Articles Posted in Considerations for Claimants as They Proceed with an Application

It is extremely common for individuals applying for Social Security disability benefits to be experiencing problems with chronic pain, as one might imagine.  There are a panoply of medical conditions that could the cause of such symptoms, whether it’s from a degenerative disk disease in one’s back or neck, or, for example, from diabetic neuropathy that might cause excruciating, burning nerve pain in one’s feet.

The problem arises, however, where an individual is continuing to experience chronic pain and there is no easy offender at which to point the finger.   Chronic pain can arise from any one of a number of reasons and pointing to a diagnosed medical condition as the culprit may not be so easy.   It is important to understand that the inability to point to a medical condition as causing the impairment may end up proving somewhat problematic with a potential Social Security disability claim.

The Social Security Administration is required to undertake a five (5) step sequential evaluation process, which process is set forth by the Social Security regulations.  Step 1 requires that an individual is not gainfully employed.  Step 2 requires that a disability claimant is suffering from what is deemed to be a severe medically determinable impairment: an impairment is deemed to be “non-severe” if it does not significantly impact one’s ability to undertake basic physical or mental ability to do basic work-related functions. Continue reading

To those who do not practice Social Security disability law, the acronym DLI (which stands for “Date Last Insured”) does not mean much. However, if you are looking into applying for Social Security disability insurance (SSDI) benefits, understanding this term and knowing its importance can prove critical.

The Social Security regulations require, in order for one to collect a Social Security disability check that you be “insured” for benefits. Much like one needs to pay a premium for car or health insurance in order to be insured, in the event you are in an accident or incur a medical bill, one needs to be insured at the point in time one becomes disabled from working.   One’s DLI is the last day a disability claimant (who is claiming a disability other than blindness) meets the “insured” requirement for the disability program.

The Social Security Administration (SSA) will look to see if you have earned sufficient “quarters of coverage” (QOC) much in the way an insurance carrier would look to see if you’ve paid a premium in order to have coverage.   One earns a “quarter of coverage” or a “credit” based on ones Social Security taxed earnings in a particular year.  In 2017, a quarter of coverage or a credit is earned for each $1300.00  in Social Security taxed earnings you have posted to your Social Security record.  Thus, by working for an employer who has paid you $5200.00  (or by claiming a net profit of $5200.00 as a self-employed individual) during the course of 2017, you will accrue 4 quarters of coverage.   Continue reading

One of the most typical misunderstood requirements for purposes of establishing a Social Security Disability claim is the duration requirement.  The Social Security Act and its corresponding regulations require that one prove they are suffering from a severe medical impairment that has lasted or or expected to last 12 months or longer, or result in death.   This provision has been interpreted quite strictly, and for anybody who is considering an application for Social Security disability benefits, it’s important to pay heed to this rule or a denial is very likely to follow.

The Social Security Act defines a “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”   42 U.S.C. §(d)(1)(A).    It is important to recognize that the language of the statute is meant to exclude from entitlement conditions those conditions which are of shorter term duration, and which will allow one to return to work within a matter of months.  For example, while having back surgery (even a multilevel fusion) may constitute a severe impairment which will cause one to be out of work for a stretch of time, most such surgeries would not anticipate a recovery time of a year or longer.

The more difficult type of situation comes about with conditions that may have periods of remission (with, for example, periods of exacerbation) which require you to remain out of work for stretches of time but might allow for returns to work for stretches of time.   In such a circumstance, one may still be able to reach the duration requirement of a year or longer by establishing that the attempts to return to work are what are deemed to be unsuccessful work attempts: this is something an experienced Social Security disability lawyer will be able to evaluate for you. Continue reading

And so for years you’ve been struggling with a bad back or with stiff hands that have more and more difficult to function at work.  You’ve gotten to the point where your employer is  no longer able to accommodate your missed days missed from work, or the slow down in your production.   You may be one of those individuals that just hates going to the doctor.

Or, you may be one those individuals that’s been going to the neighborhood chiropractor for years: he treats you week after week, telling you that you have what he believes to be severe arthritis of your back or a case of degenerative disk disease and lumbar radiculopathy.  He or she suggests that  you  to go ahead and apply for Social Security disability benefits (and that they’ll be supportive of your claim).

Unfortunately, the denial comes back from the Social Security Administration (SSA) in short order and it is now time to call the lawyer to see what can be done.   This is all too familiar a scenario in our office.  Whether it’s because health insurance has been an issue, or simply because someone doesn’t believe in doctors and they can tough it out (or, perhaps, because it’s difficult to find a doctor to treat your condition in your area): too many times we’re hearing from claimants who are wondering why their severe symptoms are simply not being listened to by SSA. Continue reading

As you can well imagine, having handled 1000’s of Social Security disability claims for 27 years out of Maine, Massachusetts and New Hampshire, it has not been unusual for our office to face the very difficult prospect that a client passes away before we’ve been able to prevail to hearing in their case and recover the past due benefits to which they are entitled.  In many circumstances this doesn’t have to meant the end to their case:  in many such cases, we have been able to pursue the claim to a successful conclusion.   There are vast differences between how matters work for purposes of the Title II or Social Security Disability Insurance program (which is based on an individual’s earnings record) and Title XVI or the Supplemental Security Income (which is a welfare, needs based program), which we’ll set out below.

First and foremost, should one pass away while pursuing a Social Security disability claim, the first matter that will need to take place is what’s called a Substitution of Parties, which allows for what is deemed by the Social Security Administration (SSA) to be the next of kin for purposes of who may proceed with the case (and with reference to who may be entitled to receive the past due benefits that are payable up to the date of the claimant’s death).  The SSA requires that an SSA HA-539 Substitution of Parties form be filled out and that a death certificate accompany the form.

With respect to the substitution of parties, the regulations spell out the following order of eligibility: 1) to the spouse (if living in the household at the time of death or if entitled to a monthly benefit under the deceased’s earning’s record) at the time of death, 2) to any children entitled to receipt of  a monthly benefit at the time of the claimant’s death, 3) to the parent/parents entitled to receipt of a monthly benefit on the earnings record at the time of the claimant’s death, 4) to a spouse who does not meet the requirements listed option one, 5) to any children who do not meet the requirements of option 2 and 6) to any parent who does not meet the requirements of section three and 7) to the representative of the claimant’s estate.   The SSI substitution of parties rule is much stricter, given the nature of the benefit (being a welfare check, and with no dependent/family entitlement available under this program): the claim may only be pursued by the claimant’s spouse (assuming they were living in the same household as the claimant as of the date of death or during the preceding 6 months claim).  Assuming the claimant is a disabled child for purposes of an SSI claim, a substitution of party in the form of a parent who was living in the same household as the child at the time of death or during the 6 months preceding death would be the only appropriate option.  Assuming there exists an interim assistance agreement requiring repayment out of the recovery of SSI benefits, a case pending at the hearing level before an Administrative Law Judge (ALJ) may still proceed.  Likewise, while a spouse or the governmental entity holding an interim reimbursement lien interest may be the only ones entitled to recover financially in an SSI claim, it may be beneficial for the spouse to pursue the SSI claim for purposes of a favorable decision so as to allow for automatic entitlement to Medicaid  (Mainecare in Maine, Medicaid in NH and Mass Health in Massachusetts).

The Social Security disability system is meant to assist those who remain long-term disabled for a year or longer.  While we many times focus on what is required to prove entitlement from a medical standpoint, we many times encounter potential clients who are seeking benefits for a long term disabling condition but do not meet the additional requirements to meet either the Social Security disability insurance (SSDI or Title II) or Supplemental Security Income (SSI) requirements.  Below is a story of one such individual who recently contacted our office to determine why they were having a problem collecting a benefit.

Janice is a woman in her late 50’s from New Hampshire who has been suffering from a multiple chemical sensitivity disorder for many years which has hindered her ability to go out in public given the impact the fumes of various chemicals will have on her breathing (and which will otherwise cause her to become quite ill).  She worked for a number of years as a school bus driver until such time as the fumes from the bus itself became problematic for her.

Janice has seen a number of specialists at some of the most well-known and well-respected medical centers in Massachusetts and New Hampshire for her condition.   She has remained aggressive and persistent with her treatment.   Notwithstanding this fact, she has not been able to find any answers that have allowed her to return to work.

When pursuing a Social Security disability claim, it is important to understand that the disability determination process is not a perfect one. The majority of individuals are denied on their initial application, and, at the end of the appeals process, only 1 in 3 are ultimately approved for receipt of disability benefits.   When a claimant receives a partially favorable decision of their claim, which is not entirely uncommon, there are some very important considerations to take into account before deciding whether you should appeal that decision.  A wrong decision can prove to be devastating.

Receiving a partially favorable decision typically involves receiving a decision that means the Social Security Administration (SSA) has found you are “disabled” as that term is defined under Social Security’s rules, but that you are being found disabled with an onset date different than the one you alleged on your application for benefits.    For a Social Security disability lawyer, properly advising a claimant as to whether to appeal that decision is not always an easy one.

Initially, it may be clear that because of the need to show that one has remained disabled from a “severe medically determinable impairment” that either has met a medical listing of impairment or had remained severe and disabling such that the individual will remain disabled from all forms of gainful employment for what will be or what has been a year or longer (or is likely to result in death) that either the condition was not diagnosed or treated until a later point in time (and so the proof of the condition simply does not exist at an earlier time).  This may make the decision whether to appeal much easier.

As we were discussing during our last blog post, Maine, Massachusetts and New Hampshire Social Security disability applicants are facing new evidence rules beginning March 27, 2017 that will  effect the manner by which the Social Security Administration reviews medical opinions from one’s medical treatment providers.    In addition, it is important that disabled Veterans who have been found disabled by the Veteran’s Administration and who may be considering applying for Social Security disability benefits, will likewise see a change in these rules that will adversely impact their Social Security disability application.

For many years, the Social Security regulations provided that acceptable medical sources (which were determined to be the only providers sufficiently skilled and educated enough to establish one’s medical impairments) were limited to the following medical providers: licensed physicians (medical or osteopathic doctors), licensed or certified psychologists (including school psychologists, or other licensed or certified individuals with other titles who perform the same function as a school psychologist in a school setting, for purposes of establishing intellectual disability, learning disabilities, and borderline intellectual functioning only), licensed optometrists, licensed podiatrists and qualified speech pathologists.   The revised regulations, which will apply to claims filed on March 27, 2017, reflects the understanding that the medical provider landscape has changed dramatically over the course of the last few decades as a result of the managed care rules set forth by one’s insurance.

It has become more difficult over the years to see an actual doctor, and medical care is many times left to nurses or physician’s assistants: we see  this especially in the more rural areas of Maine, Massachusetts and New Hampshire, where finding a doctor that will see you is almost impossible unless you require urgent medical care.   This new reality in medical delivery, while somewhat acknowledged by the newly promulgated regulations, does not receive its full due and will leave many patients/claimants wondering why their medical provider is deemed capable enough of treating their condition but incapable of expressing an opinion that will carry much weight with the Social Security Administration.

Whether you’re a Social Security disability applicant in Maine, Massachusetts or New Hampshire, you will soon face new rules that govern the way in which your disability claim will be evaluated.  While some of the rules will be helpful, there are some changes that may prove to be quite harmful to those who initiate a claim on or after March 27, 2017.  We’ll attempt to provide you an overview of the new rules to you understand how these new rules may impact your particular case.

The Social Security rules and regulations have since 1991 reflected an understanding that the opinions of one’s treating physician will generally be provided what is deemed to be “controlling weight” assuming the opinion “is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.”  20 C.F.R. §404.1527.   Newly promulgated Social Security regulation 20 C.F.R. § 404.1520c specifically puts an end to the preference that has been given to treating source opinions, and will potentially create new concerns for Social Security lawyers such as ourselves practicing throughout ME, MA and NH.  Instead, the new regulations make clear that a treating source may not be given more weight than the opinions of let’s say a consultative examiner who treats the claimant only on 1 occasion, or for that matter, the opinions of a medical consultant who has never examined you before (and is simply reviewing the written record).

The Social Security Administration (SSA) will now determine how persuasive  a medical opinion is by utilizing as the most important factors for consideration: 1) how “supportable” the opinion is and 2)  how “consistent” it is with other evidence in the record.  While these are deemed to be the most significant factors for consideration, another factors for consideration is noted to be the 3) the relationship with the claimant, which includes within this factor for consideration, the following additional considerations: the length of the treatment relationship, the frequency of the examinations, the purpose of the treatment relationship, the extent of the treatment relationship (which would include the nature and extent of the examinations and testing that has been undertaken by the treatment provider) and the examining relationship (with the additional commentary that “a medical source may have a better understanding of your impairment(s) if he or she examines you than if the medical source only reviews evidence in your folder.”  A 4th consideration is whether the medical opinion is from a provider who is in fact a specialist.

With the coming of 2017, and what we hope will be a Happy New Year to all, come changes to both those who are receiving Social Security disability (SSDI) and/or Supplemental Security Income (SSI) benefits and those who plan on applying for such benefits this year.  Whether you reside in Maine, Massachusetts or New Hampshire, as this is a federal program, the changes I am outlining below will apply to each of you.

First and foremost is a change to one’s benefit rate given the increase in the Consumer Price Index (CPI-W) from the third quarter of 2014 through the third quarter of 2016.  Based on these figures, an Cost of Living Adjustment (COLA) in the amount of .3 will be applied to your benefit check in 2017.   Thus, if you were receiving $1000.00 per month previously in SSDI benefits, you should see an increase in your monthly check to $1003.00.  Likewise, the Federal standard payment for SSI recipients has been increased from $733.00 per month for individuals to $735.00.   A corresponding increase has been made for the SSI limit for couples (to $1103.00).    The resource limitations for 2017 for SSI entitlement has remained the same for 2017: the resource (asset) limitation has remained the same for 2017 as it was in 2016: $2000.00 for individuals and $3000.00 for couples.

For those who are attempting to determine whether you remain disabled from performing gainful wages, it is important to note that the standard for substantial gainful activity (SGA) has been raised from $1130.00 per month to $1170.00 per month (while the standard for those who are applying based on blindness, the monthly amount has been increased from $1820.00 per month to $1950.00 per month).  Thus, if applying for Social Security disability or SSI benefits, the Social Security Administration (SSA) will be looking to see if you remain capable of earning simply $1170.00 per month on a regular and continuing basis.    It is important to remember, as we’ve discussed previously, SSA will not be looking to see necessarily whether you are actually undertaking SGA level earnings, but whether you remain capable of performing such work on a regular and continuing basis.  Assuming one is making SGA level earnings at the time of their application, however, this would be a basis for a denial of one’s claim at step 1 of the sequential evaluation process.