Demystifying

This is Part II in our four part series discussing issues not fully addressed in NPR’s article discussing Social Security Disability and Supplemental Security Income recipients: http://apps.npr.org/unfit-for-work/. By now, most claimants have been denied from their Request for Reconsideration and have waited anywhere between 6-15 months. Upon denial of the Request for Reconsideration, they have 60 days to file for a Request for Hearing. After someone files a Request for Hearing, their next step is to wait… in excess of one year in most states, to get a hearing. Some states it takes a shorter amount of time (North and South Dakota are taking closer to 8-10 months), however, some states like Wisconsin and parts of Michigan’s Upper Peninsula have been seeing wait times around 15 months. Some claimants have seen success while waiting, as a few claimants are pulled for an informal review, to see if there is enough evidence on the record to render a fully favorable decision to the claimant. If there is not enough evidence, the claimant is placed right back into the same spot in line for a hearing. The truth of the matter is that claimants tend to find more success at the hearing level than any other level. For instance, while the national average for an initial application approval is 25%, the average hearing approval in Minnesota is 46%, Wisconsin is 37%, Iowa is 40%, Utah is 59% and Hawaii is 66%. However, not all Administrative Law Judges, even in the same state, share the same approval rating. Minnesota, for example, has one judge with a 33% approval rating, and another with a 67% approval rating. Furthermore, once the hearing rolls around, the claimant still has to wait. Hearing decisions still take one to three months to be mailed to the claimant. If the claimant is denied, their next appeal stage is to send the claim for review to the Appeals Council in Falls Church, VA. Wait times here are in excess of one year, with around 20% for a success rate. In most cases, a success is considered getting the case remanded to a new hearing, with the same judge. In rare instances, the Appeals Council will grant review and then completely reverse the decision by the Administrative Law Judge. At this point, the claimant has been waiting, often times, in excess of three years since the outset of their claim.

In order to receive either Social Security Disability benefits or Supplemental Security Income, you must meet both medical and non-medical requirements. If you receive a decision stating you’ve met the medical requirements but the Social Security Administration is still determining if you’ve met the non-medical requirements, they are reviewing the following: If you’ve filed a claim for Social Security Disability, SSA must determine if you have worked long enough or recently enough to qualify. If you paid taxes into Social Security while working, you earn work credits and establish what is called a “date last insured.” In order to receive Social Security Disability benefits you must be found disabled prior to this date. A general rule of thumb is that you must have worked five of the past 10 years. If you have never worked or do not have enough work credits, you may be eligible for Supplemental Security Income (SSI). In order to qualify for SSI you must meet certain financial requirements. SSI is a needs-based disability program, SSA needs to make sure that your resources are low enough before awarding any benefits. Your local SSA office will look at your household income, resources and living arrangements. The resource limit for an individual is $2000 and for a couple it is $3000. But certain things do not count against your resource total. For example, the house you live in and one car. Unlike Social Security Disability benefits, SSI benefits are offset by any additional income you receive. It is possible that you could meet the non-medical requirements for both programs. In that case, SSA cannot pay you both Social Security Disability and SSI. You will receive benefits from whichever program offers you the highest amount. The maximum monthly benefit for SSI is $698. For Social Security Disability, the amount varies per person based on how much money they have paid into SSA. These factors were evaluated when you first filed an application, but SSA will take another look when you are approved. After SSA has finished evaluating the non-medical requirements, the Notice of Award will be issued. This will outline your payments and any necessary deductions.

Once you have applied for Social Security disability and the Social Security Administration (SSA) has determined you meet requirements for one of its disability programs, either Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI), a medical decision must be made to determine if you are disabled. There are many different pieces of information that Disability Determination Services (DDS), a state agency that determines whether an SSA applicant is disabled, considers in its determination. Many times an SSDI or SSI applicant will be asked to complete a Function Report to help DDS representatives make a disability determination. A Function Report is a multi-page questionnaire about an applicant’s activities and how their disabilities impact their daily lives. Although a multi-page questionnaire may seem like a daunting task for someone who is disabled to complete, it is important for an applicant to fill-out this form and return it do DDS by the time prescribed by the disability determination agency. Failure to do so almost certainly will result in a denied disability claim. The refusal to complete the Function Report is interpreted by DDS as a failure to cooperate. The Function Report examines a variety of topics including how an applicant’s disabilities impact the ability to work, in-depth detail about an applicant’s daily activities and an explanation about how an applicant takes care of basic personal needs like showering, dressing and preparing meals. Here are some tips to make sure your Function Report has a valuable impact on your disability case: 1) Answer every question. 2) Answer every question completely and don’t limit yourself to the space provided on the form. If you feel you need more space to adequately answer the questions, please include an additional piece of paper to fully respond. 3) Make sure you print the forms. A legible answer to a question will diminish the possibility of having your answers misunderstood. If an applicant feels too overwhelmed to complete the Function Report on their own, they are free to ask a friend or relative to help complete it, but it is important to understand that DDS is trying to understand the capabilities of the applicant. This includes the applicant’s ability to complete this type of questionnaire. If the applicant has someone else complete the Function Report DDS may not have a full understanding about the applicant’s physical and or mental health limitations. If it is necessary to seek assistance with completing the Function Report, the person helping must also indicate that they assisted the applicant on the form. If you receive a Function Report while you have a Social Security disability claim pending remember to complete it to the best of your ability and return it to DDS within 10 days of receiving it.

Pierce asserts that the treating physician rule should be rescinded because, in part, too many people are being awarded disability as a result of this rule.  Basically, the rule states that great weight should be afforded the opinion of a treating source opinion regarding his patient’s ability to work.  The reasoning behind the rule is sound.  A treating physician, provided he has a sufficient treating relationship in regards to the amount of time and frequency of visits, is in the best position to judge his patient’s limitations. Pierce further argues that getting rid of the treating physician rule would take away one of the tools that unscrupulous attorneys are now exploiting in order to gain advantage for their clients, forcing SSA to allow more claims and costing the government money in benefits as well as attorney fees.  This argument turns the fact finding nature of the disability determination on its head. First of all, the treating physician rule is not an absolute, there are factors to be considered in determining how much weight should be given a doctors opinion.  In this fact finding process, fortunately, representatives realize that the person to best judge a person’s limitations is his treating doctor. The fact that an attorney can reach out on his clients behalf, to treating sources, and solicit these opinions, is vital to the disability process.  Given the nature of this process, it seems that this further case development should be praised rather than vilified. Case developers at DDS are overworked to the point where such information is rarely, if ever, solicited. Pierce argues that the treating physician rule puts the ALJ in a difficult position because the cases have already been reviewed by a case examiner and medical expert (neither whom have ever met the claimant).  Interestingly, Pierce admits that an ALJ has the difficult task of determining the extent of a claimant’s mental or physical limitations, and that his solution is to take away the one opinion which will shed the best light on a claimant’s limitations.  The fact that these doctor’s opinions may lead to more disabled people actually being found….well…disabled, should not be a deterrent to applying the rule and letting the disability chip fall where they should, and not as a result of the whim of a financial concern

Greeman Toomey is currently representing a seriously ill client who we will call Mr. E. Mr. E was born with type I diabetes, and at the time of his hearing before an Administrative Law Judge was in his mid-twenties, with diabetic neuropathy in his feet. Mr. E. was denied benefits by the Administrative Law Judge. His case is now pending before the Appeals Council (AC) in Falls Church, Virginia. Because of the nature of Mr. E’s medical deterioration post-hearing, his case is a perfect example of when evidence will be considered “new and material” by the AC. The AC will consider evidence submitted to it if it is “new,” meaning pertaining to the period of time after your hearing with the Administrative Law Judge, and “material,” which is a vague standard, roughly meaning that the evidence relates back to the medical issues in your case and proves a significant change in your condition. Mr. E was hospitalized for wounds in his feet and other complications of diabetes about three weeks after his hearing. The hospitalization lasted about two weeks. This evidence, which can be described as routine care for ongoing conditions of the same type he experienced prior to the hearing, would not normally be ideal evidence to submit to the AC. Then Mr. E was readmitted to the hospital, again for complications with wounds in his feet. This time, the wounds in both his feet showed signs gangrene. Within four months of his hearing before the Administrative Law Judge, hospital staff had amputated Mr. E’s left leg below the knee. Within six months of the hearing, he was living in a rehabilitation center to learn to ambulate with only one leg. This evidence is “new,” as the gangrene infection and amputation happened after the hearing. Most importantly, it is extremely “material:” Mr. E’s amputation was caused by his type I diabetes and by his diabetic neuropathy, which was the major issue before the Administrative Law Judge, and the amputation has radically changed his medical situation. Evidence of Mr. E’s bilateral gangrene and left leg amputation was immediately submitted to the AC. Normally, in a case as drastic as this, we would expect that the AC would remand Mr. E’s case for an Administrative Law Judge to consider all the facts of his new medical condition. Unfortunately, Mr. E’s story does not stop there. Hospital staff determined that the gas gangrene in Mr. E’s remaining right foot could not be controlled. Seven months after his hearing and three months after his first amputation, Mr. E’s right foot was amputated. He remains hospitalized, and complications continue. Doctors are indicating that a further amputation of Mr. E’s right leg will be required from the knee down, as soon as his situation is stable. He is now a double amputee, and presumably disabled under Section 1.05B of the Listing of Impairments. Evidence of this second amputation is obviously both “new” and “material” to the AC. Moreover, Mr. E’s medical situation has changed so radically since his hearing with the Administrative Law Judge only seven months ago that we would expect the AC to issue a favorable decision in his case, instead of remanding for further proceedings.

How many times do you turn on the TV news and see a report of a senseless shooting or murder where nearby residents of the neighborhood always seem to say “I didn’t think that could happen in a place like this?” A lot of people have a similar opinion about their chances of becoming disabled. People who are disabled and unable to work know all too well the difficulties involved with trying to obtain Social Security disability. Some common complaints are the wait time (many disability cases take up to two years before a final decision is made), the rate of denial (Social Security rejects the majority of initial applications it receives) and surviving financial until the case is complete. Those who go through the process know the frustration all too well, but why would a healthy worker waste a second thinking about Social Security disability? The answer is simple – because anyone could end up being disabled. A healthy 20-year old has a 25 percent chance of becoming disabled during their working career according to the Council for Disability Awareness. The healthy worker does not believe he or she has that high of a risk of becoming disabled. Most working Americans believe their own chance of experiencing a long-term disability is substantially lower than the average worker, reinforcing the belief that “it could never happen to me.” Well, it can and it does. Obviously it is difficult to prevent an unforeseen accident at work that may lead to a disability, but even if that happens worker’s compensation benefits can protect the worker. Unfortunately most Social Security disability claims are not related to a work accident. According to the CDA’s Long-Term Disability Claims Review the leading causes of new disability claims are: Musculoskeletal and connective tissue disorders (27.5 percent) Cancer (14.6 percent) Injuries and poisoning (10.3 percent) Cardiovascular and circulatory disorders (9.1 percent) Mental disorder (9.1 percent) For more information about the CDA’s findings click here.