait for individuals who are truly disabled under the current definitions of the Social Security Act.

Being denied for Disability Insurance Benefits or Supplemental Security Income is not an unusual experience, as this blog has discussed before. As mentioned in the earlier post, you can appeal the denial and it is something we do here at Greeman Toomey on a daily basis. The Social Security Administration’s rules give you sixty (60) days to appeal a denial and meeting that deadline can mean the difference between eventually receiving benefits and being denied benefits for a very long time. Appealing the SSA’s denial not only keeps your claim for benefits moving forward, it is an official way for you to state that you disagree with the SSA’s determination. If you do not appeal the denial within 60 days then you are not challenging the SSA’s determination, implicitly stating that you agree with it – even if you actually don’t! You do have the option of re-filing for benefits if you do not appeal in time, but there are consequences for not challenging the prior denial. Determinations made by the SSA have a doctrine called “administrative res judicata” applied to them. This doctrine means that the SSA and its Administrative Law Judges will not usually reopen something that was already decided in the past and was not challenged within 60 days. For example, if the SSA determines that John Doe’s back injury does not prevent him from working as of June 1, 2010 and Mr. Doe never appeals, then Mr. Doe cannot claim that he was unable to work as of January 1, 2009 on a new claim – he can only claim that he was unable to work on June 2, 2010 or later because the SSA has not made a determination about his condition after June 1, 2010. This limit in how far back in time you can allege a disability can reduce the amount of back pay available to you when re-filing a claim, but it can have a more significant affect on your ability to file for benefits. Claims for DIB require you to show that your conditions prevented you from working on or before your Date Last Insured. Using the same example, Mr. Doe would generally ineligible to re-file for DIB if his DLI was on March 31, 2010 because the June 1, 2010 determination was not appealed and now cannot be challenged because of the administrative res judicata doctrine, leaving Mr. Doe limited to only an SSI claim when re-filing. Tracking and meeting these deadlines are part of the service firms like Greeman Toomey provide to clients. It is our job to explain how missing these deadlines can affect our client’s claims, to prevent our clients from missing the deadlines, and to help our new clients mitigate any problems created by determinations that weren’t appealed in the past.

Receiving a letter in the mail stating that Social Security is going to review your medical condition after you’ve been awarded benefits can by scary.  Our office receives many phone calls each week from individuals in receipt of such letters asking why their case is being reviewed and how the review process works. Social Security is required by law to review the medical condition of all people receiving disability benefits from time to time to make sure they are still disabled.  As a general rule, if your health has not improved, or if your disability still keeps you from working, you will continue to receive benefits. To assist in making the determination, Social Security will gather new information about your medical condition.  This means they will ask your doctors, hospitals, and other medical sources for your medical records. Social Security will also ask them how your medical condition limits your activities, what your medical tests show, and what medical treatments you have received.  If more information is need, Social Security will pay for and ask you to go to a special examination. After gathering new information, Social Security looks at what your medical condition was when your case was last reviewed and any new health problems you may have.  At this point, a decision is made about whether your medical condition has improved.  If it has, a decision is made about whether your medical condition has improved enough to allow you to work.  Social Security will also consider whether your overall medical condition affects the kind of work you can do. If Social Security decides you can work, your benefits will stop.  Your disability benefits also will stop if: Social Security decides a mistake was made in an earlier decision to give you or continue your disability benefits. You are not following the treatment your doctor ordered (without a good reason), and you probably could work if you followed the treatment. You gave Social Security false or misleading information regarding an earlier decision. You are not cooperating with Social Security, and you do not have a good reason for not cooperating. You are working and your average monthly earnings show that you are doing substantial gainful work. If Social Security decides your disability benefits will stop, and you disagree, you can appeal the decision. That means you can ask Social Security to look at your case again. When you get a letter telling you about the decision, the letter will tell you how to appeal.

It is not uncommon for my clients to be receiving unemployment compensation during the same time period that they are seeking Social Security Disability benefits, so I often get questions about whether it harms an SSDI claim to tell one government agency, “I’m ready, willing, and able to work,” while simultaneously telling another agency, “My impairments are so severe that I cannot do any job in the regional or national economy.” Officially, Administrative Law Judges should not be counting your receipt of unemployment benefits against you. In a November 15, 2006 memo from Chief Administrative Law Judge Frank A. Cristuado, the official policy communicated to all Social Security Law Judges was: “[R]eceipt of unemployment benefits does not preclude the receipt of Social Security disability benefits…application for unemployment benefits is evidence that the ALJ must consider together with all of the medical and other evidence…” (Chief ALJ Memorandum, No. 07-11, November 15, 2006.) Judge Cristuado reiterated his position in an August 9, 2010 memorandum to all Social Security Law Judges: “This is a reminder of the policy concerning receipt of unemployment insurance benefits. Receipt of unemployment benefits does not preclude the receipt of Social Security disability benefits. The receipt of unemployment benefits is only one of many factors that must be considered in determining whether the claimant is disabled…under the presumptions embodied in our five-step sequential evaluation process, a person can qualify for Social Security disability benefits even though he or she remains capable of performing some work. Similar logic applies to applications for unemployment benefits…it is often uncertain whether we will find a person who applies for unemployment benefits ultimately to be disabled under our rules, and our decisionmaking process can be quite lengthy. Therefore, it is SSA’s position that individuals need not choose between applying for unemployment insurance and Social Security disability benefits.” (Chief ALJ Memorandum, No. 10-1258, August 9, 2010.) Nonetheless, some judges do seem to care about receipt of unemployment benefits, and count it against the credibility of applicants who are simultaneously seeking benefits under both programs. Others are concerned that if an applicant’s claim is ultimately successful, they will be forced to repay all of the money they’ve received in unemployment, and they may be right: the state agencies who issue unemployment can – and sometimes do – request reimbursement for any monies paid out to individuals who are ultimately found to be “disabled” under Social Security rules. If you are in the process of applying for Social Security benefits and receiving unemployment compensation, be sure to discuss it with your attorney so he or she is prepared to address the issue at your hearing. If you are seeking representation from a Social Security Disability attorney, Greeman Toomey, PLLC has team of experienced and competent attorneys who will work with you throughout the entire application process. Feel free to contact our experienced team at 877-332-3252 anytime for a free evaluation.  

My name is Michelle Mathison and I have been a case manager at Greeman Toomey for the past 18 months. During this time I have assisted hundreds of clients with their Social Security Disability claims. I wanted to go through the typical application process and timeline our clients can expect. The first step for SSA disability claims is to file the Initial Application. I speak with our clients regarding their medical conditions, medical treatment and work history. The application process takes approximately three to six months. These initial applications have a denial rate of approximately 75%. Due to high denial rate of the initial application, the majority of our clients will need to file a Request for Reconsideration. The Request for Reconsideration is the appeal of the denial and updates SSA with any changes in the client’s medical conditions and treatment. The appeal needs to be submitted within 60 days of the date of the denial. At the reconsideration level you can expect a decision in approximately three to six months. Unfortunately the Request for Reconsideration also has a very high denial rate. At this level the rate of denial is approximately 90%. If you have been denied twice you will need to file a Request for Hearing by Administrative Law Judge. Again this request needs to be submitted within 60 days of the date of the denial. The wait for the hearing is about 12-15 months. At the hearing you will be represented by one of the attorneys at our office. Our attorneys have a success rate of approximately 80%. During the wait it is very important that client’s continue to keep our office updated of any changes with their medical conditions or medical treatment. We want to make sure the at the time of the hearing we have all the necessary and relevant medical records. It can be very discouraging to our clients to receive the multiple denials. It is important to keep in mind that most of our client’s claims progress to the hearing level. Even if our client receives a denial we continue to represent them throughout these levels of their claim. If you receive a denial please contact our office right away to pursue the next step of your claim.

Michael J. Astrue, Commissioner of Social Security, announced an online version of the Social Security Statement is now available at www.socialsecurity.gov.  The new online Statement provides eligible workers with secure and convenient access to their Social Security earnings and benefit information. An SSA Statement can provide you with important information detailing how much you will be eligible to receive upon retirement, how much you and your family would be entitled to each month in benefits should you become disabled, and a convenient way for workers to verify that SSA has correct earnings information. This last point is important because Social Security retirement and disability benefits are based on average earnings over a person’s lifetime. If the earnings information is not accurate, the person may not receive all the benefits to which he or she is entitled. To get a personalized online Statement, people age 18 and older must be able to provide information about themselves that matches information already on file with Social Security.  In addition, Social Security uses Experian, an external authentication service provider, for additional verification.  People must provide their identifying information and answer security questions in order to pass this verification.  Social Security will not share a person’s Social Security number with Experian, but the identity check is an important part of this verification process. For more information about the new online Statement, please go to www.socialsecurity.gov/mystatement.