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When proceeding with a Social Security disability claim or appeal, one of the most important considerations moving forward is whether your treating physician understands the seriousness of your medical conditions and the extent to which your problems are impacting your ability to function (both in and out of the home).  Ultimately, it’s important that your treatment providers are willing and able to express in a meaningful manner to the Social Security Administration (SSA) he nature and severity of your medical conditions and the extent to which you would be impacted in terms of your ability to function in a work site.

As part of the five (5) step sequential evaluation process, it is first necessary to establish that one is suffering from a medically determinable to severe impairment before SSA will next determine what symptoms could reasonably be expected to follow from such medically determinable impairments.  At that point, the Social Security regulations   require that the agency determine the persistence and severity of one’s symptoms and the manner in which it impacts one’s ability to function in a work setting.  This requires a determination of one’s Residual Functional Capacity, which is defined by the regulations as the most one can do despite their physical and mental limitations.

The Social Security regulations, for claims filed prior to March 27, 2017, provided that treating source opinions (which would include the opinions of one’s medical doctors) would carry controlling weight assuming that the  opinions were supported by the  not inconsistent with the treatment records of the provider.  Amendments made to the Social Security regulations  provide that for those claims filed on or after March 27, 2017, controlling weight will not be provided to the opinions of a treating source (such as one’s primary care physician, psychiatrist or surgeon).  Rather, their opinions will be evaluated along side those of non-treating sources using the same set of factors that have now been outlines at 20 C.F.R. 1520(c).  Medical sources have now been expanded to include that of licensed physician assistants, with respect evaluation of impairments that fall into their licensed scope of practice and for licensed advanced practice nurses, and yet the opinions of your own providers may no longer be presumed to carry more weight than one of Social Security’s providers that may be asked to see you.  Continue reading

The issue of substance abuse can come up in a variety of ways as part of a Social Security disability claim.  It might be a circumstance, very routine in this day and age, where somebody is taking too much of their narcotic medication.  Or, one might be taking medications that their friend or relative has suggested they try.  And then, there’s the very common scenario seen by our office where an individual is smoking marijuana or drinking alcohol in order to help them sleep at night.

Each of above scenarios can serve to derail a Social Security disability claim.  Understanding Social Security’s rules can help avoid the pitfalls we many times see individuals face as a result of the use of substances either not prescribed or in a manner that was not provided for by their physician(s).

There are two (2) provisions to keep in mind when considering an application for Social Security disability benefits.  20. C.F.R. §404.1530 provides that the Social Security Administration (SSA) will not find a claimant disabled if they, without good reason, fail to follow prescribed treatment.  Likewise, the Social Security Act additionally provides that one cannot be found entitled to benefits if in fact drug addiction or alcoholism is found to be a “contributing factor material to the determination of disability.”  

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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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You’ve filed your Request for Hearing and now you’re playing the waiting game, wondering what to expect next in your Social Security disability claim.   Whether you’re in Maine, Massachusetts or New Hampshire, the wait can be a long one.  In part 1 of this blog entry we’ll fill you in as to what you can expect.  In part 2, we’ll make sure you understand soup to nuts what to expect on the day of your hearing.

First and foremost, it’s important to understand that whether you request a hearing following an initial denial letter out of New Hampshire, or a reconsideration denial out of Maine or Massachusetts, the hearing itself will not take place soon.  The likely wait for a hearing is in the neighborhood of what can be anywhere from 8 to 12 months with the Massachusetts and New Hampshire hearing offices (although some hearings out of the Portland, Maine hearing office are still taking up to 14 months).    Soon after you file your request for hearing (within ordinarily 2-4 weeks of filing your request for hearing) , you will receive a letter from Office of Disability Adjudication and Review (ODAR) acknowledging the hearing office’s receipt of your file.

The initial letter from the hearing office will inform you that you will be notified as to the time and place of your hearing at least 75 days in advance of the hearing. Likewise, the letter will explain to you that in some circumstances your case can be heard more quickly and efficiently by way of  videoteleconference or what is termed a VTC hearing.   Should you agree to proceed by way of VTC, this  will mean that your case will not be heard in person before an Administrative Law Judge (ALJ).  Instead, you will appear in front of a judge by way of a video camera, much in the same way that those charged with a crime and held in jail, might make a preliminary appearance before a judge for purposes of bail.     While this process may be an expeditious one for the Social Security Administration’s  (SSA’s) purpose, as they can assign and schedule cases before judges that are in other parts of the country that might not be as busy and can hear the case more quickly, this process is quite impersonal as you can well imagine.  This is not to mention the fact that if your attorney is being asked to prepare before a judge with whom he has no familiarity, this may put your attorney and you at a disadvantage.   You will be provided with only twenty (20) days to Object to Proceeding by way of VTC and so you do not want to miss this deadline.  Our office always objects.  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 we were discussing in part I, there are a multitude of considerations individuals need to take into account following the receipt of a favorable decision.  One of the more important considerations is how one will be able to remain in treatment and what health insurance will be covering your treatment as you move forward.

Medicare insurance entitlement (just like a senior citizen who has reached  retirement age) is available once one has been collecting Social Security Disability Insurance (SSDI) for a period of 24 months (in their 25th month of eligibility to a check).   Accepting Medicare is not required (even though one may see the premium automatically taken out: this can be cancelled with a simple phone call).   However, foregoing Medicare during this enrollment period can result in an increased cost should one choose to enroll at a later date.  If one is already receiving state Medicaid (referred to as Mainecare in Maine, MassHealth in Massachusetts and simply Medicaid in New Hampshire), one may be entitled to apply with their local Department of Human Services office or, in Massachusetts, the Department of Transitional Assistance, so as to request that the State pay the Medicare premium.  In this way, one can have both Medicare and Medicaid health insurance, with the state picking up the tab for both: in this way, Medicare pays first and Medicaid becomes secondary insurance.

Should, however, one lose their Medicaid upon receipt of a favorable decision (which happens if one’s monthly entitlement to SSDI is too high), another health insurance option available is through the Affordable Care Act (ACA),  otherwise known as Obamacare.   The discontinuance of Medicaid as a result of one’s SSDI income would be considered a qualifying event, allowing for enrollment at that time for ACA insurance.

Now that you’ve made it through the process of applying for Social Security disability benefits, it’s important to understand the steps that will take place following the receipt of a favorable decision.   Understanding the procedures which follow can help ensure there are no unexpected surprises down the road and that you are aware of all of the benefits, as well as options, available to you.

If your favorable decision is on your initial application or on reconsideration (in Maine and Massachusetts only, as New Hampshire does not have a reconsideration process and an appeal proceeds directly to hearing),  especially if the claim involves Social Security disability insurance (SSDI) alone with no corresponding Supplemental Security Income (SSI) claim,  it is very common to see that the funds will arrive first by way of direct deposit to your bank account even prior to the receipt of a written decision in your case.   In such a circumstance, the initial or reconsideration decision may be in the form a notice of award  (with no separate notice explaining that there has been a favorable decision) that will come within a week of the funds.

Assuming there are concurrent claims for both Social Security disability insurance and Supplemental Security Income, one will see that their local Social Security office will need to process the SSI claim first (given it’s a welfare claim and, thus, given priority) and may need to set up what is referred to as a pre-effectuation review conference (called a PERC by the local offices) to go over your income and assets during the time period at issue for your SSI claim so as to determine entitlement.  In such a circumstance, it can take a number of months for both the SSI and SSDI amounts to be properly determined given a multi-step process that takes place: 1) the SSI claim is processed first (blind to the amount of SSDI entitlement one may ultimately be determined to be entitled to receive) with an initial payment going out to the claimant, 2) the SSDI is determined but withheld until such time as a redetermination of the SSI entitlement can take place and 3) any overpayment is then deducted from the withheld retroactive SSDI benefits before issuance of a final payment can be made.