Demystifying

Many disabled workers are injured on the job and apply for worker’s compensation benefits. During this same time, or shortly after, if it is determined a disabled worker will be unable to work for at least 12 consecutive months, the disabled worker may decided to apply for Social Security disability benefits – Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) or both. If an applicant is receiving or has received worker’s compensation benefits and is awarded Social Security disability benefits, the Social Security program, as of 1965, requires Social Security disability benefits to be reduced so that the combined amount of worker’s compensation and Social Security disability payments does not exceed 80 percent of the disabled worker’s most recent earnings. If an injured worker is paid in a lump sum settlement for a worker’s compensation case, that amount is prorated to reflect what the monthly rate would average out to be. According to Social Security, “the intent of the offset provision is to ensure that the combined benefits from worker’s compensation and Social Security are not excessive.” This offset rule impacts a large portion of Social Security disability applicants. According to Social Security, in 2003, 1.7 million (17 percent) of the 7.6 million SSDI beneficiaries had some connection to worker’s compensation or public disability benefits. It is important to note that the percentage of SSDI recipients with concurrent worker’s compensation claims varies from state to state guidelines. Worker’s compensation law is left up to the state while Social Security is a federal program. Although worker’s compensation benefits impact SSDI benefits, many other types of benefits, such as Veteran’s Administration benefits, SSI payments and some other state and local benefits are not affected by worker’s compensation benefits. For more information about how worker’s compensation payments impact SSDI visit: http://www.socialsecurity.gov/policy/docs/ssb/v65n4/v65n4p3.html.  

If you filed an appeal with the Social Security Administration (SSA) Appeals Council you may receive in the mail a Notice of Remand. This means that the Appeals Council has transferred your claim back to the SSA Hearing office for another hearing. The Appeals Council typically chooses to remand a claim if the Council finds that the hearing decision contains a significant error of law or is not supported by the substantial weight of the evidence. Claims may also be remanded if newly submitted evidence indicates that further actions Administrative Law Judge (ALJ) is required.  Rules on Appeals Council Remands are found in 20 C.F.R. § 404.977. The remanded hearing is scheduled by the Hearing office and typically takes place within four to six months of the Notice of Remand being issued. It is the Hearing office and ALJ’s responsibility to take any necessary action outlined by the Appeals Council. For example, the Appeals Council may request that the claimant have a Consultative Examination set up and paid for by SSA.  When a claim has been remanded, the hearing is frequently scheduled with the previous ALJ. Receiving a Notice of Remand is very encouraging and many remanded cases are awarded at the second hearing. But having your claim remanded does not automatically mean you will receive a favorable decision this time around. After the hearing, the ALJ will issue a new decision. Hearing decisions are normally issued within one to three months after the hearing. If you receive a favorable decision you will then be eligible to receive benefits. If you are denied you would have the option to file another appeal with the Appeals Council or file a new claim.

Medical evidence is a cornerstone in proving a Social Security disability claim. However, some individuals are sometimes not able to receive the necessary treatment due to various factors including lack of medical insurance or other economic barriers. Social Security Ruling 82-59 addresses the issue of failure to follow prescribed treatment. The ruling states in pertinent part: An individual who would otherwise be found to be under a disability, but who fails without justifiable cause to follow treatment prescribed by a treating source which the Social Security Administration (SSA) determines can be expected to restore the individual’s ability to work, cannot be [sic] virtue of such “failure” be found to be under a disability. (SSR 82-59). In order to establish that an individual has failed to follow prescribed treatment, it must be shown that treatment which is clearly expected to restore capacity to engage in substantial gainful activity has been prescribed by a treating source, and the evidence of record discloses that there has been refusal to follow prescribed treatment. The Social Security Administration must determine whether the prescribed treatment can be expected to restore the claimant’s ability to work. If it is not found that the prescribed treatment is expected to restore the claimant’s ability to work, then the SSA may not use the “failure” to follow prescribed treatment as the basis for denying a claim. Further, where the SSA makes the determination of “failure,” a determination must also be made as to whether or not failure to follow the prescribed treatment is justifiable. If a claimant is able to prove their inability to follow through with prescribed treatment is justifiable, then again, the SSA may not use the “failure” to follow prescribed treatment as the basis for denying a claim.

This is the second 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.  Two of the factors used are “Climbing” and “Balancing”.  The SCO notes either the presence or absence of “Climbing” and “Balancing” in every job that potentially exists in the national economy.    If either of these activities 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). Climbing typically refers to “ascending or descending ladders, stairs, scaffolding, ramps, poles and the like using feet and legs or hands and arms.”  An example of a job that requires occasional climbing would be a Real Estate Sales Agent.  In order to perform the job duties of a Real Estate Sales Agent, one would typically require the ability to occasionally ascend and descend stairways while showing houses. Balancing is described as “maintaining body equilibrium to prevent falling when walking, standing, crouching, or running on narrow, slippery, or erratically moving surfaces; or maintaining body equilibrium when performing gymnastic feats.”  A majority of jobs that exist in the national economy do not require “Balancing” as defined in the SCO.  Jobs that typically do require some degree of “Balancing” are construction jobs and some equipment operating jobs. If a claimant’s impairment results in a limitation in either “Climbing” or “Balancing” it is essential for the Social Security Administration to determine if these activities are required in that claimant’s past relevant work and possibly other jobs that exist in the national economy.  

The Sequential Evaluation Process When evaluating a claim for Social Security Disability or Supplemental Security Income, the Social Security Administration (SSA) applies a step-by-step process involving five questions, or steps. (20 CFR §§ 404.1520a; 416.920). This is commonly referred to as the “sequential evaluation process: At step one of the sequential evaluation process 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 (prior to taxes being taken out) income in 2012 is greater than $1,010 he or she will not be considered disabled. There are exceptions to this rule, which will be addressed in another blog post, however, this is the general rule. If the person is not working or earnings are below the $1,010 cut-off, the SSA proceeds to step two. At step two, the SSA will determine if the individual applying for benefits has what is referred to as a “medically determinable impairment” that is severe, or a combination of impairments that are severe. An impairment, either mental or physical, is considered “severe” if it significantly limits an individual’s ability to perform basic work activities. (20 CFR §§ 404.1521; 416.921). Some of the basic work activities considered are physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling. The SSA will also consider mental work activities such as understanding, carrying out, and remembering instructions; the use of judgment; and the ability to respond appropriately to supervision, co-workers and usual work situations. If an impairment, or combination of impairments is “not severe” (i.e. there is no more than a minimal effect on an individual’s ability to work) the SSA will conclude the individual is not disabled. If the individual does have a severe impairment, or combination of impairments which are severe, the SSA proceeds to step three. At step three, the SSA will determine if the individual’s impairment, or combination of impairments, is found to “meet or equal” specific criteria found in the SSA’s Listing of Impairments. The Listing of Impairments outlines conditions which the SSA considers severe enough that they prevent an individual from engaging in gainful activity. Each impairment contained in the Listing of Impairments consists of specific criteria the SSA considers in determining if the impairments “meet or equal” the definition. In order to “meet” the criteria of a specific listing, an individual must have all of the specific requirements of that particular section. If an individual does not have all of the specific requirements of a particular listing, he or she may still “equal” the listing. An impairment can be found to be medically equivalent to a listed impairment even if it does not meet all of the specific criteria, if it “is at least equal in severity and duration to the criteria of any listed impairment.” (20 CFR § 404.1526). This analysis can be very complex and confusing and will be addressed in greater detail in a future blog post. If it is determined that an individual’s impairment or combination of impairments meets or medically equals the criteria of a listing and the impairment has lasted, or can be expected to last at least 12 months, the individual will be found to be disabled. If not, the SSA proceeds to step four. At step four the SSA will assess an individual’s residual functional capacity, or RFC. Please see the previous blog post entitled “Step 4: Determination of Residual Functional Capacity” for an in-depth look at what is considered in determining an individual’s RFC. After determining an individual’s RFC the SSA will determine whether the individual has the ability to engage in work he or she performed in the last 15 years. This is referred to as the individual’s “past relevant work,” or PRW. If the individual has the ability to do his or her PRW, the SSA will conclude the individual is not disabled. If the individual lacks the ability to perform any of his or her PRW, the SSA proceeds to the next step. At the fifth, and final step of the sequential evaluation, the SSA will determine whether an individual has the ability, or RFC, to engage in any work aside from his or her PRW. At this step the SSA will consider factors such as an individual’s RFC, age, education, and work experience. If it is determined an individual has the ability to engage in other work in the national economy, the SSA will generally determine the individual is not disabled. If this determination is made, the SSA must provide evidence that such work exists in significant numbers in the national economy. If it is determined the claimant cannot engage in any other work the SSA will determine he or she is disabled.

Many disability claimants who receive a written decision from an Administrative Law Judge are surprised to find a paragraph in the decision discussing whether the claimant is “credible.” This part of the decision often seems like a personal attack. This article explains what this “credibility analysis” is, and what judges have to consider in each case. A symptom is something the claimant experiences personally. Pain, anxiety, sadness, tiredness, and even things like rashes or vomiting are all symptoms: they are the outward signs of the sickness the claimant believes makes them disabled. No symptom can prove a claimant is disabled, no matter how genuine the individual’s complaints are, unless there are medical signs and laboratory findings demonstrating “medically determinable physical or mental impairments that could reasonably be expected to produce the symptoms.” 20 C.F.R. §§ 404.1529 and 416.929; Social Security Ruling (SSR) 96-7p. After the SSA decides that medical evidence proves a “medically determinable impairment,” the judge examines the intensity, persistence, and pace of symptoms to determine how the symptoms might limit the claimant’s ability to work. The judge must consider “all the available evidence.” 20 C.F.R. §§ 404.1529(c) and 416.929(c); Social Security Ruling (SSR) 96-7p. There are seven specific credibility factors the judge should consider: (i) Daily activities; (ii) The location, duration, frequency, and intensity of pain or other symptoms; (iii) Precipitating and aggravating factors; (iv) The type, dosage, effectiveness, and side effects of any medication taken; (v) Treatment other than medication for relief of pain or other symptoms; (vi) Any other measures used to relieve pain or other symptoms (e.g., standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and (vii) Other factors. 20 C.F.R. §§ 404.1529(c) and 416.929(c); Social Security Ruling (SSR) 96-7p. The judge will consider all the observations and opinions of doctors, teachers, counselors, nurses, and other sources about the claimant’s attitude, behavior, symptoms, test results, and remarks. The judge also considers the claimant’s testimony at their hearing, and all the written responses the claimant submitted on SSA forms throughout the application process. The credibility analysis is not intended as a personal attack. The purpose is to examine symptoms as they are recorded by third parties and remembered by the claimant, and to determine how the intensity, persistence, and pace of symptoms might limit the claimant’s capacity for work. This analysis is required by SSA regulations, and is part of every decision.  

If you are receiving Supplemental Security Income (SSI) payments and have any additional income the Social Security Administration (SSA) may deduct the value or partial value of that income from each of your monthly checks. SSA makes these deductions because SSI payments are based upon the recipient’s financial need. As of January 2012, the maximum monthly benefits for SSI is $698. Any necessary deductions will be subtracted from that amount. SSA classifies income as any of the following, click here for direct link to SSA’s website: · Earned Income is considered to be wages from working or self-employment net-income. · Unearned Income is all income that is not earned by working. For example pensions, State disability payments, unemployment benefits, and cash from friends and relatives all are considered unearned income. · In–Kind Income is food or shelter given to you for free or less than its fair market value. · Deemed Income is the part of the income of your spouse or parent(s) that you live with that is deducted from your benefits. If you are receiving any type of the above stated income SSA will make a deduction. Depending on what type of income you are receiving the calculation of the deductions will be different. For all types of income SSA exempts the first $20. For earned income, SSA will exempt the first $20. Then exempt an additional $65. Any earned income over $65 will then be divided into half and deducted from your monthly benefit amount. For example, if you are receiving SSI and make $200 per month in earned income, the deduction will be made like this: $200 – 20 = $180 – 65 = $115.00/2 = $57.50 Meaning $57.50 would be deducted from the maximum SSI payment of $698.00 month. For unearned income, SSA will still exempt the first $20 but any amount above that will have a dollar for dollar deduction. For example, if you have unearned income valued at $200 per month, the calculation of your deduction will look like this: $200 – 20 = $180 Meaning that $180 would be deducted for the maximum SSI payment of $698.00 per month, resulting in a monthly benefit amount of $510. The value of any in-kind income is deducted in the same fashion as unearned income. For deemed income a portion of the value of your spouse’s or parent(s)’ income may be deducted. SSA does recognize several exemptions which do not offset the monthly benefit amount. For example, the value of food stamps or assistance based on need from a state/local government. For more examples of these exemptions and SSA’s rules on SSI payments please click here.  

The rules for Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) are clearly related to an applicant’s ability to work. An adult applicant must prove they are unable to work at a substantial gainful level, but what about SSI for children? Obviously the ability to work cannot be considered in determining the disability of child. To medically qualify for SSI a child must have a physical or mental condition that seriously limits his or her activities and the condition must last for a 12-month consecutive period. Children do not have to be a specific age to qualify for SSI; children from birth to 18 may qualify for SSI, and those young adults age 18-22 who can no longer qualify for children’s SSI benefits, may qualify for benefits from a parent’s Social Security earnings. For more clarification visit: http://www.socialsecurity.gov/disability/disability_starter_kits_child_factsheet.htm#disability. Once qualifying requirements are satisfied then income requirements must be met for a child to potentially be eligible for SSI. Social Security will consider all household income, the number of parents present in the household, and the number of non-disabled children in the household when determining SSI eligibility for a child. Below is a chart that specifies monthly household income limitations for child SSI eligibility. Those who are earning over the limitation will not have a child who is eligible for SSI.   Non-Disabled Children          One Parent Income    Two Parent Income               0                                              $2,917                         $3,617 1                                              $3,267                         $3,967 2                                              $3,617                         $4,317 3                                              $3,967                         $4,667 4                                              $4,317                         $5,017 5                                              $4,667                         $5,367 6                                              $5,017                         $5,717   The above income limits do not apply when:   The parent(s) receive(s) both earned income (for example, wages or net earnings from self-employment) and unearned income (for example, Social Security benefits, pensions, unemployment compensation, interest income, and State disability). The parent(s) receive(s) a public income maintenance payment such as Temporary Assistance for Needy Families (TANF), or a needs–based pension from the Department of Veterans Affairs. The parent pays court-ordered support payments. The child has income of his or her own. Any ineligible child has income of his or her own, marries, or leaves the home. There is more than one disabled child applying for or receiving SSI benefits. Your State supplements the Federal benefit.  

A few days ago we talked about the effects of having your claim transferred to the National Hearing Center (link). In that post, we mentioned video teleconference (VTC) hearings, but it’s worth discussing them in a bit more depth because they can occur in places other than the National Hearing Center. A typical Social Security disability hearing takes place in a hearing room at one of the Offices of Disability Adjudication and Review (ODAR). Each state has at least one ODAR, and this is typically where the administrative law judges and support staff are located. At a typical hearing, the ALJ and the claimant meet face-to-face, and discuss the claimant’s conditions, work experience, and other important information. A VTC hearing has the same format as a regular hearing, but this time the claimant and the judge are not in the same room. Instead, the judge is typically at the ODAR and the claimant and his or her representative (if he or she has one) appear at a different location. The other location is often a local Social Security office, although it can also be a federal courthouse, a public library, or even a hotel conference room. In a VTC hearing, the judge and claimant are able to see one another by live video. While you can decline a VTC hearing and have one in person instead, VTC hearings are often more convenient for claimants because the VTC location may be much closer to where you live. Regardless of the location, the actual content and process of the hearing is the same as when everyone is in the same room. However, technical issues sometimes can arise, and some of the hearing sites can be difficult to find. Having a Social Security disability attorney like those from Greeman Toomey can help walk you through the process and represent your interests at your hearing.

The Ticket to Work is a free and voluntary program from Social Security that is available in all 50 states to assist disabled individuals find, enter, and maintain employment.  An individual becomes eligible to participate in the Ticket to Work program when he or she starts receiving SSDI or SSI benefits based on disability. There is no penalty for not using the program, but there are several benefits for those who choose to enroll.  First, a Ticket allows a disabled individual to obtain services from a state vocational rehabilitation (VR) agency or another approved provider of their choice – these approved providers are called “Employment Networks”.  An EN is an entity that contracts with Social Security to provide or coordinate the delivery of necessary services to disability beneficiaries. The EN can be a single individual, a partnership/alliance (public and/or private) or a consortium of organizations collaborating to combine resources to serve Ticket-holders. Second, the program allows a disabled individual to continue receiving benefits and maintain Medicaid/Medicare coverage during the transition back into the workforce.  Third, the program allows individuals to select part-time or work-from-home alternatives.  Fourth, Social Security will not perform a medical review of a disability claim so long as the claimant is making “timely progress” with the use of a Ticket to Work. For more information on Ticket to Work, including a list of approved Employment Networks, call 1-866-YOURTICKET (1-866-968-7842).  For a list of approved ENs, please visit https://yourtickettowork.com/web/ttw/en-directory.