April 25, 2014

Is it Possible to Recover Past Due Benefits for a Disabiling Condition that Began 20 Years Ago

how far back can I go to collect disabilityI recently received an email from a blog reader who tells me that she has recently been approved for SSDI based on a stroke.  However, she was diagnosed with another disabling medication condition 20 years ago but never applied.  Is there anything she can do about the older medical condition and recovering 20 years worth of past due benefits.

Here is my analysis: first, this is a difficult question to answer because I do not have all of the facts.  For example there are circumstances where an informal communication with Social Security could be considered an application.  There are also cases where even an unintentional misstatement by a Social Security employee could toll the statute of limitations. 

These unusual circumstances of informal applications and misleading conversations might open the door slightly for a recovery of years of past due benefits but this type of situation is relatively rare and difficult to prove.  There are slightly more common situations where a more recent application can be reopened relatively easily.

For purposes of my analysis, however, I am going to assume that my blog reader had no prior communication or formal application with SSA about her older medical condition and that her first disability communication occurred within the last year or two when she filed for disability based on the stroke and its complications.

Under SSDI rules, a claimant can only collect benefits going back 1 year prior to application.  So, if my blog reader applied on September 1, 2012, the earliest she could be eligible for payment would be September, 2011.   It does not matter if the judge found her disabled as of 2010, 2000, 1990 or 1980, she can only get payment as of September 2011.

Secondly, in order to go after benefits for any date prior to the current application onset date (i.e., the date of the stroke), she would have to appeal her favorable decision.  This means giving up her favorable decision and putting her entire case back in to play – a risky move.  If she does not appeal within the 60 day appeal period the current favorable decision becomes “permanent” and she cannot later go back and ask for benefits prior to that date.

Third, it is inherently difficult to go back more than 2 or 3 years.  Often older medical records are not complete and it can be difficult finding a treating physician from the past to complete a functional capacity evaluation.  In my experience, judges are also very reluctant to find that a claimant met the definition of disability more than 2 or 3 years ago.

Obviously there are unique circumstances in certain cases that might give rise to the payment of years of past due benefits and anyone who thinks that they may have good cause to reopen an old application should discuss the facts of his/her case with a lawyer.  As a matter of general practice, however, it will be an uphill battle to collect years of past due benefits in most circumstances.

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Jonathan Ginsberg represents Social Security disability claimants in Georgia. In practice for over 23 years, Jonathan publishes a widely known disability blog, a podcast and several disability web sites. In 2004, Jonathan published a "how to" book about Social Security disability called the Disability Answer Guide. Jonathan lives with his wife and 2 children in Atlanta.

Comments

  1. Even though a claimant can only receive back payments for up to one year prior to the application date (of course including the 5 additional months for the waiting period), the onset date should still be a critical piece.

    For my claim, my onset date is of the most importance at this point. I am scheduled for my third (yes 3rd) ALJ hearing in Feb. 2014. This includes two Appeals Council remands where they specifically instructed the ALJ to correct my alleged onset date to the date I originally submitted (Sept. 2001 – last day of SGA). This one issue alone has been going on since day one of my application (since Dec. 2009) where the field office mistakenly entered my AOD as the date I initially called the SSA to inform them of my application (my protective filing date – Nov. 2009). No matter how many times and how many people my claim went through, and no matter how many times I brought up this incorrect AOD issue, that date was STILL never corrected or even addressed up to the beginning of my second ALJ hearing (which was 3.5 years after application date). I kept getting denied because they had my AOD written as AFTER my DLI. We are talking about 8 years difference.

    To make a very long story short, my second ALJ hearing was a total disaster because my second lawyer (the first one withdrew after the first ALJ denial) failed to see the relevance of reviewing my past medical history beyond the previous year (even though I warned him about this ongoing AOD issue). Because of this AOD issue, the ME at the second hearing was only given access to my medical records from Nov. 2009 to current (even so, he still said I met a listing, but at a much later date – a date past my DLI). This left out over 8 years of critical medical records, yet my lawyer was in rainbow land and didn’t object to anything. My date last insured is Dec. 2006, so with just that fact alone, why has my AOD been incorrectly written as Nov. 2009 for over 4 years??? Who is running this train???

    Anyway, considering I finally get a proper reward after this upcoming hearing, my back payments would only begin relatively around July 2008 (12 months before my application date plus the 5 additional month waiting period). Since I stopped working in Sept. 2001 (my alleged onset date in which the AC agreed was my proper onset date), wouldn’t it be in my best interest to get the ALJ to agree that my actual onset date is Sept. 2001 (instead of passively accepting an onset date that falls within my DLI? For each year after Sept. 2001 that I didn’t work, my estimated monthly disability benefits amount decreased because the SSA was using zero-income years as part of my total PIA. My annual SS Disability statements estimated my benefits would be X dollars if I was to become disabled as of each given year, and for each subsequent year after 2001, that estimated amount decreased. This told me I needed to get my AOD as close to Sept. 2001 as possible.

    So, even though I applied after my date last insured, I should still try to get my AOD established as far back as 2001 for the sake of a larger monthly benefit amount, correct? I cannot get a straight answer from anyone online about this scenario. I have a progressive disease, and the ME and ALJ have already stipulated I am disabled; everything is left to determine WHEN I became disabled. I’ve got medical documents all the way back to 1989 showing the progression of my disease. My treating doctors even suggest back to 2001 as my onset date.

    How important is it for me (specifically concerning my monthly benefits amount) to get my onset date established as close to Sept. 2001 as possible? Thanks for any reply…

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