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Ginsberg Law Offices

Month: March 2006

Lump sum personal injury settlement received-will that offset monthly SSI benefit?

Jonathan, recently i received a settlement while drawing ssi. I followed the rules and reported it. i also reported where the money was spent. however I have a worker who is requiring alot of info from mr. He even asked for my bank statements. Am I required to give him thisinfo. The stress is also agravating the nervous conditin I was originally approved for ssi in the first place whatcan i do Do I have any rights in this situation.?

Jonathan Ginsberg responds: If you are receiving SSI (Title XVI Supplemental Security Income) then your settlement may be counted as a “resource” that would offset your SSI. Under current SSI regulations, you are allowed $2,000 in resources ($3,000 if you are married).

You can read more about SSI permitted resources here. My thought is that SSI will seek to stop your benefits until you have used up the money from your settlement. You may want to talk to the SSA rep about designating some of that money (or using some of that money to buy furniture or other items needed) as being necessary for future medical expenses or other living necessities.

–Jonathan

Waiting for hearing decision over 6 months – what can I do?

Jonathan, I am writting in regards to my husbands claim for disability. He is 47 and has been disabled for 5 years, we have been to 3 or 4 hearings with his attorney 3 times he was denied, but the last one we went to was in
September 2005 and we have not heard a word about whether he has been denied or approved.
Can you tell me if there is a website that we can check and see what his statis is on his claim? My husband has not worked in over 5 years, and we have been surviving on my disability check ssa &ssi and it is getting really hard to live on such a small amount each month. Anything you can tell me would be greatly appreciated.
Thank you.  Neva.
Jonathan Ginsberg responds: Neva, I am not aware of any website where you can check on the status of your husband’s claim. Unfortunately, Social Security judges are often shortstaffed and it is not uncommon for a hearing decision to be delayed by several months. Usually, calling the hearing office does not help. At some point (you have to decide when), you may want to seek help from your elected representatives (Senator or Congressperson) to help expedite the processing of your case.

37 year old has had multiple back surgeries

My husband was thrown off his horse two months ago. Since then he has had a plate and 4 screws put in his back and still has one more surgery to complete.  This will be a total of 4 surgeries.  My husband is 37 years old and states that he doesn’t know if he will ever be able to work again.  Where do we go from here?

— Shannon

Jonathan Ginsberg responds:  Shannon, the first step here is to file an application for benefits.  You do this by calling 800-772-1213 to start the process.  Because it has not been a year since the accident, do not be surprised if your claim is denied at the initial application. If you are denied you (or your attorney) woul dneed to file an appeal within 60 days.

Here are the questions I see:  first, is it likely that your husband will be unable to perform any type of job for at least 12 months.  If he is totally out for at least a year he can get a “closed period.”  Although it may be hard to imagine now, he may get better (and hopefully he does) within the next year.  Although a closed peirod does not help you pay your bills now, it would provide a small lump sum for you.

Second, If arthritis sets in and your husband is left in a chronic pain condition, then he would be eligible for on-going disability benefits.

Ultimately, your husband’s doctors would have to support your claim by identifying specific work activity limitations arising from his diagnosis.  I use a functional capacity form questionnaire to help the doctor translate  the diagnosis into work activity terms.

Unfortunately the Social Security disability process can take two, even three years.  I wish I had a good answer for a question I hear frequently – “how am I supposed to survive while I wait.”  All I can say is that you and your family needs to be prepared for a difficult few years while your husband’s claim winds through the system.

–Jonathan

Injured my back – how do I convince SSA that I can’t work?

I recently had a fall not a workers comp matter, fell on my own time. Injured my low back, left hip and left shoulder. Have been off work for four weeks straight. Highly unlikely that I will be back to work as a security guard. I have no insurance and therfore, no doctor will take me. How can I explain to the Social Security people that I am unable to do standing, sitting, twisting, bending, picking up, unloading, etc. Suggestion on how to win my case.

–Colleen

Jonathan Ginsberg responds: Colleen, you have correctly identified the issue in your Social Security case – there are physical movements that you can no longer do and these limitations affect your ability to perform work.

Recognize that if you are 50 or younger, the issue is whether you can do any work. Assume that you could not return to work as a security guard. Assume also that you cannot do any job that requires more than minimal standing. Could you do a simple sit down type of job? Is there any work you can do at all. It does not matter that you can’t find one of these jobs and it does not matter that you could not earn enough from one of these jobs to pay your bills. The only issue – if you were magically placed in a worksite, could you perform the job?

If you are over 50, other rules called the “grid” rules may apply and make your burden of proof easier.

The way I would approach a case like yours – ask your doctor to identify specific work activity limitations arising from your physical limitations. and ask the doctor to describe how your pain level interferes with concentration and attention. You will need support from your doctor to “translate” medical findings into specific work limitations. I would try to get the doctor to fill out a “functional capacity” checklist.

You may also want to take a look at my Disability Answer Guide, where I provide sample responses to Social Security’s forms.

–Jonathan

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Hearing report – mental health issues – favorable decision

I tried a case today that was kind of interesting – and the Judge will be issuing a fully favorable decision.  The claimant is a 37 year old woman who has been diagnosed with major depression with psychotic features.

My client had been sexually abused by a family member as a teenager and thereafter began experiencing audio and visual hallucinations (she sees shadows and hears voices).  She has attempted suicide 8 times over the past 10 years.  She has also been hospitalized at psychiatric hospitals five times, including one hospitalization last week.

The claimant’s past work was as a small parts assembler, an inventory control person and as a nurse’s aide. She testified that she would work for a while, but would always feel that her co-workers were “whispering” about her.  She said that a voice in her head would tell her to leave.

The vocational witness testified that if her testimony was deemed credible, that she would not be able to perform any job in the competitive job market because of these distractions and because of the impairment in her concentration.

The medical record in this case was about five inches thick and the judge understood from the outset that this claimant had some significant limitations.  The obvious question in my mind, therefore – why wasn’t the Social Security adjudicator able to approve this case a long time ago.  My client filed for benefits in October, 2002.  Her medical record has been consistent with regard to her mental health issues.  Why is it that she had to wait three and a half years to get a decision?

I also think that what made this case easy for the judge to decide were the numerous work limitations set out in the record.  During our pre-hearing meeting, I practiced with my client to make sure that she described her work issues in terms of minutes and hours and gave specific answers to questions about how often certain distractions occurred.

Has metastatic cancer – is this enough?

I have terminal colon cancer (stage 4) and the cancer has metastisized into the liver. I was operated on and
had a portion of my colan removed. I am undergoing Chemotherapy once a week. I was wondering if I would be elgible for Social Security Dissability benefits.

–Steve

Jonathan Ginsberg responds: Steve, thank you for writing – I am very sorry to hear about your health problems. Based on what you write, I think that if the SSA adjudicator has any sense at all, she/he should recognize that you appear to meet Listing 13.19 or 13.21. You can find the Cancer listing here. I would suggest that you print it out and take it to your doctor. Ask your doctor for a letter stating that you meet this listing.

This would also be a case that should qualify under the compassionate allowance rules.

The only issue, therefore, is whether you have enough credits to be insured for Title II disability.

Assuming you do, you should be approved at the initial application phase.

Best of luck to you.

–Jonathan

Numerous medical problems – why haven’t they approved me?

I’d like to know why it seems that people who never worked at all can apply and receive SSI benefits and thosethat have worked and applied for SSD are given months and sometimes years of the run around. I have numerous problems. I suffer from the effects of late stage cancer treatments, arm and shoulder trouble that has persisted for years, sarcoidosis, Can’t walk or stand for long periods and have vision trouble. My medical records and doctors reports have all been provided, I have gone to see one of their doctors and now I’m being told that I may need to be sent to another doctor. All these things are detailed in my medical history which is about 10 inches thick (no exaggeration). Does any of this sound as if they are leaning in my favor? What more can they be looking for? I have been waiting for 5 months.
Thanks, Raye

Jonathan Ginsberg responds: Raye, the overriding issue in any Social Security disability case is whether you impairment prevent you from working.  Often doctors treating medical problems like the ones you describe are focused more on diagnosis and treatment than on evaluating work capacity.

In my practice I almost always use “functional capacity” checklist forms designed to help treating doctors “translate” medical problems into specific work limitations.

For example, the cancer treatments may leave you fatigued.  If your treating doctor describes that fatigue in terms of poor concentration, poor reliability at work, a need to take frequent unscheduled breaks, then SSA has work limitations it can evaluate.

Similarly, your statement that you are unable to walk or stand “for long periods of time” is too vague.  Instead, why not a statement like “I cannot walk more than 50 yards without having to stop for breath and I can walk no more than 30 minutes total in a 4 hour period.”

The goal here is to identify specific work activity limitations.  The bottom line – you have to speak Social Security’s language if you hope to win.  SSA’s language is vocational in nature, not medical.  If you see your case in these terms, your chance of success is much greater.

–Jonathan

What is the one thing you can tell SSA that will disqualify you?

What is the single most negative statement you can make to Social Security that will likely result in your being denied?

–Donna

Jonathan Ginsberg responds: Interesting question – I have never thought of this before.  Obviously if you advise SSA that you are working that will most likely disqualify you from applying.  If you reference drug or alcohol abuse as a main reason that you consider yourself to be disabled, you will not recover benefits as no benefits are payable if drug or alcohol abuse is a “material contributing factor” to your disability.

I think that if you make statements to suggest that you do not want to work as opposed to not being capable of working would hurt you.  Also, statements that you are applying because you need to be off work to care for a disabled child or relative will hurt you.

Disability benefits for my 24 year old daughter…

I have a general question regarding social security disability benefits for my daughter. I will summarize what has been going on and if you can just give me an answer as to what her chances would be I would appriceiate it.

My daughter is 22 years old. She had fallen down and broken some areas in her back a while back. She was out of work for a while. Then she had gotten sick last September with something that no doctor could diagnose. She was tired could not move, her blood count was up to 22,000 which should only be 4000 to 6000. She was in the hospital both emergency and overnight 4 – 5 times during the end of September and through October.

During this time they filled her iv with antibiotics and hoped it would work it did and by the end of october, she was better. She unfortunately lost her job once again. A few months later, she fell again and frctured some vertabrae in her back. She once again has been out of work. She has had a hard time keeping a job due to doctors appointments and injuries and sickness.

She has a history of anxiety and depression and ocd. She takes medications for these. She also has chrones disease, and she goes to pain management for her back. She has no insurance and we have been paying for her prescriptions etc but it is getting very hard. Due to her not working she gets even more depressed but to keep a job is almost impossible with all these issues she has. She has all her medical records etc and can give more information about her back etc problems, but before I mentioned this to her I thought I would write to see what her chances might be. Please e mail me back and let me know. I appreciate your taking the time to read this and respond.

– Marilyn

Jonathan Ginsberg responds: Disability benefits for younger individuals can be difficult to obtain. In order to present a successful case, you must prove that an individual cannot perform any job that exists in the national economy. There must be a marked restriction in almost every area of daily activities.

Additionally, your daughter must qualify for benefits. Before the age of 24, she must have earned 6 credits in the 3-year period ending when the disability began. For example, if she earned $3880 in one year, that qualifies her for 4 credits.
My recommendation would be to consult with an experienced Social Security Disability attorney in your area, to have the merits of your case evaluated. On our Social Security website, we have offered a links page where you can get a free case evaluation from an experienced attorney in your local area.

Please go to the website and fill out the form. An attorney in your area will contact you to provide you with some options.

The website is located at this link:
http://www.4socialsecuritydisability.net/

The form to fill out is located at this link:
http://www.submit-my-info.com/ask2.asp

Best wishes to you and your daughter.

– Jonathan

Timing of the Disability Process and First Interview

I’m assisting my wife in applying for SSD benefits. She has several disabling maladies including uctd (14.06), inflammatory arthritis 14.09), fibromyalgia and depression which will not likely meet affective disorder (12.04) criteria but is certainly a contributing factor according to both her rheumatologist and psychiatrist. I’ve started to use your guide and am quite impressed with the comprehensive array of forms and advice on completing them. One item lacking is detailed
description of the process flow of the application process. What forms will be required when? What’s the specific sequence and timing of each activity? I made an appointment to apply in person at the local office with my wife and all they sent was an SSA-3381 Medical and Job worksheet, a form not included in your book, and a list of things to bring e.g. birth certificate, W-2, etc. What else besides the 3381 will the interview encompass? Will they be completing the 3368 & 3369 during this session? Should I complete them beforehand? This type of information would be very helpful. – Bruce

Jonathan Ginsberg responds: Bruce, I understand that you (and your wife) are filing an application for disability benefits for your wife. You have already contacted Social Security and made the appointment for the application. The first thing I should tell you is that, although the Social Security Administration is the same, nationwide, sometimes the actual district office differ from region to region as to how they actually handle claims. The forms are all the same, however, some claims managers will require different forms at different times. Generally speaking, and by no means set in stone, I can give you a basic rundown of the process for handling your claim. The time frames again, will differ greatly from region to region and also will depend on work flow and case load for you specific area.

When you make your appointment for the initial application, the administration will send you the form or forms that they need completed along with a list of documents to bring to your appointment. You will complete the application for disability and an Adult Disability Report and a Work History Report, with information taken from the Medical and Job Worksheet. If you have copies of the forms (3368 and 3369) it would likely save time during the interview, if you have those completed beforehand. If your wife is having difficulty with fatigue and/or sitting for longer periods of time, this would perhaps be beneficial for her. (Keep in mind that the person who meets with you may make notes of personal observations in the file. For example, if your wife has pain from sitting too long and begins to “squirm” or needs to stand and walk or take a break, these observations could possibly be noted in the file. This is not always the case, but I have known of representative who make notations.) When your application is complete, it will be sent to a state agency for processing. This agency will differ from state to state, for example, in Georgia, this is handled by a division of the Georgia Department of Labor. The agency that your state uses, will be responsible for gathering all of your medical records and any additional documentation that they feel could be useful in making a decision on your claim. The medical records will be reviewed and determination will be made as to whether enough evidence is present to make a decision on your disability. If the person reviewing the records feels that additional information is needed, they have the authority to schedule an independent medical exam for you at their expense. In addition, they could send a form to another person (a person listed by you on the application as a person that they are allowed to contact) called a Function Report – Third Party, in which they will ask questions about the condition of the claimant. After all of this is complete, they will make the determination on your case. (Currently, in our state this is taking about 8 to 10 months. Hopefully it will be the standard 4 months in your area.)

When the determination is issued on your claim, and if your benefits are denied, you must file an appeal, Request for Reconsideration (form 561) along with an updated Disability Report (form 3441) and a few signed authorizations to release information to Social Security, within 60 days from the date of the letter.

– Jonathan

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