I received a letter from SSA saying that they are reviewing my current SSDI benefit and possible to end my benefits due to substantial work between 2004 and now.   I would like to have your advisement how I should handle this and what options I can do to keep my SSDI benefits.   I only have Medicare insurance and living with AIDS.   Also, I am deaf.

My response: Social Security is saying that you engaged in "substantial activity" from 2004 to the present.  "Substantial activity" is a term of art and refers to activity that is work or work like activity.   Substantial activity can be work for pay, volunteer work, school or other similar activites.

In a CDR context, Social Security is most likely looking at your earnings record.  As you know, when you work your employer files copies of all W-2's and 1099's generated on behalf of employees.  If you were working and your employer was withholding taxes as the law requires there is a written record of your earnings.

I have posted a table on this blog setting out what you can earn and still fall below SGA (substantial gainful activity).   Social Security will look at your earnings month by month to calculate how many months you exceeded SGA.  You could, in theory, could be asked to repay SSA for each month that you received earnings over SGA and also collected SSDI.

Note that a couple of other concepts apply hear.  After you are deemed disabled, you are eligible for a trial work period of 9 months in which you can earn over SGA but still receive full benefits.  Beyond that, you are placed into an extended period of eligibility (EPE) for disability for an additional 36 months.  While in your EPE, you will be paid for months where you were under SGA and not paid for months over.  So, your overpayment problem will reflect amounts paid to you during your EPE in months when you were over SGA.

If you take the position that you were not actually performing work at SGA level despite payment at or over SGA amounts, you will need to put on evidence to convince a judge that your benefits should not be terminated.  This evidence can include your testimony, testimony from any employer and medical evidence.   For example, if a relative gave you a "job" for the purpose of supporting you and getting a tax deduction and building up your Social Security account, and you were not doing anything of value you might have an argument.

Post from: Social Security Disability Blog

Approved Claimant Returns to Work – Are there any Defenses to a Continuing Disability Review or Termination Action by SSA

What about unhelpful medical records?  I see this frequently in cases where there was a workers' compensation case.  "Company doctors" often minimize symptoms and generate records indicating that a claimant has the capacity to return to work.   Other times I see unhelpful records in cases where my client just did not "click" with his or her physician or psychiatrist.

One of my blog readers wrote me to ask about his obligation to submit unhelpful records in the context of a continuing disability review:

I have been on SSI for 8 years for mental illness. One recently former psychologist would say I was never disabled while my psychiatrist, and my new psychiatrist (the present one is moving) say I am disabled. The psychologist and my new psychiatrist say not to put the former psychologist's name on the Review form: ssa-454-bk.  Am I allowed legally to leave her name off? What consequences whould there be. There is nothing on the form that says I can't omit information (no perjury warning). What are my rights, and if I put her on the form will my new psychiatrists' opinions outweigh the old?

Here is my response: I do not believe that a claimant (or a claimant's attorney) has any obligation to submit unhelpful medical records.   This issue periodically comes up on listservs that go to claimant's lawyers and the general consensus among most attorneys seems to be that an attorney's obligation is to represent his clients zealously, meaning that there is no affirmative burden for that lawyer to submit unhelpful information.  I do know some lawyers, however, who take the opposite position, but it appears to me that they are in the minority.

In my opinion, this does not mean that you can lie during a hearing.  If a judge sees a reference to the unhelpful doctor in other records and asks you about it, you should tell the truth.  Unless the missing records constitute a huge black hole in your records, as a practical matter hearing judges usually do not have the time or inclination to hold up a decision to get those records.

Post from: Social Security Disability Blog

Are Claimants Required to Submit Unhelpful Medical Records

According to lawyers who filed a class action suit, SSA ordered its staff to withhold benefits from anyone who was named in an arrest warrant for a federal or state felony.   The problem: many of the affected claimants were not aware of any warrants, in many cases the charges were dropped, and in other cases, SSA erred in identifying the individuals affected.

SSA should have limited its program of withholding benefits to those on the run who are attempting to avoid prosecution or punishment.

Post from: Social Security Disability Blog

Social Security Ordered to Repay 80,000 Social Security Recipients After Funds Illegally Withheld

What does this have to do with your Social Security disability case?

First, remember that the main issue in most Social Security cases is whether you have the capacity to perform simple, entry level, low-stress, sit-down type of work.  Now, take a look at your Facebook profile.   Does it contain photos of you dancing at a wedding, or on the beach?  Are there comments from friends chatting about that family get-together or class reunion?

Some of my disability clients "friend" me and I always find it interesting to look at their profiles.   I am looking at one such profile right now and it reads as follows:

"I am a writer/poet, artist, sculptor, musician, wood artist, wordsmith, businesswoman, mother, ex-wife, retired postalworker, driver, fragrance designer, student, photographer, jokester, painter, and furniture designer."

The profile also lists an "employer" and according this person's profile, she "acts like she is 32," she is most like President Harry Truman, her love meter reads "inferno," and she thinks about sex 1440 times a day!

Now, this particular client has a legitimate disability case and her case was approved several months ago.  Imagine, however, that the judge who was assigned to her case came across this profile during his hearing preparation.   Might he get a different sense of what this person is all about?

I also know from my own snooping around that several of the judges who work in the Atlanta hearing offices do have Facebook profiles.  Do they look for open profiles of claimants that will be appearing before them?  I have no way of knowing if they do now, but I would not potentially put my case at risk unnecessarily.

Remember, too that most disability cases will be subject to a periodic continuing review, and it would not surprise me at all if Social Security begins using web searches to locate information about claimants who may be engaging in activities that may look like work.

I call also report that I get two or three emails a year from unhappy ex-wives or ex-friends who would like nothing better than to mess up a former friend's claim.    A couple of years ago, I represented a claimant who was approved, but then had his approval withdrawn when a former friend sent links to his web site to Social Security, which then triggered an investigation.

So, if you use Facebook or mySpace or any of the hundreds of other social media sites, I strongly recommend that you spend a little time learning about the privacy features, and that you restrict access to your profile to people who you know well.  You should also keep in mind that anything you post or do on-line may reappear, so be very careful about your on-line activities.

Post from: Social Security Disability Blog

Can Your Facebook Profile Hurt Your Social Security Disability Case

I recently received a letter from a such a claimant.  He describes himself as a 53 year old male was was approved for SSDI as of June, 2006.  The basis of his claim is major depression.  He states that in June, 2007 he decided to try to return to work as a commissioned insurance agent.   From June of 2007 through April, 2009, he has earned $10,000 in commissions, but these commissions have not yet been distributed to him.   He states that the work effort has been very difficult and at this point he has decided to discontinue his active work as an insurance agent.

The issue facing him has to do with the $10,000.   He is concerned that if Social Security sees a $10,000 distribution, it might trigger a termination.  What should he do?

Here are my thoughts:  Social Security regulations provide for a trial work period of up to 9 months in a rolling five year period of time.    For 2009, a month counts as a trial work month if you earn $700 or more, for 2008, the figure is $670.  Thus, in my reader's case, Social Security would look at every month from June of 2007 to the present and any month showing more than $640 (2007), $670 (2008) or $700 (2009) would count as a trial work month.

Arguably, therefore, if he received one paycheck in the amount of $10,000 for April, 2009, that check would only count as one trial work period month.

However, my reader would be safe to assume that someone at Social Security might look at this large salary distribution and ask questions.   I think that the risk here would be that Social Security might try to argue that the commissions were earned over a number of months.   If Social Security concluded that there were more than 9 months involved, that could affect my reader's on-going eligibility.

I would therefore evaluate – month by month – what activities my reader engaged in during his trial work period and what funds associated with that work.   Whether or not a particular month qualifies as a trial work month would seem to be a matter of evidence.

There may also be case law or Social Security rulings that address this type of issue – that would be a matter of research for a lawyer in my reader's jurisdiction.

Even if the 9 months was used up, there is something called an extended period of disability which would allow for an immediate reinstatement if earnings stopped and there was medical support.

I would also note that trial work periods and cessation of benefits issues are not matters that are handled by all disability claimant's lawyers.   In my practice, for example, I have only appeared at two cessation cases – not because those issues are not out there, but because cessation clients rarely have the funds to pay for hourly representation.  There are no past due benefits payable in a cessation case so most cessation case clients do not have the funds to retain counsel.

Post from: Social Security Disability Blog

Will a Work Attempt Cause Me to Lose My Benefits

In theory, every Social Security disability case will be subject to a CDR.  In reality, because of the current backlog, I rarely hear from my clients that their cases are being reviewed.   The few cases that do seem to end up in a CDR typically involve younger claimants.

I am not usually called upon to handle CDR cases because a CDR representation does not involve past due benefits, and therefore cannot be handled under a contingency contract.   Very few of my clients have the funds available to pay a lawyer for representation.  A CDR hearing is very much like a disability determination hearing, involving medical record collection and submission, and representation at a hearing and often a CDR representation takes as much or more time than a disability determination.

Although CDR's are still somewhat rare because of the current backlog in disability determination cases,  Social Security still conducts continuing disability reviews on some cases.   Here is an email that I received from a blog reader regarding such a review:

I am 21 yrs. old, have been on SSI 2 yrs. for major depression and social anxiety disorder, and am expecting a CDR in december.  My condition has not changed much from when I was approved.   I want to go to college or JobCorps in the next few months(program lasts 2-3 yrs.), but I worry if I do well in a program like that, social security will consider me "signaficantly improved" at the CDR and cut me off.  What does SSI consider "signaficantly improved" in regards to mental illness?   I want to work and going to school will help me do that.Will I be penalized for trying to work out my issues (and succeeding)?

Here is my response: I am thinking that you are a prime candidate for continuing disability reviews over the next several years.   You are obviously very young to fall within the disability process and your impairment – a form of mental illness – often triggers disability reviews.  Hopefully, your treating psychiatrist will find the right combination of drugs that will allow you to return to the workforce.

"Significantly improved" means that your capacity to function in a work environment has been restored.   Remember, Social Security defines work capacity in terms of your ability to get through an 8 hour workday, 5 days a week.   You would no longer be considered disabled if you could perform a simple, unskilled "warm body" type of job, such as serving as a textile inspector, a circuit board assembler, or a surveillance system monitor.   It does not matter that you would not earn very much at one of these kinds of jobs or that there is no such job near where you live.   The only question – could you perform one of these simple, unskilled jobs if it was made available to you.

I think that if you enroll in college and are able to maintain a regular course load or even something close to a regular course load, Social Security will consider that activity as "substantial activity."

Similarly, if you attend job corps and can function in activities that are equivalent ot full time work, Social Security will argue that disability benefits should be terminated.  You should note that Social Security has a number of work incentive programs such as the "Ticket to Work" program that will continue to pay you while you train and can ease your transition back into the work force.

If you attempt to attend college or if you attempt to participate in a work training program and you cannot sustain the activity because of your mental health issues, such failures will serve as evidence in your favor.  This assumes that you continue to seek regular mental health treatment and you have a physician or therapist who will support you.

I think that you are wise to plan for the possibility that Social Security will try to cut you off, and, of course, you will ultimately make more money if you work as opposed to collect disability.  Best of luck to you.

Post from: Social Security Disability Blog

How Do Job Training Programs Affect Continuing Disability Reviews

Sometimes, judges will specifically provide for a review in 12 months.  The official Social Security disability web sites provides that all cases are to be reviewed every 36 months (although it has been my observation that the 36 month reviews have been performed at random).  Although I have not seen any regulations to this effect, I suspect that the cases which are reviewed may be ones where improvement might be most likely.   For example, if your approval is based on a condition that could be corrected by (invasive) surgery, your case might be flagged for review.

You should also understand that disability attorneys like me rarely get involved in CDR cases.  Why?  In a CDR case there are no "past due benefits" involved meaning that I cannot accept a CDR case on a contingency contract.   The legal work that must be done, however, is basically the same as what I would do for a new applicant.   Even if I was to agree to represent a claimant in a CDR for a flat fee of $2,000 or $3,000, most CDR claimants do not have this kind of money available to pay a lawyer.

The good news here is that once you have been approved, the burden falls on Social Security to prove to a judge that you no longer qualify.  As long as you have continued to seek medical treatment and as long as applicable diagnostic testing does not show a significant improvement, you should have a good chance at winning.  Social Security also looks at your earnings record to see if you have been working.  The biggest CDR risk for a disability claimant would be someone who:

• has not sought regular medical treatment
• has earnings from part time work or regular work attempts
• has medical records that show an improvement in his/her condition
• has references to "malingering" or "drug seeking behavior" in his/her medical record

This morning, I received an interesting question from a lady who wrote me about a CDR issue.  Here is the question:

Jonathan, thanks for your informative blog.  I've receiving SSDI for over 3yrs now for various physical disabilities. Now neurogenic bladder requiring intermittent self-catheterization clean at home 4-5x a/day. Urologist&nurses explained to me outside my home catheterization must be sterile (lying down) and I wouldn't be able to share a bathroom with lots of other people due to increased risks of UTI's due to cath procedures. Is this something I need to report when my CDR comes due?I also have other medical diagnosis I didn't when awarded SSDI originally. All affect my ability to work negatively. How does this affect my CDR/SSDI?
Thanks,
J.

Here are my thoughts: J did not say whether she has seen improvement in the various physical issues that resulted in her original favorable disability determination.  For sake of argument, let's say that J was approved for disability based on back pain and over the years, her condition has improved as the result of surgery, physical therapy or pain management.

I think that in such a situation J would be well served in reporting this "new" condition to Social Security.  If J's original condition has improved significantly, there is an increased possibility that Social Security might attempt to cut her off – but having evidence of a new, equally disabling condition should preserve her benefits.  J should seek assistance from his urologist in the form of a functional capacity form (or a detailed letter) that identifies specific activity limitations arising from his condition.

In this case, J's need for a sterile restroom might very well eliminate a large percentage of jobs out there, but it might not eliminate every one.  Another factor that could help here is the time.  If the limitation is both (1) needing a sterile restroom to self catheterize, and (2) needing an unscheduled 20 to 30 minute break to perform this procedure three or four times during the workday, I think that most vocational witnesses would conclude that the job base for individuals with these restrictions is extremely limited.

If I was advising J, I would provide SSA with evidence documenting the continuing limitations arising from the conditions that supported the original disability determination.  In addition to that, I would provide to Social Security information showing that a new condition with its own limitations has arisen and now creates additional impediments to work performance.

Have you faced a continuing disability review?  What were your experiences?  Do you agree with my response to J's questions?  Please use the comment box to add to this discussion.

Post from: Social Security Disability Blog

Should Approved Claimant Report New Medical Problems to Social Security During Continuing Disability Review?

–Mike

Jonathan Ginsberg responds: Mike, I think that Social Security expects claimants to pursue all reasonable courses of treatment.  This does not extend to invasive procedures (such as surgery), or therapy that involves powerful medications or treatments.  In my view, therefore, your refusal to continue with ECT treatments because of undesireable side effects would not be held against you.

I recall having this discussion with one of the judges in my local hearing office.  He gave me an example using his wife as an example.   The judge revealed to me that his wife had a bad case of hemorrhoids, which could be easily treated with a 30 minute outpatient procedure.  He indicated that if his wife was appearing before him claiming disability arising from pain associated with those hemorrhoids, he would want to know why she had not sought out such a readily available cure.

I think that this judge raised an interesting issue.  I think that a judge would be reversed by the Appeals Council if he denied a claim because a claimant refused open heart surgery or a spinal fusion because it is entirely reasonable to decline treatment that carries with it a risk of permanent damage or death.  I think that ECT treatments fall into this category.

On the other hand, I think that a judge would be justified in denying a claim for visual impairment if the claimant refused to wear glasses.

What about those cases where a claimant has moral or religious grounds to refuse treatment.  Would a diabetic who refuses insulin on religous grounds or because of a fear of needles get approved?  Would that hemorrhoid patient be denied because she feared any type of surgery, no matter how minor?

Judges are human beings and they expect that claimants will make a real effort to improve their health and rejoin the workforce.  Judges sense when claimants are trying to avoid work, so, in general, if you have refused treatment, I think you need to be prepared to give a legitimate reason why.

I also think that if you refuse treatment, you should not expect to stay at home waiting for your check.  Judges expect you to seek out whatever treatment you can handle and that you can afford.   In Mike's case, I think he is justified in refusing ECT because of the side effects, but I also think that he needs to continue with whatever other treatment has been prescribed – therapy, medications (if applicable), etc.  Even if some of those alternatives don't seem to be effective, it is important to build an on-going, long term medical treatment record.

Post from: Social Security Disability Blog

Will Social Security Penalize Me if I Refuse Electroconvulsive Treatment?

I recently was injured and now am a paraplegic.  Before my injury I was an airline pilot but can no longer fly because of my disability.  I am returning to school to learn a new profession.  My question is “Will accepting aid such as a position as a graduate assistant be considered gainful employment?”  Depending on which school I attend and which program I enter, I will receive a tuition waiver and a stipend of anywhere from $6000 to $20000 a year for working 10 to 20 hours a week.  It is a merit based program; the more competitive I am the more assistance I will receive for basically the exact same duties.  I definitely cannot afford to go to school if I lose my SSDI but would hate to attend a lesser school just to stay under Social Securities’ income limit.  Any information would be greatly appreciated.

Here are my thoughts:  as a paraplegic, you meet the disability listing at 11.04 or under any one of the muculoskeletal listings (Listing 1.00).  At this point, I would assume that medically, there is not a likelihood that you will regain function in your lower extremities, meaning that you will continue to meet the listing on an ongoing basis.

10 to 20 hours a week is not full time employment, although part time employment taken in combination with full or part time school is substantial gainful activity.  It is certainly possible that when your employer reports income to Social Security it will trigger Social Security to review your case.  If you were only working 10 to 20 hours a week, and not attending school, you could argue that your employment was not equal to substantial gainful activity.  If you are getting special accomodations at work because of your medical condition, It would be helpful to document those special considerations.

Taken in combination part time work and school looks like substantial gainful activity -  it would be difficult to argue otherwise.  So, I think that there is a risk that your earnings and college attendance could trigger a continuing disability review, however, I wonder how likely that you will face this.  Your eligibility for benefits is a function of your medical condition and your medical condition is not one that will improve.

The money issue is a separate issue.

You can have earnings and still collect SSDI.   If you earn less than $670 per month, no problem.  If you earn more than $670 in a given month, that month counts as a "trial work period."  You still get your regular benefit check, but you use up one of your 9 trial work period months.  You can also claim necessary expenses against your gross earnings, meaning that your gross can be more than $670.

After you use up your 9 months of trial work, then you move into the "extended period of disability" where SSA will look at your earnings on a month by month basis.

I think you need to look at the eligibility issue and the money issue as separate problems.  SSA does not publish a set "formula" that might tell you what level or earnings and/or activity can trigger a review. 

Post from: Social Security Disability Blog

Will Graduate Student Work Stipend Cause Paraplegic to Lose SSDI Benefits?

Jonathan Ginsberg responds: Valerie, the answer to your question can be found in SSA publication 05-10003. Basically it provides that for 2005, you can earn $830 per month without being considered “substantial gainful activity” ($860 per month for 2006). If you have never tried to work before you have a 9 month “trial work period” where you keep your benefits no matter what you earn. If you earn less than $590 per month ($620 for 2006) it does not count as one of the 9 trial work period months. You must report all earnings to Social Security. You can call your local SSA office or SSA’s national number -800-772-1213.

Post from: Social Security Disability Blog

What are the rules for my trial work period?