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Ginsberg Law Offices

Month: April 2008

Will Attending College Hurt My Chances for Social Security Disability?

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.

Skilled Worker With Circulation and Respiratory Problems Considers Disability

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.

Long Term Disability Insurance Carriers Faulted for Forcing Claimants to Apply for SSDI

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.

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