Disability Benefits and Mental Retardation

To win a claim for disability benefits, a claimant applying for social security benefits must have a severe medically determinable condition.

Listing 12.06 for mental retardation indicates below-average intellectual functioning as a medically determinable condition. The listing defines mental retardation as “significantly sub-average general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period…[or before age 22].”
To determine whether or not an individual applying for social security benefits has impaired intellectual functioning severe enough to be disabling, standardized tests for measuring intelligence quotient (IQ) and/or evidence that the claimant is incapable of taking care of one’s own personal needs may be required to establish disability per the listing.

To win disability benefits per listing 12.06, an IQ test will likely be required. Standardized intelligence tests such as the Wechsler Adult Intelligence Scale are used to determine intelligence quotient. These tests should be administered and interpreted by a psychologist or psychiatrist who is qualified to evaluate the exam.
If an IQ test is not feasible given the claimant’s severely limited mental functioning, then the severely diminished level of functioning must be established through evidence that indicates claimant is unable to care for such personal needs as using the bathroom, dressing, and bathing. In this instance, medical reports and teacher evaluations describing an individual’s diminished intellectual, social and physical functioning will be helpful to establish the existence of a severe impairment.
When an IQ test is feasible, any claimant with an IQ of 59 or less will satisfy the listing and therefore be eligible for disability benefits. If the individual’s IQ is between 60 and 70, the claimant can satisfy the listing and win disability benefits by proving he or she has an additional mental or physical impairment that causes significant work-related limitations. If this is not the case, the claimant will have to establish “marked” difficulties in at least two of the following parameters:

a. Ability to perform activities of daily living
b. Ability to maintain social functioning
c. Ability to maintain concentration, persistence or pace.

If only one of the above is satisfied, the claimant can still satisfy the listing if he or she experiences extensive and repeated episodes of decompensation.

It is important to note that “marked” means “seriously limited, but not totally precluded.” Further, a “repeated episode” of decompensation lasting for “an extended period,” is generally four or more episodes within a year, each lasting two weeks or more.


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The Pursuit of Social Security Disability Benefits in A Culture of Denial

In the recent months, high denial rates among those applying for Social Security benefits, has been the topic of immense concern. Investigations into denials of specific cases have caused some to call the Social Security Administration's strategies a "culture of denial." With only a 30-40% approval rate at Initial Application, this doesn't seem far from the truth. A report published by CBS news stated that most people do not bother to appeal a denial the first time they are disapproved for benefits. Almost two-thirds of all applicants give up after their first denial, meaning millions of Americans who paid into the system and quite possibly were deserving of benefits, never received assistance. Most of those that did continue fighting for benefits were faced with long wait times- lasting over 1 year, and often times, further denials.
After a two-month investigation, the CBS report called the denials part of a "system whose own standards have been called into question." The Social Security Administration's recent budget cuts and high staff turnover has resulted in longer back logs of cases, medical experts who are rendering opinions outside their specialties and inexperienced examiners being pressured to disapprove claims in order to keep costs down.
SSA Commissioner Michael Astrue commented that "it's a very tough standard…and you can argue whether that should be the standard or not, but I'm stuck with that." However, feedback from former employees of the Social Security Administration has caused a great deal of distress and apprehension among the disabled. Trisha Cardillo, a former Social Security employee who reviewed over 200 disability cases a month out of Ohio, has stated, "We're failing the disabled on a very large scale." She added that "there were a lot of times when I was fighting with management because I wanted to approve a claim…and I had to go through so many steps and - jump through so many hurdles to do that, it just seemed ridiculous." Cardillo explained that in essence, there is a "quota system" in which "each state has different numbers and they know that a certain percentage of people, once denied, will never file an appeal."
A prime example of the results yielded by this toughened standard is Mr. Robert Veneziali' case. He is a 38 year old applicant for disability benefits who is diagnosed with rapidly progressing Multiple Sclerosis. After applying for benefits, he was turned down and told that his case could be re-examined in another 18 months. Desperate for assistance, he turned to his congressman Rep. John Hall. Hall called for a federal investigation and stated that the treatment of people like Veneziali was "unconscionable." Another case we are dealing with in California involves a claimant who is diagnosed with end stage kidney disease, waiting for dialysis. This claimant has pages of supportive records and statements from his Kidney Specialist. However, his case was initially evaluated and denied by state agency reviewers who were not even doctors. Then, the case was reviewed and denied by a Social Security medical expert who was not a specialist in kidney diseases. Finally when it reached the hearing level, it was reviewed by staff at the San Diego Office of Disability, Adjudication and Review, and was denied an immediate award despite his dire, terminal condition.
With the assistance of congressional representatives who are voicing concerns over long wait times and high denial rates, perhaps the system that Social Security is currently operating under will be improved. Recently, due to concerns expressed by the public and Members of Congress, the Administration suspended some of their processes that were creating difficulties for claimants at the hearing level. After more than 500 comments were submitted criticizing the proposed rule that had put restrictions on the submission of evidence, Commissioner Astrue officially suspended that rule. This leaves open the possibility that with enough public concern and the assistance of our elected officials, the Social Security Administration will make changes to better the system and eventually this "culture of denial" will be transformed.


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Proving a Disability Based on Depression

It is estimated that today, approximately 19 million American adults are currently living with Major Depression. Major depression can be a debilitating disease that requires treatment in the form of medicine and therapy to resolve. For many Americans, depression affects their ability to function day to day and prevents them from holding a steady job. When trying to obtain Social Security Disability benefits due to Major Depression, it is important to know the criteria that Social Security uses to determine whether an individual’s depression is severe. This article will explain the evaluation process that Social Security decision makers use to evaluate a claimant’s case, and it will recommend ways to build up a strong case when applying for benefits.


What Social Security is Looking For?


Unlike physical impairments, where it’s easy to prove a disability using x-rays or blood tests, mental impairments are largely based on the subjective complaints an individual makes to their mental health doctors. Therefore, an individual alleging a disabling mental condition must be seeing a mental health professional. One of the first things Social Security looks for when evaluating a claim for benefits for depression is treatment records. A lack of treatment implies that the person is able to manage the depression by him or herself, and therefore the condition is not severe enough to prevent them from working. Missed appointments or gaps in the records tend to show that the individual either does not need help or is contributing to their impairment by not complying with proper treatment.

In the records themselves, Social Security looks for symptoms. For Major Depression, there must be consistent records stating that 4 of the following severe symptoms have persisted despite treatment: anhedonia or pervasive loss of interest in almost all activities, appetite disturbance with change in weight, sleep disturbance, psychomotor agitation or retardation, decreased energy, feelings of guilt or worthlessness, difficulty concentrating or thinking, thoughts of suicide, or hallucinations, delusions, or paranoid thinking.

Once it is determined that at least 4 of the above symptoms exist despite ongoing treatment, Social Security checks to see if the symptoms have lasted or will likely last at least 12 months.

Next, Social Security evaluates the impact these symptoms have on an individual’s ability to function. Though the symptoms may exist, they may be mild and therefore a person can potentially work despite the symptoms being present. However, if the symptoms are very severe, they would probably prevent the person from working at any job.

At this step, Social Security needs the help of a mental health expert to help determine the severity of the symptoms. A treating psychologist or psychiatrist is in the best position to provide an opinion as to the level of impairment their patient’s symptoms are causing. Specifically, Social Security is interested on how much an individual’s depressive symptoms interfere with their ability to perform activities of daily living, how much interference there is with normal social functioning, how much the depression effects a person’s ability to concentrate, persist or keep a working pace, and how many episodes of decompensation the depression has caused. If a treating doctor does not provide information on the severity of the claimant’s depression, one of Social Security’s medical examiners will provide such an opinion based on either an examination or a review of the records.


Presenting a Strong Case


Of course the most important part of proving a case for disability to be able to present treatment records. Not being able to afford treatment is not an excuse because there are free clinics and county mental health facilities that can assist those in dire financial shape. All claimants should have records to prove that they in fact do have a diagnosis of major depression.

It is important to discuss the symptoms of your depression with your doctor so that these symptoms can be written in your record.

To prove that the symptoms severely impact your ability to work, a statement from your doctor is necessary. Because a person’s treating doctor is most familiar with their case, that doctor’s opinion is usually given the most weight and therefore it’s vital to proving the case for disability. The opinion of the treating doctor can be in the form of a short narrative or can be provided as part of the doctor’s progress notes.

Social Security evaluators also look for in-patient stays at mental health facilities to determine if the individual shows signs of decompensation or an inability to function outside a highly structured living arrangement.

Another tool used to determine the severity of a claimant’s depression is their GAF, or Global Assessment of Functioning score. The GAF tells how well an individual functions in their life. Scores of less than 50 tend to show that an individual is below the normal level social functioning and has a significant impairment in this area.

Social Security red flags, which are often used as the basis for denials, are drug use and non-compliance. Claimants who use drugs or alcohol when they have depression are often denied because the effects of the substance cannot be distinguished from the effects of the mental impairment. Therefore, it is viewed as though the claimant is contributing to their disability. It is advantageous to have sustained sobriety from drugs and alcohol for at least 6 months before applying for disability benefits due to depression. Also, claimants who fail to take their medications are considered to be contributing to their impairment. Such cases are often denied because it is presumed that with proper medical management, the depression would resolve.


Therefore, to strengthen a case for disability based on depression, the following should be part of the record: consistent visits with the mental health doctor which state the symptoms of depression, compliance with medications, sobriety from street drugs and alcohol, and a supportive statement from the treating doctor which explains the level of impairment the depression causes in the individual.



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Comparing SSI and SSDI Benefits

There are two programs under which the Social Security Administration (SSA) provides benefits to disabled individuals: Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI). SSDI is type of insurance available to disabled individuals who have paid into the Social Security trust fund during their past employment. SSI is designed to meet basic financial needs for disabled individuals with little or no income.

The disability requirement is the same for both SSI and SSDI benefits. To be disabled according to the SSA, a claimant must be unable to engage in “substantial gainful activity” due to a medical condition that is expected to last for at least 12 months or result in death.

To be eligible for SSDI benefits, the SSA requires you to have earned a specified number of work credits, depending on the age at which you became disabled. You can consult with your attorney or the SSA to determine if you qualify, but note that the work credit requirement is generally met if you have worked at least 5 out of the past 10 years. Eligibility for SSDI benefits also requires that you be a legal resident of the U.S., and below retirement age.

SSI eligibility requires you to meet the SSA’s financial need requirements. Specifically, income must be below the Federal Benefit Rate (FBR) of $674 per month for an individual and $1011 per month for a couple (although certain states increase these amounts). In addition, an individual must have less than $2000 in resources, and a couple less than $3000. Certain resources, such as your home and car, are not taken into account when making this determination. To receive SSI you must also be a U.S. citizen (with limited exceptions). Unlike SSDI, however, SSI is available to individuals over the age of 65.

The primary difference between the two programs concerns the technical requirements for eligibility, but there are other important differences as well. SSDI comes with Medicare, while SSI comes with Medicaid (or MediCal in California). There is a 2 year waiting period from the date of SSDI award payment for the Medicare benefit to begin, but Medicaid starts immediately upon award of SSI. Another difference involves auxiliary benefits; SSDI provides benefits to certain family members of the claimant, while SSI does not.

It is possible to have “concurrent entitlement,” and receive benefits under both programs. It is therefore recommended that you apply for both SSDI and SSI when filing a disability claim with the SSA.


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Reasons Why You May Not Get Social Security Supplemental (SSI) Benefits For Which You Are Otherwise Eligible

This article intends to help applicants avoid the pitfalls that cause their ineligibility for payment in spite of their qualifying disability. As codified by the Code of Federal Regulations, the following are the top reasons why applicants may not receive benefits in spite of their eligibility.

You do not give Social Security Administration (SSA) permission to contact financial institutions.

Because SSI is a need-based program, SSA must be able to determine your eligibility by reviewing financial information on your resources and assets. Therefore, upon application, you must authorize the SSA permission to review records from banks, credit cards, loan companies, trust companies, savings associations, and any other source that would reveal the current state of your financial status. Permission in certain circumstances may include access to financial information by other relevant persons, i.e. your spouse or others living in your household. Social Security disability attorney may help you navigate these rules. However, applicant for social security benefits should be prepared with bank records or other financial information to make available to your reviewer upon request. Requesting records beforehand can significantly reduce any delays on your payments.

You leave the United States.

Put simply, you lose your eligibility for SSI benefits for any month during all of which you are outside of the United States. If you are outside of the United States for 30 days or more in a row, you are not considered to be back in the United States until you are back for 30 days in a row. You may again be eligible for SSI benefits in the month in which the 30 days end if you continue to meet all other eligibility requirements (CFR 416.215). During the application process itself, you may be required to fill out supplemental information regarding your daily activities and medical treatment. If you are outside the United States you may miss an opportunity to respond to such inquiries and consequently be denied. While your social security attorney may help you keep abreast of any deadlines, your participation is still material to the outcome of your case.

You do not apply for other benefits.

If you do not apply for other benefits then you may be denied or your payments suspended. Other benefits include any payments for which you can apply that are available to you on an ongoing or one-time basis of a type that includes annuities, pensions, retirement benefits, or disability benefits. For example, "other benefits" includes veterans' compensation and pensions, workers' compensation payments, Social Security insurance benefits and unemployment insurance benefits (CFR 416.210). You may consult with your social security attorney to determine what types of benefits might be available to you. The most obvious, Social Security Disability Insurance (SSDI), can be available if you have earned enough work credits through your contributions. In these cases, Social Security disability insurance benefits may be higher and entitle you to Medicare versus the Medicaid provided by SSI.

You are disabled and drug addiction or alcoholism is a contributing factor material to the determination of disability.

Drug addiction and alcoholism are major impediment to your initial award of benefits. Most judges are very careful to evaluate whether the severity of your disability is a result of your addiction. In which case, judges may deny benefits based citing non-compliance with medical treatment. If you receive benefits because you are disabled and drug addiction or alcoholism is a contributing factor material to the determination of disability (CFR 416.935), you must avail yourself of any appropriate treatment for your drug addiction or alcoholism at an approved institution or facility when this treatment is available and make progress in your treatment. You are not eligible for SSI benefits beginning with the month after the month you are notified in writing that we determined that you have failed to comply with the treatment requirements. If your benefits are suspended because you failed to comply with treatment requirements, you will not be eligible to receive benefits until you have demonstrated compliance with treatment for a period of time. As a general rule, social security applicants that have not remained sober for a period of six months should be apprised of consequences related to their addiction. For more detail, such applicant should consult with a social security attorney.

Social Security application process is riddled with rules. Applicants should seek legal advice from a social security attorney before they proceed with an application.


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Rheumatoid Arthritis: How Will Social Security Administration Evaluate Your Disability Claim?

When applying for Social Security Disability benefits, it is imperative to be regular and consistent in the medical documentation of your case. A Social Security attorney may help guide as to how the information from your records translates to the criteria and evaluation of your condition by the Social Security Administration (SSA). This article will discuss the criteria that relates to Rheumatoid Arthritis.
Rheumatoid arthritis (RA) is a long-term disease that leads to inflammation of the joints and surrounding tissues. It can also affect other organs. RA usually affects joints on both sides of the body equally. Wrists, fingers, knees, feet, and ankles are the most commonly affected. The course and the severity of the illness can vary considerably.
Depending on the severity of your RA and how it specifically impairs your ability to work, you may be successful on your claim if you meet the criteria stipulated in the in Listing 14.09 of the SSA Listings of Impairments:
Inflammatory arthritis (14.09).
a. General. The spectrum of inflammatory arthritis includes a vast array of disorders that differ in cause, course, and outcome. Clinically, inflammation of major peripheral joints may be the dominant manifestation causing difficulties with ambulation or fine and gross movements; there may be joint pain, swelling, and tenderness. The arthritis may affect other joints, or cause less limitation in ambulation or the performance of fine and gross movements. However, in combination with extra-articular features, including constitutional symptoms or signs (severe fatigue, fever, malaise, involuntary weight loss), inflammatory arthritis may result in an extreme limitation.
Barring the severe manifestations of your RA as described in the listing, your evaluator and Social Security Attorney may present at case based on how SSA evaluates pain and resulting limitations.
The Standard of "Pain"
In 1984, Congress passed the Social Security Disability Benefits Reform Act, which defined the standard of judgment on pain. It stated that:
…an individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings established by medically acceptable clinical or laboratory diagnostic techniques which show the existence of a medical impairment that results from anatomical, physiological or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged.
Though this act had an expiration date of 1986, it became the standard of judgment. In 1988, Social Security ruled there need not be objective evidence of the degree of pain.
Several factors are used in the standard judgment of pain including:
• the nature of the pain
• locations
• onset
• duration
• frequency
• radiation
• pain intensity

Other factors that must be considered in determining proof of pain include: what causes the pain and makes it worse name, dosage, effectiveness, and side effects of pain medications treatment for pain relief other than medications functional restrictions daily activities.
In order to get more personal advice on the merit and strength of your claim for Social Security Disability Benefits, please contact an experienced Social Security attorney.



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The Continuing Disability Review

Once you are receiving Social Security Disability benefits, the Social Security Administration will periodically review your case to make sure that you are still disabled. This review is called a Continuing Disability Review (CDR) and the law requires it . What can you expect from a CDR?
How often a case is reviewed varies from one disability case to another. When a person is found to be disabled, the disability determination specialist sets a date, called a diary, when the next review is scheduled to be performed. Most diaries are based on the expectation of recovery and are for three or seven years, but they can be sooner:
• If medical improvement is “expected”, a case normally will be reviewed within six to 18 months;
• If medical improvement is “possible”, a case normally will be reviewed no sooner than three years;
• If medical improvement is “not expected”, a case normally will be reviewed no sooner than seven years.
The CDR is a medical review. SSA is trying to decide if your level of disability has improved to the point where you have medically recovered and are able to work. The evidence that SSA will need for your CDR is similar to what it needed for your initial claim for Social Security Disability benefits. SSA will have you fill out forms describing your current condition and list all of the places where you have received treatment. SSA will also obtain copies of all recent medical records. If more information is needed about your condition, SSA may schedule a Consultative Exam. If your condition has not improved since SSA last reviewed your case, then your Social Security benefits will continue. If your condition has improved, SSA will look to see if your condition meets the current disability requirements.
It is important that when you receive the CDR notice and forms that you fill them out and return them. If you receive the CDR Mailer and throw it in the trash, SSA will send a second one. Continued failure to provide information that SSA asks for, or failure to attend an examination that it schedules, will result in termination of benefit payments. You may need help answering the questions, especially if you are not certain what is being asked and why. This is where an attorney may help.
Continuing Disability Reviews for Children
When a person is found to be disabled under childhood regulations, SSA will review the case when the person turns 18 to determine if the person is disabled under the adult regulations. The case is reviewed as if it were a new case. SSA is looking to see how your disability affects your ability to work as an adult. Even if your condition has not improved, your benefits will cease if your condition does not meet the current adult rules.
Tips for a Continuing Disability Review
SSA looks at the original status of your medical condition(s) and compares it to the current status of your medical condition(s) to decide if there has been significant medical improvement. For this reason, it is important that you continue to seek medical treatment for your condition. If you have not continued to seek medical treatment, SSA will likely order a Consultative Exam to assess your current condition. It is usually more beneficial


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Social Security Disability and Unemployment

To be eligible for Social Security Disability benefits, a claimant must not be able to return to past relevant work, nor to do any other work that exists in significant numbers in the national economy. A disability must last at least 12 months or be expected to result in death.

An application for Social Security Disability benefits is an affirmation of your belief that you are entitled to benefits under the above definitions – in other words, that you are not able to work. In signing your application, you affirm, under penalty of law, that you are making no false statements on your application.

Persons who apply for unemployment insurance must also affirm, under penalty of law, that they are making no false statements on their application. Persons who collect unemployment insurance affirm having looked for work each week, and that, if work was found, they would be ready, willing and able to accept it.

Furthermore, there is another fundamental difference between the two programs. State unemployment agencies expect you to look for work only in your field. They do not expect, for example, an accountant to accept work as a truck driver. But Social Security asks whether you can perform any work that is within your ability, regardless of the fact that you have never done it before. Collecting unemployment insurance may be an indication that you are only looking for work in your own field.

On the other hand, SSA recognizes unsuccessful work attempts. This is when a person tries to go back to work but their disability precludes a successful transition. So, for example, if the accountant, rather than collecting unemployment insurance, tried to take work as a cashier but found after a month or so that he just wasn’t able to do it because of his physical or mental limitations, it demonstrates a willingness to try to work at other jobs. Such unsuccessful work attempts tend to strengthen credibility and show you are not just trying to work the system.

In conclusion, an unemployment claim is tantamount to saying “I am able to work,” while an SSA disability claim is stating “I am not able to work.” Both statements are made under penalty of perjury, but both cannot be true, and it may affect your credibility in one or both forums.


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