Articles Posted in The Basics of Social Security Disability Law

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

And so now you’ve been provided with your upcoming hearing date and time and you have no idea what to expect.  In part II, we’ll attempt to make you feel comfortable about the hearing process itself and what you should expect on the day of your hearing.

You can expect you’ll be provided advanced notice of your hearing before an administrative law judge (ALJ) at least 75 days in advance. Ordinarily, 3-4 days prior to the hearing you’ll receive a recorded message explaining that you should show up to the hearing an hour in advance.  It will be important to read carefully the notice of hearing you’ve been provided in the mail months in advance as it will contain important information such as where and when the hearing will be held, the items you should bring (such as a picture ID)  and what issues will be addressed at hearing.

Upon arrival at the hearing office, you can expect to be met by a security guard who will check you in and will scan you for weapons.  With this in mind, be sure not to bring with you anything that can be construed as a weapon: whether it be mace, a pocket knife or even needles you might require for your diabetes condition (leave this in your car, and should you need to test your sugars, plan on doing this outside of the hearing office location).

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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

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.

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.

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