December 19, 2014

Social Security Disability Appeal Forms: What is SSA Really Trying to Ask

frustrationOne of the least discussed but perhaps most frustrating aspects of the Social Security disability process has to do with the forms that Social Security requires when you apply or appeal.  Over the years I have watched the forms evolve – and the trend is easy to detect:  Social Security’s forms never get shorter.   Instead they add questions which appear to ask for the same information again and again.

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. [Read more…]

Does It Matter Where I File My Application for Benefits if I Plan on Moving?

I recently received a question from a woman named Carol who wants to know if she should wait to file for benefits because she is planning on moving to a different state.  She writes:

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?

Application for Social Security benefitsHere 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.

Should I File for Social Security if I Also Have a Pending Workers’ Comp and LTD Claim

Social Security disability cases often interface with workers’ compensation and short term or long term disability cases.  I recently received a question from a lady named Helena, who asks the following:

I have been working in the medical field for over 13 years and more.  I am on short term disability. Can I apply for ssi due to my job may have caused my problem from lifting patients, pushing, pulling heavy patients to machines and other duties.  This job was very stressful and I am taking anti depressants and I am  seeing a psychiatrist.

Here are my thoughts: Helena certainly has the right to file for Social Security disability.  However, I would advise her to speak to her workers’  compensation lawyer prior to doing so.   Workers’ compensation claims can involve a significant amount of money when they settle and filing for disability can impact the value of your workers’ compensation claim.

The value of a workers’ compensation claim often turns on the uncertainty that exists in terms of the claimant’s prognosis for returning to work as well as uncertainty about the claimant’s future medical treatment.  When you file a Social Security claim you are basically saying that you cannot work, and you will be bringing Medicare into the discussion in terms of future medical care.  Medicare’s involvement also may affect your settlement because Medicare may demand that part of your settlement be set-aside to cover future medical care.

Long term and short term disability claims may also be impacted by a Social Security claim.

Bottom line – I would try to involve your lawyer as a point person to advise you about the various benefits to which you may be entitled and to help you decide about the timing or wisdom of pursuing these benefits.

May an Incarcerated Felon Receive Social Security Disability Benefits?

I recently received an email question from a blog reader about the eligibility of a convicted felon for Social Security disability benefits.  There is a simple answer here – you may not collect disability benefits during the time you are incarcerated.  Social Security ruling 83-28 addresses this situation directly.

Assuming that Social Security will accept an application for disability benefits from a claimant who is incarcerated, I do not believe that the adjudication process actually stops during the incarceration.  I have actually attended hearings held in prison.  The problem – incarcerated claimants often do not get treatment from physicians who are very interested in filling out forms or helping the prisonor/claimant.  Further, judges tend to be somewhat skeptical about the credibility of an imprisoned claimant.  Bottom line – it is an uphill battle for many reasons.

Social Security Evidence Must be Submitted With Bar Code Cover Sheet

In my last post, I described Social Security’s new “paperless file system” that utilizes scanned documents rather than paper documents.  You may be wondering how written records get into the system.

Social Security uses a bar code system that works as follows:  if you have evidence or documentation that you want to submit to Social Security, you must submit the hard copies by fax to a designated number.  The first page of any such fax must be a cover sheet with a bar code associated with a particular claimant.  Here is what a bar code cover sheet looks like:

Bar Code

Presumably, a Social Security employee at the receiving end uses the bar code to scan the faxed documents into Social Security’s system.  As noted in my previous post, Social Security scans into TIFF format instead of PDF.

If you are proceeding on your own or if you are a lawyer unfamiliar with the new paperless system, make sure to utilize the bar code cover sheet or you risk delay or loss of your documents.

Social Security Hearing Exhibit Files Now on Compact Disk

Jonathan Ginsberg with Social Security CDJonathan Ginsberg with Social Security CD

Over the past year, Social Security has made meaningful strides in reducing hard copy paperwork and improving the efficiency of the disability adjudication process.  One of the most noticeable changes has been the gradual elimination of cardboard and paper files, which are being replaced by compact disks.  Social Security personnel now scan medical records and burn the files to compact disc.   Employees at the hearing office mail the discs to the attorney for pre-hearing review.  From the perspective of an attorney the CD system avoids the hassle of scheduling time to review the files or hiring someone to physically photocopy the files.

The only “fly in the ointment” has to do with the format of the files on the CD.  Instead of using a PDF format that everyone else in the free world uses, Social Security has decided to use a format called a TIFF format.  TIFF files are larger, harder to print and require a different type of file reader.

Although files in PDF format would have made a lot more sense, I sincerely applaud Social Security for what appears to be a success in reducing the blizzard of paper that has long been associated with disability claim files.

Can I File for Disability if I am Working 20 Hours Per Week?

A common question that I see has to do with part time work.  As I have written previously, I am not a big fan of part time work, as you will see from my answer to this question that I recieved by email:

I have had fibromyalgia for many years, an autoimmune disease requiring weekly chemo injections, herniated discs in my back. I have been on FMLA for 2 years – ran out of time 4 months early this time – will be losing my insurance at work at the end of this month as I cannot afford the expense of Cobra ($650.00) per month.  I am only  able to work around 20 hrs a week which is a struggle.  I cannot quit working completely as I will have no income to support myself at all.  All of this info to answer this question – do I have to be out of work to file for disability? – J

Jonathan Ginsberg responds: J, thank you for your question.  Here is the issue in a nutshell.  At the outset, if you call Social Security to apply (800-772-1213), the first question you will be asked by the operator is whether you are working.  If you respond “yes,” there is a chance that the operator will not even take your claim, especially if you are earning more than minimum wage.

Assuming that the Social Security operator does take your claim, here is what you will face:

First, you may have a problem with your date last insured for Title II Disability.  As you may know, you have to be “insured” for Disability.  Except in the case of claimants in their 20’s Social Security looks at your earnings record during the 10 year period prior to your becoming disabled.  You need work credits that amount to five out of the last ten years.  Logically, if you are working full time, your “insured” status follows you for approximately 5 years after you stop working.  When you work part time, however, you may very well lose ground and in a worst case situation, your date last insured may have already run, meaning that you would not be eligible at all for Title II.  Unlikely, but a possibility.  You definitely need to find out your “date last insured” for Title II.

Second, I think that part time work muddies the waters.  The legal definition of disability for Social Security purposes is whether you are unable to engage in substantial activity (i.e. work) because of a medically determinable condition or conditions that has lasted 12 consecutive months, is likely to last 12 consecutive months or result in death.  When you are working part time, you create a lot of questions for Social Security.  Is your work “substantial” (this is a legal determination)?  when is your onset date?  could you perform a less demanding task 40 hours a week?

The disability adjudicators who work for the State Agencies (the initial application and reconsideration appeal decision-makers) do not have the training or authority to find your disabled when there are so many legal determiantions that have to be made.  This means that your case will end up before a judge at a hearing at some point in the future (18 months to 3 years down the road).  Judges see folks all day, every day who are not working at all.  While they admire the work ethic of someone who is working part time, the issue usually comes down to whether that claimant could perform a lighter, less demanding job full time.  I can’t cite any statistics, but I’d be surprised if the approval rate for claimants working part time is more than 20%, as opposed to around 50% for claimants as a whole at hearings.

So, in my view, part time work makes it less likely that you would be approved.  Every case is different, of course, and you should speak with an attorney who practices where you live for legal advice.

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.

Should I Apply for Disability if I Have Just Started to Miss Work?

I have a question about being able to work.  I recently started having headaches every day and have been seeing a doctor and having tests done. There is no way I can work under these circumstances.  What should I do?
–Richard

Jonathan Ginsberg responds:  Richard, I am sorry to hear about your situation.  Here are my thoughts.  I would advise you to go ahead and file a claim.  Social Security reps often will not accept a claim if you say that you are still working so when you file, I would choose a date that you "last worked" so that they will process the claim.

Realize, however, that if you continue to work – and Social Security records show on-going earnings – your claim will be denied on that basis without any consideration of the underlying medical problem.  I recommend that you apply as early as you can because the process can take so long.  The sooner you start, the sooner you would receive benefits.

The obvious problem – how do you survive for 12 to 24 months while SSA makes its decisions?

Next, I think that you need to work with your doctors to identify a firm diagnosis.  Chronic severe headaches can arise from many causes – migraines, high blood pressure, hormonal changes or other, more serious conditions.   Once you know what you are dealing with you will have a better idea if your condition is treatable or whether it will keep you from working for 12 consecutive months or longer.  Social Security, remember, only pays disability for cases where the medical condition will keep you out of work for 12 months or longer.

Finally, as you pursue treatment ask your doctor if he will support you in a claim for disability.  Some doctors don’t believe in the concept of disability and I have seen good cases derailed by uncompromising doctors.  If you know at the outset that your doctor will not help you, you can decide whether to stay with that physician or seek treatment elsewhere.

[tags] chronic headaches and disability, migraine headaches and social security, when to file a disability application [/tags]

Survivor of Traumatic Brain Injury Considers Applying for Disability 35 Years After Accident

In 1972 at age16 I sustained head injuries from a motorboat propeller resulting in lobectomy to my right frontal and parietal lobes. I was left with epilepsy, which has been controlled with medication from ’81 to 2004 when I had 2 seizures after I was let go from my last place of employment. The main reason I was given was a lack of flexibility. I turned 50 on July 17th. I didn’t go to a neurologist as I couldn’t afford to pay a doctor to tell me I had an accident. My medical records consist of my annual check-up so I could continue to get my medication and initial surgical procedure. As I have aged my attention span has shortened as well as my focusing ability. Am I facing too large of an ordeal?

Karl

Jonathan Ginsberg responds:  Karl, thanks for your question.  I think that your case would turn on whether a treating nuerologist would be willing to fill out a functional capacity form that identifies specific work activity limitations.  On one hand, you have been able to overcome your injury with medication for over twenty years.  A judge would therefore want to know what has changed.

I think it is entirely plausible that neurological damage such as that which you describe could get worse over the years, but, again, what you and I think doesn’t really  matter – what does the doctor say.

This is probably a case where a neuropsychological evaluation would be appropriate.  I understand from what you write that finances are an issue – unfortunately I think that is you want to have a realistic chance at winning, you will need help from a treating doctor.

Finally, don’t forget that your "insurability" for Title II Disability will run out approximately four to five years after you stop working (this is called your "date last insured").  When you apply for Disability make sure to find out your date last insured and use the earliest possible onset date – such as your last day of work.

[tags] Traumatic brain injury, neurological injury and social security disability, date last insured, functional capacity, residual functional capacity [/tags]