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Category Archives for Starting the disability process

Can Child Claim Auxiliary Benefits if Disabled Parent Refuses to Apply?

I regularly receive questions about auxiliary Social Security disability benefits.   Often these questions are from divorced persons who are struggling with the cost of raising a child, while the disabled, non-custodial parent has not been cooperative with regard to auxiliary benefits.

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. Continue reading →

How Can Waiting to Apply for Benefits Cost You Money?

Recently, I came across a very relevant blog post written by New York Social Security disability lawyer Lew Insler entitled Waiting to Apply for Social Security Disability Can Cost You Money.  Attorney Insler comments “I still don’t understand why some people wait years before even filing their claims. Not only do claimants lose out on years of potential benefits, but the longer a person waits to apply, the harder it may be to obtain the medical records necessary to show disability while they are still covered for benefits.

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. Continue reading →

Q & A: Do I qualify for SSDI?

I have selected some questions that have recently been asked of me that I believe cover some more elusive topics related to Social Security Disability that I believe are worth discussing on this blog. This first topic, while not necessarily as elusive as the others – which I will post weekly as a Q & A series – is a good start since it involves a person who is just starting to explore the world of Social Security Disability. Someone with recent injuries poses the following Question:

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 broken leg resulting from car accidentcontinuous 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.

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. Continue reading →

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.

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