Demystifying

Supplemental Security Income (SSI) is a financial needs based program. For this reason the Social Security Administration has set rules in place to determine who meets the non-medical requirements of SSI, whether or not medical disability is proven. There are no work requirement rules for SSI as there is with Social Security Disability Insurance (SSDI), but to qualify for SSI, total household income and assets can determine eligibility. The income limit to qualify for SSI for an individual in 2012 is $698 per month. The limit for couples is $1,048 per month. This is total income received, but work income is calculated differently. If a person is working only half that income is counted toward the maximum limits for SSI. For example, if a worker earns $600 a month from work only $300 is counted toward the $698 monthly maximum. In addition to work income other income and total household income may be considered when determining eligibility for SSI. Other income considered includes: Veteran’s benefits, pensions, alimony and child support. Any shelter or food benefits you receive from NON-Governmental sources. This would include being allowed to live rent free and receiving free food from relatives. A portion of other income earned by other people living in your household. The following is a list of income items EXCLUDED from the SSI income limit: $20 per month of income other than earned income from wages. $65 per month of wages and one-half of wages over $65. The first $30 of infrequent or irregular earned income in a quarter. The first $60 of infrequent or irregular unearned income in a quarter. Medical care including Medicaid. The reimbursement of expenses from a social service agency. Food stamps and housing or home energy assistance. For more information visit:  http://www.disabilitysecrets.com/resources/social-security-disability/supplemental-security-income-ssi/income-limits.htm.  

This is the third installment in the blog series titled “Classifying the Physical Demands of Occupations.”  When evaluating a claim for Social Security disability benefits and/or Supplemental Security Income the Social Security Administration (SSA) must classify the physical demands of your past relevant work and potentially the physical demands of other jobs that exist in the national economy.    To do this the SSA relies on the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (SCO). The physical demands of occupations are evaluated in relationship to twenty different factors.  One of the factors used is “Stooping.”  The SCO notes either the presence or absence of “Stooping” in every job that potentially exists in the national economy.    If “Stooping” is required, the SCO will rate the frequency under one of three categories:  occasionally (activity exists up to 1/3 of the time); frequently (activity exists from 1/3 to 2/3 of the time); or constantly (activity exists 2/3 or of the time). Stooping typically refers to “[b]ending body downward and forward by bending spine at the waist, requiring full use of the lower extremities and back muscles.”  “Stooping “is one of the most common physical demands that a majority of jobs require.  Individuals who have injured their lower back or either of their lower extremities are likely to have more difficulty with this activity. Social Security Ruling 96-9p suggests that a complete inability to stoop could result in a finding of disabled if an individual is limited to unskilled sedentary work.  The ruling states: An ability to stoop occasionally; i.e., from very little up to one-third of the time, is required in most unskilled sedentary occupations. A complete inability to stoop would significantly erode the unskilled sedentary occupational base and a finding that the individual is disabled would usually apply, but restriction to occasional stooping should, by itself, only minimally erode the unskilled occupational base of sedentary work.  (SSR 96-9p). If a claimant’s impairments results in a limitation in “Stooping” it is essential for the Social Security Administration to determine if “Stooping” is required, and if so, at what frequency it is required in the claimant’s past relevant work and possibly other jobs that exist in the national economy.    

Often times when Disability Determining Services (the people responsible for making the determination as to whether you are disabled under Social Security’s rules on the first stages of a claim) or when an Administrative Law Judge feels that the medical records don’t say enough about a person’s conditions, they order a consultative examination.  This is an examination, either physical or mental, with a doctor who often times has his/her own practice, and is paid by Social Security for his/her time evaluating you and generating a report.  While many claimants get sent to a CE, and the CE’s report indicates the condition to be severe enough to be disabling, many claimants receive CE reports that say that while their condition is limiting, it is not enough to be disabling. Too many times claimants have read these reports and believe that all is lost with the claim.  This simply is NOT TRUE.  Most claimants are also treating for the conditions they saw the consultative examiner for.  This will generate medical records that further clarify the issue of how these conditions affect the claimant.  If you are being represented by an attorney’s office for your claim, you need to notify your attorney’s office of this treating source, so they can notify Social Security to request the records.  If you are not being represented by an attorney’s office, you need to notify Disability Determination Services as soon as possible to request the records from your treating source.  When a consultative examiner produces evidence countering someone’s claim for Social Security, it becomes especially important that Disability Determining Services retrieves records from your treating sources, so they can get full clarification on your conditions. Furthermore, a claimant’s treating sources carries more weight than a Consultative Examiner if the treating sources is an acceptable medical source under Social Security Administration’s policies and procedures.  This is especially true when the claimant is seeing an MD for the conditions in question, if not an MD, than a PhD, PsyD or MSW.  A claimant can ask this treating source to write a letter explaining how their conditions affect the claimant’s ability to do work.  In this case, the claimant should request the doctor be as detailed as possible, and to have the treating source send the letter directly to Social Security, rather than going through the claimant.  If a claimant is being represented by an attorney’s office, the claimant should notify the attorney’s office of the treating source, as the office may have specific questionnaires ready to send to acceptable medical sources regarding a claimant’s physical or mental conditions. It is important, that if a claimant is in a position to request a letter or a questionnaire from an acceptable medical source as to his/her conditions, that only one treating source answers the same set of questions.  Any inconsistency, no matter how inconsequential it seems, between the two questionnaires is subject to attack by Social Security.  An exception in this case can be made if between the two letters or questionnaires, a serious medical event has occurred (i.e. major surgery, stroke, severe traumatizing event or suicide attempt).  At these points, it is important to note the changes in the claimant’s conditions that have occurred because of the event. If the treating source cannot fill out the questionnaire for whatever reason, see if you can obtain a physical or psychological assessment of your own by the treating source.  This will allow a similar examination to the consultative examination, by a source with more weight than the CE. Finally, while a vast majority of Consultative Examiners are very competent doctors just trying to do the best they can with the short time they have with the claimant, it has occurred, on a rare occasion, where the Consultative Examiner will make a claim that a test or portion of the evaluation has occurred that has not.  If this occurs, notify Disability Determining Services immediately of where the inconsistency is, and then notify the board of medicine.  This problem does not arise in the great majority of Consultative Examinations, but if it occurs to you, it’s important to notify the correct people immediately. An unsupportive CE can be frustrating in the already too long battle for a claimant’s Social Security.  A claimant treating and being proactive about gathering evidence from acceptable treating sources can create evidence that counters the CE report, and forward the claim.  

The quick answer to the first question is of course a resounding YES! If an individual has the ability to work, he/she should absolutely do so. The Social Security disability system is in place to assist individuals who have been prevented from working, or could be expected to be prevented from working, for at least a 12 consecutive month period. Therefore, if a person is able to work, albeit even at a reduced capacity, he/she should do so. Keep in mind, you are likely going to earn far more working, even part-time, than you would should you receive disability insurance benefits and/or Supplemental Security Income (SSI). That said, I often get asked whether an individual’s current work activity will impact his/her Social Security disability case. The answer is maybe. If an individual who has already applied for disability benefits is currently working we need to look at how much the person is working and what he/she is earning. Different rules apply for individual who are working for a company or another person and those who have their own personal business. As it is more common for people to work for a company etc. I will address this specific demographic. If a person, who is suffering from a severe physical and/or mental impairment is unable to work full time but remains able to work on a limited basis, the main issue is whether he/she is engaged in substantial Gainful Activity (SGA). As I stated in a previous blog post entitled “Understanding the Sequential Evaluation Process” (see http://www.greemantoomey.com/understanding-the-sequential-evolution-process), if an individual is currently working the Social Security Administration (SSA) will examine how much the individual is earning per month. Typically if an individual’s monthly gross income (the amount earned prior to taxes being taken out) is greater than the set SGA limit he or she will not be considered disabled. The theory is, if an individual has the ability to work by engaging in SGA, he/she cannot (typically) claim to be disabled. The SGA amount has changed over time. Currently SGA is defined, for non-blind individuals, as gross earnings of $1,010.00 per month. Meaning if someone is earning $1,010.00 or more (before taxes are taken out) a month, he/she is engaging in SGA. This amount is different for blind individuals. The current SGA amount for someone who is blind is $1,690.00. The list showing how this amount has been adjusted over time can be found at: (http://www.ssa.gov/oact/cola/sga.html). While engaging in SGA will typically preclude an individual from receiving Social Security disability benefits, there are exceptions which may allow an individual to engage in SGA for a limited amount of time without impacting his/her eligibility for disability benefits. Such exceptions include an “Unsuccessful Work Attempt” (UWA) and a “Trial Work Period” (TWP). The UWA exception was discussed in a previous blog post at: (http://www.greemantoomey.com/unsuccessful-work-attempt), and the TWP will be addressed in a future post.

A representative payee’s job is to help recipients of SSD or SSI benefits who may not be able to manage their benefits in their best interests.  Typically a representative payee is a friend or family member of the beneficiary, but if a friend or family member is not available there are services that can assist.  The beneficiary is normally involved in the selection of the representative payee. SSA requires that all children or legally incompetent adults have a representative payee.  A representative payee may also be appointed in instances where there is evidence showing that an adult recipient cannot manage their benefits. The representative payee will receive the beneficiary’s monthly payment and determine what is the best use of the benefits. Their job is to use that money to pay for the beneficiary’s basic needs such as: shelter, food, and medical expenses. The left over money may be given to the beneficiary for spending money or saved for future expenses. In order to protect the rights of the beneficiary SSA requires any representative payee to complete regular reports detailing how the benefits were spent. If SSA requires you to have a representative payee and you feel that you do not need help managing your benefits you have the option to appeal. You will need to appeal the decision in writing within 60 days of the date of your decision. If you are currently having issues with your representative payee you can contact SSA directly regarding your issues. Please click here for more information on representative payee.

As a case manager at Greeman Toomey Law Office I talk to many of our clients who are interested in pursuing a Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) case based on one debilitating condition. Although one specific disability may be perceived to be the reason you are unable to work it may not be the only condition that limits your ability to work. What Social Security disability boils down to in SSDI and SSI cases is whether your collective disabilities limit your ability to work. Any condition that prevents you from working at a Substantial Gainful Activity (SGA) level, or prevents you from continuing to sustain that level of work, is important information to document. There is no doubt that some conditions are more severe than others. Even though a claimant may believe one specific condition is preventing them from working, in reality, that condition can be exacerbated by other conditions a claimant believes to be less severe. There are times when a condition is so severe that the Social Security Administration considers it to automatically qualify for SSDI or SSI benefits, provided the conditions meet the specified criteria as set forth in Social Security’s listing manual. Below are conditions that can meet automatic qualifying criteria, if a claimant can prove that their impairment meets specific standards:   Musculoskeletal Conditions (Example: Back Injuries) Cardiovascular Conditions (Example: Heart Failure or Coronary Artery Disease) Sense and Speech Conditions (Example: Vision and Hearing Loss) Respiratory Illness (Example: COPD or Asthma) Neurological Disorders (Example: MS, Cerebral Palsy, Parkinson’s, Epilepsy) Mental Illness (Example: Depression, Anxiety, Schizophrenia, Retardation) Immune System Disorders (Example: HIV/AIDS, Lupus, Rheumatoid Arthritis) Syndromes (Example: Sjogren’s Syndrome, Marfan Syndrome) Skin Disorders (Example: Dermatitis) Digestive Tract Conditions (Example: Liver Disease, IBD) Kidney Disease and Genitourinary System Problems Cancer For more information visit: http://www.disabilitysecrets.com/what-conditions-qualify.html.  

As mentioned in the previous post entitled “Understanding the Sequential Evaluation Process,” at step one of the sequential evaluation the SSA inquires whether the individual applying for benefits is working. If the individual is currently working the SSA will examine how much the individual is earning per month. Typically if an individual’s monthly gross income in 2012 is greater than $1,010 (substantial gainful activity (SGA)) he or she will not be found disabled. The theory is, an individual cannot allege he or she is disabled from working and actually be engaged in substantial gainful activity, i.e. work activity producing $1,010 or greater in gross income per month. There are exceptions to this general rule however. One such exception is called an “unsuccessful work attempt.” An Unsuccessful Work Attempt (UWA) is a policy the SSA has in place in order to disregard relatively brief work attempts that do not demonstrate sustained substantial gainful activity. In having this policy, the SSA allows individuals to test their ability to return to work without penalty if the work ceases due to the underlying impairment. There are very specific criteria which must be considered in determining whether an UWA is appropriate. First, there must be a “significant break in the continuity of a person’s work before he or she can be considered to have begun a work attempt that later proved unsuccessful.” (SSRs 84-25 and 05-02). Typically, this means there must be a break of at least 30 consecutive days. Second, the work attempt must have lasted less than six months. In considering work attempts lasting three months or less, the SSA will determine whether the work ended or was reduced blow the SGA level due to the underlying impairment or due to the removal of special conditions related to the impairment that are essential to the further performance of the work. (Id). If the job ended or was reduced to below SGA levels due to these reasons in three months or less, this activity can be considered an UWA. In considering work attempts lasting between three and six months, the SSA will determine whether the work ended or was reduced due to the underlying impairment or due to the removal of special conditions related to the impairment that are essential to the further performance of the work, but additional factors are considered as well. In order for a work effort lasting between three and six months to be considered an UWA an individual must establish a) there were frequent absences due to the impairment; or b) the work performed was unsatisfactory due to the impairment; or c) the work was performed during a period of temporary remission of the impairment; or d) the work was done under special conditions. (Id). If an individual engaged in SGA level work lasting more than six months, such activity cannot be considered a UWA regardless of why it ended or was reduced below the SGA level.

You might hear the term “Date Last Insured” or its acronym “DLI” being used when attorneys and the Social Security Administration (SSA) discuss an individual’s eligibility for disability benefits. This is the last date a disability is covered by Social Security Disability Insurance Benefits (DIB).  The disability must be present (but not necessarily diagnosed) on or before that date. That means you can still be eligible for DIB even if you apply years after your DLI has passed. For example, the author of this article has a DLI of June 30, 2016. The calculation the SSA uses to determine an individual’s DLI involves whether the individual has recently paid enough into Social Security through FICA or Social Security self-employment taxes. As the “I” in its name implies, DIB is similar to a private disability insurance policy and our FICA and Social Security self-employment taxes are similar to the monthly payments made to maintain an insurance policy. The SSA uses “Quarters of Coverage” (QC or more commonly known as “Social Security credits,” “work credits,” and “credits”) as the method to determine whether the individual has paid enough into Social Security. An individual earns a credit when the individual’s annual earnings on reach an amount set by the statutes governing Social Security. The required amount of earnings is determined using a formula that compares the current average wage index against the average wage index in 1978 and adjusts the required amount accordingly. $1,130 in annual earnings is the minimum amount to earn a credit in 2012. The SSA keeps a historical table that shows the amount of earnings needed from 1978 to the present on its website. An individual can earn up to four (4) credits in a single year; thus, an individual who earns $4,520 in 2012 will earn four credits as will an individual who earns $10,000, $50,000, or even $250,000 in 2012. The number of credits an individual has earned in the last ten years and how many credits an individual has earned total in his or her lifetime are both important to determine whether the individual is eligible for DIB. For individuals at least 31 years old, 20 credits must have been earned in the past ten years; individuals under the age of 31 require fewer credits to qualify. Also, individuals over the age of 42 need to have earned more than 20 credits over their lifetime, but 20 of those credits must have been earned in the past 10 years – the SSA has a table on its website that explains how many credits an individual has earned in his or her lifetime to qualify for DIB.

If you receive an unfavorable hearing decision from an Administrative Law Judge, there is one more level of appeal within the Social Security Administration’s adjudication process. This final step is called Appeals Council, or AC, review. If you do not want to file an appeal with the AC, your other option is to re-file your claim, which means starting over by filing a new claim with your local Social Security office. The most important thing to know about taking your claim to the Appeals Council is that, as of 2011, most people cannot both file a new claim and file an appeal with the AC. Because of the new Social Security Ruling 11-1p, you cannot have two claims for the same type of benefits pending at the same time. So for most people, when they get an unfavorable hearing decision they have to choose between appealing that decision to the AC or filing a new claim. Each option has different implications for your case. Talk to your attorney to see what he or she recommends before you make a decision. If you appeal your case to the AC, you are sending your appeal to one national processing center where everyone in the United States of America has to send their case if they are unhappy with the outcome of their hearing. The headquarters for the Appeals Council is in Falls Church, Virginia, outside of Washington, D.C., but there are some satellite offices in other parts of the Washington D.C. area. The Appeals Council says it received over 128,000 requests for review in the 2010 fiscal year. Because there is only one Appeals Council for the entire country, your appeal is likely to take over a year. The AC says that the average processing time for a case in the 2010 fiscal year was 345 days (Id.). The amount of time it takes to hear back from the AC can be a major consideration for claimants deciding whether to re-file their claim or appeal it. Once the Appeals Council does finally adjudicate your case, there are three possible outcomes: you may get a denial notice, a remand notice, or a decision. Again, each of these documents has unique legal implications, and you should talk to your lawyer as soon as you get your Appeals Council notice. The implications of each of those types of Appeals Council documents will be the topic of a later post, but for now, remember that if you are unhappy with the outcome of your hearing, there is a final step for administrative review. Although this step is likely to take over a year, it sometimes has legal benefits that make it better for your case than re-filing a new claim would be. Be sure you examine all of your options before you make a decision.