Michelle Nevarez, Esq.
The Obama Administration has committed to helping our fellow Americans in need by allocating more of the Nation’s budget to the preservation and improvement of the Social Security disability insurance approval process. In response to increased application in addition to existing backlog of claims, SSA has committed to increasing their processing capacities in a number of ways.
Extended Service Team(EST) are new centralized units that tasked to assist in with hearing backlog in flood areas that experienced increased applications. The purpose of these teams is explained by SSA Commisioner Astrue, “These centralized units have reduced the hearings backlog and improved processing times at some of the hardest-hit hearing offices....”
In FY 2010, SSA plans to place 280 new employees in four States (Virginia, Arkansas, Oklahoma , and Mississippi ) to help staff the teams that will be able to quickly take cases from the hardest hit States.
DDS Federal Units in each of the ten regions are tasked with assisting the DDSs in processing cases. In FY 2010, we plan to provide 237 additional hires in these units. The increases at the DDA level also include more medical consultants in order to prevent expensive and much dreaded consultative examination.
Virtual Screening Units have been erected with senior attorneys tasked to review the disability hearing backlog for potential awards.SSA believes that the screening methodology and the electronic folder to move work to the members of the virtual unit will identify about 14,600 on-the-record, fully favorable awards this year without a hearing.
SSA eligibility and processing requirements are in constant flux, for this reason you should take a moment to update yourself on the changes in 2010 eligibility requirements.
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Jason Cook
A recent CBS News Investigation report revealed that of the nearly one and a half million people who were denied at the initial application level for Social Security Disability Benefits in 2006, two-thirds – or approximately one million applicants – decided not to appeal the denial. But the decision not to pursue an appeal is often a mistake, considering that most claims are not approved before a hearing is conducted.
Statistics show that only 30% of claims at the initial application level are approved. If an appeal is made, the next step is a request for reconsideration. Unfortunately, the numbers are actually worse with only 15% of the claims being awarded.
However, persistence pays off at the next level known as the hearing stage. It is here that the claimant will be able to sit before the individual deciding their claim for the first time, an Administrative Law Judge. For those claimants who decide to go forward and request a hearing, at least half will be approved for social security benefits. That number goes up even more for claimants who have a representative at the hearing.
Often claimants will decide not to appeal their case, but then at a later time, to file a new application for benefits. This is not the proper course of action for several reasons. First, those individuals have to start the whole process all over again. This, of course, means that there is a 70% chance the claim will be denied at the initial level and an 85% chance the claim will be denied on reconsideration.
The second problem with filing a new application is that the claimant’s opportunity to be heard by a Judge – where there is a real chance of winning the case- is only further delayed. Considering that it often takes 2 years or more from the time a request for a hearing is filed to when the hearing is scheduled, the time spent completing and awaiting a ruling on the subsequent application (and the request for reconsideration) add months to the seemingly endless wait time.
The third problem with filing a new application instead of appealing the previous denial is the possibility that the claimant may have inadvertently forfeited benefits that he or she would have been previously entitled to. A denial at any stage of the process that is not appealed is considered a final judgment as of the date of the denial. The practical effect of this is that a claimant who wins their case on a subsequent application cannot, with limited exceptions, receive retroactive benefits prior to the date of the previous denial.
A hypothetical example may help clarify this. John Worker became disabled on May 1, 2002. On May 1, 2003, he filed his initial application for social security disability benefits but was denied. He then filed a request for reconsideration. However, this request too was denied in a letter dated May 1, 2004. John considered requesting a hearing but was fed up with the Social Security system. After a year, John reconsidered his decision but the time had passed to appeal the previous decision. Thus John filed another initial application, this one dated May 1, 2005. This time John pursued his case all the way to the hearing stage. The Judge ruled in his favor and also found that John was entitled to retroactive benefits. However, the back pay could only go back to May 1, 2004 because of the previous denial. Thus by not pursuing the original claim, John lost out on benefits from May 1, 2002 until May 1, 2004, which could equal thousands in lost benefits.
Social Security is undoubtedly a lengthy and frustrating process, especially when seemingly strong cases are denied at the initial stages. But it pays to be patient. By appealing all the way to the hearing stage, the claimant may actually be approved quicker and receive more benefits!
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.
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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Budget cuts and layoffs have seriously affected many citizens in California over the past year. Even our state’s disabled individuals are now feeling the pressure of this turbulent economic time. On February 20th, California Governor Schwarzenegger signed a spending plan that included proposed cuts to programs that assist the disabled such as IHSS (In Home Support Services) and SSI (Supplemental Social Security). These already limited programs will see further cut backs if California doesn’t receive $11 billion in federal funds to bridge the state’s budget gap.
IHSS is a program that helps individuals over 65 years of age, or disabled and blind individuals. The program provides various services such as housecleaning, meal preparation, laundry, grocery shopping, personal care services (such as bowel and bladder care, bathing, grooming and paramedical services), accompaniment to medical appointments, and protective supervision for the mentally impaired.
SSI is a federal income supplement program funded by general tax revenues which is designed to help aged, blind, and disabled people who have little or no income. It provides individuals who meet the strict qualification requirements with cash to meet basic needs for food, clothing and shelter.
A spokesperson for the San Francisco regional office of the Social Security Administration, Lowell Kepke, stated, "The real question is whether or not California will cut SSI." Although the State Controller's Office is delaying payments for many human services programs beginning this month, according to Mr. Kepke, "SSI/SSP payments will be unchanged for March and April. As far as all future dates, California will have to make a request for a change." It remains to be seen whether the state will request a cut to these payments in May.
For disabled individuals living in the state of California, the idea of more cut backs is frightening. Take for example the case of Michelle Sanchez, a woman living in Sonoma County who is diagnosed with a disabling neurological disorder. She uses a wheel chair for ambulation and also utilizes the assistance of a service dog. Michelle lives in a special facility for disabled adults. Her monthly living expenses are covered in part by SSI, and she relies on caregivers who assist with cooking, cleaning and Michelle’s personal hygiene, paid for by IHSS. Michelle says, “I certainly hope the cuts don’t pass.” For Michelle, and those disabled individuals like her who depend heavily on government assistance, any cuts to SSI and IHSS will affect their quality of life.
Another aspect of the system that will be adversely affected by budge cuts is advocacy. Organizations such as the Mendocino County Health and Human Services Agency (MCDSS) hire advocates that assist disabled individuals apply for benefits. Pam Partee, a Social Security Advocate, works with the Temporary Assistance for Needy Families (TANF) and CalWORKS. Both are programs that provide Welfare-to-Work services and temporary cash grants to those who qualify. “It’s trying to get people back on their feet,” says Pam. “Many have never felt plugged into life. They’ve gotten used to feeling marginalized.” Pam says there is a considerable backlog of severely disabled people who were not on Social Security or General Assistance. She says that she assesses their cases and helps them get the benefits they need.
If SSI/SSP cuts go through, more than 1.3 million Californians will be affected. Particularly in Mendocino, 4,170 recipients stand to lose a total of $4,260,000 in grant payments. A reduction in funding for IHSS may cause a large set back in policy goals that aim to increase independent living for disabled individuals.
“It breaks our heart when [our clients] depend on us and we fail them,” says Pam. “If we can help them along, we help the community.”
