Demystifying

Q: I was recently diagnosed with Failed Back Surgery Syndrome (FBSS). Is this a real disease?! What does it mean? A: FBSS is a chronic pain condition that may be diagnosed after multiple surgical intervention fail to correct (or worse yet, exacerbate) pain caused by spinal and cervical abnormalities. Typically, patients receive this diagnosis from a spinal surgeon and/or neurologist whose medical specialty and training permit them to conclude that the patient has an irreversible condition which cannot be improved through further surgical intervention. FBSS is a frustrating – even devastating – diagnosis to receive. Those living with chronic pain may experience difficulties with memory and concentration, and likely experience depression and irritability resulting from the permanent inability to engage in activities they previously enjoyed. In addition, many patients with FBSS or other chronic pain conditions develop dependence and/or additions to narcotic pain medications, which spawn an entirely new category of problems. While medical intervention may be of limited use for those with FBSS, there may be legal avenues available to alleviate some of the financial losses which follow from an inability to work due to chronic pain. First, if the underlying condition was caused by a motor vehicle or other type of accident, a personal injury attorney can help to assess whether you could seek compensation for the negligence or fault of another person. If the injury stems from a workplace accident, or from the stress of repetitive work activities, people with FBSS should consider speaking with a workers’ compensation attorney at the earliest possible opportunity to assess whether a workers’ compensation claim is warranted. Finally, if the limitations posed by FBSS have rendered you unable to work a full-time job, consider speaking to a Social Security Disability attorney. Social Security disability was designed to insure that those rendered unable to work due to a medical condition would not be left destitute. If you have received a diagnosis of FBSS and want to speak with an attorney about your options, our attorneys would happy to answer any question that we can, and/or to direct you to any other attorneys within our referral network if you have additional questions that we cannot answer.  

This is Part II of a multipart series that will examine the law behind Individualized Education Programs (“IEPs”), how parents can find out whether their child is eligible for an IEP, how IEPs are created, and how parents can effectively use an IEP once it is established. Parents are often the first to notice that a child may be suffering from developmental delays, learning disabilities, or physical or mental impairments.  As a result, it is important for parents to know where to turn in order to find out whether their child qualifies for an IEP and the additional services that come with it.  Parents of children already in school should talk to the child’s teacher(s) and/or school administrators about whether academic or developmental testing should be conducted.  The results of this testing will indicate whether an IEP is appropriate. Parents of children not yet in school should contact the human services or social services department of the county where the child lives and ask who to speak with regarding developmental testing for IEPs.  The following is more specific contact information for the four counties comprising the Twin Cities metro area: Parents of children in Hennepin County should contact Front Door Screening at (612)348-4111. Parents of children in Ramsey County should complete a developmental disabilities child intake by calling (651)266-4500. Parents of children in Dakota County should call (952)891-7459. Parents of children in Washington County should contact the birth-3 program or preschool in their respective school district for assessment and then call developmental disabilities at (651)430-4140 with the assessment information. If you suspect your child is suffering from developmental delays, learning disabilities, or physical or mental impairments it is important to get them tested as soon as possible because early intervention improves the child’s chances of long-term success.

Many politicians and pundits over have made accusations that an increase in the number of people receiving Social Security Disability Insurance (SSDI) benefits is a sign that Americans are relying too much on government, but these claims do not match-up with what is really going on with Social Security’s disability programs. It is true that by 2012 more people (8.8 million) were collecting SSDI than at any other time in the program’s history. If you look no further you may agree with the idea that people are relying on this program too much, but as is the case with most things, it’s not that simple. Below are some interesting facts about recent developments of the SSDI program. SSDI applications actually decreased in 2012: In fact, 2012 was the second year in a row in which the number of SSDI applications decreased. The last time the number of SSDI applications decreased from the previous year’s total was in 2005. The increase in recipients is based on demographics: Despite claims that people have become lazy and more reliant on the government, the main reason SSDI recipients has increased to an all-time high is due to the aging Baby Boomer Generation. “The approximate period during which the baby-boom generation entered their 50s (1996-2009) the share of disabled worker benefits awarded to older workers (age 45 and older) rose from 67 percent to 76 percent” (the largest increase in SSDI benefits), according to a report filed by the Congressional Budget Office. Women makeup more of the workforce: The number of women who are in the workforce has increased drastically since 1970 when just 43 percent of women worked. By 2009 the percentage of women in the workforce increased to 60 percent, according to the Bureau of Labor Statistics. For more information about how the number people receiving SSDI has changed over the years visit: http://www.ssa.gov/oact/STATS/dibStat.html.

Most people who file for Social Security disability never dreamed they would be asking the government for assistance because they could not longer work, but eventually they realize they have no other choice. As Americans we are told at an early age the importance of a hard day’s work, but what happens when you are no longer able to work because you are disabled? Many people who end up filing for Social Security disability express a sense of shame or embarrassment because they have to seek Social Security disability benefits. The truth of the matter is if it wasn’t for many of these same people there would be no Social Security disability program to speak of. Social Security Disability Insurance provides benefits to those who have spent the better part of their lives working and paying Social Security taxes. The only way to meet the technical requirements for this program is to work long enough and recently enough to qualify if you are found disabled. In a sense, these people are asking to benefit from a program they helped create by paying their taxes. There is certainly no shame in that. Supplemental Security Income is a bit different as it is not based on work history. This program is for the people who fall through the cracks and don’t have enough work credits to qualify for Disability Insurance. As long as income and asset levels do not exceed Social Security’s limitations those who have never worked, or not worked long enough because of disabilities, have a safety net. The main message for anyone seeking the assistance of these programs because they can no longer work due to physical and or mental health disabilities is there is nothing to be embarrassed about in asking for help and accessing programs specifically designed to help you.

After you have your hearing, the Administrative Law Judge (ALJ) will issue their decision.  Claimants typically wait one to three months for the decision to be issued.  The ALJ has three possible choices. The options are a fully favorable decision, partially favorable decision or unfavorable decision. A fully favorable decision means the ALJ finds you disabled and agrees that you became disabled on the same date you alleged on your application. There are two types of partially favorable decisions. A partially favorable decision may be issued if the ALJ agrees you are disabled but that you did not become disabled as early as you alleged. The other type of partially favorable decision is what is called a closed period of disability. In a closed period an ALJ would find you disabled for at least a 12 month period of time, but not eligible for ongoing payments. If you receive either a fully favorable or partially favorable decision your claim will be forwarded to one of the payment centers to begin the processing of your benefits. The payment center will issue what is called the Notice of Award. The Notice of Award will outline how much your back payment is and how much your monthly benefits will be (if you are eligible for monthly payments).  The Notice of Award will also list any deductions that may be taken out, for example an attorney’s fee. If you receive an unfavorable decision from the ALJ you would have the option to file an appeal. The appeal is submitted to the Social Security Administration Appeals Council. The Appeals Council makes a final review to determine whether or not the ALJ made the correct decision at the time of the hearing. Their review of claims take on average at least one year to process. The Appeals Council frequently determines that the original decision made by the ALJ is correct. For some claimants who receive an unfavorable decision it is better to forgo the appeal with the Appeal Councils and file a whole new application. Depending on the specifics of your claim it may be more likely that your new application will be approved than the appeal. However, if you don’t appeal the ALJ’s decision that decision will be made final for the time period covered by that claim. For more information on the hearing process, please review the SSA’s website page titled Social Security’s Hearing Process.

Military service members can receive expedited processing of disability claims from Social Security. Social Security benefits are different than those from the Department of Veterans Affairs require and separate application process. The expedited process for Social Security applicant is for military service members who become disabled while on active military service on or after October 1, 2001, regardless of where the disability occurs. The Social Security Administration and the Department of Defense (DoD) are working together to improve access to disability benefits for the nation’s Wounded Warriors, service members, veterans, and their dependents.  This new nationwide project allows Social Security processing sites to receive military medical records from multiple Department of Defense facilities with a single request to a centralized Department of Defense website. “Receiving electronic medical records for our Wounded Warriors and other military personnel will significantly shorten the time it takes to make a disability decision,” said Michael J. Astrue, Commissioner of Social Security.  “This new process will improve the speed, accuracy, and efficiency of the disability program.” Originally the program was piloted in five states (Colorado, North Carolina, Oregon, Virginia, and Washington) with more than 60 military treatment facilities.  These states are now receiving electronic medical records within 72 hours, which is a substantial improvement over the prior average response time which was five weeks for paper records from each individual military treatment facility. The benefits of the new process include: faster delivery of medical records to Social Security, a more efficient system to obtain records, a reduction in the time it takes to make a medical decision and a reduction in the number of consultative examinations (medical exams requested by Social Security when additional tests or medical records are needed.) This is the first step towards the long-term goal of a fully automated solution to improve medical information sharing using health information technology.

The Social Security disability process is littered with emotional highs and lows. One example is the five-month waiting period disabled workers are faced with when they are approved for Social Security Disability Insurance (SSDI). Many times Social Security disability applicants express a sigh of relief when they find out they are approved for SSDI, but then experience confusion when the award letter informs them that they have to wait five months, from the established disability date, before they are entitled to payments. This is not something Social Security came up with on a whim. In fact, the waiting period for SSDI payments has been in place since 1954. The reasoning behind the waiting period was, in part, to deter those who could work from applying for Social Security disability, according to a Congressional Research Service report submitted August 31, 2012. The impact of missing five months worth of benefits is substantial for SSDI recipients. The 2013 average monthly SSDI payment is $1,132, which means the waiting period is costing the average SSDI recipient more than $5,600. “One study estimates that eliminating the waiting period would have the same positive effect on the number of SSDI applications as a 10 percent increase in the level of benefits,” the Congressional Research Service report states. Although this report suggests that eliminating the SSDI waiting period would benefit disabled workers, it also suggests that there are other programs in place to supplement the disabled worker until SSDI benefits kick in. Some of these programs include Temporary Disability Insurance provided by some states, Worker’s Compensation, Unemployment Insurance and Private Disability Insurance through an employer. These programs have their own rules and regulations that may disqualify those who are seeking SSDI. The other program identified to support applicants impacted by the five-month waiting period is the Supplemental Security Income (SSI) program, which you must also be disabled for to receive payments if you under age 65. There is no waiting period for SSI applicants as they may be eligible to collect benefits subsequent to the application date. For more information about the recent report on the five-month waiting period visit http://www.fas.org/sgp/crs/misc/RS22220.pdf.  

If you work, Social Security may deduct your Impairment Related Work Expenses (IRWE) from the amount of earnings they use to figure your SSI benefit.  This means that Social Security will not reduce your SSI benefit as much because they will not count all of your earnings. IRWE may include out-of-pocket expenses for: (1) medical items  – such as medicine, medical supplies, medical devices, service animals, bandages, and syringes; (2) medical services  – such as counseling, doctors visits, and some attendant care services; and (3) transportation and modifications to your home, car, or van to allow you to work.  Normally, public transportation is not an IRWE. The expense must not be reimbursed by any other source (such as Medicare, Medicaid, or a private insurance carrier) and must be related to your disabling impairment(s) and needed in order for you to work.  Generally, it does not matter if you also need the item or service for daily living.  For example, the cost of a wheelchair usually can be deducted from the earnings Social Security might count even though the wheelchair is used for both daily living and work. Generally, you must be working in the month you pay for an IRWE. However in certain situations, Social Security can deduct IRWE amounts for expenses you pay before you start or after you stop work. Here’s a link to a table listing examples of deductible and non-deductible IRWE:    http://www.ssa.gov/redbook/eng/ssdi-and-ssi-employments-supports.htm#3