In Part I, we discussed the options a claimant has when they receive a partially favorable determination from Disability Determination Services, the Administrative Law Judge or the Appeals Council. A claimant can either accept the decision as final, and collect benefits on the terms of the partially favorable ruling, or file an onset appeal, which could potentially risk the benefits to which the claimant has already been found entitled. As stated in the prior post, an onset appeal must be filed by the claimant within 60 days of receiving notice that the decision awarding benefits is partially favorable. In order to determine which option is right for a claimant, there are several questions a claimant needs to ask himself, an attorney, or Social Security.
Please note that this post is not intended to constitute legal advice, or replace the advice of an attorney. Should you need legal advice regarding a partially favorable decision, consult an attorney’s office.
DOES THIS DECISION FINANCIALLY IMPACT ME?
In many cases, the established onset date does not result in a net loss of benefits. Remember, a claimant can only receive back pay in Disability Insurance Benefits up to one year prior to the date of the application. If a claimant who is eligible for Disability Insurance Benefits is alleging an onset date three years prior to the application date, but was found to be disabled two years prior to the application date, there is no financial impact. In this case, any appeal would be on principal only, and would not result in a more favorable outcome.
Supplemental Security Income past due benefits, on the other hand, cannot be awarded any further back than the date of the SSI application itself. If a claimant’s amended onset date was prior to the date of the application, then appealing the claim may not have any financial impact on benefits due.
If the claimant is eligible for both programs, and was found disabled before the application date, but after their “Date Last Insured” (this is the “statute of limitations” date for disability claims, generally five years from when the claimant stops working full time), then the claimant has more to gain in an onset appeal, as it could substantially increase back pay, entitle the claimant to Medicare, and/or (depending on how much the claimant has been paying into the system over the years) increase the claimant’s monthly payments.
DOES SOCIAL SECURITY’S DECISION MAKE SENSE?
Often times, a partially favorable determination is based upon important events regarding the claim. Many claimants allege that their disability began prior to when they stop working full time. Social Security, may respond by granting a partially favorable determination finding the claimant disabled when their work activity stops. Since Social Security’s definition of disability involves being unable to work on an ongoing, full time basis as a result of medical conditions, appealing this determination would likely not be successful if the claimant was working full time prior to the established onset date.
Many times partially favorable determinations are based on significant deterioration in conditions. A claimant may believe their disability began at first due to one condition (i.e. back pain, fibromyalgia, Bi-Polar disorder), but then has a significant event during the course of a claim (i.e. stroke, heart attack, car crash, triggering event for post traumatic stress disorder) either creating new conditions or exacerbating the existing conditions. Social Security may decide that a claimant is disabled on or after these documented deteriorations in the claimant’s conditions. In deciding whether or not to appeal such decision, the claimant should consider the extent of the deterioration of the condition(s), how much was financially lost in the partially favorable determination, and the amount of evidence supporting an argument that the claimant was disabled during the period that Social Security disagreed with the claimant’s allegations.
Other times, a claimant has very little treatment for his/her conditions around the alleged onset date and a finding disability is based on a medical report from a Consultative Examination or from new treatment. Social Security may react to this by issuing a finding of disability as of the date of this new report, despite the fact that the conditions, in the claimant’s eyes, might have existed prior to that. In this instance, whether or not to appeal depends on the nature of the condition, its origins and the level of documentation that existed prior to the report that Social Security used to issue a finding of disability. In many cases, appealing may not be wise, as it could result in an appealing body giving a new interpretation of the medical report, and possibly issuing a finding of not disabled.
Finally, a finding of disability may be predicated on a change in the claimant’s age. Prior to age 50, most claimants have to prove they cannot do ANY job that exists in great numbers in the national economy. If a claimant is between 50 and 55, then the claimant can win if evidence shows he/she is limited to sedentary work, and their Past Relevant Work (or any job like it) is eliminated by their conditions. At age 55, the threshold changes to the light exertional level. If a claimant turned 50 or 55 during the course of a claim, and received a partially favorable determination finding them disabled on that birthday, or within six months of that birthday, then the claimant needs to seriously consider whether they can prove disability under the tougher standard applied to younger people. A claimant should look at the level of documentation, and how much of their eligibility is accounted for under the tougher standard before appealing.
Sometimes, the partially favorable determination does not sensibly line up with any significant event. In these cases, if the claimant has lost a significant amount financially as a result of the determination, an onset appeal may be something to consider.
WHAT DO I VALUE THE MOST OUT OF THE PARTIALLY FAVORABLE DETERMINATION?
Different claimants value different things in the Social Security program. Most, but not all, claimants seem to value the security of ongoing disability benefits. If a claimant is receiving the full monthly amount that they are entitled to, and are found entitled to ongoing benefits, then an appeal may not be the best option, as it could potentially put these ongoing benefits at risk. This is especially true if the claimant’s conditions are getting progressively worse, and the claimant cannot foresee a return to work in the next 24 months.
Some claimants value the past due benefits the most. This might be the case if the claimant’s conditions are improving and the claimant can foresee a return to work in the next 6 months to two years, and would therefore likely be considered not disabled in the future. In such cases, past due benefits would make up a majority of the total benefits received by the claimant, so there is more to gain by an appeal.
Yet other claimants most value the Medicare entitlement that comes with Disability Insurance Benefits. Whether to do an onset appeal in these cases would depend on what the next step in the process is. If the claimant’s next appealing step is a Request for Reconsideration, and the evidence is strong during the period of time prior to Social Security’s established onset date, then the claimant only has to wait 2-5 months in most states for a determination. However, a Request for Reconsideration has a denial rate at about 90%, so a claimant may still not be successful. Additionally, it may not be very fruitful to appeal to a hearing or to the Appeals Council for a sooner Medicare entitlement due to the wait time, as a claimant may be entitled to Medicare by the time of the hearing, or the Appeals Council decision. Remember, Medicare entitlement begins for a claimant 25 months after their Disability Insurance Benefits entitlement begins. However, if the claimant’s partially favorable determination established disability onset after the date last insured, this would eliminate Medicare entitlement altogether, and an onset appeal would be necessary to protect the claimant’s rights.
WHAT IS THEBEST WAYTO DEAL WITH A PARTIALLY FAVORABLE DETERMINATION REGARDING A CLOSED PERIOD?
If a claimant is granted a closed period of disability, but denied ongoing benefits in the partially favorable determination, he/she has a couple of options if they don’t want to accept the decision. The claimant could file an onset appeal. As noted in the prior blog post, this would risk the benefits received. However, if the claimant wants benefits further back in time than what is offered, then an onset appeal would be necessary, as accepting the decision ends the possibility of receiving benefits prior to the awarded closed period.
If the claimant does not wish to seek benefits further back than the awarded closed period, or does not want to risk the closed period, then the claimant could utilize a second option: accept the decision as final, but re-file the claim for Disability Insurance Benefits and Supplemental Security Income, and allege disability began the day after the closed period ended. Social Security would then consider the time-period after the closed period. This would also not put the awarded benefits at risk. However, if the claimant is not seeking either ongong benefits, or a closed period for 12 consecutive months after the already awarded period, then this is NOT an option for the claimant.
Partially favorable determinations are a difficult crossroad for the claimant. A claimant is not getting everything he/she asked for in the application, but may have otherwise received an acceptable outcome. By simply asking themselves very simple questions, discussing these matters with an attorney, and taking a moment to think about the merits of the decision, a claimant can decide which route is in his/her best interests.
