Social Security denied his claim in 1975 and again in 1978.  Disheartened, Dr. Frusher and his family gave up.

Fast forward to 2003, Dr. Frusher was approaching age 62 and he applied again, although this time for SSI only since he had long ago run out of SSDI credits.   Noting that there was evidence in the file confirming that his mental health issues dated back to the early 1970′s, Dr. Frusher’s lawyer filed an appeal to the Appeals Council arguing that “good cause” existed for the Appeals Council to reopen his 1978 application on the grounds that Dr. Frusher’s schizophrenic condition prevented him from understanding his appeal rights, and that those rights were still available to him.

After being denied at several more appeals levels the case eventually made it to the 1st Circuit Court of Appeals which found in Dr. Frusher’s favor.  Unfortunately, Dr. Frusher had passed away by the time of the Circuit Court’s ruling, but his wife continued the appeal.  His widow will receive past due benefits amounting to 30 years of past due benefits.  Congratulations to the Rhode Island law firm of Marasco & Nesselbush for its stellar work in this case.

What does this case mean to other claimants?

This case addresses the issue of reopening of claims.  In an SSDI claim, a claimant can reopen for any reason a prior claim if a second claim was filed within 1 year from the date of the notice that the prior claim was denied at the initial application.

Example:  Tom files Claim #1 on March 1, 2008, and it is denied July 12, 2008.  Tom does not appeal, but files a new claim on April 3, 2009.

Tom can move to reopen Claim #1 because it was filed within 1 year of July 12, 2008 (the date of Claim #1 denial).  Tom would have to show some reason to reopen (i.e. there was evidence in existence that was not considered by SSA in claim #1) but he would not have to show “good cause.”

If Tom filed Claim #2 on August 1, 2009, he could not move to reopen “for any reason” since Claim #2 was filed more than 1 year after the initial denial of Claim #1.

Tom could ask SSA to reopen Claim #1 within four (4) years of the initial denial if he can show “good cause” (the time limit is 2 years in an SSI case).  In my experience, Social Security judges consider “good cause” to be a very high standard and they rarely reopen on that basis.

The Frusher case is rare because Claim #1 was reopened well after the 4 year statute of limitation.   SSA does allow a claim to be reopened “at any time” in the case of fraud or similar fault.   The 1st Circuit found that Dr. Frusher’s failure to appeal was both not his fault (because of his mental illness) and that SSA acted wrongfully in denying him the opportunity to appeal.

What should you learn from all of this?

• when you file for disability benefits, you are generally better off pursuing your appeal as opposed to dropping your case and starting over
• if you do drop your appeal, or fail to appeal timely, generally it does not benefit you to wait to reapply
• if you are confused about your insured status for SSDI or about your appeal rights, contact a lawyer sooner rather than later

SSDI stands for “Social Security Disability Insurance” and refers to benefits payable to claimants who have enough credit hours to be considered “insured” for disability.  The monthly payment is a function of what you have paid in to the system.  In my practice the average SSDI monthly payment is around $1,50o.

SSI stands for “Supplemental Security Income” and refers to welfare benefits payable to claimants who do not have enough credits to be insured for disability.  The maximum monthly payment is set out in the law – and for 2011 is $674 per month for an individual.

Last week, for example, I received a long email from a concerned woman who was writing on behalf of her father.   Apparently, her father had worked at a very physical job for over 20 years before suffering a stroke in 2002.   This gentleman filed for Social Security disability in 2002 and was denied at a hearing, which I will assume was held at some point in 2003.

After being denied, this gentleman did not file anything else.  He remained at home, unable to work because of the ongoing complications from the stroke as well as depression and anxiety.

In 2009, the gentleman filed a second application.  In May, 2011, he appeared at a hearing and in July a “fully favorable” decision was issued.

But, the daughter notes:

there is still one little problem. For the past two years we thought we were fighting for SSDI and apparently we weren’t. I remember early on getting a letter stating that he was denied social security disability. But when we wrote to appeal, that is what I thought we were appealing. A few weeks after receiving the judge’s decision we realized that he did not get SSDI but SSI instead. I was in utter shock I had no clue there was a difference between the two and I truly thought my father would get his full disability benefits but this is not the case. I had no knowledge that social security only looks at the past ten years, and that the applicant must have worked five of those last ten years.

What happened here is this:  when the father stopped working in 2002, he was “insured” or covered for SSDI until about 2007.  Why?  SSDI looks at your earnings during the ten year prior prior to your “onset date.”  In order to collect under SSDI, you need to show that you have worked and earned credits for at least 20 out of the past 40 quarters.  There are four (4) quarters in a year, so 20 out of 40 is equal to five out of the past 10 years.  If you have earned full credits for ten out of ten years, your insured status will carry forward for approximately five years.  The requirements are a little different for younger workers, but the principle is the same.

Generally, to earn a credit, you need to show around $1,000 of earnings for that quarter.  So, if you show around $4,000 of earnings for a calendar year, you get all 4 credits for that year.

When the father reapplied in 2009, he should have alleged an onset date prior to his date last insured.  In this case, he could have alleged an onset date anytime after the date of the 2003 hearing denial, but before his insurability ran out in 2007.

My guess is that when he applied in 2009, the intake person at the Social Security Administration used the date of his application as the onset date.   No one ever thought to amend (change) this onset date.  It is also possible that the intake person only processed an SSI application because her computer showed that the father did not currently have credits.

In her email, the daughter does not say if her father had a lawyer appear with him at his hearing.   Assuming that the evidence supported an onset of disability back to 2004 or 2005, that lawyer should have requested an amended onset date back to the earliest possible date.

Of course, the attorney may have made this request but the judge could have denied it on the grounds that the evidence did not support an onset prior to 2009.

SSI pays claimants around $674 per month, and may reduce that amount if the claimant receives support – including room and board – from family, friends or welfare.  SSDI, by contrast, pays a monthly benefit based on the claimant’s past earnings.  Often SSDI payments can be $1,500 to $2,000 per month and there are no household support offsets.

Here, the best advice I could give the daughter and her father would be to speak to a Social Security lawyer about filing an appeal to the favorable decision.  The basis of the appeal would be that the judge used an onset date that was too late – it should have been earlier.   The father will also have to argue that the SSA intake person erred in not taking an SSDI application.  The attorney may have to argue that the father did not have the capacity to understand the difference and thus should not suffer because of his lack of capacity or knowledge.

You can probably sense that the father has an uphill battle.  It would have been a lot easier to deal with this issue prior to the 2011 hearing.  I hope it is not too late for the father to undo what should have been done several years ago.

Jonathan,
First, I want to thank you for putting valuable information about the SSDI process online. I was diagnosed with MS in 1993. I recently left work on an early disability retirement after a 24 year career with the State of ABC.  My question is this – if I have MS and my medical records document cognitive dysfunction, isn’t it feasible that I would be approved with my initial application to SS? Although I did very well in the beginning of the journey, as I have gotten older, (I’m only 44), my disease has started progressing over the last few years. Will the fact that I have taken an early disability retirement from the state weigh favorably towards my case?

Here are my thoughts: the first question I would ask is “are you insured for Title II Social Security disability?”  In some states, employees do not contribute into the Social Security system- instead, they contribute to a state disability program.  For example, I sometimes get calls from teachers who may have worked for years, but who are not insured for Title II disability because their school system opted out of Social Security.  If you cannot tell from looking at an old paystub, I would advise you to contact your human resources office to confirm that you have been making payments into the Social Security system.    You can also call Social Security at 800-772-1213 to inquire as to whether you have been earning credits.  You can also request an earnings and benefit statement (Form 7004) from Social Security directly.

If you are not insured for Title II SSDI, then you might still be eligible for SSI, but that will depend on household income and the value of assets that you own.

Assuming you are eligible for Title II disability, your best chance at an early approval would be to request help from your treating doctor to show that you meet or equal the multiple sclerosis listing, which is found at  Listing 11.09.   When you read this listing, it does refer to cognitive issues by referring to Listing 12.02 which describes “organic mental disorders.”

I would print out the entire Multiple Sclerosis listing and the listings referenced in 11.09 and take the printout to your doctor’s office.  If your doctor or someone in his office is willing to write a narrative report describing your symptoms, course of treatment and state that your symptoms meet or equal what is contained in the listing, you greatly improve your chances at an early decision.  Your doctor should track the language of the listing as closely as possible, using the language of the listing wherever possible.   Further, since the disabling symptom you describe has to do with cognitive dysfunction, you may need to have a psychiatrist or a neuropsychologist evaluate you and write a narrative report that tracks Listing 12.02.

I take a similar approach when I am representing an MS client – although instead of a narrative report, I create a checklist for the doctor to complete and submit that to the Social Security judge along with copies of all medical records.  Often times, by the way, Social Security will provide the neuropsychological exam as a “consultative evaluation” that they pay for, however, if you can provide your own, you obviously  have more control of the process.

As far as whether your decision to take an early disability retirement will help, that is hard to say.  If you were required to meet certain criteria before you were allowed to take a disability retirement, then, yes, your status as a disability retiree might help a little, especially if there are medical reports and forms associated with this determination.   I would definitely submit those reports to the adjudicator, and I would write the adjudicator to advocate for an early approval based on the 11.09 and 12.02 listings.  I still think that an early favorable decision at the administrative level will turn on whether the adjudicator believes that you meet or equal a listing, so that is where I would focus my energy.

If you are not approved at the initial or reconsideration stages, please do not get discouraged as many deserving cases are turned down for what seem to be arbitrary reasons.

The first program is called the “compassionate allowance” program, and it identifies specific diseases that produce work activity limitations that meet SSA’s definition of disability – in other words, if someone has one of these medical conditions, they would not be able to engage in substantial gainful activity and the symptoms will last 12 consecutive months or result in death.  I discussed the compassionate allowance program in a previous blog post, and you can review the diagnoses on the list by clicking on the link.

The second and newer program is called the Quick Disability Determination (QDD) program.   This program uses a computer program to analyze the electronic claim files to identify “cases where there is a high likelihood that the claimant is disabled” so that a claims representative within Social Security can approve a case without the need to review the claim with a medical or psychological consultant.  In a regular claim adjudication the claims rep, or “Adjudicator” must get a medical or psychological consultant to sign off on an approval, a process that takes time and can yield inconsistent results.

The QDD program only applies to adult claims at this point – not child SSI cases.

At this point SSA has not released any information about the computer program it uses to evaluate electronic claims or what information therein will trigger a QDD.   However, the presence of this program would suggest to me that a claimant with a significant medical problem would benefit from taking actions to insure that his medical file is as complete as possible as early as possible.   Specifically I would:

• make sure that the names, addresses and phone numbers of treating physicians and hospitals is accurate and readable on the application forms
• alert treating physicians that SSA will be contacting them for medical records
• provide treating doctors with a copy of SSA’s “blue book” of disabling medical conditions so that your records will contain wording that tracks SSA’s requirements
• providing the Adjudicator with accurate and up to date medication lists
• clearly identify on SSA’s disability reports the specific symptoms that prevent you from engaging in competitive work

Recently I received the following question:

i have a 15 yr old son. my ex husband is dying of cancer. he has not applied for ss , so i was told by ss that i cannot apply until my ex does. in the meantime we r struggling. help. -S

Here is my response:  unfortunately, there is nothing that S can do unless and until her ex-husband applies for disability benefits.  Cancer is a listing level impairment and my experience has been that SSA adjudicators and judges are more likely than not willing to grant benefits.   Further, some cancers are included in Social Security’s compassionate allowance program.  Even if the cancer is treatable, the treatment protocol often lasts 12 months or longer, so a cancer claimant can usually get a closed period even if on-going benefits are not awarded.

Since auxiliary benefits are payable in addition to whatever benefits are payable to the claimant, there is no financial dis-incentive for the father to apply.

In short, there is no reason why a cancer patient should not apply for benefits, especially if doing so would provide support to a dependent child.

Sometimes the relationship between divorced parents is so bad that any request, even a reasonable one, is viewed with suspicion and hostility by the other.  Perhaps this is a case where a mutual friend or clergy person could intercede to help persuade S’s husband to apply for benefits – if not for his own sake, for his son’s.

Compassionate Allowances are a way of quickly identifying diseases and other medical conditions that clearly qualify for Social Security and Supplemental Security Income disability benefits.  It allows the agency to electronically target and make speedy decisions for the most obviously disabled individuals.

There are now 88 medical conditions that qualify for compassionate allowance.  About half of these conditions are forms of cancer, while the other have are made up of rare diseases, many of which affect children.  Among the more common conditions that now qualify for an early approval:

• early onset Alzheimer’s Disease
• mixed dementia
• idiopathic pulmonary fibrosis
• mucosal melanoma

A full list of all of the compassionate allowance conditions may be found by clicking on the link which will take you to Social Security’s internal Program Operations Manual System (POMS).

If you or a loved one are afflicted by any of the conditions described under the compassionate allowance program, it is very important that you make that fact known to the adjudicator who is assigned to your claim.  You should not assume that the state agency adjudicator is familiar with the compassionate allowance list.

I think that Mr. Insler’s point is very well taken.  When you apply for Title II disability benefits, you can only get paid up to one year prior to your application date, even if your disability began two, three or more years ago.  In a Title XVI SSI case you can only get paid as of the date of application.

Another problem that can arise if you want relates to your insured status for Title II Disability.  Unlike retirement benefits, which are calculated based on your lifetime earnings, Disability benefits look at your earnings during the 10 years prior to the onset of your disability.  Generally you have to show that you worked for 5 out of the past 10 years.   When you stop working, your coverage will therefore remain in force for the next 4 to 5 years.  You need to show that you became disabled while you were covered.

If you wait to apply, then your “date last insured” may run, meaning that you would have to show that you became disabled at some point in the past.  Your medical records may show that you are disabled now, but we may not be able to get records or medical opinions that your disability was at a disabling level 4 or 5 years ago.  In addition, as Mr. Insler points out, some medical providers do not keep records for old patients, and doctors, clinics and hospitals sometimes go out of business as well.

Finally, given the 2 to 3 year delays inherent to the Social Security system, delaying the start of the process just means that your case will take that much longer.

The bottom line – if you cannot work, you should apply for disability benefits now.  There is generally no benefit to you if you wait.  Waiting will only make your attorney’s job harder and quite possibly cost you hundreds or thousands of dollars of benefits.

I was recently in a car accident and required extensive surgery on my leg to replace several broken bones.  I currently require the assistance of either crutches or a walker in order to be mobile.

In addition, I have begun having problems with blurred vision and migraine type headaches.  I have an appointment with a specialist later this month to address these symptoms.

I have taken a twelve-week leave of absence from my job, which requires that I stand 95% of an 8-hour shift.  Do I qualify for Social Security disability?

My answer:

No, not yet.  The law that governs Social Security Disability defines disability as “the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairments which can be expected to result in death or which have lasted or are expected to last for a continuous period of not less than twelve months.”

As it stands, it is not conclusive that your medical conditions are expected to either result in your death or last for twelve months or more.  Because of this, you would not qualify for disability benefits at this time.  However, this is based solely on your broken leg as the chief medical condition.  Test results and medical opinions are still pending in regards to the blurred vision and headaches that you are currently experiencing.  It is important that you see a doctor (perhaps a neurologist) that specializes in headaches.  Depending upon his/her medical opinion, you may be eligible to apply for Social Security Disability – especially if it is determined that these conditions will continue indefinitely and continue to impair your work performance.

But if your headaches and blurred vision are only temporary problems associated with your recent leg injury, and it is determined that they will subside with time, then you will not meet Social Security’s firm requirements. A broken limb is typically not enough to keep you out of work for 12 months or more.

In fact, the redundancy and complicated nature of these forms led me to write a “how to” book about filling out these forms (my book is called the Disability Answer Guide and you can read more about it at www.disabilityforms.com.

The idea for my book came from a client who pointed out to me that when a person is depressed, has a limited education, is in pain, or is unable to concentrate, it can be very difficult to compose answers to a bunch of government forms that come with no instructions and seem to ask the same questions over and over.

This lament led me to the idea of a how to book where I could offer sample answers to the questions on the forms as well as a reasoned explanation from my perspective as to what information was really relevant to a  Social Security disability application and how to frame your answers to “speak SSA’s language.”

Not surprisingly I regularly receive questions about Social Security’s forms – here is an example of such a question from a person I’ll call “Neil:”

i dont know how to answer these medical question on the second part of socurity such as what your favorite hobbies, and what to do do from the time you get up and the time you go to bed

Here are my thoughts: First, I reproduced this question exactly as I received it.  I did so not to embarrass the writer but to highlight some of the problems inherent to the Social Security decision making system.

Now I know nothing at all about “Neil” or the basis of his claim.  However, I think it is clear that Neil is having a difficult time communicating what is in his head.  Why?  Consider:

• he may be in severe pain
• he may be suffering with a mental health condition
• he may be affected by medications
• he may have a learning issue
• he may not be able to communicate in English

If Neil is having this much trouble writing about his favorite hobbies or what he does during the day, imaging how much difficulty he will have describing medical conditions, diagnoses, prognoses and work limitations.

Second, I suspect that Neil would have no way of knowing why Social Security would ask a question about his hobbies or daily activities.  If you know why a question is being asked, of course, you can prepare a better answer.

This question is part of a series of questions designed to document what are called “Activities of Daily Living” (called ADL’s by Social Security).  When judges consider SSDI or SSI claims at hearings, they consider a claimant’s ADL’s in evaluating that claimant’s capacity to function in a work environment.

For example, at a hearing a judge may ask:

• how much can you lift
• how long can you stand
• how far can you walk

The judge will also ask:

what kind of household chores do you perform

• do you vacuum
• do you make the bed
• do you handle the laundry

This second set of questions is designed to verify your answers from the first set.   If you vacuum, for example you are standing and walking, pushing a 5 to 10 lb. device, balancing, bending and functioning in a dusty environment.  If you make the bed, you are extending your arms over your head, twisting, bending and balancing.  If you handle the laundry you are most likely lifting 10 to 15 lbs., carrying, folding (gross motor strength), bending and perhaps stooping.

Neil asked how he should answer a question about what he does from the time he gets up until the time he goes to bed.   I obviously do not know what Neil does, but I would advise him as follows:

• discuss what you do on an average day – your goal is to paint a picture for Social Security about your quality of life
• everybody must eat, use the restroom and engage in some form of personal grooming.  If you have difficulty with these functions, say so.  For example, if you cannot cook because of problems standing or memory issues, explain that your meals are limited to sandwiches or soup because of specific physical or mental issues.  If you do not bathe or change clothes more than once a week because of depression, say so.
• try to set out the time it takes you for simple activities – for example if it takes you 45 minutes to get dressed because of back pain, that is a relevant detail to include
• if you spend your day watching TV, but you don’t really concentrate, note that the TV is basically background noise and that you have trouble concentrating and focusing

Neil also asked how he should describe hobbies.  Obviously if Neil plays soccer 3 days a week that will hurt his case.  On the other hand if he used to play soccer but cannot any more, that might be something to say.  Social Security asks about hobbies because they want to see if you are engaging in activities that you enjoy.  Presumably someone who is able to play soccer 3 days a week would be less credible if he also says that he cannot work because of back problems.

Without question you should always tell the truth when answering Social Security’s forms.  You should, however, avoid the tendency that many people have of describing what they used to be able to do, and you should think about why Social Security is asking a particular question and how your answer may be reinterpreted by a decision maker.

I own a condo in central Florida.  My parents live in north Florida near the Georgia border.  I plan on moving to Macon, Georgia (Macon is about 100 miles south of Atlanta in the middle of the state).   Should I file now?  Should I file now and use my parent’s address?  Should I wait until I move to Macon to file?

Here are my thoughts: I would advise you to file now and to use your current address as your home address.  If you are concerned that your mail may not get forwarded you can use your parent’s (permanent) address.  In general it is not a good idea to wait to file.  If you wait you may lose the right to claim some of your past due benefits, or in a worst case scenario, your coverage for Title II benefits could run out.  If you are not working, and expect to be out indefinitely, I generally advise potential clients to file sooner rather than later.

Now – what about the location where you would file?  At the initial and reconsideration level of appeal, your case will be processed by a State Agency adjudicator.  Adjudicators follow fairly rigid protocols and I have not seen any documentation to suggest that an adjudicator in one state is more or less likely to approve a claim than an adjudicator in another state.  Those statistics may exist but I have never seen then.

The initial and recon appeal will eat up between 6 months and a year, by which point you would presumably be in Macon.  When you move you would notify Social Security and your file may be transferred to a State Agency adjudication office nearer to where you live.  Then again, it might not be transferred.  I think it is certainly possible that filing an address change, thereby triggering Social Security to move your file could add to a delay in the processing of your case, but my experience has been that the State Agency adjudicators are expected to complete their evaluation within a set period of time.  I don’t know that having the file moved will significantly add to a delay.  This is especially the case now that Social Security disability files are electronic – physical files are no longer involved so transferring a case is an electronic process.

The biggest wildcard when you change venues will involve the hearing offices.  Some hearing offices house judges who approve very few cases.  Other hearing offices tend to trend more favorably to claimants.   On the other hand the tendencies of the specific judge assigned to your case are much more important than the hearing office statistics.  You can research statistics about the ratios of approval by specific judges.  Local lawyers who practice in a particular hearing office can also be a good source of advice.

Ultimately I don’t know that I would spend a lot of effort “judge shopping.”  If you have a good case with compelling medical evidence and support from a treating physician, you stand a good chance at winning, while weak evidence will not convince even a judge who tends to favor claimants.  Further, if you ask Social Security to change your hearing office venue at the last minute you will face  delay as hearing calendars are often filled months in advance.  If you hire one lawyer for location 1, then switch, you may end up paying more than 25% of your past due benefits as lawyer 2 will want to be  paid.

At the very least, if you are thinking about hiring a lawyer in central Florida, let  him or her know about your possible move – you want to make your case less complicated, rather than the other way around.