Legal News

It is unfortunate, but a common scenario with many Social Security disability applicants is that they find out that they are ineligible to receive Disability Insurance Benefits (DIB) before a claim really gets going, no matter why types of potential disabilities an applicant has. Before an applicant can even get the Social Security Administration to make a medical decision on their case they must first meet the technical requirements of either the DIB or Supplemental Security Insurance program. Clients at our law office get letters in the mail informing that although they have properly submitted an application for DIB, no medical decision was made because “you have not worked long enough or more recent enough.” Let’s deal with these two issues separately. First, on the “you have not worked long enough” issue, you have to have enough work credits consistent with your age to have “worked long enough” to be eligible for DIB. When a worker earns $1,200 worth of earnings they earn a work credit. A total of $4,800 earned in a year would give the worker a maximum of four work credits in a year. The older you are, the more work credits are required to be eligible for the DIB program. Below is the number of work credits needed to be eligible based on age. AGE                CREDITS NEEDED             YEARS OF WORK 31-42                           20                                            5 44                                22                                            5.5 46                                24                                            6 48                                26                                            6.5 50                                28                                            7 52                                30                                            7.5 54                                32                                            8 56                                34                                            8.5 58                                36                                            9 60                                38                                            9.5 62 +                            40                                            10 The second issue is “you have not worked more recent enough.” This is a pitfall many people who apply for DIB do not realize. For example, if from age 20 you worked for 20 years, but had to stop working at age 40 because you became disabled, but didn’t decide to apply for benefits until age 50, you would not meet the technical requirements of the program. The easy way to remember the rule is that you have to have worked at least five out of the last 10 years to be eligible for DIB. Another issue some workers have is that for some reason they were not paying Social Security taxes when working. To be eligible for the DIB program you must be paying Social Security taxes to develop work credits. This is a danger to those who may be doing contract work or who are self employed. Many times these people believe that just because they are working and paying federal and state income taxes that they are also paying Social Security taxes, but many times this is not the case. Those who are interested in learning whether they have enough work credits to be eligible for DIB can contact their Social Security office or call Social Security toll-free at 800-772-1213.

For those who do not know, the Social Security disability process is a long, winding road that can take many applicants the better part of two years to navigate until a final decision is reached. There are a variety of reasons for this, but probably the biggest reason is it takes, on average, 12-15 months, for a hearing before an Administrative Law Judge (ALJ). For the majority of Social Security disability claimants, an ALJ hearing is needed before they actually receive benefits because of high denial rates at the initial application level and at the first appeal level, known as the Request for Reconsideration. Although the average wait time for a hearing nationwide is around 12-15 months, the actual wait time for a hearing depends on which hearing office is in charge of adjudicating your claim. More accurate information about wait times based on jurisdiction can be found here. Each state has its own average wait time for hearings. The wait times are calculated based on how long it takes for a hearing to be placed on the calendar, from the date of request. In early 2014 the state with the fewest wait time came in at seven (Rhode Island) months compared to as much as 17 (Maryland) months for the longest wait time. The site is a valuable tool for disability claimants as well as disability representatives because it calculates the wait time down to the day and also gives the approval percentages for all judges at a particular hearings office and a more in-depth calculation of the actual approval ratings of each judge. In all, there are more than 160 hearings offices across the country, which conduct hearings and more 1,600 ALJs total.

I guess some politicians and bureaucrats never get tired of banging the fraud and abuse drum when it comes to Social Security. I guess when conservative members of the press are complicit with also feeding the fraud and abuse fire, it may be sometime before this assertion is finally put to rest. For all the stories we see about fraud and abuse within the Social Security disability programs, we can offer cold hard facts that show there is very little fraud and abuse within the system. In fact, we have pointed out numerous times there is much more fraud and abuse within the Department of Defense, but we don’t read countless stories on that, do we? Another House Subcommittee recently held a hearing about “protecting Social Security from waste, fraud and abuse,” and believe it or not, there was actually a voice of reason from the committee. Rep. Xavier Becerra (D) actually defended Social Security’s principals and suggested that it may just be possible that Social Security needs more funding to better provide the valuable services that millions of Americans count on every year. “In my six years as a ranking member of this subcommittee, not once have we held a hearing on SSA’s operating budget,” he said. As an increase in the operating budget is not open for discussion, Americans pay the price related to the services they seek. According to Social Security, the agency’s staff is less than it was in 2010. Average wait times are also longer than they were even before 2010 and wait times for phone services are once again getting worse. In 2013 the average person calling Social Security could expect to be on hold an average of less than 10 minutes. Today, the average wait time exceeds 15 minutes. These numbers do not exactly show a picture of progress. To learn more click here.

Trying to explain to clients how difficult it can be reaching Social Security to apply for benefits or to just get some answers does not always crystallize just how high the mountain is to climb, but usually after a client makes an attempt, or several, of trying to visit a Social Security office or tries to call and reach someone by phone at Social Security, clients have a better understanding. Conveying this message to the masses is difficult, but Laura Kwerel of The Atlantic wrote an article June 12 that does a pretty good job of explaining “the hell” as she calls it of applying for Social Security benefits in a firsthand experience. Kwerel recently attempted to apply for Supplemental Security Income (SSI) benefits for her daughter who was born three months early, was extremely premature and spent 10 weeks in the Neonatal Intensive Care Unit. As a Social Security disability law office we fight Social Security on disability rulings because it is very difficult to meet medical standards of Social Security disability, but Kwerel’s difficulty wasn’t with trying to prove that her daughter was disabled, according to Social Security’s own rules, she was. The difficulty came in the realm of “technical rules” and the utter lack of getting a straight answer mainly due to the massive understaffing at Social Security. Ultimately, Kwerel’s article explains that after countless visits to her local Social Security office and numerous failed attempts of reaching a live person by phone at Social Security, she was informed that the “technical rules” were not met for SSI after calling Social Security’s press office as a journalist. This too is disturbing because, at least according to her article, it looks like she was given the wrong information by the press office. They informed that SSI is only available to couples with household resources under $3,000. This is correct if one of the adults is applying for SSI, but not when the couple is applying for SSI for a child. The $3,000 amount for adults is total resource of all income and assets, but SSI for children only considers monthly income of the parents. In 2016 that income limit for all earned income was $3,791 for two-income households with no other children in the family. The income limitations increase significantly if there are more children in the household. At the end of the day, not knowing what Kwerel or her husband makes on a monthly basis, their child may still be ineligible for SSI due to income limits, but after all the hoops she had to jump through it appears that Kwerel was still given the wrong information on her child’s eligibility.

We knew it was going to happen; it was just a matter of time how noticeable it would become. The backlog for people waiting for Social Security disability hearings has grown and is growing and the wait times for a hearing and hearing decisions is doing the same thing. There are now more than 1.1 million people across the country waiting for their disability hearing before an Administrative Law Judge (ALJ). On average, people can expect to wait 583 days from the date of request of their hearing before seeing an ALJ, according to this story. That equates to an average of about 19.5 months to wait for a hearing. A majority of people who are waiting for these hearings have been unable to work and support themselves due to their impairments, so you can imagine the financial strain these people are faced with during this period of time. There are at least 14 hearing sites nationwide that have an average hearing wait time of more than 700 days. It’s not only wait times for hearings that have grown, but also the wait time disability claimants have to wait for a decision after their hearings have taken place. During the fourth quarter of 2015 the average wait time to receive a hearing decision was about 56 days compared to 78 days during the first quarter of 2017. As we have indicated in previous posts, wait times for hearings and even wait times to receive decisions from ALJs is only likely to increase due to a necessary lack of funding from the federal government. There is no indication that the current administration or Congress has any interested in increasing funding for Social Security to alleviate the current backlog. Maybe something will be done when the backlog get so extreme that it cannot be ignored any longer.  

Congress has prohibited Social Security from paying disability benefits on the basis of alcoholism or drug addiction. However, alcoholics and drug addicts have heart attacks, get cancer or get sick in other ways just like everyone else. Alcoholics and drug addicts who become disabled apart from their alcoholism or drug addiction can become eligible for Social Security disability benefits. According to Social Security (SSA), they determine whether drug addiction or alcoholism is a contributing factor material to the determination of disability based on of the following: (a) If SSA finds you are disabled and have medical evidence of your drug addiction or alcoholism, SSA must determine whether your drug addiction or alcoholism is a contributing factor material to the determination of disability, unless SSA finds that you are eligible for benefits because of your age or blindness. (b) SSA will then follow evidence of your drug addiction or alcoholism. The key factors SSA examines in determining whether drug addiction or alcoholism is a contributing factor material to the determination of disability is whether SSA would still find you disabled if you stopped using drugs or alcohol. SSA also evaluates which of your current physical and mental limitations, upon based upon current disability determination, would remain if you stopped using drugs or alcohol and then determine whether any or all of your remaining limitations would be disabling. (a) If SSA determines your remaining limitations would not be disabling, SSA will find    that your drug addiction or alcoholism is a contributing factor material to the determination of disability. (b) If SSA determines that your remaining limitations are disabling, you are disabled independent of your drug addiction or alcoholism and SSA will find that your drug addiction or alcoholism is not a contributing factor material to the determination of disability. Claimants whose disabling conditions are due to mental health may have a harder time proving that their alcohol or drug use is not a contributing factor to their mental impairment. Most psychologists and psychiatrists believe that even moderate alcohol use contributes to depression. It is also important for claimants to remember doctors and mental health professionals will indicate “suspected use” in their treatment notes, and these indications, proven or otherwise, can have a damaging effect on a disability claim. It is also important to note if you win your claim for disability and SSA believes you are still abusing alcohol or drugs, SSA may require you to have a representative payee and will refer you to a substance abuse treatment program. SSA will also require payments to be sent to a representative payee.

In our continuing effort to provide information related to Social Security’s new listings on mental impairments we are going to look at changes made to the Intellectual Disorder Listing. And, as just a reminder, Social Security’s set of listings are used in evaluating disability claims judging a condition’s severity and how it limits a person’s ability to function. This new listing went into effect earlier this year. 12.05 Intellectual disorder (see 12.00B4), satisfied by A or B: Satisfied by 1, 2, and 3 (see 12.00H): Significantly subaverage general intellectual functioning evident in your cognitive inability to function at a level required to participate in standardized testing of intellectual functioning; and Significant deficits in adaptive functioning currently manifested by your dependence upon others for personal needs (for example, toileting, eating, dressing, or bathing); and The evidence about your current intellectual and adaptive functioning and about the history of your disorder demonstrates or supports the conclusion that the disorder began prior to your attainment of age 22. Satisfied by 1, 2, and 3 (see 12.00H): Significantly subaverage general intellectual functioning evidenced by a or b: A full scale (or comparable) IQ score of 70 or below on an individually administered standardized test of general intelligence; or A full scale (or comparable) IQ score of 71-75 accompanied by a verbal or performance IQ score (or comparable part score) of 70 or below on an individually administered standardized test of general intelligence; and Significant deficits in adaptive functioning currently manifested by extreme limitation of one, or marked limitation of two, of the following areas of mental functioning: Understand, remember, or apply information (see 12.00E1); or Interact with others (see 12.00E2); or Concentrate, persist, or maintain pace (see 12.00E3); or Adapt or manage oneself (see 12.00E4); and The evidence about your current intellectual and adaptive functioning and about the history of your disorder demonstrates or supports the conclusion that the disorder began prior to your attainment of age 22.