Demystifying

Social Security has an $800 billion annual budget, and is one of the government’s largest expenses. Best known for sending monthly payments to retired Americans, SSA also pays disability claims for 18 million people each year, with numbers increasing due to the recession. The Social Security Administration currently faces one of the largest backlogs in the program’s history. The Social Security Administration’s data showed, at the end of January 2008, the number of cases waiting for a hearing decision was 751,767, leading to average waiting times of 499 days in the 2008 fiscal year. It is widely known the waiting time unacceptable to most people and despite Social Security’s efforts over the past several years, these delays have seemed to increase. It is known that over the past two years it has been very economically challenging for the American people. In the year of 2009 the Social Security Administration received 3 million initial disability claims, which is an increase of 15 percent since 2008. Due to the rise in disability claims, it presents a huge challenge to Social Security to provide quality reviews and timely decisions across the board. In addition to these frightening statistics, it is also financially straining upon the individual states with regards to staffing which contributes to the slow application process.  Every day it is helpful to remind people to be confident that Social Security benefits will be provided to those who need them and to be confident that their tax dollars are being spent wisely. As many are aware, Social Security does not provide the most accurate and thoughtful decision as expected by a claimant while going through the process of a claim. Social Security decisions are examined by Disability Determination Services Bureau. Again, it is important to remember funds provided to the Social Security Administration are crucial and the disbursement is critical as well. Many delays are caused not only by the increase of applicants, but also due to layoffs by the states. A Statement by Social Security Commissioner Michael Astrue, released June 20, calls the report “sloppy and irresponsible. It focuses on the wrong measures, ignores the tremendous progress we have made in addressing the disability hearing backlog, and reaches the incorrect conclusion that we are ‘faltering.’” He further states that the TRAC report “bears little relevance to the public’s experience,” which has been a reduction in wait times as the number of people waiting over 270 days has consistently fallen since 2008. At the hearing level many people often wonder if judges are fair in their assessment of disability claims. The Wall Street Journal recently put the spotlight on one judge, who for the first six months of fiscal year 2011, approved payments in every one of his 729 decisions, according to the Social Security Administration. A person would naturally question the integrity of the judge’s decisions and if the Social Security Administration is trying to move cases along as quickly as possible through the system to reduce the overwhelming backlog. The national average approval rate at the hearing level is 64 percent. However, regional approval rates vary.

The Social Security Administration (SSA) increased the number of diseases and conditions that are part of SSA’s Compassionate Allowance program to 200, which was commemorated by SSA Commissioner Michael Astrue on December 6 in Washington, D.C. The Compassionate Allowance program is designed to fast-track disability cases for people who are suffering from life-threatening illnesses. Conditions such as cancer, Alzheimer’s and Amytrophic Lateral Sclerosis (Lou Gehrig’s disease) already fell on the Compassionate Allowance list, which prior to Dec. 6 included 165 different conditions. A majority of Social Security Disability Insurance (SSDI) or Supplemental Security (SSI) cases can take the better part of two years before claimants might be approved to receive benefits. The Compassionate Allowance program was instituted in 2008 for people with rare diseases and life threatening conditions to expedite the processing of disability claims. Rather than take up to two years to receive benefits, people suffering from conditions found on the Compassionate Allowance list are supposed to receive disability determinations in a matter of days, not weeks or months. In a December 5 article in the Minneapolis Star Tribune Astrue said it doesn’t make any sense for people with life-threatening diseases to have to wait month after month to be found disabled if the evidence shows they have a condition on the Compassionate Allowance list. “If somebody’s got a confirmed diagnosis of ALS, you know that in essence, it’s not only a disability, it’s a death sentence, and there is no use in burdening them with paperwork,” he said. The expanded list of Compassionate Allowance conditions can be found on the Social Security website by following this link: http://www.socialsecurity.gov/compassionateallowances/conditions.htm. Speeding up the Disability Determination Process Aside from the move to expand the Compassionate Allowance list, Social Security is also working on speeding up the process for everyone else. Since 2008 when it took an average of 509 days before applicants received a hearing before an Administrative Law Judge, according to SSA statistics, the Administration has made a concerted effort to speed up the process from beginning to end. One move Astrue has made to improve efficient processing and more thorough determinations at lower levels of Social Security disability cases is to award a grant of $1.5 million to Policy Research Inc., which will make stipends available to graduate students to research and suggest improvements to the disability determination process. For more information visit: http://www.socialsecurity.gov/compassionateallowances/.

  The Social Security Disability Insurance (SSDI) program is a safety net for disabled workers who are no longer able to continue to work at a Substantial Gainful Activity (SGA) level. A new poll conducted by a research firm indicates that most Americans believe the SSDI program is important and they don’t want to see cuts made to the program or even considered as part of potential federal budget cuts. The SSDI program is not a welfare program. The payments disabled workers receive from this program are based on the Social Security taxes they have paid their entire life while they were able to work. Just as retired workers receive Social Security benefits they are due, SSDI recipient payments are based on what they have paid into the system. To qualify for payments you must prove you are disabled and that you will be unable to work at an SGA level for at least 12 consecutive months. The National Organization of Social Security Claimants’ Representatives (NOSSCR) commissioned a survey about what Americans thought about the SSDI program. The results are clear that Americans support the program and want it around if they ever need it. Poll Results Eighty percent of respondents support the SSDI program. Eighty three percent of respondents believe it would be unfair to cut SSDI benefits for those who have paid into the system. Seventy seven percent of respondents believe Congress should look elsewhere to cut the federal budget and leave the SSDI program intact. Only eight percent of all respondents believe the SSDI program should face cuts. About the Poll The poll was conducted by Lincoln Park Strategies, an independent research firm. The poll sampled 1,001 adult Americans who were interviewed between September 29 and October 2, 2012. The poll consisted of 530 women and 471 men. Of those polled, 401 considered themselves conservative, 351 considered themselves moderate and 192 considered themselves liberal. To learn more about the poll and the results visit the following link: http://www.prnewswire.com/news-releases/poll-overwhelming-majority-of-american-voters-support-social-security-disability-insurance-benefits-program-173677551.html    

Depending on what type of benefits you are receiving getting married can affect your eligibility for payments or reduce the amount of your monthly benefits. If you do get married the Social Security Administration (SSA) will determine any changes. If you are receiving Disability Insurance Benefits (DIB) getting married will have no effect on your payments. This is because DIB payments are based on what you have paid into the SSA.  Since you have earned the work credits necessary to qualify for this program your spouse would have no impact on eligibility nor would getting married reduce your monthly benefits. If you are receiving Disabled Adult Child (DAC) benefits and get married, most likely you will become ineligible to continue receiving benefits.  However, there are some exceptions to this rule. For example, if your spouse is also receiving DAC benefits you both will be able to continue receiving payments. If you are receiving Disabled Widow/Widower’s benefits and get remarried prior to the age of 60 you will lose your benefits. If you are receiving Supplemental Security Income (SSI) payments, your spouse’s income and resources will be taken into account to determine your continued eligibility. SSI is a needs based program and has strict financial qualifications.  In general, in order to qualify for SSI a married couple must have less than $3000 in assets.  The SSA does make some exemptions. For example, one house and one car. If you and your spouse are receiving SSI, your payments will be changed from the individual rate to a couple rate. For 2012, the maximum monthly benefit amount for an individual is $698 and for a couple the maximum monthly benefit amount is $1048. For more information regarding disability payments and marriage please refer to the SSA’s webpage titled “Affects of getting married on Social Security benefits.”    

When you apply for Social Security, and found you either have paid enough into the system to meet the non-medical requirements for SSDI benefits or have the requisite few assets to met the technical requirements, your case then gets moved on to your state’s respective Disability Determination Services. It is a very rare occasion that a claimant gets direct contact with a DDS examiner who is handling their claim. This portion in the process affords very little chance for a claimant to directly explain how their conditions truly affect their day to day life. This is where the function report comes in. Most claimants will receive in the mail a questionnaire that asks very pointed questions to how their conditions affect them in their day to day activities. This report is several pages long, and many claimants may find it very intimidating. Don’t be afraid, and embrace the opportunity. For most people, it will take 45-60 minutes to complete. This report calls to many aspects of most people’s daily lives: from hobbies, to cleaning, to cooking to shopping. This is because how you are in your daily life outside of working is indicative of your ability to work. In this report, many claimants make the mistake of not taking it seriously and answering questions without detail. For example, a claimant may be in a hurry to finish the report, and state very broadly that they clean around the house. This might give the DDS examiner the image of being on the floor scrubbing for long periods, followed by a lengthy vacuuming session. The truth for the claimant may be that he picks up his kids clothes on two separate occasions throughout the day, creating a total cleaning time of seven minutes per day. On the opposite end of the spectrum, many claimants feel the need to embellish and exaggerate. This can also create problems as DDS examiners have seen literally hundreds of these reports, and know an exaggeration when they see it, especially considering that DDS examiners are also reviewing your medical records and know when the function report is inconsistent. This can result in a DDS examiner not taking the remainder of the function report seriously, even if the remainder of the function report is consistent with what your medical records indicate. Where many claimants feel their conditions affect them the most is not in their work, but in their hobbies that they enjoy (often more than their work) which they can no longer do anymore. There is a section in the function report devoted to the hobbies you can and can no longer do. Be detailed in this section, as the hobbies you can no longer do because of your conditions is indicative of the work you can do because of your condition. A person who enjoys building model airplanes, but had to stop due to his severe carpel tunnel cannot be expected to work with his hands. A person who enjoys working out, but can’t lift a 10 lb dumbbell anymore, cannot be expected to repeatedly lift and carry a 10 lb box. Often times, claimants feel like at the end, they need to clarify a few points. This is where the ending “Remarks” section comes in. If a claimant thinks a specific point should be noted, that they didn’t mention already, he/she should put it in the remarks. Finally, the Function Report has a deadline to be back in the mail 10 days after it is sent out. This is not a report to sit on. Get working on the report immediately when you see it in the mail, and get it back in the mail as soon as it is done. As we have seen, this report provides clarity to how your conditions affect you. You don’t want DDS to make their decision without the information you can provide in this report.

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.  

Social Security Supplemental Security Income makes monthly payments to people with low income and limited resources who are ages 65 or older, blind, or disabled. A child younger than age 18 can qualify if he or she meets Social Security’s definition of disability, and if his or her income and resources fall within the eligibility requirements. Social Security considers the income and resources of family members living in the child’s household. When applying for benefits for a child, Social Security needs detailed information about the child’s medical condition and how it affects his or her ability to function on a daily basis. Social Security will also obtain records from doctors, teachers, therapists and other professionals who have information about the child’s condition. In almost all child disability claims it is very important to obtain records from the child’s Individualized Education Program (IEP). School records and the opinions of appropriate educational staff are two of the best sources of evidence about how a child is functioning. In general disability examiners who medically review the claim are looking for the following information: Academic performance, psychological evaluation, attendance and behavior; Standardized and other specialized testing; School-based therapeutic interventions (e.g., speech and language therapy) and the use of other special services, including placement in special education classes or other specially adapted settings; Individualized education programs (IEP); and Other periodic assessments of the child; e.g., comprehensive triennial assessments. Assessments by teachers and other qualified personnel about the child’s activities and functioning; that is: what the child can and cannot do, or is limited in doing. There are five domains of functioning that Social Security considers: acquiring and using information, attending and completing tasks, interacting and relating with others, moving about and manipulating objects, caring for yourself, and health and physical well-being. The various topics are outlined on the Child disability portion of Social Security’s website. It can take three to four months for Social Security to determine if a child is disabled. However, Social Security does have the ability to start automatic payment while you wait for that decision to be made. A child would need to meet the following requirements to qualify for this exception: HIV infection; total blindness; total deafness; cerebral palsy; down syndrome; muscular dystrophy; severe intellectual disorder (child age 7 or older); and birth weight below 2 pounds, 10 ounces.  

The Social Security Administration (SSA) may be able to pay you Supplemental Security Income (SSI) benefits while you wait for your medical determination if you qualify for Presumptive Disability or Presumptive Blindness benefits. These are temporary benefits awarded to a claimant whose alleged conditions make them likely to be approved. These benefits are paid out for a maximum of six months while the SSA confirms that the claimant qualifies. The claimant must also meet the financial requirements to be eligible for SSI payments. Presumptive Disability and/or Presumptive Blindness are not available for claimant’s who only qualify for Disability Insurance Benefits (DIB). Claimants that qualify for presumptive disability payments have impairments that are so severe that the SSA presumes you meet the qualifications to be approved for benefits. Some examples are total blindness, total deafness, acquired immunodeficiency syndrome (AIDS), end stage renal disease, and amyotrophic lateral sclerosis (ALS). Please refer to the SSA’s Expedited Payment’s section to view the full list of qualifying impairments. Children may also be eligible for Presumptive Disability payments while waiting for a decision. For example, a child who has not yet reached his or her first birthday and weigh below 1,200 grams (2 pounds, 10 ounces) at birth will be awarded. A child may also be eligible for Presumptive Disability if they have a severe mental deficiency or Down syndrome. If you have been paid Presumptive Disability benefits and are later denied you will not be required to pay these benefits back to the SSA.  If you have been paid Presumptive Disability or Presumptive Blindness benefits for six months and are still waiting on a decision the benefits will end until a decision is issued. More information on Presumptive Disability and Presumptive Blindness benefits can be found in the SSA’s POMS Section: DI 23535.001.