Demystifying

When an individual files an application for Social Security disability benefits, there are essentially four levels an application may progress through. This post discusses the first stage of the process, the initial level. The remaining stages will be discussed in future posts. The Initial Level The first level of the disability process is commonly referred to as the “initial level.” After an individual (the claimant) files an initial application the Social Security Administration (SSA) will obtain and consider relevant medical documentation. These tasks, obtaining and considering relevant medical documentation, are conducted by the State’s Disability Determination Services, or “DDS.” The DDSs are state agencies which are fully funded by the Federal Government and are responsible for developing and considering the medical evidence. Additionally, the DDSs are responsible for rendering the initial determination on whether the claimant is, or is not, disabled under the law. The DDS will attempt to obtain evidence from the claimant’s health care providers. If it is determined that sufficient evidence does not exist, the DDS will schedule a consultative examination (CE). This is an examination the claimant will attend with a health care provider at the cost of the SSA. Following the CE, the DDS will consider the CE report as evidence. Once all relevant evidence has been obtained and considered, the DDS will make a disability determination. This determination is made by a two-person adjudicative team consisting of a medical consultant and a disability examiner. The DDS will make the initial determination of whether a case should be allowed or denied. Claimants can typically expect to receive a response at this level within two to four months from the time the initial application is filed. If the DDS determines the case should be denied, the claimant will be afforded the opportunity to appeal this decision. This step will be discussed in a future post, entitled The Reconsideration Level.    

As a case manager, when I have to inform our clients at Greeman Toomey PLLC about hearings before an Administrative Law Judge (ALJ) a frequent question that is asked is, “Will I have to speak during the hearing?” The simple answer is YES. If you are at a hearing before an ALJ it means that you have already been denied for either Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI). These lower level decisions are made by nameless people you never have an opportunity to talk to and never meet. A hearing in front of an ALJ is the only time you have the opportunity to be in the same room as the person deciding whether or not you should receive Social Security disability benefits. The main purpose of the hearing is for you to testify, under oath, about how your conditions impact your ability to work. The ALJ will have an opportunity to ask questions and will ask for testimony from a vocational expert and possibly a medical expert who will testify about your conditions and how those conditions impact your ability to work. Even if you have hired an attorney or other representative to assist you with your claim it does not mean that you won’t have to talk during a hearing. Your representative or attorney may ask you questions in an effort to show how your disabilities impact your life and your ability to work. Of course your representative or attorney is there to assist you and normally has experience dealing with ALJs and with government experts. This experience and knowledge allows your attorney to describe your functional limitations to the judge as backed up by the medical record, which is collected by your representative prior to the hearing. Your attorney may also question witnesses, such as the vocational expert or medical expert. If you are before an ALJ that is asking questions, be truthful, thoughtful and thorough in explaining your answers. The Social Security Administration has set general guidelines on what to expect at an administrative law hearing, which can be found at www.socialsecurity.gov/appeals/hearing_process.html#what_happens.    

A closed period of disability is awarded to a claimant whose medical evidence proves that they have been unable to engage in Substantial Gainful Activity (SGA) for at least a twelve month period of time, but later shows medical improvement according to the Social Security Administration’s (SSA) rules. If SSA finds medical improvement, it means the claimant was hypothetically able to work above SGA after a certain date, that SSA chooses based on the medical record. Currently SGA is $1010 gross income per month. Many claimants file applications with the intention of receiving ongoing disability benefits from the SSA but due to the lengthy processing time of these claims find that their conditions have improved enough to begin working prior to a decision being issued. The Administrative Law Judge (ALJ) may determine that the claimant is only eligible to receive back pay and no future benefits if the claimant has started to work above an SGA level. However, sometimes an ALJ may decide to award a closed period based upon the medical evidence showing improvement according to the SSA’s medical improvement standards, even without the claimant having actually returned to work. If you have already returned to work and have not already filed an application for disability with SSA you may still be eligible.  According to POMS Section: DI 25510.010, the claimant must file an application within 14 months of the disability ending. If you miss this deadline you must show that your physical or mental health conditions prevented you from filing an application on time and you must request the closed period within 36 months of the disability ending. If approved for a closed period you would only receive back pay for the period of disability and no future benefits. If the claim is for Social Security Disability (Title II) benefits you must meet insured status during the time period in which you’re found disabled.  You become insured by paying into the SSA and earning work credits. If the claim is for Supplemental Security Income (Title XIV) you must meet the financial eligibility requirements during the period of  disability because this is a needs based benefit program.  

A recent New York Times article, “Disability Insurance Causes Pain,” categorizes Social Security disability as an unnecessary drain on our national economy. According to the article, “[d]isability insurance takes too many workers out of the job market prematurely. It reduces their lifetime income and…slows economic growth.” The article’s author, Eduardo Porter, attributes some of the notable growth in the disability program in recent years to changes in demography – an aging population and more women in the workforce. But he identifies two other factors as the major causes of the seemingly exponential increase: First, a job market that is tough to navigate for low skill workers; and, second, a basic flaw in the disability program that discourages workers from ever working again. The article states that the disability system can be fixed by “providing incentives to enable disabled workers to continue working if they can.” Mr. Porter proposes two incentives previously suggested by MIT professors: Requiring employers to buy private insurance and increasing their premiums as more of their former workers draw benefits; and allowing workers to apply for benefits while still working. Both of these proposals warrant discussion, however, Mr. Porter completely fails to acknowledge two ways in which the disability program already incentivizes work. First, Social Security allows for unsuccessful work attempts. During such an attempt a claimant increases their earned income to over $1,010.00 gross per month by either working more hours at an existing job or taking a new job. If the job lasts longer than 3 months, the claimant is deemed to have found substantial gainful employment and is no longer entitled to or eligible for benefits. However, if a claimant works for less than 3 months and finds their medical conditions prevent them from continuing that claimant may cut their hours or stop working without any change in disability benefits or eligibility (if a claimant has been working with accommodations from an employer, this period could be extended to 6 months). Second, Social Security allows for trial work periods, during which a beneficiary receiving Social Security disability benefits may test his or her ability to work and still be considered disabled. Social security does not consider services performed during the trial work period as showing disability has ended until services have been performed in at least 9 months (not necessarily consecutive) in a rolling 60-month period. In 2012, any month in which earnings exceed $720 is considered a month of services for an individual’s trial work period. Discussing new ways to incentivize work by disabled individuals can be beneficial – even necessary, since the disability fund will be exhausted by 2016 and continued benefits will have to be drawn from payroll taxes. But the slow economic recovery, increased cost of healthcare, aging workforce, and quickly dwindling entitlement funds should not be blamed on those bearing the brunt of these realities. Most people on disability would much prefer to work – they did not choose to leave the job market prematurely or reduce their lifetime income. The disability program creates an obligation to provide financial and medical assistance for those who can no longer support themselves. If we as a country are no longer able or willing to satisfy this obligation, let’s at least refrain from casting a negative light on those we promised to help by insinuating they are not motivated to work.  

According to an April 2011 report from the American Academy of Ophthalmology, more than one million people in the United States over the age of 40 are legally blind. Statutory blindness is blindness as defined in sections 216(i)(1) and 1614(a)(2) of the Social Security Act (the Act).  The Act defines blindness as visual acuity of 20/200 or less in the better eye with the use of a correcting lens.  We use your best-corrected visual acuity for distance in the better eye when we determine if this definition is met.  The Act also provides that an eye that has a visual field limitation such that the widest diameter of the visual field subtends an angle no greater than 20 degrees is considered as having visual acuity of 20/200 or less. Various conditions require only eyeglasses or contact lenses in order to correct a person’s vision and others may require corrective surgery. However, there are many other health concerns that affect a person’s vision such as glaucoma, diabetes, or cataracts. When children and adults apply for disability benefits due to visual impairments Social Security is required to determine eligibility for blindness and disability benefits by using specific criteria designed to make the determination process as objective as possible. Medical-Vocational Guidelines help determine the impairments of central vision acuity and visual fields. The criteria includes duration and severity of the disabling condition, employment and income, and “medical listings” of conditions that are likely disabling, and other factors such as age, education, and work experience. For people who do not meet the criteria of the medical listings, additional tests of vision may be used in the evaluation of functional capacity. Impairments of color vision, both congenial and acquired, are not uncommon especially among males. Generally this results in a person’s inability to distinguish colors that are readily distinguished by people with normal color vision. However, the Social Security criteria does not take color blindness into account when looking at a claimant’s vision disability. If you are considered legally blind, but still able to work there is a special rule, Disability Freeze that can help an individual receive higher disability and retirement benefits in the future. If your income and earnings are low due to blindness, those working years can be excluded when calculating your Social Security disability or retirement benefits. Your benefits will be higher because they are based on your average lifetime earnings. If those years of lower pay are excluded, your income during that period will not count towards your average lifetime earnings. If you have questions or feel that you are eligible to receive Social Security Disability Insurance benefits call Greeman Toomey PLLC today at (877) 332-3252 for more information

Due to the long processing times for Social Security Disability (SSD) and Supplemental Security Income (SSI) claims, unfortunately some claimants pass away before a decision has been issued. If a favorable decision is issued for a deceased claimant their spouse or other family members may be eligible to receive any past benefits the claimant is owed. According to the Code of Federal Regulations § 404.503, the deceased claimant’s spouse is the first in line for these benefits. If the deceased claimant is not currently married then the claimant’s children will be eligible to receive the benefits. If there are no children then the claimant’s parents will be eligible to receive the benefits. For further options please review the above listed code. If you have a family member who has filed for SSD and has passed away while their claim is still pending you will need to inform the Social Security Administration (SSA) right away and if you have a representative, contact their office. If you are interested in continuing to pursue your relative’s claim there is additional paperwork that will need to be completed and submitted to the SSA. These forms will be completed by the potential beneficiary. The deceased claimant’s death certificate will also need to be submitted with this paperwork. The SSA refers to the potential beneficiary as the substitute party. Any future correspondence regarding the deceased claimant’s claim will go the substitute party and if there is a representative, the representative will also receive a copy. While the claim is pending the substitute party may be contacted by the SSA to provide additional information regarding the deceased claimant. If the claim is approved the substitute party will receive only the past benefits that the deceased claimant is owed. They will not be eligible for any ongoing SSD or SSI payments. However, the substitute party may be eligible for Survivor’s Benefits and can contact their local SSA office to determine eligibility. Note that Survivor’s Benefits are a different type of Social Security benefits than SSD or SSI owed to a substitute party. If a claimant dies while their SSI claim is pending and a favorable decision is later issued, a substitute party may be eligible for benefits if they meet the financial need requirements outlined by the SSA.

The Social Security Disability Insurance (SSDI) and Supplemental Security Insurance (SSI) programs offer benefits to claimants who are unable to work at a Substantial Gainful Activity (SGA) level for not only physical impairments, but also mental health impairments. Many people may believe that the SSDI and SSI programs are for people with only physical impairments where the evidence is visible through examining the claimant or through medical records. Despite the fact that mental health impairments are not as easily diagnosed as back injuries, neck injuries and other physical ailments, Social Security disability is a legitimate option for those who suffer from mental heath disabilities and are unable to work at a SGA level because of those disabilities. There are a number of mental health conditions that can potentially meet Social Security’s requirements for disabilities. Some of these conditions include psychotic disorders, anxiety-related disorders, personality-related disorders, mental retardation and autistic-related disorders. As is the case with physical disabilities, medical evidence will be crucial in proving mental health disabilities. If you don’t treat for these conditions there will be relatively little evidence to prove these disabilities. There are many differences in proving disability for physical reasons compared to mental health. An applicant’s age and past work experience factor greatly in whether an SSDI claim is successful when considering physical disabilities, but not necessarily mental health disabilities; age does not play a major factor in determining if someone can work when inflicted with mental health disabilities. Treating regularly with a psychiatrist, psychologist or therapist and taking prescribed medications that are part of your treatment are important to establish disability for mental health conditions. To learn more about how Social Security classifies different types of mental health impairments visit: http://www.ssa.gov/disability/professionals/bluebook/12.00-MentalDisorders-Adult.htm.  

Without a doubt, claims take a while. People have changing financial situations, a significant other who needs to change states for jobs, or a need to move closer to family at a different state. A common misconception for people who have a claim pending for Social Security Disability or Supplemental Security Income at the time they move out of state is that they have to re-file their claim in another state. This is simply untrue. If a claimant moves out of state, or to ANY NEW ADDRESS, nomatter what stage of the process the claimant is at, the claimant needs to update his or her District Office. This can be done by phone call, letter or in person. To find your local district office by zip code, click here. If the claimant initiated the claim at a different District Office, the claim is still at the initial application level, and there has been no other transfer to a different District Office, then the claimant will need to update the District Office they initiated the claim at as to their new address. Updating the current District Office will allow the claim to be transferred to the new local District Office, as needed. In addition, the claimant will need to update the respective disability determining entity as to the new address, as soon as possible. If the claim is at the Initial Application or Request for Reconsideration phase, the claimant will need to update their respective state’s Disability Determination Services. For a listing of your Disability Determination Service by state, click here. The faster this is done, the better, as DDS often sends out time sensitive mail, or schedules CE’s, failure to respond to which can result in a likely denial. DDS will need to know this, so the claim can get transferred as needed. If the claim is awaiting a hearing, and the claimant moves to a new address, then the claimant will need to update the Office of Disability Adjudication and Review. This is where hearings are located. This office is also responsible for scheduling hearings and assigning the judges. Updating this office will allow the claimant to continue to receive any time sensitive mail at the correct address, and, as needed, have the case transferred to a closer Office of Disability Adjudication and Review. For a listing of your Office of Disability Adjudication and Review, click here (be sure to know what District Office is handling your claim when you try to find your respective ODAR). If the claim was denied at the hearing, and is pending at the Appeals Council in Virginia, to change address the claimant will need to write to: Appeals Council 5107 Leesburg Pike Falls Church, VA 22041 It is important to note that Social Security and the respective disability determining entity gets updated as to ANY change in address. Social Security often sends time sensitive mail, and will need to know the correct address to send it to. If a claimant receives a letter denying their claim, they have only 60 days to appeal that denial. If Social Security sends it to the wrong address, because a claimant has moved, and failed to update Social Security accordingly, Social Security may not grant good cause to continue with the appeal, and the claimant may have to file a new claim in that specific event. The mere act of moving does not require the claimant to file a new claim. It merely requires the claimant to keep Social Security, and its respective Disability Determining entity posted as to the new address.

Many parents filing disability claims on behalf of their child ask our office what they can do to strengthen their child’s case. Often these parents have been struggling on their own to manage the child’s behavioral problems, mental health diagnoses, learning disabilities, and/or physical limitations. One of the first things my office asks such parents is whether the child has an Individualized Education Program (IEP). An IEP specifies support services to be provided to a child by their school or local social services department, describes the child’s present levels of performance, and specifies accommodations and modifications to be provided for the child in current or future academic settings. In short, an IEP gives parents and children enforceable rights to services addressing the child’s disabilities. This blog post is Part I in a multi-part series that will examine the law behind 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. Public schools are required to create IEPs for eligible students under The Individuals with Disabilities Education Act (IDEA), a federal law that governs how states and public agencies provide early intervention, special education, and related services to children with disabilities. IDEA addresses the educational needs of children with disabilities from birth to age 18 (or 21 in some cases). Under IDEA, “disabilities” include: mental retardation, hearing impairments, speech or language impairments, visual impairments, serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities. Children and youth (ages 3-21) receive special education and related services under IDEA Part B. Infants and toddlers with disabilities (birth-2) and their families receive early intervention services under IDEA Part C. Part C deserves special attention, because many parents do not know they can secure services for their child before the child starts Kindergarten. Parents are often the first to notice that a child may be suffering from developmental delays, learning disabilities, or physical or mental impairments. IDEA, and the IEPs it requires, allows parents to get these problems identified and diagnosed early and ensures the necessary services will be available in order to give a child the best chance to succeed. For more information about IDEA check out: http://idea.ed.gov/ Contact Greeman Toomey, PLLC If you are disabled and unable to work, you know what a highly stressful and emotional time this is in your life. Contact us today at (612) 332-3252 to discuss your case with our experienced attorneys. Our office is located in Minneapolis at 250 Marquette Avenue, Suite 1380, Minneapolis, MN 55401.