A commenter recently wrote:

BEWARE!  Attorneys will stretch out the claim filing because the longer it takes, the more money they get.

As I wrote in Can You Pick Your Lawyer Out of a Line-Up,  lawyers should work for their money.  So, if you are not getting value from your representative, maybe you should change who you are working with. However, it is something of a myth that lawyers can speed up or slow down Social Security cases. Of course, a lot of this perpetrated by legal advertising. You have probably seen more than one ad touting “Faster Results!”

So, let’s look at this issue.

What are lawyers’ promises of ‘Faster Results’ really about?

In most medium-sized markets, there are often a dozen lawyers, big and small, competing for your business. In a large market, there could be scores of attorneys competing against each other. Nowadays, you can also add large national companies trying to scoop up as many cases as possible like a blue whale trawling for plankton. The competition isn’t for winning your case; it’s for getting hired! While the lawyer/company won’t get paid unless the case is won, they don’t even get a chance to win the case unless you pick them!

However, since Social Security determines the fees lawyers can charge, you don’t see competition on price. Instead, you get the promise of “Whiter Whites!” which in legal circles translates to “Faster Results!” or “99% Success Rate” or “150 Years Combined Experience.” I have written about the last two previously, so let’s consider the faster results pitch.

It is certainly a compelling offer. Who doesn’t want at least a chance of getting their case done faster? However, are you about to sign on with a better firm, or are you just getting flim-flammed?

• If a representative promises faster results, the results are faster than what? Faster than the national average? That might only mean that they work in one of 25 states that is processes cases faster than the other 25 states. That may not be saying much.
• If an representative claims “most of our cases are approved without a hearing!” To my jaded ears that sounds like they selectively pick cases which are likely to be approved anyway and brief them. Explaining why a case should be approved certainly helps the claimant and counts as work. However, sticking with easy cases is like never getting beyond tic-tak-toe, it doesn’t build legal muscles. Do you get a discount because your case is easy? Probably not.

If you still feel compelled to contact a law firm or non-lawyer representative company promising fast results, remember to ask these four questions:

1. You promise faster results. Faster than what?
2. Do you guarantee a decision within a certain number of months?
3. Do you guarantee a decision without a hearing?
4. What if you don’t deliver? Do you cut your fees? By how much?

Do lawyers slow down Social Security cases to make more money?

Now, let’s consider the flip side of this. Can, and more importantly, do lawyers slow down cases.

It is completely true that since lawyers get a percentage of the back benefits, the longer a case takes, the more a lawyer may conceivable make — at least, up to the fee cap set by Social Security. However, are lawyers slowing down cases. No.

Bull****! I switched lawyers after waiting a year and got my hearing in a month! My old lawyer must have been holding my case back!

A number of cases happen just that way: a long wait with lawyer 1, then a relatively rapid hearing with lawyer 2. However, consider that in every jurisdiction, there is an average number of months that cases wait to get a hearing. In Colorado, it is about 14 months after the filing of the appeal. Put another way, about 14 months after filing an appeal, you can expect a hearing to be scheduled. Sometimes people get tired of their first lawyer “getting nothing done” after a year and fire them. Then, they switch to a new lawyer who gets a hearing in 2 months! Wow, that lawyer must be amazing!

Well, not really. It only means it takes 14 months to get a hearing in that jurisdiction. You waiting 12 months with the first lawyer and the last two months with the second. There is a lot of coincidence masquerading as results.

Note: there a lot a lawyer can do for you: obtain evidence, file briefs, perform analysis, prepare you for your hearing. However, one thing a lawyer cannot do for you is make Social Security move faster than it wants to. No one can force SSA to make a decision before it is ready. The reason Social Security cases take so long is that there an enormous backlog of cases waiting to get through the system.

When you hire a representative, you are hiring someone to stand in line with you and help get you ready while you wait to get to the front. However, they cannot make the line move faster. If you change the person you’re waiting with just before you get to the front, it’s not the change that caused you to get to the front of the line. It is that your turn finally came up! The problem is that you don’t see the line in a Social Security case. You don’t know how many people are in front of you. All you know is that you waited a year with the old attorney, and only a couple of months with the new one.

What can you do about this? Ask your representative how long cases take in your jurisdiction. Even if you can’t see the line of people ahead of you, you will have an idea of how long it should take to get to the front of the line.

Well, I know someone who filed at the same time and used a different lawyer and their case already had a hearing. So, why am I still waiting with you?

Yup, that can happen. In addition to an average time to get a hearing scheduled. There is also a range. Again referring to Colorado: while the average time for a hearing is about 14 months, it may be a short as six months to as long as 18 months for the hearing to be scheduled. Also, some cases are expedited due to dire need or because the claimant is a soldier. And some cases get sent out-of-state to be worked up by other hearing offices or by a national hearing center. Then there are differences in the Social Security staff handling cases, and in the number of openings on the judges’ dockets. Any of these can speed up or slow down how long it takes to get a hearing. The result is some cases move faster than others. Although, lawyers certainly do not mind taking the credit when a case is resolved faster.

You still haven’t answered if lawyers slow down cases!

Ok. No, lawyers do not try to slow down cases. There are lawyers who may not do very much – which is bad enough! However, just as lawyers cannot really speed up a case, lawyers cannot slow down a case either. That power rests completely with Social Security. The one exception is if a lawyer has to request a continuance for a scheduled hearing. However, that is not likely to happen without you knowing about it and the reasons for the delay.

So, what do you think? Are lawyers slowing down Social Security cases?

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 appeal a hearing denial is the “Request for Review of Hearing Decision/Order.” However, the decision should describe the form(s) and process to follow to appeal your decision. If you file your complaint along with your appeal of the hearing decision, the Appeals Council will address both the appeal and the complaint in its decision.

Here are the steps to take to file the Unfair Treatment Complaint:

You should give us your complaint in writing. But you also can tell us about your complaint, and we will write it down for you. Please give us as many details as you can, including:

• Your name, address and telephone number;
• Your Social Security number;
• Who treated you unfairly;
• How you think you were unfairly treated;
• When you think you were unfairly treated;
• The actions or words you thought were unfair;
• Who else saw or heard the unfair treatment; and
• If you are making the complaint for someone else, also give us your relationship to that person, and your name, address and telephone number.

You can ask for help or submit the complaint at any Social Security office. Be sure to take two copies and get your copy stamped by the counter attendant as proof of providing the complaint to Social Security. You can also send your complaint directly to the Social Security Appeals Council at the following address:

The Chief Administrative Law Judge
Office of Disability Adjudication and Review
5107 Leesburg Pike, Suite 1608
Falls Church, VA 22041-3255

Here again, make sure to send the complaint certified, return receipt requested (or equivalent) so you have proof of filing the complaint.

The Moth: Amy Mullins – A Work in Progress

Give it a listen!

photo credit: Andrea Rinaldi

Supplemental Security Income (SSI) benefits are going up in 2012. After three years of no cost of living (COLA) benefit increases, benefits are finally getting nudged upwards from a maximum of $674 per month for individuals (and $1011 per month for couples) to $698 for individuals and $1048 for couples.

 photo credit: charlieambler

Here is a great site that lists all of the medical record charges by state. I have previously written about what it costs to get your records in Colorado. Colorado’s regulation is contained in 6 C.C.R. 1011-1, Chapter 2, Part 5.2.3.4

5.2.3.4 Unless otherwise prohibited by law, a representative of the patient, other than a “personal representative” as defined in the Federal Health Insurance Portability and Accountability Act (HIPAA) § 164.502(g), with the patient’s written authorization, shall pay for the reasonable cost of obtaining a copy of the patient’s record, which shall be $16.50 for the first ten or fewer pages, $.75 per page for pages 11-40, and $.50 per page for every additional page.
The discharged patient or personal representative (as defined under HIPAA §164.502(g)) shall pay for the reasonable cost of obtaining a copy of his/her patient record, not to exceed $14.00 for the first ten or fewer pages, $.50 per page for pages 11-40, and $.33 per page for every additional page. Actual postage or shipping costs and applicable sales tax, if any, also may be charged.

The per-page fee for records copied from microfilm shall be $1.50 per page. No fees shall be charged by a health care provider of patient records for requests for medical records received from another health care provider or to an individual regulated pursuant to Section 25-1-802(1) solely for the purpose of providing continuing medical care to a patient.

For one or more specific classes of records or services, institutions may charge additional sums upon presenting a justification therefor acceptable to the Department.

If you think that’s too high, keep in mind that states like Ohio has a special provision (ORC 3701.741 (C)(1)(e)) that lets patients and their representatives to get one copy of their medical records for free in Social Security cases.

Click here to find out what it costs to get your medical records in any of the 50 states.

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.

Join my team and you too can go all Yul Brenner, or Vin Diesel, or Mr. Clean, too! Or, Mrs. Clean!

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Come on! Click and go help out children in need! It’s even tax deductible!

Here are some good tips:

1. Timely submit the form ssa-1696 and fee agreement.
2. Timely alert the hearing office of any change of address or phone number for either yourself or the claimant.
3. Do not submit duplicative evidence.
4. Submit evidence as far in advance of the hearing as possible, using electronic records express.
5. Before faxing evidence, check to ensure the evidence you are submitting matches the claimant.
6. Make sure the barcode is the first item faxed in order to ensure proper identification of all records.

Check out Best Practices for Social Security representatives.

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? Due to a “production rate pace.”

The Selected Characteristics of Occupation defines Light work as:

Light Work involves exerting up to 20 pounds of force occasionally, or up to 10 pounds of force frequently, or a negligible amount of force constantly to move objects. Physical demand requirements are in excess of those for Sedentary Work. Even though the weight lifted may be only a negligible amount, a job/occupation is rated Light Work when it requires: (1) walking or standing to a significant degree; (2) sitting most of the time while pushing or pulling arm or leg controls; or (3) working at a production rate pace while constantly pushing or pulling materials even though the weight of the materials is negligible. (The constant stress and strain of maintaining a production rate pace, especially in an industrial setting, can be and is physically demanding of a worker even though the amount of force exerted is negligible.)

So, a sit down job where an individual works at a production pace or is constantly pushing or pulling, such as on an assembly line or in an industrial setting, is LIGHT work, not sedentary, even though standing/walking and lifting/carrying are negligible.

Writing in Guernica, Dr. Heather Kovich discusses  her experiences as a (former) Social Security disability examiner:

There is also a stereotype of the doctors who do this work: lazy and disinterested. I found the job fascinating. The more I learned about the disability system, the more I pondered its complexities: it provides a safety net but keeps people mired in poverty. Helpful services, including job retraining, are available, but aren’t advertised. And the system rests on a deeply flawed premise—that there is a way to objectively determine who is able to work and who is not.

…

This was my job, “independent medical examiner.” On the basis of a forty-minute interview and examination, I was supposed to determine how disabled an applicant or “claimant” was. 

…

I did hundreds of disability exams over the next year, and while I did meet two people who were obviously faking, for the most part the stories I heard were heartbreaking: car accidents, massive strokes, lost jobs, dead spouses. Many people who apply for disability have lived through a tragedy. But the stories also told of the inefficiencies of the disability system. That first day in Spokane I met a man who had worked in manual labor his whole life, but for years had been getting crushing chest pain after walking a few blocks. His blood pressure was dangerously high. His condition was obviously treatable, but he did not have insurance so he had not been to a doctor in years. He knew that if he qualified for permanent disability he would eventually get Medicare or Medicaid and get proper treatment. He had no idea he could go to a community health center, a federally financed clinic where he could pay on a sliding-scale basis. With the right treatment and a less strenuous job, he would probably have not needed disability. Emphasis added.

This is the catch 22 of the Social Security system: with the health insurance Social Security provides, you might not be disabled. However, without Social Security disability, you can’t get the medical care you need.

This isn’t strictly a Social Security problem, it is US health system problem.

As of this year, Social Security is reportedly paying out more in benefits than it collects in revenue, putting pressure on the system to become more financially sustainable. Many economists propose stricter requirements for disability, letting far fewer people onto the rolls.

This is what happened in the Netherlands eight years ago: the Dutch tightened their criteria for disability and required employers to contribute to some of the disability payments. They were able to decrease the number of people on disability rolls by 15 percent (the U.S. has never seen any drop in disability recipients) and were able to show that those people had not simply transferred their needs to other government security programs, but were actually back at work. However, the Netherlands has a compulsory health insurance program, so the disabled, who have higher health care needs, were able to continue receiving health care no matter what type of employment they could find. Emphasis added.

This is just one topic covered in the article. Go and give it a read.

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.

1. Acute Leukemia
2. Adrenal Cancer – with distant metastases or inoperable, unresectable or recurrent
3. Alexander Disease (ALX) – Neonatal and Infantile
4. Alstrom Syndrome
5. Amegakaryocytic Thrombocytopenia
6. Amyotrophic Lateral Sclerosis (ALS)
7. Anaplastic Adrenal Cancer – with distant metastases or inoperable, unresectable or recurrent
8. Aortic Atresia
9. Astrocytoma – Grade III and IV
10. Ataxia Telangiectasia
11. Batten Disease
12. Bilateral Retinoblastoma
13. Bladder Cancer – with distant metastases or inoperable or unresectable
14. Bone Cancer – with distant metastases or inoperable or unresectable
15. Breast Cancer – with distant metastases or inoperable or unresectable
16. Canavan Disease (CD)
17. Cerebro Oculo Facio Skeletal (COFS) Syndrome
18. Chronic Myelogenous Leukemia (CML) – Blast Phase
19. Creutzfeldt-Jakob Disease (CJD) – Adult
20. Cri du Chat Syndrome
21. Degos Disease, Systemic
22. Early-Onset Alzheimer’s Disease
23. Edwards Syndrome (Trisomy 18)
24. Eisenmenger Syndrome
25. Endomyocardial Fibrosis
26. Ependymoblastoma (Child Brain Tumor)
27. Esophageal Cancer
28. Farber’s Disease (FD) – Infantile
29. Fibrodysplasia Ossificans Progressiva
30. Friedreichs Ataxia (FRDA)
31. Frontotemporal Dementia (FTD), Picks Disease -Type A – Adult
32. Fukuyama Congenital Muscular Dystrophy
33. Gallbladder Cancer
34. Gaucher Disease (GD) – Type 2
35. Glioblastoma Multiforme (Adult Brain Tumor)
36. Glutaric Acidemia Type II (Neonatal)
37. Head and Neck Cancers – with distant metastasis or inoperable or uresectable
38. Heart Transplant Graft Failure
39. Heart Transplant Wait List, 1A/1B
40. Hemophagocytic Lymphohistiocytosis (HLH), Familial Type
41. Hypoplastic Left Heart Syndrome
42. Idiopathic Pulmonary Fibrosis
43. Infantile Neuroaxonal Dystrophy (INAD)
44. Infantile Neuronal Ceroid Lipofuscinoses
45. Inflammatory Breast Cancer (IBC)
46. Junctional Epidermolysis Bullosa, Lethal Type
47. Kidney Cancer – inoperable or unresectable
48. Krabbe Disease (KD) – Infantile
49. Large Intestine Cancer – with distant metastasis or inoperable, unresectable or recurrent
50. Late Infantile Neuronal Ceroid Lipofuscinoses
51. Left Ventricular Assist Device (LVAD) Recipient
52. Leigh’s Disease
53. Lesch-Nyhan Syndrome (LNS)
54. Liver Cancer
55. Mantle Cell Lymphoma (MCL)
56. Maple Syrup Urine Disease
57. Merosin Deficient Congenital Muscular Dystrophy
58. Metachromatic Leukodystrophy (MLD) – Late Infantile
59. Mitral Valve Atresia
60. Mixed Dementias
61. MPS I, formerly known as Hurler Syndrome
62. MPS II, formerly known as Hunter Syndrome
63. MPS III, formerly known as Sanfilippo Syndrome
64. Mucosal Malignant Melanoma
65. Neonatal Adrenoleukodystrophy
66. Niemann-Pick Disease (NPD) – Type A
67. Niemann-Pick Disease-Type C
68. Non-Small Cell Lung Cancer – with metastases to or beyond the hilar nodes or inoperable, unresectable or recurrent
69. Ornithine Transcarbamylase (OTC) Deficiency
70. Osteogenesis Imperfecta (OI) – Type II
71. Ovarian Cancer – with distant metastases or inoperable or unresectable
72. Pancreatic Cancer
73. Patau Syndrome (Trisomy 13)
74. Peritoneal Mesothelioma
75. Pleural Mesothelioma
76. Pompe Disease – Infantile
77. Primary Cardiac Amyloidosis
78. Primary Progressive Aphasia
79. Progressive Multifocal Leukoencephalopathy
80. Pulmonary Atresia
81. Rett (RTT) Syndrome
82. Salivary Tumors
83. Sandhoff Disease
84. Single Ventricle
85. Small Cell Cancer (of the Large Intestine, Ovary, Prostate, or Uterus)
86. Small Cell Lung Cancer
87. Small Intestine Cancer – with distant metastases or inoperable, unresectable or recurrent
88. Spinal Muscular Atrophy (SMA) – Types 0 And 1
89. Spinocerebellar Ataxia
90. Stomach Cancer – with distant metastases or inoperable, unresectable or recurrent
91. Subacute Sclerosis Panencephalitis
92. Tay Sachs Disease – Infantile Type
93. Thanatophoric Dysplasia, Type 1
94. Thyroid Cancer
95. Tricuspid Atresia
96. Ullrich Congenital Muscular Dystrophy
97. Ureter Cancer – with distant metastases or inoperable, unresectable or recurrent
98. Walker Warburg Syndrome
99. Wolman Disease
100. Zellweger Syndrome

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.” 

In addition to evidence from “acceptable medical sources,” we may use evidence from “other sources,” as defined in 20 CFR 404.1513(d) and416.913(d), to show the severity of the individual’s impairment(s) and how it affects the individual’s ability to function. These sources include, but are not limited to:

• Medical sources who are not “acceptable medical sources,” such as nurse practitioners, physician assistants, licensed clinical social workers, naturopaths, chiropractors, audiologists, and therapists; and
• “Non-medical Sources” including, but not limited to:
• Educational personnel, such as school teachers, counselors, early intervention team members, developmental center workers, and daycare center workers;
• Public and private social welfare agency personnel, rehabilitation counselors; and
• Spouses, parents and other caregivers, siblings, other relatives, friends, neighbors, clergy, and employers.

Information from these “other sources” cannot establish the existence of a medically determinable impairment. Instead, there must be evidence from an “acceptable medical source” for this purpose. However, information from such “other sources” may be based on special knowledge of the individual and may provide insight into the severity of the impairment(s) and how it affects the individual’s ability to function.

SSA will now consider evidence from other sources. And not only medical sources: SSA also has to consider evidence from rehab counselors, parents and family members, clergy, employers.

If there is a catch, it is that an “acceptable medical source” is still needed for the diagnosis – which is sensible. However, in some cases where the symptoms are clearly disabling, but the cause is unclear, obtaining a clear diagnosis from an acceptable medical source can be difficult.

However, once there is a diagnosis, the extent of the condition and the limitations can be developed through other sources of evidence. Keep in mind though that this Ruling only requires that SSA consider these other sources of evidence. It does not mean that Social Security will find you disabled just because your paper boy said so. Evidence from medical professionals and from acceptable medical sources is still usually better evidence and more likely to convince Social Security. SSR 06-03p just lets you also provide additional other evidence.

How will Social Security consider evidence from other sources? Here are some factors SSA may use in determining the weight given to evidence from other sources:

Although the factors in 20 CFR 404.1527(d)  and  416.927(d)  explicitly apply only to the evaluation of medical opinions from “acceptable medical sources,” these same factors can be applied to opinion evidence from “other sources.” These factors represent basic principles that apply to the consideration of all opinions from medical sources who are not “acceptable medical sources” as well as from “other sources,” such as teachers and school counselors, who have seen the individual in their professional capacity. These factors include:

• How long the source has known and how frequently the source has seen the individual;
• How consistent the opinion is with other evidence;
• The degree to which the source presents relevant evidence to support an opinion;
• How well the source explains the opinion;
• Whether the source has a specialty or area of expertise related to the individual’s impairment(s), and
• Any other factors that tend to support or refute the opinion.

Here is where therapists and nurses records can really shine. Often these providers have had the most frequent and longest contact with patients and can provide the most detailed opinion of how their conditions affect what they can and cannot do.

So go ahead and get those therapists and other records to Social Security. It’s good evidence!

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.

A Social Security file is often between 200 – 800 pages. Social Security uses all of that information to review your case. A lawyer reviews all that information to look for what’s good and what can blow up in your face. It is ALL important.

Ok, but here are the big things in my case. They give you a pretty good idea of what’s going to happen.

The thing is, details matter. A lot! You probably remember that when the space shuttle Challenger blew up, the cause was a failure of a small o-ring. Just one small part. The Columbia disaster was caused by a piece of foam insulation. All the science, all the engineering, all the testing and checking, and yet small parts brought down some of our greatest achievements.

While disability cases are not as complicated as a launching a shuttle, they are depend on how all the pieces of evidence fit together.

Not just some of the pieces, not a description of the pieces, but the actual evidence itself. So, without looking at the actual evidence in the file, I cannot tell you what your chances are. I can’t tell you if you are likely to be approved or not. A lot of people who write in clearly have cases worth pursuing. I believe that their conditions keep them from being able to work. I think they should not give up.

However, what are their chances? I can’t answer that. Because it is not a matter of gut feelings. It is not a matter of whether I feel they should be approved. The only thing that really determines whether someone has a good case or bad case is the evidence. And until I am working with someone on their case and have reviewed all the evidence, I just don’t know if there is some damaged o-ring or bit of insulation that can keep a case from succeeding.

Thank your understanding. Thank you for reading. And thank you all of your comments.

photo credit: Tomasz Stasiuk

A little known provision of the Social Security system allows parents to receive Social Security benefits if their child dies or becomes disabled. These are called Parent’s Benefits, which can easily be confused with Mother’s and Father’s Benefits (which are paid when one parent dies leaving the other to care for a child under 16 years of age).

Social Security Parent’s Benefits are not available every time a child dies or becomes disabled. The critical elements are that the parent is at least 62 years old and dependent on the disabled or deceased child.

20 CFR §404.370 is the applicable regulation which outlines the requirement of Parent Benefit eligibility.

You may be entitled to parent’s benefits on the earnings record of someone who has died and was fully insured. You are entitled to these benefits if all the following conditions are met:

(a) You are related to the insured person as his or her parent in one of the ways described in §404.374.

(b) You are at least 62 years old.

(c) You have not married since the insured person died.

(d) You apply.

(e) You are not entitled to an old-age benefit equal to or larger than the parent’s benefit amount.

(f) You were receiving at least one-half of your support from the insured at the time he or she died, or at the beginning of any period of disability he or she had that continued up to death. See §404.366(b) for a definition of one-half support.

If you were receiving one-half of your support from the insured at the time of the insured’s death, you must give us proof of this support within 2 years of the insured’s death.

If you were receiving one-half of your support from the insured at the time his or her period of disability began, you must give us proof of this support within 2 years of the month in which the insured filed his or her application for the period of disability.

You must file the evidence of support even though you may not be eligible for parent’s benefits until a later time. There are two exceptions to the 2-year filing requirement:

(1) If there is a good cause for failure to provide proof of support within the 2-year period, we will consider the proof you give us as though it were provided within the 2-year period. Good cause does not exist if you were informed of the need to provide the proof within the 2-year period and you neglected to do so or did not intend to do so. Good cause will be found to exist if you did not provide the proof within the time limit due to—

(i) Circumstances beyond your control, such as extended illness, mental or physical incapacity, or a language barrier;

(ii) Incorrect or incomplete information we furnished you;

(iii) Your efforts to get proof of the support without realizing that you could submit the proof after you gave us some other evidence of that support; or

(iv) Unusual or unavoidable circumstances that show you could not reasonably be expected to know of the 2-year time limit.

(2) The Soldiers’ and Sailors’ Civil Relief Act of 1940 provides for extending the filing time.

Social Security takes a long time to process disability benefit cases. Here is how to check the status of your claim.

Initial applications for disability benefits:

Social Security has a webpage at http://ssa.gov/claimstatus/ which lets you check your status. Unfortunately, you will probably receive this message:

The following statements are informational only. They are current as of today. You will receive the official notice of any decision made on your claim by U.S. mail. As of today’s date, a decision has not been made on your application. If you need more information, you may call us toll-free at 1-800-772-1213 (TTY 1-800-325-0778). SSA representatives are available Monday through Friday between 7 a.m. to 7 p.m.

Other than confirming that there is a claim pending, this doesn’t tell you very much. Fortunately, you can get more information by calling Social Security directly.

• You local Social Security office can tell you if any additional information is needed before your case is transferred to Disability Determination Services for a medical review.
• Once your case is moved to Disability Determination Services, you will receive forms to be completed about your disability. These are accompanied by a cover letter with the name of your case manager and usually their direct telephone number.

Cases pending a Hearing before an Administrative Law Judge:

After the “Request for Hearing” appeal is filed, the case is moved to a Office of Disability Adjudication and Review (ODAR). The ODAR office sends out a notice, once the file arrives there, listing the mailing address, telephone and fax numbers. If you lose the notice, you can also contact the local Social Security office to obtain contact information for the hearing office.

You can call the ODAR office to check the status of your case. However, the clerk handling calls can provide limited information. They may be able to tell you the status of the case, what information it is currently waiting on, and the current wait times. However, Social Security will not be able to give you “hint” of what the outcome of the case will be.

Now this should go without saying, but don’t be a jerk when you call. The Social Security agent will provide all the information they can. Each moment on the phone takes time away from processing cases. So, be nice. They really are doing their best.

Social Security recipients will get a raise in January — their first increase in benefits since 2009.

…

Based on consumer prices in July and August, the COLA for 2012 would be about 3.5 percent. Vlasenko [an economist at the American Institute for Economic Research] estimates the COLA will be from 3.5 percent to 3.7 percent.

Via Washington Post.

UPDATE: The number is out, and it’s 3.6%.

UPDATE: SSI benefits are going up in 2012 from a maximum of $674 per month for individuals (and $1011 per month for couples) to a maximum of  $698 for individuals / $1048 for couples, per month.

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.

Medical-Vocational Guidelines

The reduced requirements for proving Social Security disability cases are contained in the “Medical-Vocational Guidelines” also known as the “Grid Rules.” It is important to understand where the Grid Rules fit in with Social Security’s disability evaluation process.

Take a moment to review the 5 step sequential evaluation process. These are the 5 steps that Social Security uses to decide disability cases for adults.

1. Are you working (at an SGA level)?
2. Is your impairment severe?
3. Do your impairments “meet or equal” one of Social Security’s Listing of Impairments?
4. Can you do past work -  any of the jobs you performed (at a SGA level)  over the last 15 years.
5. Can you do other work – any other type of work that exists in substantial numbers in the national economy?

Note: I am simplifying and abbreviating each step — check out the link above for a more thorough review.

Here is how Social Security goes through these steps:

• To qualify for disability, you have to show that you are not working at SGA (step 1) and that your conditions are severe (step 2).
• Step 3 – meeting a listing, is the first step at which an individual can be approved. However, only a small number of cases are approved here.
• If you not approved at step 3, you have to get over both steps 4 and 5. You have to show that you cannot perform any work done 15 years prior to the onset date AND that you cannot perform any other type of work (that exists in substantial numbers in the national economy).

The Grid Rules apply at step five of the sequential evaluation process. That means that before the Grids come into play, you have to already shown that, (Step 1) you are not working an SGA job, (Step 2) your condition is severe, (Step 3), you did not meet or equal a listing, and (Step 4) you cannot perform the duties of any job done at a SGA level 15 years before the disability began.

Step 4 can be tricky. Step asks if you can still physically and/or mentally perform the duties of any job which:

1. You performed in the 15 years before your alleged onset date; and
2. You performed long enough to learn how to do the job; and
3. The job was performed at a substantial gainful activity level .

In short, if you can still perform the duties of a past job, you do not get to use the Grid Rules and you may be denied.

However, if you cannot do any past relevant work, here is how the Grid Rules may help you:

Ages 50 to 54

You can be approved for Social Security disability benefits even if you are still able to perform sedentary work so long as your past work was not skilled or semi-skilled, or if you do not have transferable skills to to other work.

If you are illiterate, or unable to communicate in English, and have no past relevant work or only unskilled work, you can be approved even if you are able to perform light work.

Ages 55 to 59

If you are between 55 and 59 years old, you can be approved for Social Security disability benefits even if you are able to perform light work.

However, if you have a 11th grade or lower education and no past relevant work, you can be disabled even if you are able to perform medium work.

Ages 60 to 64

Here is where the rules get tricky. If you are between 60 years old and 64 years old, you can be approved for Social Security disability benefits even though you can perform:

• Light work,
  • If you have a high school degree or higher level of education.
  • Or, if you have an 11th grade education, your past work was skilled semi-skilled but the skills are not transferable.
  • Or, you have a 7th to 11th grade education and your past work was unskilled.
• Medium work,
  • If you have an 11th grade education or lower and no prior work experience.
  • Or, if you have a sixth-grade education and your past work was unskilled.

Yes, things get complicated in the 60 to 64 age bracket.

Here are the GOTCHAS!

As mentioned above: you have to show that you are not able to perform your past work. If you are still capable of performing the duties of any of the past jobs you have done (at a SGA level) in the 15 years before your disability began, then the Grid Rules do not apply. These exceptions only apply if you can first prove that you cannot perform any past relevant work (PRW).

The other gotcha is that you cannot actually be working at a SGA level. These rules deal with having a “residual functional capacity” (what you are still able to do) that still allows some kind of work. In other words, you can still have an “ability to work,” but you cannot actually be working at a substantial gainful activity level (unless one of these exceptions apply).

Examples:

Here are some examples:

Over the last 15 years, you performed construction or labor jobs (medium to heavy occupations). Due to a back injury, you can no longer lift over 10 pounds and you can not stand for more than 2 hours out of an 8 hour day. This puts you in the sedentary exertional category.

This means you can still work but only at a sit-down job. In reality, you would probably need a job that has a sit/stand option, but that is not relevant for this discussion.

• If you are between 18 and 49 years old, there is a good chance you will be denied because you are still able to do sedentary work.
• However, if you are 50 years old, you will probably be approved because of the Grid Rules.

Lets shake things up. If in the last 15 years you worked for 6 months as a telemarketer (a sedentary job), you will probably be denied even at age 50 because you can still do a past job. This would be a step 4 denial.

Finally, if you are working at a SGA level at any exertional level, you are not disabled because you are able to work. A step 1 denial.

The Grid Rules are technical, but they can really be a short-cut in a Social Security disability case.

However, if you do not qualify under one of these rules, it is not the end of your case. The Grid Rules only consider a very small group of limitations (lifting/carrying, sitting, standing and walking). They do not consider bending, kneeling, using fingers and hands, working around others, or any other limitations. If you do not meet a grid rule (and most of my clients do not), all of your other limitations still need to be considered and may let you win your case.

A version of this article was first published on Bob Kraft’s site.

Social Security judges and employees in Florida, Alabama, Colorado, Georgia, Tennessee, Ohio and Arizona were among those instructed to set aside disability cases this week, with the slowdown allowing managers to boost their performance numbers for the coming fiscal year, which starts Monday.

Top officials, in a bid to meet goals to win promotions or thousands of dollars in bonuses, directed many employees to refrain from issuing decisions on cases until next week, according to judges and union officials.

How did Social Security judges respond?

Fortunately, the article goes on to say that Social Security’s chief judge Debra Brice issued a memo instructing judges to close cases normally — that is, without an artificial delay.

While the implication that SSA is slowing to boost number will raise the temperature under many collars, consider this analysis from Dallas Texas disability attorney Stanley Denman:

Consider that at any one time an Administrative Law Judge has 100+ cases – all at different “stages” of development. There are some cases in which she has to review the file before setting it for hearing, others she has new medical evidence that has been submitted that she has to review, other cases she has not yet decided the case, and others she has decided and has not written the decision yet. So if she is instructed to not “close” cases for one week, do you think she is just sitting around that week? Of course not! She will turn her attention to any number of tasks that will lead to decisions getting out the door. Isn’t it just common sense that she would simply make a nice neat pile of the cases that ready to be “closed” until the next week? So that the next week “two weeks worth” of cases get out the door. “Closing” cases is just part of the job: the fact that for one week cases are not to be closed is hardly a noteworthy event.

I do not agree that this is not noteworthy. I agree with Denman that judges are not going to sit on their hands for a week. Case numbers are increasing, staff and hours are being cut. If judges are told to reduce focus on one task, there are other tasks they will direct their attention to in order to keep cases moving through the Social Security system.

This is not equivalent to “stopping the trains from running.” However, even adding one week to a disabled individual’s wait can considerably add to their hardship. It make one wonder if Social Security has forgotten who it is there to help and who it is working for.

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.

Do the earnings while in a WTU count as SGA?

According to Social Security Ruling SSR 84-24 , they probably will not count as SGA:

A person in the military service who is being treated for a severe impairment usually continues to receive full pay. Therefore, for SGA purposes, it is not appropriate to evaluate his or her work activity based on the amount of pay received. Instead, it is necessary to use nonmonetary SGA criteria in assessing the work activity of a service person receiving treatment at a military hospital and working in a designated therapy program or on limited duty. That is, we compare the activity with similar work in the civilian work force and determine its reasonable worth.

Severely impaired service persons may, for example, be placed on limited duty status and put to work in a hospital, office, mailroom, laboratory, or the like. The controlling factor in these cases is an objective evaluation of the work activity itself, and not the service person’s duty status, or whether or not a formal therapy program is involved. The fact that a therapy program or limited duty status is involved necessarily suggests that special conditions may exist.

This requires that we consider the real value of the work effort within the military setting and then equate its value to similar work in a nonmilitary setting.

In short, SSA has to consider the real value of the work performed while in a light duty situation. This does not automatically mean that the work performed is not SGA. However, it many cases, especially when a soldier’s main duty is showing up on post and performing very minimal duties, it is quite likely that the work performed as part of a WTU will not be considered SGA, even though the earnings are over the SGA threshold. However, it is important to document the following:

1. When a soldier enters a WTU program,
2. The duties performed in the WTU, and
3. The date of separation from the military.

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. Theoretically, if an individual’s impairments limited him/her to work below the SGA threshold, they could continue to work and apply for benefits.

Conceivably, it is possible to document a declining ability to work and build up the case before the individual stops working to try to minimize the time without income.

However, you also have to be aware of the unintended consequences. Lawyers (and non-lawyer representatives) typically work on a percentage of back benefits. Since you are asking a lawyer to keep your back benefits to an absolute minimum, because you want a smooth transition from work income to disability benefits, a standard fee agreement may not work. If an individual asked my office to do something like this, I would probably require a fee petition based fee agreement along with a sizable deposit toward fees. This is because if successful, there wont be back benefits to take a percentage out of. AND, trying to prove inability to work, while an individual continues to work (!), is particularly difficult.

So, it is difficult, potentially do-able (or at least try-able), but costly.

UPDATE 10/13/11: If you have a condition described in the Compassionate Allowance list, it may be possible to get a very quick decision. So it would be worthwhile to review that list. The most up to date list is available here.