My April 26, 2008 post about attending college and applying for Social Security disability generated a large number of emails and questions.  A reader sent me this question which is about the impact of a stipend and part time job on an SSDI recipient who has already been deemed disabled.

I recently was injured and now am a paraplegic.  Before my injury I was an airline pilot but can no longer fly because of my disability.  I am returning to school to learn a new profession.  My question is “Will accepting aid such as a position as a graduate assistant be considered gainful employment?”  Depending on which school I attend and which program I enter, I will receive a tuition waiver and a stipend of anywhere from $6000 to $20000 a year for working 10 to 20 hours a week.  It is a merit based program; the more competitive I am the more assistance I will receive for basically the exact same duties.  I definitely cannot afford to go to school if I lose my SSDI but would hate to attend a lesser school just to stay under Social Securities’ income limit.  Any information would be greatly appreciated.

Here are my thoughts:  as a paraplegic, you meet the disability listing at 11.04 or under any one of the muculoskeletal listings (Listing 1.00).  At this point, I would assume that medically, there is not a likelihood that you will regain function in your lower extremities, meaning that you will continue to meet the listing on an ongoing basis.

10 to 20 hours a week is not full time employment, although part time employment taken in combination with full or part time school is substantial gainful activity.  It is certainly possible that when your employer reports income to Social Security it will trigger Social Security to review your case.  If you were only working 10 to 20 hours a week, and not attending school, you could argue that your employment was not equal to substantial gainful activity.  If you are getting special accomodations at work because of your medical condition, It would be helpful to document those special considerations.

Taken in combination part time work and school looks like substantial gainful activity -  it would be difficult to argue otherwise.  So, I think that there is a risk that your earnings and college attendance could trigger a continuing disability review, however, I wonder how likely that you will face this.  Your eligibility for benefits is a function of your medical condition and your medical condition is not one that will improve.

The money issue is a separate issue.

You can have earnings and still collect SSDI.   If you earn less than $670 per month, no problem.  If you earn more than $670 in a given month, that month counts as a "trial work period."  You still get your regular benefit check, but you use up one of your 9 trial work period months.  You can also claim necessary expenses against your gross earnings, meaning that your gross can be more than $670.

After you use up your 9 months of trial work, then you move into the "extended period of disability" where SSA will look at your earnings on a month by month basis.

I think you need to look at the eligibility issue and the money issue as separate problems.  SSA does not publish a set "formula" that might tell you what level or earnings and/or activity can trigger a review. 

What types of activities can you participate in while you are waiting for Social Security to decide your claim?  I received this question from a blog visitor:

Hello.  I attend college, but my health has been declining for some time. I have a degenerative nerve disease, deteriorating discs in my lower back (not related to nerve disease), a sleep disorder, depression and ADHD. I filed a claim, and it is in appeal right now. Will continuing to attend college courses hurt my case?

Here is my answer:  in my view, your attendance at college will hurt your disability case.  Remember, the underlying question in a Social Security case has to do with your capacity for performing work or work like activity.  If you are able to attend college courses, fulfil homework and long term assignment obligations and concentrate sufficiently to pass college level courses, many judges will conclude that you probably have the capacity for performing a simple, sit down job.

Even if your college schedule is part time, I think that you will be fighting an uphill battle.  I have written many times before that Social Security sees things in black and white.  A part time college course schedule suggests that your condition is manageable and that you most likely would have the capacity for unskilled work.

I have tried several cases before judges in which my client was enrolled in college courses and I can't think of a single instance where we received a fully favorable decision.  So, everything else being equal, my experience has been that college course attendance will hurt your chances for SSDI.

Hi.  Last year I had a stint and have been on medication since.  My employer is eliminating my position (a technical, computer related job) in order to force me to retire.  I have circulation issues in my legs and breathing issues and bruise extensively .  Do I have any chance of qualifying for disability?

Jonathan Ginsberg responds:  Here is how I would analyze your situation.  Based on what you have written, I would develop two different theories of disabiltiy. Theory one would ask whether you meet a listing.  If you look at the adult listings, Listing 4.00 (Cardiovascular System) and Listing 3.00 (Respiratory System) would seem to hold the most promise.  If you look at Listing 4.00, there are sublistings for Chronic Venous Insufficiency (4.11) and Peripheral Arterial Disease (4.12).  I would discuss with your cardiologist whether or not your condition rises to listing level.

Similarly, you could look at the sublistings for respiratory problems.  My concern here is that the respiratory listings look to specific breathing tests and the resulting measurements.  My experience has been that breathing issues need to be pretty severe to meet a respiratory listing.

Theory two would be to argue that your functional capacity for work has been so reduced by your multiple medical problems that you would not be able to sustain competitive work as a result of these problems.  Generally, when arguing for disability based on functional capacity, you implicitly acknowledge that your condition does not rise to listing level severity, but you contend that the overall impact of your conditions, side effects of medications, associated fatigue and depression - all taken as a whole - leave you unable to work.

In order to win a functional capacity argument, you will need help from a treating physician who would be willing to go on record (by completing a functional capacity form) about the specific limitations arising from your condtion.

Without knowing anything about the severity of your condition or what the medical records say, I would not be in a position to evaluate your case, but assuming that you have medical support and that your job reliability and attendance would be a problem, I think you would have a reasonable agrument for disability.

One final thought - the Americans With Disabilities Act (the ADA) requires larger employers to make "reasonable accomodations" for individuals with disabilities.  Here, you imply that your employer is not willing to take these steps.    Therefore, it might be worth a call to an employment attorney to evaluate the viability of an ADA claim.

Earlier this week, the New York Times published an enlightening article about the practice of Long Term Disability (LTD) carriers requiring LTD beneficiaries to apply for Social Security disability.  This practice is commonplace and the reason for it is simple economics.  Most employer paid LTD policies provide that (1) any SSDI benefits received will offset the LTD carrier's policy obligations and (2) the claimant must "repay" the LTD carrier any lump sum received for past due SSDI benefits.

An example will illustrate my point.  I have a client "Tom" who has a severe degenerative back condition and depression.  This is not a workers compensation situation because there was no specific "injury" at work - instead, Tom's back problems arose from years of physical labor as well as a prior motorcycle accident. Tom applied for and received LTD benefits in the amount of $1,800 per month.  The LTD policy obligates Tom to apply for Social Security disability.  If Tom is approved, his SSDI benefit will be $1,500 per month.  Under the terms of the policy, the LTD carrier will use SSDI to offset its obligation - instead of paying Tom $1,800, it will only pay him $300.  In addition, the LTD carrier will demand that Tom sign over his past due benefit check as that check represents payment for months that the LTD carrier was paying benefits.

As you might imagine, this scenario does not make Tom happy.  He has to go through the hassle of applying for SSDI benefits, testifying at a hearing and dealing with the stress of the SSDI process only to see a big check from SSDI ($20,000+) go right out the door.  Most LTD carriers will not demand repayment of my attorney's fees - they will only ask for the portion of the past due benefit check that Tom actually receives.

Several years ago I made some inquiries about the fairness of this policy and the LTD carrier's position is that its premium structure is based on the expectation that a certain percentage of LTD beneficiaries will qualify for SSDI and therefore reduce the carrier's exposure.  Fair enough explanation although I wonder how clear this offset policy is made to employees who are pitched to sign up for LTD policies by their employers.

By the way, many private LTD policies do not include this offset or SSDI repayment language - but if you are a prospective LTD purchaser you should ask the question.

In any case, the New York Times piece raised the question of whether this mandatory SSDI application policy was gumming up the works for Social Security disability case processing and adding to the already lengthy delays.  The Times quoted a Social Security spokesman as saying that approximately 18% of SSDI claimants acknowledged privately that they were unqualified, because they could still work and that  iIt is probable that many of these claimants were required to apply" by LTD carriers.  The spokesman went on to say that Social Security processes approximately 2.5 million applicants each year - 18% would equal around 450,000 applicants are wasting everyone's time and causing delays for everyone.

I would suspect - although the Times does not say this - that many of these unwilling applicants do not hire lawyers, meaning that they would be considered "unrepresented claimants" by Social Security.  As any Social Security judge would tell you, unrepresented claimants take up more time and resources because their cases often require extra development and resets.

SSA is apparently floating the idea of changing its rules to treat LTD referred claims differently than regular claims.  There are also a number of "whistle blower" lawsuits that have been filed against LTD carriers for "dumping" unqualified applicants at Social Security's doorstep.  

It will be interesting to see how this all plays out.

Why is it a doctor will say they will help you to get disability because they believe you are disabled but then require extra money just to write an attorney a letter?
–Shannon

Jonathan Ginsberg responds:  Shannon, there is nothing inconsistent in a doctor's desire to help you and that doctor's need to earn a living and to provide for his family.  Like lawyers and other service professionals, doctors earn their livings by selling their expertise and time.  Writing letters uses up time and I, personally, have no issue with a physician asking for a reasonable fee when he performs a service for you - especially a service that you and your lawyer will use in a court proceeding.

From time to time, I receive emails or blog comments from disability claimants who are frustrated with the slow pace of the disability adjudication process and who want to change lawyers.  They often express frustration at how long it takes to even get to a hearing and they think that their lawyer should be doing more to move the process along.

Except in very limited cases, I think that changing lawyers in mid-stream is almost always a bad idea and here's why:

First, you must realize that your lawyer has no control at all over the long delays in the Social Security disability decision making process.  Social Security backlogs are at record levels throughout the country.  Hearing offices are understaffed and judges have very little help.  Social Security tells us that over the past 10 years, the number of claims being processed has doubled, while the number of judges has declined by 10%.

In Atlanta, where I practice, I regulaly see cases that have been sitting in the hearing office for two, three, even four years.  SSA is sending some of the older files to judges in other States, but the long delays continue.

If there was anything that a lawyer could do to move things along, I would be doing it.  Like most Social Security lawyers, I don't get paid until I win a case - there is no advantage to me or any lawyer to delay the process.

Years ago, we could sometimes get a case moved to the front of the line by claimant "dire need."   We could claim dire need based on a pending foreclosure, homelessness, serious illness, etc.   We could also sometimes get a case moved to the front of the line by advising our clients to pressure their Senator or U.S. Representative's office.   At this point, those strategies don't really work any more.  Your Congressperson as well as the local Social Security office realize that everyone seeking benefits has a certain degree of hardship and they are very reluctant to put one dire need case in front of another.

My point here is that your attorney cannot control Social Security's backlog, nor can you expect for him to secure special treatment for you.  If another disability lawyer tells you that he has a secret technique to move your case to the front of the line, my guess is that you will be sorely disappointed.

Along these same lines, a second reason to stick with your current lawyer relates to the fee application process.   When you hire a replacement lawyer, the "simple" fee agreement process option disappears, leaving you, your prior lawyer and your new lawyer with a much more complicated option.

Social Security has set out two different methods for lawyers to get paid.  The first method is called a fee agreement process and the second is called the fee petition process.  The fee agreement process is simple - if you and your lawyer enter into a contingency contract based on past due benefits that calls for payment of 25% or less of past due benefits, with a cap of $5,300, Social Security will automatically withhold and pay the lawyer 25% of past due benefits up to $5,300 without any need for the lawyer to file a detalied time and billing statement.

On the other hand, if the fee contract does not provide for a contingency or if there are more than one lawyer claiming a fee, then any lawyer claiming a fee will have to file a detailed fee petition, setting out time records, expenses claimed and other billable time.

Almost every contingency fee contract I have ever seen provides that in the event that the client terminates the attorney, the attorney has the right to ask for fees representing work actually done.  Legal services are not free.  A "no fee unless you win" contract is a trade off - the client can retain counsel without paying up front fees, and the lawyer takes the risk that the judge will not approve the case in exchange for a percentage of the recovery that may or may not equal to the amount of time expended in the case.  If, however, the client terminates the contract prior to the time that the case goes before the judge, the lawyer can and will ask Social Security to approve a fee based on the time actually expended by the lawyer.

So, if you terminate your lawyer in the middle of your case, that lawyer will most likely file a fee petition asking for fees representing time expended.  The new lawyer will not be permitted to enter in to a 25% fee agreement, and he, too will have to file a fee petition to get his fees approved.

What is the practical impact of all this?  You may end up paying more than 25% of your past due benefits as a fee, since any and all of your lawyers will be claiming a fee based on time expended.  Another issue - many busy disability lawyers don't want to mess with fee petitions.  Fee petitions require a lot of time and often the time claimed will end up less than what the attorney would have earned under a 25% contingency.  Fee petitions can be filed whether or not a case is approved by the judge - as a practical matter, however, disability claimants have very little money and if the case is not approved there is no way to actually collect.  In my practice, for example, I almost never accept cases where there has been another lawyer who will be claiming a fee - I have enough less complicated cases in my file cabinet and I don't need the hassle.

If your prior lawyer will waive any claim for fees, the new lawyer can use the expedited fee agreement process.

In my experience, many lawyers will be reluctant to take on a client who has fired a prior attorney.  Our law school professors and our malpractice carriers advise us to avoid clients who have fired prior counsel because those clients are the ones who are most likely to be unhappy with a lawyer's work, regardless of the outcome.

Therefore, unless your lawyer is clearly incompetant, ill or dead, I would urge any disability claimant to stay the course with his present counsel.

This is completly frustrating! I wrote a dire need letter to my congressman and got an expidited hearing scheduled for March 5, 2008.  I am homeless, without a job for 3 years, and have a bipolar diagnoses along with other serious physical problems.  I called my lawyer the day before the actual hearing, and was informed he retired.  Someone whom I've never met is representing me.  I don't even know what he looks like.  Isn't this a fine how-do-ya do!  I was not notified and had I not called his office, I would have been completely uninformed.  How can I expect this replacement lawyer to represent me when we have never met?  What is your suggestion?
–Steve

Jonathan Ginsberg responds:  Steve, it sounds like you have a difficult choice to make.  I would certainly not be happy to learn that my lawyer had retired and transferred my file to someone else without any notice to me.  Most lawyers I know would at least make an effort to contact their clients if closing their practice.  You do say that you are homeless - is it possible that your lawyer was not able to get in touch with you?

With regard to the new lawyer, he may very well be very capable.  On the other hand I would be concerned that he never made any effort to contact you.  From my perspective the fact that the new lawyer has never met you is less important than knowing whether he has thoroughly reviewed your file.  What you don't want to happen is ending up at a hearing where the medical records are not updated and the lawyer does not have a clear theory of your case.   Periodically lawyers from other States will hire me to represent a client in a Georgia hearing.  As long as I am familiar with the file and know what I want to prove, I can spend an hour with the client prior to the hearing and be sufficiently prepared.

I would suggest that you contact the new lawyer and try to meet with him today or a minimum of an hour before the hearing.  Ask him if the file is  updated and if he has a working theory of your case.  I would also ask him to level with you - if the case is not ready to try or if he is not ready, I'd rather ask for a continuance and wait a couple more months than to lose a winnable case because the file wasn't updated or the lawyer wasn't ready.

At the end of the day, you want to win - it doesn't matter who the lawyer is.  The records in your file and the opinion of your doctors is far more important.  These factors are where I would put my focus.  Good luck and let me know how it turns out.

Finally - some good news about the SSA Disability hearing backlog.  In a February 26, 2008 press release, SSA Commissioner Michael Astrue announced that SSA had tendered job offers to 144 of the 175 new Administrative Law Judges that it plans to hire during fiscal year 2008.  The press release notes that the agency has 10% fewer judges that it did ten years ago, while the caseload has doubled.

Commissioner Astrue says that the new judges will begin training in April and should be prepared hear full calendars by the end of 2008.

The press release does not say where the new judges will be stationed, but I presume that the hearing offices with the biggest backlogs - like Atlanta - will likely get new judges.  The downtown Atlanta hearing office recently moved to larger quarters with more hearing rooms, which is a good sign.

Thanks to my loyal reader Mike for bringing this press release to my attention.

dear jonathan: i have been recieving ssd since around 2002 and also recieving workers comp (lifetime settlement)i am 53 years old.there is also a small payment from my ltd carrier, in the past they requested 13,000 back in which i paid because of approvel of ssd.i would like to know if ssd will want repayment of any of this money back also, I am over the 80% amount of former salery. i feel traped in this situation .i did use a law firm from the start and they handeled it all but never advised me on the details i described.  to date ssd has never requested information on any other payments recieved .your advice would be appreciated ..thank you jonathan i would think a ssd review could come up in the next year.
–Manny

Jonathan Ginsberg responds:  Manny, thanks for your question.  Generally, workers compensation does offset Social Security.  The question in my mind - does your SSDI payment already reflect an offset for workers compensation?

In Georgia, where I practice, Georgia workers compensation lawyers include special language in workers comp settlements that treats any lump sum settlement as if it was being paid over your lifetime.  In my law firm, my wife Jodi Ginsberg handles workers compensation cases.  If, for example, she settles a case for $50,000 for an individual who has a life expectancy of 30 years (per an actuarial table used in Georgia), this special settlement language treats the $50,000 not as a $50,000 lump sum but as $138.00 per month for 30 years.  In this example, our claimant would see his SSDI reduced by $138 per month.

You need to speak to your workers' compensation lawyer to see if your State has similar rules and to see if your settlement contains this pro rata payout language.

If Social Security did not take your workers compensation settlement into account, there could be issues - you will need to seek counsel to evaluate how to deal with this problem.  I have seen some instances where a  workers' compensation settlement has been reopened and the special language put in, and I have seen situations where a claimant successfully asked Social Security for a waiver of the overpayment obligation.  There is also a possibility that you could file bankruptcy to discharge any repayment obligation to Socal Security.

Jonathan, I have an appeals hearing on 1/30/08 with an ALJ. I have multiple medical problems, the worst of them being a seizure disorder. I take medicine and have not had a grand mal seizure since 11/10/06, but continue to have petit mal seizures several times a week, sometimes everyday. I also have rheumatoid arthritis in my right wrist & a dropfoot which now is effecting my knee & hip. What is the best wat to present my case?
Mark

Jonathan Ginsberg responds:  Mark, last week I appeared before a judge with a client who had a seizure problem.  In her case, she was producing micro tumors that were releasing hormones that triggered seizures.   There is no treatment or cure for her condition.

The medical expert present at the hearing stated that she met Listing 11.03, which basically says that an individual is disabled if he has petit mal seizures at least once a week for a minimum 3 months duration despite prescribed medical treatment.  What you describe sounds similar, at least in a general sense.

It would seem to me that the seizure issue you describe might be a strong argument for you.  If you can enlist the help of a treating doctor to describe these seizures and to support your claim that these seizures leave you tired, disoriented, incapable of on-going concentration and focus that would help.

In a similar vein, if you can get a treating doctor to identify specific activity limitations (lifting, carrying, walking, standing, sitting) arising from your rheumatoid arthritis, that would help eliminate many categories of possible employment.

Obviously, without reviewing your medical record specifically I have no way of knowing whether your doctors support you or how the medical record addresses the severity of your problems, so my suggestions should be taken as general advice only.  I do hope this helps you get a sense about how your case could be analyzed.