The Social Security Administration defines obesity as “a complex, chronic disease characterized by excessive accumulation of body fat.” SSR 02-1p. Medical criteria have been established to determine whether an individual is overweight based upon their body mass index (BMI). Social Security uses this criteria to help determine whether an individual is obese, but also uses other evidence in determining obesity.
Social Security originally had a listing specifically for obesity; however this listing was removed in 1999 because Social Security felt that it did not represent a degree of functional limitation that would prevent an individual from working. Despite removing obesity as a listing, Social Security still evaluates obesity in determining whether an individual is disabled.
Obesity will be considered in four different parts of the evaluation process. It will be considered in determining:
1. Whether the individual has a medically determinable impairment;
2. Whether the impairment is severe;
3. Whether the impairment meets or equals a listing; and
4. Whether the impairment(s) prevent the individual from doing past relevant work or any other work.
Medically Determinable Impairment
When determining whether an individual’s obesity constitutes a medically determinable impairment Social Security will look at the evidence in the record. If the evidence in the record includes a diagnosis of obesity then Social Security will accept this diagnosis unless there is other evidence in the record to the contrary. When the evidence in the record does not include a diagnosis, but does include consistent notes about high body weight or BMI the Social Security Administration will use its own judgment to determine whether obesity exists.
Impairment is Severe
Obesity is considered to be severe when it alone or with other conditions, significantly limits an individual’s physical or mental ability to do basic work activities. If it is a slight abnormality that has no more than a minimal effect on the individual’s ability to do basic work activities, than the impairment is not severe. There is no specific BMI that equates with a finding of severe or not severe, instead it is an individualized assessment of the impact of obesity on an individual’s functioning.
If an individual’s obesity is determined to be severe, then the Social Security Administration may find that the obesity medically equals a listing.
Impairment Meets or Equals a Listing
Obesity may be a factor in both meeting and equaling a listing. Since there is no longer a listing for obesity you cannot meet a listing without having another condition that either, by itself or in combination with obesity, meets the requirements of a listing.
The Social Security Administration can find an individual’s obesity to be medically equivalent or equal a listed impairment. For example if the obesity is of such a level that it results in the inability to ambulate effectively then it may equal listing 1.02A. Obesity can also be combined with other impairments to equal a listing.
Whether the Impairment(s) prevent the individual from doing past relevant work or other work obesity can cause limitation of function. When determining whether obesity by itself or in combination with other conditions prevents an individual from returning to their previous work or other work the Social Security Administration will determine an individual’s residual functioning capacity. To do this an assessment will be made of the effect obesity has upon the individual’s ability to perform routine movement and necessary activity within the work environment. Social Security will then use this information to determine whether an individual can return to their previous work or do any other work.
Even though obesity is no longer a listing it is still a very important factor to be evaluated in determining whether an individual is disabled. Obesity can make the difference between a favorable and unfavorable determination, so if you suffer from obesity it is important to mention it in your application.
Showing posts with label administrative review. Show all posts
Showing posts with label administrative review. Show all posts
Wednesday, December 15, 2010
Thursday, December 9, 2010
Social Security Disability: Myths About The Social Security Claims Process
Applying for Social Security disability benefits can often be an intimidating and time-consuming process. Understanding how the Social Security disability system works can make the difference between winning or not winning the disability benefits and back pay to which a person is entitled. To that end, following are some common Social Security disability myths and misconceptions.
Myth: The Social Security Administration denies everyone the first time they apply for disability.
This is absolutely not true! The Social Security Administration has no social security law (regulation, policy, or formula) that influences the disability system in such a way that every first application for social security disability benefits is automatically denied. It is easy to see, however, why people would believe that such a policy exists. Nationwide, about seventy percent of all disability claims are denied on the first application filed. Seventy percent is not a small number! Your social security lawyer can be helpful to prevent unnecessary denials. Because of the amount of paperwork that associated with these claims, often times, claimants are denied because they do not comply with request for documentation by the Social Security disability reviewer. It is the role of the attorney to ensure that this does not occur.
Myth: The Social Security Administration will deny you a certain number of times before you are approved.
Also not true! Just as social security disability cases are not automatically denied on the very first application, neither are thy denied a certain number of times before they are approved. But with seventy percent of initial claims being denied, what can you do to improve the chances of getting approved? Many people simply file applications over and over again, hoping to be approved. This is not the answer. If you continue to file and initial application for disability benefits, and continue to get denied at first stage, you are denying yourself the right to having those decisions appealed. It is the role of the disability lawyer to make sure that you follow the appeals process up to the highest level of appeal. The social security attorney is also responsible for making sure that you do so in a timely manner, meeting all deadlines.
Myth: The best way to appeal a Social Security claim denial is to file a brand new application.
No. In fact, filing a new claim is often the worst thing you can do. Why? Remember that almost seventy percent of initial applications are denied. Most disability claimants will be denied on the initial application. Repeated new applications will most likely be denied, and for the same reasons. Further, historically, and statistically, if a disability case is not approved at the initial claim level, it will probably also be denied at the reconsideration level (in some states, the reconsideration step has been suspended as part of a test project) and eventually have to be heard by an administrative law judge to be approved for disability benefits. As noted above, a social security disability claim, however, will never get that far in the process if a claimant continually files new applications instead of pursuing right to appeal.
In short, to improve your chances of winning your disability case, you should:
1) Follow the appeals process; and
2) Find representation.
Myth: Certain medical conditions or mental health problems can get you automatically approved for benefits.
The answer to this is both yes and no. Certain impairments are singled out and specified in the Social Security Administration’s Impairment Listing Manual. Claimants, who have listed medical problems at the level specified in the manual, can be approved for benefits somewhat easier than those who do not. The disability evaluation process, however, even for listing level impairments, is never automatic. All claims are evaluated according to the medical evidence; gathered first by the Disability Determination Services at the initial claim and reconsideration levels, and then by a staff attorney or Judge at the hearing level. Claims are decided by the information held by medical providers.
It is important to remember, therefore, that disability claimants should seek regular medical treatment throughout the entire time their claim is pending. This is to ensure proper documentation for evaluation purposes. Disability cases in which the medical evidence is scant and doctor visits are sporadic, will, generally, have little chance of approval. Conversely, claimants who get regular medical care will usually have more solid cases and a better chance of obtaining social security disability benefits.
Myth: You cannot get Social Security Disability if you have used drugs or alcohol.
This is not true. It will depend on the extent of the use and how recent the use was. Currently, it is not possible to receive disability benefits based solely on addiction. But, whether such use will affect a claimant’s eligibility for benefits depends on materiality. If a claimant’s drug or alcohol abuse is found to be material, in other words relevant, to the case, the case will not win.
For example, a claimant applies for disability based on liver dysfunction and hepatitis. The claimant also has a history of alcohol abuse, some of it recent. Is the claimant contributing to their own illness by abusing alcohol abuse? Are the claimant’s symptoms due to alcohol abuse or drug abuse or to their impairment?
If the claimant’s liver damage were so pronounced that ceasing alcohol use completely would make no difference to the claimant’s medical condition, then alcohol abuse would be immaterial, or irrelevant, to the case. Conversely, if ceasing alcohol use would result in medical improvement, then the alcohol abuse is material to the disability case and the claim would be denied. Simply put, Social Security will not pay benefits to claimants whose disabling conditions are brought on and exacerbated by, drug and alcohol abuse. Claimant’s who have a history of abuse but who are not currently using substances should carefully review their medical records before filing for disability.
Further, medical doctors and mental health professionals will often indicate “suspected use” in their treatment notes. Such indications, proven or not, can have a damaging effect on a disability case. Claimants, whose disabling conditions are psychiatric in nature, should especially heed this since mental cases are more likely to be denied when substance abuse is involved.
Each case is different but it is certainly true that the applicant has a better chance of obtaining benefits if they have maintained at least six month of sobriety.
You may have many questions as the process and or perhaps why you are being denied. It is advisable that you contact a disability lawyer to help you navigate this process. While there are many myths about the Social Security claim process that are untrue, the process does include a fair amount of rules and regulations to navigate that are better suited for a social security attorney.
Myth: The Social Security Administration denies everyone the first time they apply for disability.
This is absolutely not true! The Social Security Administration has no social security law (regulation, policy, or formula) that influences the disability system in such a way that every first application for social security disability benefits is automatically denied. It is easy to see, however, why people would believe that such a policy exists. Nationwide, about seventy percent of all disability claims are denied on the first application filed. Seventy percent is not a small number! Your social security lawyer can be helpful to prevent unnecessary denials. Because of the amount of paperwork that associated with these claims, often times, claimants are denied because they do not comply with request for documentation by the Social Security disability reviewer. It is the role of the attorney to ensure that this does not occur.
Myth: The Social Security Administration will deny you a certain number of times before you are approved.
Also not true! Just as social security disability cases are not automatically denied on the very first application, neither are thy denied a certain number of times before they are approved. But with seventy percent of initial claims being denied, what can you do to improve the chances of getting approved? Many people simply file applications over and over again, hoping to be approved. This is not the answer. If you continue to file and initial application for disability benefits, and continue to get denied at first stage, you are denying yourself the right to having those decisions appealed. It is the role of the disability lawyer to make sure that you follow the appeals process up to the highest level of appeal. The social security attorney is also responsible for making sure that you do so in a timely manner, meeting all deadlines.
Myth: The best way to appeal a Social Security claim denial is to file a brand new application.
No. In fact, filing a new claim is often the worst thing you can do. Why? Remember that almost seventy percent of initial applications are denied. Most disability claimants will be denied on the initial application. Repeated new applications will most likely be denied, and for the same reasons. Further, historically, and statistically, if a disability case is not approved at the initial claim level, it will probably also be denied at the reconsideration level (in some states, the reconsideration step has been suspended as part of a test project) and eventually have to be heard by an administrative law judge to be approved for disability benefits. As noted above, a social security disability claim, however, will never get that far in the process if a claimant continually files new applications instead of pursuing right to appeal.
In short, to improve your chances of winning your disability case, you should:
1) Follow the appeals process; and
2) Find representation.
Myth: Certain medical conditions or mental health problems can get you automatically approved for benefits.
The answer to this is both yes and no. Certain impairments are singled out and specified in the Social Security Administration’s Impairment Listing Manual. Claimants, who have listed medical problems at the level specified in the manual, can be approved for benefits somewhat easier than those who do not. The disability evaluation process, however, even for listing level impairments, is never automatic. All claims are evaluated according to the medical evidence; gathered first by the Disability Determination Services at the initial claim and reconsideration levels, and then by a staff attorney or Judge at the hearing level. Claims are decided by the information held by medical providers.
It is important to remember, therefore, that disability claimants should seek regular medical treatment throughout the entire time their claim is pending. This is to ensure proper documentation for evaluation purposes. Disability cases in which the medical evidence is scant and doctor visits are sporadic, will, generally, have little chance of approval. Conversely, claimants who get regular medical care will usually have more solid cases and a better chance of obtaining social security disability benefits.
Myth: You cannot get Social Security Disability if you have used drugs or alcohol.
This is not true. It will depend on the extent of the use and how recent the use was. Currently, it is not possible to receive disability benefits based solely on addiction. But, whether such use will affect a claimant’s eligibility for benefits depends on materiality. If a claimant’s drug or alcohol abuse is found to be material, in other words relevant, to the case, the case will not win.
For example, a claimant applies for disability based on liver dysfunction and hepatitis. The claimant also has a history of alcohol abuse, some of it recent. Is the claimant contributing to their own illness by abusing alcohol abuse? Are the claimant’s symptoms due to alcohol abuse or drug abuse or to their impairment?
If the claimant’s liver damage were so pronounced that ceasing alcohol use completely would make no difference to the claimant’s medical condition, then alcohol abuse would be immaterial, or irrelevant, to the case. Conversely, if ceasing alcohol use would result in medical improvement, then the alcohol abuse is material to the disability case and the claim would be denied. Simply put, Social Security will not pay benefits to claimants whose disabling conditions are brought on and exacerbated by, drug and alcohol abuse. Claimant’s who have a history of abuse but who are not currently using substances should carefully review their medical records before filing for disability.
Further, medical doctors and mental health professionals will often indicate “suspected use” in their treatment notes. Such indications, proven or not, can have a damaging effect on a disability case. Claimants, whose disabling conditions are psychiatric in nature, should especially heed this since mental cases are more likely to be denied when substance abuse is involved.
Each case is different but it is certainly true that the applicant has a better chance of obtaining benefits if they have maintained at least six month of sobriety.
You may have many questions as the process and or perhaps why you are being denied. It is advisable that you contact a disability lawyer to help you navigate this process. While there are many myths about the Social Security claim process that are untrue, the process does include a fair amount of rules and regulations to navigate that are better suited for a social security attorney.
Thursday, December 2, 2010
Can My Prior Claim Be Reopened?
Generally, initial determinations made on your claim are subject to your right to appeal, usually within 60 days. However, in certain instances, a decision which would otherwise be final and binding may be reopened or revised.
SSA may reopen a decision on its own initiative, or, a claimant may request that a previous determination be reopened. In either situation, if SSA decides to reopen a determination or decision, it may revise that determination or decision.
SSA regulations set forth the conditions under which a previous determination may be revisited. Although the regulations sound as if a party to a claim may simply request a reopening and it will be done, it is generally well established that whether or not to reopen a claim is left to the discretion of the Administration.
According to 20 C.F.R. §404.900, an Initial Determination is one made about your entitlement or your continuing entitlement to benefits or about any other matter that gives you a right to further review. Regulations differentiate between actions that are deemed initial determinations and those actions deemed not to be initial determinations.
Administrative actions that are not initial determinations may be reviewed by SSA, but are not subject to the administrative review process, and are not subject to judicial review. Denying a request to reopen a determination or a decision is considered such an action.
Therefore, denial of a request to reopen is not grounds for appeal. Nevertheless, regulations do provide for three conditions for reopening an otherwise closed case. The most generous provision allows for reopening a case for any reason within twelve months of the initial determination. Again, the refusal by SSA to reopen a case within twelve months for any reason is not subject to appeal.
The second listed condition listed is within four years (two years for SSI), for good cause. Good cause includes new and material evidence, clerical errors in computations of benefits, or evidence that, on its face, was clearly construed in error. A change in the law is not considered good cause.
Finally, a case may be reopened at any time if the determination was induced by fraud or similar fault. The regulation goes on to list what it means by similar fault, and includes instances related to death, convictions, and other clerical errors.
Most often, the request for reopening situation arises when a claimant has had a previous claim denied, but files a new claim that is subsequently approved. The question then becomes whether the previously denied claim can be reopened, effectively granting a claimant more back pay. Because of the huge backlog and the slow pace at which SSA adjudicates claims, it often happens that the request for reopening cannot be made for any reason under paragraph 1, and the good cause provisions of paragraph 2 come into play, ostensibly allowing for reopening within 4 years if the provisions can be met. As a matter of practice, the most common good cause would have to do with new and material evidence that relates back to the period of the initially denied claim.
In the end though, a claimant may not demand reopening under any of these provisions. It may only be requested. And, if denied, the decision may not be appealed.
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SSA may reopen a decision on its own initiative, or, a claimant may request that a previous determination be reopened. In either situation, if SSA decides to reopen a determination or decision, it may revise that determination or decision.
SSA regulations set forth the conditions under which a previous determination may be revisited. Although the regulations sound as if a party to a claim may simply request a reopening and it will be done, it is generally well established that whether or not to reopen a claim is left to the discretion of the Administration.
According to 20 C.F.R. §404.900, an Initial Determination is one made about your entitlement or your continuing entitlement to benefits or about any other matter that gives you a right to further review. Regulations differentiate between actions that are deemed initial determinations and those actions deemed not to be initial determinations.
Administrative actions that are not initial determinations may be reviewed by SSA, but are not subject to the administrative review process, and are not subject to judicial review. Denying a request to reopen a determination or a decision is considered such an action.
Therefore, denial of a request to reopen is not grounds for appeal. Nevertheless, regulations do provide for three conditions for reopening an otherwise closed case. The most generous provision allows for reopening a case for any reason within twelve months of the initial determination. Again, the refusal by SSA to reopen a case within twelve months for any reason is not subject to appeal.
The second listed condition listed is within four years (two years for SSI), for good cause. Good cause includes new and material evidence, clerical errors in computations of benefits, or evidence that, on its face, was clearly construed in error. A change in the law is not considered good cause.
Finally, a case may be reopened at any time if the determination was induced by fraud or similar fault. The regulation goes on to list what it means by similar fault, and includes instances related to death, convictions, and other clerical errors.
Most often, the request for reopening situation arises when a claimant has had a previous claim denied, but files a new claim that is subsequently approved. The question then becomes whether the previously denied claim can be reopened, effectively granting a claimant more back pay. Because of the huge backlog and the slow pace at which SSA adjudicates claims, it often happens that the request for reopening cannot be made for any reason under paragraph 1, and the good cause provisions of paragraph 2 come into play, ostensibly allowing for reopening within 4 years if the provisions can be met. As a matter of practice, the most common good cause would have to do with new and material evidence that relates back to the period of the initially denied claim.
In the end though, a claimant may not demand reopening under any of these provisions. It may only be requested. And, if denied, the decision may not be appealed.
Tuesday, November 30, 2010
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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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.
Monday, November 29, 2010
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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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.
Tuesday, November 23, 2010
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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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.
Friday, November 19, 2010
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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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.
Wednesday, November 17, 2010
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
VISIT SOCIAL SECURITY LAW TODAY
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
Monday, November 15, 2010
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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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.
Friday, October 29, 2010
The Social Security Backlog
Recently, there has been a proliferation of articles concerning the growing backlog of Social Security Disability cases, and the regulations SSA Commissioner Michael J. Astrue proposes to address what is becoming an enormous hardship on disabled applicants. It is not unusual for applicants to wait more than three years to get a hearing.
Most often, these claimants have no savings, no income, and no insurance, even for necessary treatment or medications. Unfortunately, before their benefits are awarded, they lose their possessions, go bankrupt, their utilities are shut off, and ultimately are forced to move from their homes with no place else to go. In the worst cases, the claimant’s die.
Since the inception of the disability program in the 1950s, the standard for approval has been intentionally strict. It is designed more to weed out malingerers than it is to help the disabled. A claimant must prove either an illness expected to result in death or inability to do not only past work, but any work that exists “in significant numbers in the national economy.”
According to SSA, in January 2005 nearly 8 million disabled workers and their dependents received DI benefits, a 100% increase since 1985. Another 6 million adults and children receive SSI payments, a 135% increase in the same period.
Nationally, about 750,000 appeals are pending. That is double the number in 2000. The wait time varies by location, but the national average is 524 days. Many offices take much longer. In Omaha, for example, the average processing time is 639 days from date of appeal to the hearing level. Of the 143 hearing offices in the country, 22 have longer processing times.
In 2006, SSA implemented a new Administrative Review Process known as the Disability Service Improvement (DSI) process to address the backlog. Presently, Boston is the only region using the system. The new regulations provided that SSA would wait at least one year (from August 1, 2006) before implementing a second region.
The new rules include an initial application and review by a Federal reviewing official. The right to appeal to an ALJ remains intact. However, the judge’s decision is final unless the claim is referred to the Decision Review Board (DRB). A DRB review remains the final decision at the Administrative level. The Appeals Council will eventually be phased out.
Other changes include a new electronic filing system, presently in use in all 1,338 field offices, taking 20,000 claims per day. SSA is also implementing systems to streamline the updating of medical listings and to close the records in hearings faster by requiring all medical evidence to be submitted at least 5 days prior to hearing. The claimant is to be notified at least 75 days before the hearing, rather than the previous 20.
According to a recent article in The New York Times, about two-thirds of the 2.5 million disability applicants each year are denied at the initial state determination levels. Of the approximately 575,000, who file appeals requesting to be heard before an administrative law judge, about two-thirds win a reversal.
Reasons officials attribute to the high reversal rate include the supposition that many of the claimant’s impairments increase in severity by the time of hearing. The judge gets to meet the claimant face-to-face. The belief is that those who appeal are those with the strongest cases or who tend to get lawyers to help with presentation.
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Most often, these claimants have no savings, no income, and no insurance, even for necessary treatment or medications. Unfortunately, before their benefits are awarded, they lose their possessions, go bankrupt, their utilities are shut off, and ultimately are forced to move from their homes with no place else to go. In the worst cases, the claimant’s die.
Since the inception of the disability program in the 1950s, the standard for approval has been intentionally strict. It is designed more to weed out malingerers than it is to help the disabled. A claimant must prove either an illness expected to result in death or inability to do not only past work, but any work that exists “in significant numbers in the national economy.”
According to SSA, in January 2005 nearly 8 million disabled workers and their dependents received DI benefits, a 100% increase since 1985. Another 6 million adults and children receive SSI payments, a 135% increase in the same period.
Nationally, about 750,000 appeals are pending. That is double the number in 2000. The wait time varies by location, but the national average is 524 days. Many offices take much longer. In Omaha, for example, the average processing time is 639 days from date of appeal to the hearing level. Of the 143 hearing offices in the country, 22 have longer processing times.
In 2006, SSA implemented a new Administrative Review Process known as the Disability Service Improvement (DSI) process to address the backlog. Presently, Boston is the only region using the system. The new regulations provided that SSA would wait at least one year (from August 1, 2006) before implementing a second region.
The new rules include an initial application and review by a Federal reviewing official. The right to appeal to an ALJ remains intact. However, the judge’s decision is final unless the claim is referred to the Decision Review Board (DRB). A DRB review remains the final decision at the Administrative level. The Appeals Council will eventually be phased out.
Other changes include a new electronic filing system, presently in use in all 1,338 field offices, taking 20,000 claims per day. SSA is also implementing systems to streamline the updating of medical listings and to close the records in hearings faster by requiring all medical evidence to be submitted at least 5 days prior to hearing. The claimant is to be notified at least 75 days before the hearing, rather than the previous 20.
According to a recent article in The New York Times, about two-thirds of the 2.5 million disability applicants each year are denied at the initial state determination levels. Of the approximately 575,000, who file appeals requesting to be heard before an administrative law judge, about two-thirds win a reversal.
Reasons officials attribute to the high reversal rate include the supposition that many of the claimant’s impairments increase in severity by the time of hearing. The judge gets to meet the claimant face-to-face. The belief is that those who appeal are those with the strongest cases or who tend to get lawyers to help with presentation.
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