Unfairly treated by Social Security Judge?
If you feel that you were treated unfairly by the Social Security judge, you can file an “Unfair Treatment Complaint” and ask that Social Security review what happened. Someone who was not involved in your case will review your complaint and take action, if appropriate. While there is no guarantee that Social Security will find that action is needed, you will be notified before Social Security closes the matter.
Keep in mind that filing an unfair treatment complaint does not appeal the judge’s decision. If you were denied and want to appeal the denial, you still need to complete an appeal. At the time of this writing, the form to …
What does a critical case review look like?
I have previously discussed expediting Social Security disability cases for Dire Need. I recently came across the worksheet that Social Security uses when evaluating these cases:
This includes consideration of the following issues:
Terminal illness.
Wounded warrior.
Compassionate allowance.
Dire need.
Suicidal/homicidal ideation cases.
Here is a link to the HALLEX for the form. Note: this a form Social Security uses internally. You do not need to use this to request consideration as a critical case. All you need to do is write a letter to the SSA office working on your case and state why the case should be expedited. Of course, the reason(s) should fall into one areas discussed above.
Best Practices for Social Security Disability Representatives
Social Security has a great overview site for new Social Security disability representatives (both lawyers and non-lawyers) going over best practices before the Social Security Administration.
Here are some good tips:
Timely submit the form ssa-1696 and fee agreement.
Timely alert the hearing office of any change of address or phone number for either yourself or the claimant.
Do not submit duplicative evidence.
Submit evidence as far in advance of the hearing as possible, using electronic records express.
Before faxing evidence, check to ensure the evidence you are submitting matches the claimant.
Make sure the barcode is the first item faxed in order to ensure proper identification of all …
Can sit down jobs be LIGHT work?
Social Security separates jobs into groups based on physical requirements: sedentary, light, medium, and heavy. For many individuals, the outcome of a case depends on the number of sedentary jobs available.
This is often an issue in back injury cases where Light work is eliminated, but sedentary jobs are still a possibility. If there are enough of them. If a job can be put in the Light category, it may be eliminated based on physical limitations.
So, here is the question: can a sit down job requiring no more than lifting 10 pounds (typically suggesting Sedentary work) ever be a Light job? Yes, it can!
Many practitioners may be surprised by this. We have been taught (and we hear over and over) that sedentary work means: lifting no more than 10 pounds occasionally (up to 1/3 of an 8 hour day) or less than 10 pounds frequently (up to 2/3 of an 8 hour day) AND standing or walking no more than 2 hours out of 8.
So how can a job with almost no walking and lifting less than 10 pounds be light?
Compassionate Allowance Update
Here is a list of the 100 conditions (as of 10/13/11) which Social Security now considers eligible for the Compassionate Allowance program which can result in a very fast approval. Recently added conditions are in bold. An up to date list is available here.
Acute Leukemia
Adrenal Cancer – with distant metastases or inoperable, unresectable or recurrent
Alexander Disease (ALX) – Neonatal and Infantile
Alstrom Syndrome
Amegakaryocytic Thrombocytopenia
Amyotrophic Lateral Sclerosis (ALS)
Anaplastic Adrenal Cancer – with distant metastases or inoperable, unresectable or recurrent
Aortic Atresia
Astrocytoma – Grade III and IV
Ataxia Telangiectasia
Nurse and therapist records in Social Security cases
Social Security has regulations on which medical providers can provide evidence and opinions about an individual’s diagnosis and limitations. For a long time, evidence from nurses, chiropractors, therapists, and psychologists was not considered by Social Security because these professionals were not considered “acceptable medical sources.”
The term “medical sources” refers to both “acceptable medical sources” and other health care providers who are not “acceptable medical sources.” See 20 CFR 404.1502 and 416.902.
Under our current regulations, “acceptable medical sources” are:
Licensed physicians (medical or osteopathic doctors);
Licensed or certified psychologists. Included are school psychologists, or other licensed or certified individuals with other titles who perform the same function as a school psychologist in a school setting, for purposes of establishing mental retardation, learning disabilities, and borderline intellectual functioning only;
Licensed optometrists, for the measurement of visual acuity and visual fields (for claims under title II, we may need a report from a physician to determine other aspects of eye disease);
Licensed podiatrists, for purposes of establishing impairments of the foot, or foot and ankle only, depending on whether the State in which the podiatrist practices permits the practice of podiatry on the foot only, or the foot and ankle; and
Qualified speech-language pathologists, for purposes of establishing speech or language impairments only.
See 20 CFR 404.1513(a) and 416.913(a).
Basically, a medical provider had to have MD (or DO, or PhD) after their name to qualify as a medical source. This left nurses, therapists, chiropractors, teachers, counselors, among other providers out in the cold as far as having their evidence conisidered by Social Security.
Social Security Ruling (SSR) 06-03p changed that by creating a new class: “other sources.”
I have … can I win my Social Security disability case?
Thank you to everyone who writes in or comments on posts. You are reason I created this blog. You are the reason for all of this!
The one question I get asked most is:
Can I win a disability case? What do you think of my chances?
Sometime this comes with a short description of the disabilities, sometimes a long one.
I really wish I could answer this. There are ethical and liability issues limiting what I can say. There is a bigger issue though: a case is not one thing. It is *all* the evidence that Social Security considers.
Winning Social Security disability benefits after age 50
If you are 50 years old or older, Social Security makes it easier to prove your disability case. Individuals between 18 and 49 meet a tougher standard discussed in this article.
Starting at age 50, and then again at age 55 and 60, Social Security lowers the requirements for proving disability. The rationale is that the older you are, the harder it is to work in a job that you have never done before.
After age 50, Social Security can approve you for disability benefits even though you are able to do some type of work.
The older you are, the more physically demanding the work can be and still allow you qualify for disability benefits.
However, this is not a free pass and do not leave this article before you read the “gotchas” at the bottom.
Are earnings in WTU considered SGA for Social Security disability benefits?
The touchstone in disability cases is the ability to work. More specifically, the test is whether an individual can perform a Substantial Gainful Activity (SGA). One of the first tests of whether work is SGA is earnings.
In 2012, earnings of $1,010 per month (before taxes) suggests the work is SGA. However there are exceptions to this. One of these is for sheltered work as defined in 20 CRF404.1574(a)(3).
If you are working in a sheltered workshop, you may or may not be earning the amounts you are being paid. The fact that the sheltered workshop or similar facility is operating at a loss or is receiving some charitable contributions or governmental aid does not establish that you are not earning all you are being paid. Since persons in military service being treated for severe impairments usually continue to receive full pay, we evaluate work activity in a therapy program or while on limited duty by comparing it with similar work in the civilian work force or on the basis of reasonable worth of the work, rather than on the actual amount of the earnings.
The idea behind sheltered work is that an individual may not be earning all of what they are being paid. The value of the individual’s work may be half (or a different percentage) of the amount actually paid. The amount paid over the value of the work is a subsidy. Social Security only counts the value of the work and not the subsidy in determining if the work is SGA.
For may injured soldiers, before discharge from their branch of service, they may be placed into a Warrior Transition Unit (WTU) or similar program. While the soldier’s salary stays the same, the duties are greatly reduced.
Can I get Social Security disability without losing income?
I was recently asked the following question:
I need my job to survive. I can’t quit. I have some vacation days and sick time, but it is not enough to go without pay until they tell me I qualified.
How do I still work and file for SS Disability without loosing any income?
I have previously discussed working while applying for disability benefits. However, this question presents some new issues. Generally, I consider transferring from work to Social Security disability with no loss of income as an unrealistic goal. Here is why:
The processing time on an initial claim is about 4-6 months (in Colorado).
The test of disability under Social Security is an inability to perform work (at a substantial gainful activity level). So, working at SGA, after considering the exceptions) is a problem. Note: if an individual works below SGA level, it would not be a bar to receiving disability benefits. However, any work is still be an issue.
Social Security requires that a disability be expected to last 12 months or longer. This is the “durational requirement.” While Social Security does not require that a person is out of work (or working below the SGA level) for 12 months, Social Security can deny cases if it feels that while a person is currently disabled, but is unlikely to remain disabled for 12 months.
There is also the 5 month waiting period (on SSDI claims), during which SSA withholds the first 5 months of benefits. If the alleged onset date is the last date an individual worked, Social Security would still keep the first 5 months of benefits. So, even if an individual is approved within 30 days of applying, there may still be a waiting period in which no benefits are paid. Note: this only applies in SSDI case (there is no waiting period in SSI cases). However, SSI cases do not pay benefits before the filing date.
If you have read all that and digested the information in the links, you have a pretty good idea of what you are up against.
Social Security Ruling: Documenting and Evaluating Disability in Young Adults
September 10, 2011 saw the second SSR issued for 2011 (effective September 12, 2011). You can also view and download the entire ruling as a PDF here.
SSR 11-2p deals with Documenting and Evaluating Disability in Young Adults. Much of the ruling is a summary of how Social Security should evaluate cases for claimants with ages between 18 and 25. However, there are several interesting items:
First, the ruling makes it clear that evidence generated during childhood (before the 18th birthday) can be relevant in an adult claim.
Social Security to go “broke” in 2017
AP reports Social Security may run out of funds to fullyfund Social Security disability benefits as early as 2017:
New congressional estimates say the trust fund that supports Social Security disability will run out of money by 2017, leaving the program unable to pay full benefits, unless Congress acts.
…
The trustees who oversee Social Security are urging Congress to shore up the disability system by reallocating money from the retirement program, just as lawmakers did in 1994. If Congress does not act, the disability program will collect only enough payroll taxes to pay about 85 percent of benefits after the trust fund is exhausted in 2017.
So, Social Security may not have …
Is a 504 plan or IEP enough to win Social Security children’s benefits
My Colorado law office handled a number of Social Security disability benefits for children. Often parents have a 504 plan or an IEP (Individualized Education Program) from the school. Parents often ask me if this is enough to have their child approved for children’s disability benefits.
Unfortunately, typically not. While a 504 plan or an IEP is good evidence and often contains useful information about the child’s disability, it is often not enough by itself.
There is no single formula for winning a disability case. There is a wide range of possible …
10 Steps to Prepare for your Social Security Hearing
My friend, Maine disability lawyer, Gordon Gates, has put together a free e-book, 10 Steps To Prepare For Your Social Security Disability Hearing.
In it, you’ll learn:
How Social Security reviews cases.
What you can do while waiting for your hearing.
How to expedite cases.
The information you will need to have at your hearing.
Check it out! Download a copy here.
Does Social Security family maximum reduce disability benefits?
We’ve previously talked about the Social Security Family Maximum, which limits the total amount of auxiliary benefits that paid out on any case. We have also discussed how a new child can reduce the auxiliary benefits for other children.
I was recently asked by a divorced dad if the auxiliary benefits paid out to others based on his disability (especially if the family maximum is reached) reduce his benefits?
No. Here is how Social Security explains it:
I’ve heard that there is a …
