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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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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Social Security Disability: Why is this taking so long?

I’ve been working all my life and paying taxes. Now that I’m not able to work and need help, SSA keeps denying my claim for disability benefits. Why is this taking so long?

It’s hard to be patient when you can’t afford to go the doctor and you don’t have money for medicine food, rent or utilities. But if you think about it logically, you can begin to at least understand why this process is necessary.

Think back to when you were working. Your employer would hand you your paystub, and you’d look to find that a chunk of your pay was taken out before they even gave it to you. You were paying toward the Social Security System. But you know that the government wasn’t holding your money in an account for you in case you should one day need it. The government was giving your money to the elderly and people who could no longer work.

So suppose that some government official approached you on payday and said, “Here’s your check, but before I give it to you, I’m going to take back three hundred bucks and give it to someone who can no longer work.” Your initial reaction might initially be a negative one, but you are human, and you at least to some extent agree that humans must take care of their elderly and sick – or you would not be applying for benefits now.

But this is the tradeoff - as a member of the workforce, I’ll contribute now to those who can no longer work so that I can be treated the same when I become unable to work. With one condition: before you take my money away from me and give it to those who can no longer work, at least make them prove they can no longer work. I surely do not want to give my hard-earned money to everyone who merely claims they can no longer work.

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Proving a Lumbar Spine Disability

What it Takes to Prove a Lumbar Spine Disability Case

Degenerative disc disease is one of the most likely causes of low back pain, effecting approximately 65 million Americans a year. However, it is also one of the most misunderstood conditions and often people are left unsure on what the diagnosis actually means. Much of the confusion centers around the idea that because it’s called “degenerative,” the condition will progress and get worse over time. But actually, while disc degeneration is likely to progress over time, the resulting lower back pain usually gets better over time. Disc degeneration is a natural part of aging so everyone will have changes in their discs; however, not all people will develop symptoms because degenerative disc disease is quite variable in its severity. Therefore, when assessing an alleged back condition, Social Security looks for certain markers that indicate an individual’s condition is truly disabling. This article will explore these markers and provide tips on how to strengthen a disability case which involves degenerative disc disease of the lumbar spine.

What Social Security is Looking For?

MRI’s are a great way to prove the severity of a disc disease. Most doctors will order this imaging test when a patient consistently complains of low back pain. The MRI offers a more detailed image of the spine than an x-ray, and can tell the doctor how much degeneration exists and whether the disease is affecting a nerve or the spinal cord. A procedure that offers an even more detailed image of the spine is called a discography. A patient’s disc is injected with a special contrast dye which outlines the damaged areas on x-rays taken following the injection. This procedure is often suggested for patients who are considering lumbar surgery.

After a patient undergoes an MRI imaging exam, a one to two page report is generated. On the bottom of this report, a doctor who has analyzed the MRI lists the diagnoses in the “impressions” section. Words like “mild, moderate, or severe” are used to describe the severity of the disease. Social Security often looks for moderate to severe degeneration described on the imaging study. Additionally, Social Security looks for nerve root or spinal cord implication. When a disc is displaced or degenerating to a significant degree, it may “abut, efface, irritate or compress” a nerve root or cord. When a nerve is involved, there is significant pain not only in the lower back, but radiating pain down one or both legs. Lastly, Social Security looks for how the disc disease affects an individual’s ability to ambulate. Specifically, the Administration checks to see if the disease results in “ineffective ambulation,” which is defined by an inability to walk without the use of 2 canes, crutches or a walker.

Though not all the markers need to be present to win a Social Security case, having these markers makes the case strong because the medical evidence points to a severely disabling condition. An individual with an MRI showing severe degeneration of disc L4-5, with nerve root compression and a prescribed walker will probably meet one of Social Security’s Listings, resulting in an automatic win. However, an individual with a mild degeneration at L4-5, no nerve root or spinal cord implication, and no assistive devices for ambulation will have a more difficult time proving their disability.

What Various Types of Medical Treatment Says About Your Case


Other than tests, Social Security looks for medical treatment. Much in the way of treatment can be offered to individuals suffering from low back pain. Medications are the most common form of treatment, but they can range from over the counter pain relievers to serious narcotic pain management medications such as vicodin, morphine and valium. The stronger medications suggest more severe, unmanageable pain conditions and they are likely to cause debilitating side effects.

Other forms of treatment are physical therapy, pain injections, TENS units and pain patches. These conservative treatments are often exhausted before more invasive procedures are considered. Social Security looks to see if conservative medical management has been tried and inevitably failed to provide relief from the pain. If an individual has found total relief from pain after using medications and undergoing physical therapy, their condition is no longer disabling. However, if despite medications, physical therapy trials and pain injections, an individual’s pain persists, then the case appears much stronger.

A doctor’s recommendation for surgery on the spine reflects a serious condition. Although an individual’s choice to follow through with surgery or not does not effect a disability determination, the fact that it’s even recommended shows that the condition is very serious.

Multiple failed surgeries or other invasive procedures such as surgically inserted pain stimulators, tend to show that the condition is very severe and has probably totally disabled the individual.

What You Can Do to Strengthen Your Case

Though the presence or absence of the markers mentioned above are beyond an individual’s control, there are certain things that claimant’s can personally do to strengthen their case. Social Security looks for consistent pain complaints in order to assess the validity of a disability claim. An individual who never complains about back pain to their doctor, but then alleges it is preventing him/her from working will not be found very credible. Therefore, if your condition causes severe pain, be sure to see your doctor regularly and check that progress notes are being taken which reflect your pain complaints. Also, doctors can perform certain tests on their patients other than medical imaging which can help determine how severe a low back condition is.

For example, a straight leg-raising test can be performed on a patient to determine whether there is disc herniation. Additionally, testing can be performed on range of motion to check how much a patient can bend and move. Muscle strength tests will show whether the disease is causing weakness. Atrophy can be tested to check if the back condition is causing muscle wasting and foot drop. Gait tests can tell how the disease affects a patient’s ability to walk and stand. Make sure you explore these testing procedures with your doctor so that a supportive medical record will be available for Social Security to review.

Does My Family Receive Any SSDI Benefits?

Once you are approved for SSDI benefits, certain members of your family may also be entitled to payments. SSDI benefits, based on your earnings record, may be available for your spouse, your former spouse, and your children.

Your spouse may be eligible for payments upon your award of SSDI benefits, if the spouse is (i) caring for your child, or (ii) age 62 or older. To receive benefits for caring for your child, the child must either be under age 16, or disabled and receiving Social Security benefits. Benefits for a spouse caring for your child under age 16 will end once that child reaches age 16. Similarly, when your spouse reaches age 62, he/she will be eligible for benefits based on your earnings record. However, the monthly amount your spouse will receive at age 62 will be less than if he/she waits until full retirement age to receive the benefit. If your spouse is eligible for SSDI benefits based on his/her own earnings record, your spouse will receive either that amount or the amount based on your record, whichever is higher.

A spouse you have divorced will be eligible for SSDI benefits based on your earnings if he/she is (i) at least 62 years old; (ii) unmarried; (iii) was married to you for at least 10 years; and (iv) is not eligible for a higher benefit amount on his/her own.

Finally, your child will be eligible for SSDI benefits if the child is unmarried and (i) under age 18; or (ii) 18 or 19 and a full-time elementary or high school student; or (iii) 18 or older wtih a disability that began before age 22. For the child under age 18, the benefit will stop when he/she reaches age 18. For the full-time student, the benefit ends upon graduation or 2 months after the child's 19th birthday, whichever comes first. For the disabled child, the benefit will last for the duration of the disability. An eligible child may be biological, a step-child, adoptee, or dependent grandchild.

As far as the amount of SSDI benefits your family members are entitled to, each may receive up to half of your benefit amount, but there is a limit on the amount SSA will pay family members in total. The limit depends on your benefit amount and the number of family members who qualify based on your record, but the total is generally around 50 to 80 percent of your benefit amount.


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APPEALING THE SOCIAL SECURITY ADMINISTRATION DECISION

You should not become discouraged if your claim is initially denied. In a recent year roughly 60% of claims were denied. An SSDI attorney will be able to determine what documentation and evidence will strengthen your claim.

LEVEL 1: RECONSIDERATION OF YOUR INITIAL CLAIM
You must request a reconsideration of your claim within sixty days of receipt of the denial letter. Reconsideration is a complete review of your claim by someone who did not take part in the first decision. They will look at all the evidence submitted when the original decision was made, plus any new evidence.
After approximately four to six months a decision will be reached on the reconsideration request. The case will either be granted benefits or denied again. In some states, this process may vary.

LEVEL 2: HEARING BY AN ADMINISTRATIVE LAW JUDGE
If your claim is denied after reconsideration, you have 60 days to request an informal hearing. This will be in front of an administrative law judge who had no part in the first decision or the reconsideration of your case. The judge will listen to witnesses, review medical evidence, and decide your case. An SSDI appeal lawyer will help you prepare for the hearing and represent you at the hearing.
The Judge will not announce a decision at the administrative hearing. It usually takes at least two to three months after the hearing to receive the decision, if not longer. If the decision is favorable, you should receive your first check about eight to twelve weeks after the decision.

LEVEL 3: REVIEW BY THE APPEALS COUNCIL
If the Judge's decision is not in your favor, the next step is to request a review by The Appeals Council. This must be done within sixty days after you have received the hearing decision. You should be represented by an experienced SSI/SSDI lawyer to ensure you have the best chance of winning the appeal.
A failure to appeal by the deadline will result in having to start an entirely new claim unless you can demonstrate good cause for not filing the appeal prior to the deadline. Good cause includes illness, hospitalization, comprehension problems due to mental infirmity, or other circumstances beyond your control.
The Council looks at all requests for review, but it may deny a request if it believes the hearing decision was correct. If the Appeals Council decides to review your case, it will either decide your case itself or return it to an administrative law judge for further review.
If the Appeals Council denies your request for review, you will receive a letter explaining the denial. If the Appeals Council reviews your case and makes a decision itself, you will receive a copy of the decision. If the Appeals Council returns your case to an administrative law judge, you will receive a letter and a copy of the order.

LEVEL 4: FEDERAL COURT
If the Appeals Council denies your appeal and/or refuses to review your case, you have 60 days to file a lawsuit in a federal district court. After reviewing the record from your hearing, the Federal judge can (1) award disability benefits, (2) deny disability benefits, or (3) send your case back to a lower court for an additional hearing. It is critical to have good legal representation to give you the best chance of winning the appeal.

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