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.

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

As we discussed in our prior blog entry, there are a number of issues to remain vigilant about following the receipt of a favorable Social Security decision.  As was mentioned, periodic reviews will take place as to whether an individual remains disabled (and thus remaining in consistent and zealous treatment with your providers is important to document how one remains disabled).  Likewise, providing updated records of one’s earnings should you be able to return to work is important so that the Social Security Administration (SSA) can keep track of the extent to which you use up Trial Work Period months.  In this blog entry, we’ll continue our discussion on how the failure to report income and/or assets to SSA following the receipt of a favorable decision can have very serious consequences. Continue reading

While prevailing in your Social Security disability claim may be a huge relief, it is important to remember that there are certain obligations one continues to have with the Social Security Administration (SSA).  Likewise, there are a number of considerations one needs to take place moving forward to ensure that one does not experience a problem down the road with SSA.   With that in mind, we’ve made a checklist to assist you.  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?

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