Demystifying

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.

Lots of people ask what they can do to help make their Social Security disability case stronger. As we discussed in a previous blog entry, the Social Security Administration primarily bases its decisions on your medical record. For the SSA, the strongest type of medical evidence is called “objective medical evidence.”  Objective medical evidence means laboratory findings (20 C.F.R. §§ 404.1528(c), 404.1529, and 415.929). Some examples include X-rays, MRIs, CT scans, nerve conduction studies, or I.Q. tests. The SSA considers laboratory findings to be the best way to determine whether your allegations of disability are credible. This means that whenever possible, medical tests and imaging should be obtained to help substantiate your symptoms. If a test result demonstrates that your symptoms are as severe as you are alleging, Federal regulations require the Social Security Administration to consider this objective medical finding as very strong evidence of disability (20 C.F.R. §§ 404.1527, 416.927, 404.1929, and 415.929).

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.    

For applicants who pursue Social Security disability claims based on mental health impairments, Global Assessment of Functioning (GAF) scores can play an important role. GAF scores are made by treating providers who perform Diagnostical and Statistical Manual of Mental Disorders (DSM-IV-TR) assessments. Courts have held that Social Security must consider GAF scores when evaluating a claimant’s mental health impairments. For example, the Eighth Circuit has discussed the necessity of an administrative law judge to “consider a claimant’s total GAF score history.” Pate-Fires v. Astrue, 564 F.3d 935, 944 (8th Cir. 2009) (citing Colon v. Barnhart, 424 F.Supp.2d 805, 813-14 (E.D.Pa. 2006)). Courts have also held that a history of low GAF scores is indicative of an inability to work. In Brueggemann v. Barnhart, the vocational expert testified that a claimant with a GAF score of 50 could not work. Brueggemann v. Barnhart, 348 F.3d 689, 695 (8th Cir. 2003). Other courts have made similar rulings. See, e.g., Cruse v. U.S. Dep’t of Health & Human Servs., 49 F.3d 614, 618 (10th Cir. 1995) (holding that the ALJ’s conclusion that a claimant was not disabled was not supported by substantial evidence where the ALJ misinterpreted or ignored the claimant’s psychiatric assessment rating indicating the claimant had marked mental impairment, which would substantially impair his ability to work); Golubchick v. Barnhart, No. CV-03-3362, 2004 WL 1790188, at *7 (E.D.N.Y. Aug 9, 2004) (emphasizing a medical expert’s testimony that a GAF score below 50 is generally incompatible with the ability to work); Mook v. Barnhart, No. 02-2347, 2004 WL 955327, at *6 (D.Kan. April 26, 2004) (noting a VE’s testimony that a claimant’s GAF score of 50 would eliminate any possible jobs in the national economy). Despite these court rulings, many administrative law judges are unfamiliar with GAF scores and the implication they have on the disability process. An experienced advocate like the attorneys at Greeman Toomey can help educate the judge on GAF scores and the implications they have for your case. Contact us at 1-877-332-3252 or at www.greemantoomey.com today.

The Social Security Administration (SSA) maintains a list of medical conditions that are so severe they automatically mean that you are disabled. If your condition is not on the list, the SSA must decide if it is of equal severity to a medical condition that is on the list. The rules state that an Administrative Law Judge must consider the opinion of a physician or psychologist designated by the Commissioner concerning medical equivalence whenever a claimant is not engaging in substantial gainful activity and has a severe impairment(s) that does not “meet” the requirements of a listing. The equaling analysis is often performed by a non-examining State agency physician at the initial and reconsideration levels. However, in most cases there are additional medical records presented before a hearing that were not available at the time of the prior determinations by the SSA. Social Security Ruling 96-6p requires an Administrative Law Judge to obtain an updated medical opinion from a medical expert in the following circumstances: When no additional medical evidence is received, but in the opinion of the Administrative Law Judge or the Appeals Council the symptoms, signs, and laboratory findings reported in the case record suggest that a judgment of equivalence may be reasonable; or When additional medical evidence is received that in the opinion of the Administrative Law Judge or the Appeals Council may change the State agency medical or psychological consultant’s finding that the impairment(s) is not equivalent in severity to any impairment in the Listing of Impairments. Therefore, if an Administrative Law Judge believes that the evidence suggests a medical equivalence may be reasonable, or that additional evidence may change the State agency’s prior medical equivalence determination, an updated opinion about medical equivalence is required.

TAMING THE BEAST: THE ADULT DISABILITY REPORT PART 2 OR REALLY… WE HAVE TO REMEMBER ALL THAT… HOW? In part 1, we learned the reasons why the SSA asks for a mass quantity of specific information (medical history, prescriptions, work history, significant dates in the work history), it’s time to figure out preparation. Before you go online, or start your phone or in person interview, make lists. The toughest part for an applicant, is remembering it on the spot. This is not a standardized test. Cheat sheets are not only welcome, they are encouraged. LIST 1: PLACES YOU HAVE RECEIVED HEALTHCARE TREATMENT: Classify each line item by facility (because facilities are more likely to have medical records than each individual doctor), and note address, phone number, doctor’s name (if you know it), first outpatient visit, most recent outpatient visit, next appointment, any ER visits, any medical tests (what test and when), and the date ranges of any inpatient stays. If you can’t remember exact dates, make your most educated guess (if you have to leave it at the month that is fine). The medical records the SSA retrieves will fill in some of those blanks. LIST 2: OTHER PLACES WITH MEDICAL RECORDS: In addition to healthcare facilities, often times medical records are kept at non-traditional sites. If you have been part of a personal injury claim, a worker’s compensation claim, a malpractice claim, or any other claim where your medical records are at issue, think of the name and contact information for your attorney’s office (if you had one) and write that down, as attorney offices often keep the medical records as part of the file. If you are receiving public welfare (food stamps, general assistance, medical assistance), write down the county or state department you are receiving those services from, and the contact for any social worker, if applicable. Also, if you saw a doctor in a prison, write down the name of the doctor, the contact for the facility, and the conditions being treated. If you had vocational rehabilitation, relevant medical treatment may be at the facility running the rehabilitation. If you have had health insurance, try to find that insurance card. Finally, think of anywhere else that’s not a medical facility that might have medical records, write down the contact info, and what you went to the facility for. It is not uncommon that thinking of these will cause people to expand on List 1. LIST 2: YOUR MEDICATIONS: Take a look at everything you are taking. Note what you are taking, who prescribed it (or if it is over the counter), and what it is for. LIST 3: YOUR WORK HISTORY: Make a list of all the job titles you have had over the past 15 years. Note the types of companies each job title was for. Then try to estimate the start date of each job (month and year) and the end date (month and year). Note the hours per day you averaged, and how many days per week, also your rate of pay. If you are not working when you file the application, you will need to know the exact date you stopped working (you can estimate it). If you stopped working for reasons other than your condition, you need to estimate the exact date your conditions became so bad so as to keep you from working. Whether or not you stopped working by the time you fill out the Adult Disability Report, if you had to make changes in your work to accommodate your conditions (changing hours, duties, asking for help, taking more breaks), then you need to estimate an exact date that began. Finally, think of someone in your life who knows you. This could be a spouse, another close family member, friend or neighbor, so long as they understand what you are going through. Note that person’s name, address and phone number (and let them know you are listing them). SSA will want the name of another contact person who they can ask about your condition. Preparation can help make the Adult Disability Report easier and a smoother process. Making cheat sheets can help an applicant recall everything he/she needs right on the spot. Take some time before you fill it out to get ready. It will make for a more complete Adult Disability Report, and a happier you when completing it.

TAMING THE BEAST: THE ADULT DISABILITY REPORT PART I or REALLY…WE HAVE TO REMEMBER ALL THAT… WHY?             Despite the several different ways of filling out an initial application for Social Security Disability and Supplemental Security Income (online, over the phone, in person at your local SSA office), there is no getting around the fact that the required Adult Disability Report makes it a long and arduous application.  You will need to be able to recall every place you have sought medical treatment over the past 12 months: including every ER visit, every medical test, various outpatient appointments, every facility you have visited, all your medications you are taking, and the location of anywhere else that might have your medical records.  You will also need to be able to recall all the jobs you have had for the past 15 years: including job title, company, hours worked per day, days worked per week, wage/salary and (in some cases) very specific duties.  You will also need to recall the time period you graduated from your highest grade, and, where applicable, information regarding your most recent school in which you have had special education courses (including school name and dates of attendance). If you are an adult thinking about filling out an initial application and just read the above paragraph, take deep breath and count to ten.  It can be easier than it looks, with the right mindset and preparation. Let’s start with understanding the reason why they ask for this information.  In order to qualify for Social Security Disability Benefits and Supplemental Security Income, a person has to meet the medical requirements for being disabled.  This is achieved through objective medical evidence, which is achieved most greatly through an applicant’s medical records.  During the initial application process, it is up to the Social Security Administration to look for all the relevant medical records. This is why the Adult Disability Report asks everywhere an applicant has sought recent medical treatment, and medical treatment further back if it’s relevant.  It asks about the date range for oldest to most recent visits to know the date range for medical records to look for.  It asks about medical tests and ER visits, so they know to pay special attention to those when they appear in the records.  It asks about workers compensation claims, whether the applicant is on public welfare, whether the applicant has seen a doctor in a prison or jail, whether the applicant has attended vocational rehabilitation, and whether there are medical records at an attorney’s office, so the SSA knows that there are other places with relevant medical records.  It also asks about medications, so the SSA knows to look for those in the records, and to know that the applicant is treating for the conditions he/she is alleging. In addition, the work and education history becomes important here, as the applicant is alleging that the conditions prevent him/her from working 8 hours a day, 5 days a week.  The SSA needs to know what kind of work the applicant has done in the past, to know how the conditions affect the applicant’s ability to do his/her job.  The work and education history also show whether the applicant can perform other duties that their conditions don’t prevent them from doing.  If an applicant spent his/her life as a standing assembly worker, loses their ability to stand for lengths of time, but can still sit, he/she may be still able do a sit down job, if the education and work history show skills necessary for sit down jobs. A specific piece (or pieces in some cases) of work history becomes especially important to the SSA.  The Adult Disability Report will want to know the specific date an applicant stopped working (if the applicant stopped).  If the applicant stopped working for reasons other than the alleged conditions, the SSA will want to know the date the alleged conditions became so bad so as to keep the applicant from working independent of those other reasons.  If the applicant had to make changes to your work to accommodate his/her conditions (like taking more frequent breaks, requesting more help, changing duties or modifying hours or days worked), the SSA will want to know the specific date the applicant started these changes.  These dates can be estimated, but the best educated guess is necessary, because the SSA uses this data to help determine when the start date for benefits, should the applicant win his/her claim. Essentially, the applicant’s job when filling out the Adult Disability Report is to point the SSA in the right direction to where the information is.  At this stage, they will pull the records themselves, if they know what to look for, and where.  The next step for the applicant is preparation.  Look for that in Part II.

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.