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

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.

While the Social Security disability program is meant for those are going to be long-term disabled from working, as a Social Security lawyer handling disability claims and appeals throughout Massachusetts, New Hampshire and Maine, we’re many times asked what one should do once they’ve just gone out of work from a disabling condition and it simply remains unclear if  they will remain longer term disabled from working.  There are a number of suggestions we provide to our potential clients.\

First and foremost, if you work for a company that employs more than 50 workers, you may be entitled to the protections of the Family Medical Leave Act (assuming you have worked for the company more than 12 month, and you have worked more than 1250 hours in the 12 months prior to becoming disabled). Assuming this is the case, you may be entitled to the protections afforded under FMLA, which include the ability to take up to 12 weeks of unpaid leave during a 12 month period to attend to any serious health condition you may have: thus protecting your job in the event you do recover so as to be able to return to work.

Two, you may be entitled to recover ongoing lost wage benefits under the terms of a short term disability policy, or if you have suffered a work-related injury, under the workers’ compensation laws of your state for indemnity (or lost wage benefits).    Most short term disability policies only run for a period of 3 to 5 months and provide a standard that is much easier than the Social Security laws when attempting to receive such a monthly benefit, only requiring one to prove that they currently remain totally disabled from performing the usual and customary duties of their ordinary occupation (rather than the need, under Social Security’s rules, that one remain totally disabled from performing all forms of gainful employment for what has been or is expected to be a year or longer).

As a Social Security lawyer handling the Reconsideration process in Maine and Massachusetts (New Hampshire remains a pilot project state where a claimant goes directly to hearing), it is difficult to inform our clients of the low chance of success at the reconsideration level.  However, the work to be undertaken at this level is just as important as the initial application level and can pave the way for a smooth hearing down the road (which is the likely eventuality if one has been denied initially, whether it be in Maine, Massachusetts or New Hampshire). Continue Reading ›

We face the same question, on a daily basis, from our prospective Maine Social Security disability clients: I have been disabled from working for a number of months, and, prior to contacting your office, I filed a disability claim.  I have since been denied.  Would you recommend that we appeal this denial at this time?  Will you assist with our appeal?

Continue Reading ›

In our prior blog entry, we began explaining the most common reasons claimants face denials of their Social Security disability claims, whether it be at the initial, reconsideration or at the hearing level claim level.  Understanding why such denials occur can occur will hopefully help you or a loved one from making the same mistakes.

Yet, another common reason for a denial of one’s claim is the misconception many disability claimants have that if in fact one remains incapable of performing their past work that there should be automatic entitlement to Social Security disability benefits.  While for those individuals over the age of 50, the Social Security Grid Rules do provide a basis for disability for those who have worked labor intensive jobs over the course of their lifetime, can no longer perform such jobs anymore given the  physical limitations they experience resulting from their long-term medical conditions and have no transferable skills that would allow them to return to other, less physical positions, the Grid Rules do not provide such a basis for disability for those who have yet to reach the age of 50.   Generally, the Social Security Administration (SSA) will look to see whether an individual remains capable of returning to some other manner of employment for which they are reasonably suited by their age, education and experience.  With this in mind, we many times find ourselves in the position of having to advise potential disability claimants as to other types of jobs that they may be expected to look into obtaining and working.   Many times, this advice can be the best advice a Social Security lawyer can provide you.

Many times, upon getting involved in a claim that has been denied by SSA, we will find that SSA did not obtain all of the relevant medical evidence.  There are a number of reasons as to why this may have taken place: it is quite common to see that our claimants may have forgotten to provide a complete treatment history: whether it be in their initial application, or on reconsideration: they may have forgotten to list a specialist they were sent to see by their primary care physician, or perhaps a physical therapy department with whom they may have treated for a period of time.  Without providing such information, SSA will not be in a position to obtain the medical records from all of your providers and, even if you have provided all of your treatment history to SSA, you may find that they have failed to obtain all of the medical evidence.  Each state has a designated state agency that is responsible for working up the medical record and for evaluating the medical evidence as part of making a decision: in Maine, Massachusetts and New Hampshire the agency is called Disability Determination Services.  In order for them to do their job properly, it’s essential that your application and appeals forms are filled out completely.

As a practicing Social Security disability lawyer in Maine, Massachusetts and New Hampshire for the past 27 years, I have had an opportunity to review thousands (1000’s) of disability claims during this time.  I have found that there are a number of common themes that arise over and over again as to why claimants are denied their claims, whether it be at the initial level, on reconsideration, or at the hearing level.  Understanding the pitfalls one may face with their claim can help you avoid these common mistakes. Continue Reading ›

One of the frequent questions our office receives from claimants we represent in their Social Security disability and Supplemental Security Income claims.  First and foremost, the answer every lawyer or claims representative should be providing to their claimant is a resounding yes.  One should always attempt to work if they have that option: whether you’re in the initial stages of filing a Social Security claim or about to appear before an Administrative Law Judge (ALJ).  Unfortunately, I see that some representatives are not as clear when answering that question and I believe it provides both confusion and, down the road, what could be huge disappointment to their client if they are not provided with a complete sense as to how a return to work can prove to be a win-win proposition. Continue Reading ›

Our office routinely represents claimants who are suffering from the severe effects of Irritable Bowel Syndrome (IBS), Crohn’s Disease and Colitis related claims and have assisted the vast majority of these clients with obtaining favorable decisions in their cases.  If properly documented and presented, these claims are well-recognized and thoughtfully considered by the Administrative Law Judges we routinely appear in front of out of Maine, Massachusetts and New Hampshire.  Having a knowledgeable and experienced Social Security disability lawyer from the very beginning can assist you in ensuring your case is properly presented for consideration.  Understanding Social Security’s rules and regulations  is important to an understanding as to how one’s claim should be documented so as to ensure a successful conclusion. Continue Reading ›

Social Security disability benefits provides essential cash assistance to those who remain no longer able to work as a result of a disabling condition.  Many individuals are not aware when they contact our office how they can go about getting the advice and assistance they need to move forward with an application and, by doing so, increase the odds of getting a favorable decision in their case.  Continue Reading ›

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