by SSD | Jun 7, 2020 | Disability Lawyers
Social Security Disability back benefits can be a complicated and confusing topic
The rules are confusing and differ depending on the type of benefit awarded. For instance, there are different rules regarding back benefits for Social Security Disability and SSI.
The rules are frequently called arbitrary and without reason. Often, this is true. Many of the guidelines and regulations for determining back benefits are outdated, but they are still valid.
Back benefits are unpaid money the government owes for the period of time the claimant was disabled but wasn’t receiving benefits due to the length of the application process
Example:
Joe applies for SSI in January. In March, Social Security finds that he is disabled and has been since January. His monthly check is $1000, and he receives his first one on March 2nd. Social Security still owes him $2000 in back benefits because he wasn’t paid for the months of January and February.
SSI will only pay as of the date of the application and not before provided prior applications aren’t subject to reopening
Example:
Joe applies for SSI in January. In March, Social Security finds he has been disabled for ten years. Joe receives his first of monthly checks on March 2nd for $1000. How much is he owed in back benefits? $2000 because the furthest Social Security will go back in an SSI application is to the date of the application. It doesn’t matter that he was found disabled for the past ten years.
There is another rule that states Social Security subtracts the first five months of disability benefits
Provided there aren’t prior applications being reopened, the furthest back Social Security will go when paying back benefits is a year behind the application date, but this rule is deceiving. There is another rule that states Social Security subtracts the first five months of disability benefits.
Example:
Joe applies for SSDI (Social Security Disability) on January 1, 2020 saying he has been disabled since January 1, 2019. Social Security agrees, and on January 2, 2020, they award Joe SSDI as of January 1, 2019. His benefits should be $1000 a month. Joe should receive back benefits as of January 2019, right? WRONG! The five-month rule controls. Joe would receive back benefits as of June 2019 because January through May will be subject to the five-month rule deduction.
Benefits can also be subject to offsets
Social Security Disability can be offset by state disability or worker’s compensation. Often, this will eliminate any back benefits.
Example:
Joe applies for SSDI (Social Security Disability) on January 1, 2020 saying he has been disabled since January 1, 2019. Social Security agrees, and on January 2, 2020, they award Joe SSDI as of January 1, 2019. His benefits should be $1000 a month. Joe received $1000 from state disability the entire year of 2019, but not any month of the year 2020. Joe would receive virtually nothing in back benefits due to the state disability amounts being subtracted from his social security disability.
Benefits can be offset by just about anything. The most common offset isn’t actual income, but lodging
Social Security expects an applicant to pay rent with the benefit. If a friend or relative of the applicant gives him or her a free place to live, Social Security will deduct 1/3 of the benefits, including back benefits. If, however, the friend or relative expects to get reimbursed for rent that hasn’t been paid during the application period, then social security might not make the 1/3 deduction.
SSI also has an asset cap. Excessive assets will cancel out any benefits, future or back. If an applicant is married, Social Security will allow you up to $3000 in assets, not including one house and one car. If the applicant exceeds $3,000 in assets, Social Security will not allow him or her to receive benefits. If the applicant is single, the asset cap becomes
$2000, but the same rules apply.
The key is to have the right lawyer.
Need help? Get in touch for a free consultation.
by SSD | Jun 5, 2020 | Disability Lawyers
How has coronavirus affected disability benefits?
In this current age of the coronavirus, questions of disability are bound to come up. Those affected will ask, “am I disabled based on the coronavirus?” They will also wonder, “how will the coronavirus affect those who are already applying for social security disability and SSI benefits?”
According to most sources, an adult below 60 who is in good health should be able to make a full recovery from the coronavirus. The infection period is not expected to last a year. In order for a condition to be considered disabling, it must have a duration of no less than a year. Therefore, in most instances, the coronavirus would not lead to being disabled under the law.
However, for people who are already suffering from medical conditions, the Coronavirus can push them into disability
territory.
This applies most obviously to those with breathing or lung conditions. People with asthma, COPD, lung cancer, or other breathing disorder can have their conditions permanently aggravated by the coronavirus. The coronavirus can work its way into an already compromised pulmonary system and cause havoc. If a person with a breathing condition wasn’t disabled before they contracted the coronavirus, he or she might be disabled after the damage has already taken place.
Any disorder that compromises the immune system can be at the mercy of the coronavirus
This theory doesn’t solely apply to breathing disorders. Any disorder that compromises the immune system can be at the mercy of the coronavirus and, with the combination, make the victim eligible for Social Security Disability. People who recovered from cancer, but underwent chemotherapy or radiation, are particularly susceptible to permanent damage that could be caused by the coronavirus.
Priority one: Stay safe and away from those that may be infected.
Those that currently have immune system compromising disorders are probably the most at risk.
People Who have HIV or cancer can be thrown over a medical cliff because of corona.
If you become disabled, be sure to hire an attorney who specializes in Social Security disability-related matters.
The key is to have the right lawyer.
by SSD | May 28, 2020 | Disability Lawyers
Often the term “permanent disability” is used to describe social security disability or SSI. This term is misleading.
If social security issues a favorable decision and grants disability benefits, they still have the power to cut off the benefits at any time should they find good cause. Usually, this occurs when social security believes the disabled individual is no longer disabled due to “medical improvement.”
Medical improvement is what it describes. The health of the claimant, who was disabled, has improved to the point where they can work. As of recently, Social Security has been finding medical improvement in large amounts of cases. When this happens, disability benefits will be cut off.
A series of steps occur before disability benefits are terminated.
The first step is the “disability determination under review” letter. The letter notifies the disabled individual social security will be reconsidering the disability status of the claimant. This letter will ask the claimant to provide any evidence of continuing disability. Evidence usually comes in the form of medical records.
More often than not, most redeterminations find medical improvement and terminate disability benefits.
After the “disability determination under review” letter will come notifying the claimant of termination of benefits. Of course, the claimant has the opportunity to appeal. There is, however, always a catch. The appeal within ten days of the termination letter if the claimant wants to remain on benefits during the processing time. If social security denies the appeal, the claimant will owe back any monies received during the appellate period.
If the ten days expire, Social Security will terminate the benefits. An appeal can still be filed if done within 60 days of the termination notice. Still, the disability benefits will cease until social security makes a finding of disability. If Social Security makes a finding of disability based on the appeal, the claimant will be due all benefits not paid during the appellate period.
The key is to have the right lawyer.
by SSD - SSI Appeal Lawyer | Jan 10, 2020 | Disability Lawyers
Attorneys in the Social Security disability work on a “contingency basis.
Contingency means the attorney will only get paid if the claimant is successful in being granted disability benefits. If the case is lost, the claimant will not have to pay a dime to the attorney.
There is nothing to lose by hiring an attorney to handle a claim for Social Security Disability benefits or SSI benefits, but everything to gain. An attorney knows law and courts. Often the knowledge is the difference between winning and losing.
It is common knowledge that people who are facing criminal charges or a civil lawsuit should retain a lawyer.
The reasoning is obvious. Criminal defense and lawsuits involve complex questions of law and procedures unknown to those who do not have legal training. The average person would find it foolish to try and navigate these two legal fields without counsel. Social Security Disability and SSI laws are similar but different in that the area is even more complicated than Criminal Defense and most forms of civil litigation.
Most areas of law have only two sources of authority.
For instance, the field of criminal defense has the Penal Code and Case law. Case law is the guidance that comes in the form of written decisions from appellate courts. Law from Social Security Disability, however, comes from many sources. Attorneys, who handle Social Security Disability cases, must know the Code of Federal Regulations, Case Law, Social Security Rulings, Social Security Acquiescence Rulings, HALLEX, and the POMS. Often the law in one of these sources will contradict the law in another. Only an attorney who specializes in the field of disability would know which authority is binding on the court according to each set of facts.
Perhaps the most significant advantage that comes with hiring an attorney is knowledge of the judges and courts.
Each courthouse is different and is managed by a chief judge. Each chief judge has different priorities and concerns. Some chief judges are most concerned with moving cases along quickly. Others are concerned with having even the smallest procedures done by the book without a single deviation for efficiency or expediency. Some are very controlling with the judge’s they supervise, and others take a more indirect approach. All of these judicial philosophies have their advantages and disadvantages. Only an attorney who has experience with the court can know the type of court to which the case is assigned. More importantly, only an attorney will know how to use the policies of each court to a claimant’s advantage.
Just as every courthouse has a chief judge who has a distinct personality, so does every judge who sits on the bench. Judges are people and have their own set of quirks, insecurities, values, admirable traits, and sensitivities. Knowledge of the judges is an absolute requirement for an attorney who practices Social Security Disability.
Claimant “A” suffers from bipolar disorder and a back condition. Claimant “A” feels her disability status is as a result of her mental health. Her case will be decided by Judge “B.” Judge “B” doesn’t like granting disability claims based on a mental disability. He has very little if any sympathy for the mentally ill and believes most are drug users. Judge “B” also suffers from back pain and is therefore very sensitive to claims of disability based on herniated discs or spinal fractures. Claimant “A” will lose her case if she walks into the courtroom and focuses on her mental disability. If Clamant “A” has an attorney who is familiar with Judge “B,” she will probably win. The attorney will choose to focus the case on the back condition, knowing Judge “B” is sensitive to back issues and insensitive to mental health issues. Having an attorney can be the difference between winning and losing a claim for disability benefits.
Knowledge of the judge is just one area of expertise an attorney will possess. Another one is knowledge of the witnesses.
In almost every case, the court will appoint experts to testify. Traditionally, there are two types of experts in disability cases: Medical and vocational. Medical experts look at the medical records and give their opinion as to the severity of the claimant’s conditions. An attorney’s knowledge of each medical expert’s habits and beliefs is essential to pursuing a successful claim for Social Security Disability Benefits. Let us go back to claimant “A.”
Once again, Claimant “A” suffers from Bipolar disorder and a herniated disc in her back. Judge “C” is handling the case. Judge “C” has asked a psychologist named “Dr. MD” to look at the medical records and testify. Dr. MD testifies the bipolar disorder is severe, but no so severe it’s disabling. In his opinion, claimant “A” would still be able to work in jobs that require no more than simple repetitive tasks. If the judge accepts this testimony as accurate, “A” will lose her case for disability benefits. “Disability Lawyer” to the rescue. Disability Lawyer has had many cases with Dr. MD and knows him well. He knows Dr. MD doesn’t read or take into account physical conditions in his testimony. They have the following exchange:
DL: Dr. MD, can physical pain aggravate symptomology associated with my client’s mental state.
Dr. MD: Absolutely.
DL: I want you to assume my client also suffers from a back condition that would put her in pain for most of the day. Adding that to the bipolar disorder, does that change your opinion as to her restrictions.
Dr.MD: Yes, Counsel. If she were in physical pain, I believe her mental condition would be exacerbated, and she would be disabled.
Claimant “A” is now going to win her case. Not because of her bipolar disorder by itself and not because of her back condition standing alone. She will win because her lawyer knew the expert and his specific practices and beliefs. Once again, having an attorney is the difference between winning and losing.
The key is to have the right lawyer.
Need help? Get in touch for a free consultation.
by SSD - SSI Appeal Lawyer | Jan 10, 2020 | Disability Lawyers
It can be a daunting task to choose the right Social Security Disability/SSI lawyer.
There are endless options to choose from, and all will say they are the best. Below are the criteria for selecting a Social Security Disability advocate.
A good portion of the Social Security Disability field is composed of “administrative law,” Administrative law is not practiced in traditional courts. Instead, the cases are heard in courts specially created by the Social Security Administration. Being licensed as an attorney is not a requirement to represent claimants seeking Social Security Disability in administrative courts. Hiring an attorney is the best option for representation. Attorneys have the training, expertise, and respect from the judges to effectively pursue a claim for disability benefits.
2) MAKE SURE THE ATTORNEY IS EXPERIENCED IN THE FIELD OF SOCIAL SECURITY DISABILITY
Generally speaking, the more experienced the attorney, the better it is for your case. Experienced attorneys not only know the law, but they also know how to apply it. It’s more than understanding what’s written in textbooks. It’s understanding which arguments are best in front of which judges. Some judges respond positively to arguments surrounding mental illness, while other judges aren’t as persuaded by this line of analysis. Other judges are sensitive to cases involving seizures. An experienced attorney will know what arguments work and what is just wasting time.
Make sure the attorney you hire knows every judge in the court where your case is set to be heard. Hiring a local lawyer can ensure the attorney knows the court inside and out. The Law Offices of Devermont and Devermont represents people from San Diego to Sana Barbara and knows each judge in all the courts in these cities. The firm doesn’t represent people in Massachusetts. That would be too far for Devermont and Devermont’s attorneys to capitalize on relationships with the courts. Local is always better.
4) MAKE SURE YOUR ATTORNEY CARES
If your attorney doesn’t care, how can he or she convince a judge to care? How can your attorney ask a judge to do what he won’t do himself? An attorney who cares will fight and work harder to win your case. It can’t be about money for the attorney. He or she has to believe in the service they are providing.
Need help? Get in touch for a free consultation.
by SSD - SSI Appeal Lawyer | Jan 10, 2020 | Disability Lawyers
Attorneys who regularly practice in local courts are far more likely to be successful in disability cases than lawyers who travel the country. Judges who decide disability cases are going to be more receptive to arguments from attorneys they know and trust than from outsiders.
A judge will respond better to an attorney he knows than one he hasn’t met or doesn’t frequently see, for a variety of reasons. These reasons make it imperative to hire an attorney who works near your residence.
Mostly it comes down to trust. Trust is accumulated over time and experience. When an attorney has spoken truthfully to a judge consistently, that attorney’s word is going to carry value. Judge’s remember they attorneys they deal with for both the good and bad. Conversely, a judge may view a lawyer new to the courtroom with suspicion. The new lawyer hasn’t built up the track record of trust to be taken with the necessary credibility to win a claimant’s case.
Likability also matters. Judges are human and subject to the same tendencies as all people. When a judge likes an attorney, that attorney is going to be received with an open mind and generosity. In a close case, a Judge’s positive feelings towards an attorney may sway the decision from unfavorable to favorable. An attorney from out of town won’t have the same luxury. An attorney from out of town won’t have cried the same tears and laughed the same laughter over years of experience as the local attorney has with the judges. Such experience is invaluable.
Judges are also likely to be more frank and honest about the case with an attorney he or she knows well. This insight will allow the attorney to tailor arguments towards the judge’s concerns. If the judge doesn’t know the attorney, this insight will not be readily available. Insight into how the judge feels about each case can easily be the difference between winning and losing. The insight can be the difference between a claimant walking out of court with a fully favorable decision as opposed to an unfavorable one.
A relationship with local judges may be the most critical asset an attorney has in fighting for a client’s disability benefits. Sometimes it’s more valuable than any one piece of evidence or any part of testimony from a particular client.
by SSD - SSI Appeal Lawyer | Jul 20, 2019 | Disability Lawyers
Diabetes and Social Security Disability have a complicated past. For years those with uncontrolled diabetes could get Social Security Disability or SSI under a “listing.” Remember, listings are set criteria for specific conditions where, if all the elements are satisfied, the claimant would be found to have met the medical requirements for disability benefits. In 2011, Social Security deleted to diabetes listing leaving diabetic applicants with the burden of having to either satisfy another listing or be found vocationally disabled based on the “grid rules”. The redaction of the diabetes listing made the process of obtaining social security disability benefits harder on claimants asserting disability due to diabetes.
All hope is not lost for those who are disabled as a result of diabetes. There are still listings in existence that are reflective of diabetes, and it’s symptoms. Listing 11.14 is perhaps the most obvious. Listing 11.14 focuses on the effects of peripheral neuropathy. Those with severe diabetes commonly experience peripheral neuropathy and understand the severe limitations experienced as a result. Peripheral neuropathy often manifests itself in the form of burning pain, needles, difficulty walking or handling, and constraints in activities of daily living.
Listing 11.14 is separated into two sections, A and B. the A sections says:
“11.14 Peripheral neuropathy, characterized by A or B.
A. Disorganization of motor function in two extremities (see 11.00D1), resulting in an extreme limitation (see 11.00D2) in the ability to stand up from a seated position, balance while standing or walking, or use the upper extremities.”
The start of the listing 11.14 analysis requires a diagnosis of neuropathy. If a diagnosis of neuropathy is not contained in the claimant’s medical records, the analysis under listing 11.14 will essentially stop before it starts. The listing then goes on to talk about the disorganization of motor function in two extremities. Two extremities can be two legs (including feet), two arms (including hands and shoulders), or one arm and one leg. Disorganization of motor function is the difficulties that arise out of neuropathy. Difficulty grasping and walking are typical characterizations of the disorganization of motor function.
The listing then goes on to talk about the required severity of that disorganization. An “extreme limitation” requires the need for the help of an assistive device (two canes or a walker) to walk or rise from a seated position if you need help from another to do either of these two activities, you will also be found to have an “extreme limitation.”
An extreme limitation in the use of the upper extremities requires the inability to perform fine and gross movements. A few examples of the “Inability to perform fine and gross motor movements” are:
1) A claimant not being able to pinch, manipulate, and use your fingers.
2) A claimant not being able to use your hands, arms, and shoulders to perform gross motor movements such as handling, gripping, grasping, holding, turning, and reaching.
3) A claimant not being able to engage in exertional movements such a lifting, carrying, pushing, and pulling.
If a claimant satisfies the elements of 11.14(A), he or she will be found to have met the medical requirements for Social Security Disability or SSI. If the claimant doesn’t meet 11.14(A), then he or she will be considered under 11.14(B). 11.14(B) is for those who still have significant difficulties in their life as a result of peripheral neuropathy, but not necessarily the specific type of challenges found in 11.14(A). 11.14(B) requires:
“B. Marked limitation (see 11.00G2) in physical functioning (see 11.00G3a), and in one of the following:
Understanding, remembering, or applying information (see 11.00G3b(i)); or
Interacting with others (see 11.00G3b(ii)); or
Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or
Adapting or managing oneself (see 11.00G3b(iv)).”
Obviously, the pain from peripheral neuropathy will create limitations in the above areas as it limits mental capacity and the ability to interact with others appropriately. The term “marked limitation” means a significant restriction that causes severe limitations in the field where the limitation exists.
Even if you don’t meet listing 11.14, you still may be found disabled under the vocational guidelines known as “the grids.” The grids take into account a claimant’s age, education, past work, and limitations. It forces Social Security to ask if you can do your past work, and if you can’t, is there other work you can do in the national economy at your age with your education and skills.
Social Security Disability cases arising out of diabetes are complicated and require in-depth legal and medical knowledge. It is always important to have the representation of a lawyer if you want to put yourself in the best position to be found disabled.
by Derek Devermont, Esq. | Jul 10, 2019 | Disability Lawyers
Whether or not you are disabled seems like a simple question, but for Social Security this simple question becomes intimidatingly complex. Social Security’s method for determining disability is codified across thousands of pages riddled with legal terminology not easily understood by those who aren’t lawyers.
Social Security developed a 5 step methodology, titled the “sequential evaluation,” to determine one’s disability status. The Sequential Evaluation is the roadmap Social Security uses in every case where someone has applied for Social Security Disability or Supplemental Security Income (S.S.I.). It is expressly written in the Code of Federal Regulations at 20 C.F.R. § 404.1520. Each step is a single question where the answer mandates a determination or guides to the next step.
In this blog, I will take you through each of the five steps to clarify Social Security’s process and make their determinations understandable. Please note this is the determination process reduced to it’s most basic form as there are many more pieces to the disability benefits puzzle.
STEP ONE: IS THE CLAIMANT WORKING?
Generally speaking, if the person seeking disability is working, he/she is not eligible to receive Social Security Disability or S.S.I. Benefits.
“Work,” however, must be defined. “Work” is defined by Social Security as work for pay where the earnings amount to “Substantial Gainful Activity”(S.G.A.). Whether work is considered S.G.A. is dependant on the amount garnered from employment and the year of the wages. As of 2019 employment must pay $1,180.00 a month, or more, to be considered Substantial Gainful Activity. When income is below $1,180.00 eligibility to receive disability benefits will not be hindered, but S.S.I. will most likely be subject to offset by the income.
If you are working the Sequential Evaluation requires a finding of “not disabled.” If you are not working the evaluation guides analysis to step two.
STEP 2: DOES THE CLAIMANT HAVE A SEVERE IMPAIRMENT?
Step two creates a seemingly easily answered question and complicates it. The term “severe” implies a high standard of impairment, but this is misleading. A “severe impairment” is a physical or mental condition that more than minimally interferes with basic work activities and meets the duration requirement. The duration requirement demands the physical or psychological condition that has lasted a year, be expected to last a year, or will result in death within a year. If you do not have a severe impairment, the analysis stops, and a finding of “not disabled” will be found. If you do have a severe impairment, the sequential evaluation will take you to step three.
Step 3: DOES THE CLAIMANT’S CONDITION MEET OR MEDICALLY EQUAL ONE OF THE LISTINGS.
Social Security recognizes there are many medical conditions of varying severity that can plague someone applying for disability benefits. To ensure the most severe are granted benefits early in the Sequential Evaluation, Social Security put “the listings” at step three. The listings are the set criteria for many common conditions that, if satisfied, require a finding of disabled. One of the more commonly considered listings is 1.04(a). This listing applies to orthopedic impairments in the neck and back. It states:
“1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine)”
If a claimant meets all of the elements of 1.04(a) he/she will receive a medical finding of disabled. If not every element is “met” the claimant may still “equal” the listing. A listing is “equaled” when all the criteria aren’t satisfied, but the condition’s symptomology and intensity are of equal severity as would be expected in someone who’s condition satisfied all of the elements.
If a listing is “met” or “equaled” a finding of “disabled” is required. If not, however, all hope is not lost. We move on to step 4.
STEP 4: Can you do your past work
At this point, the analysis gets very complicated. Generally, if you are at step four and are capable of doing your “past relevant work” (work performed at S.G.A. level for the necessary period), then you will be found “not disabled.” It’s when there is a finding you cannot do your past relevant work the analysis becomes more in depth.
When deciding whether you can do your past relevant work Social Security first attempts to define the type of work performed. This is done by looking to the Dictionary of Occupational Titles (D.O.T.). The D.O.T. not only labels jobs and divides them into categories, but tells Social Security the necessary physical exertion and mental capacity each job requires.
After your job is defined, your “Residual Functional Capacity” (R.F.C.) must be determined. R.F.C. is the maximum amount of exertion you can perform considering the condition of your health. Your R.F.C. will include the maximum you can lift and/or carry as well as limitations on your ability to stand and walk. If your past work requires more exertion than you are capable, then you cannot perform your past work. This analysis is not limited to physical exertion. Mental health can eliminate past work at step four as well. If your prior employment required a higher capacity for concentration than you are capable, Social Security would determine you cannot perform your past work. If you can do your past work, the law requires you be found “not disabled.” If you aren’t able to perform your past work, the analysis moves to the last phase at step five.
STEP 5: IS THERE OTHER WORK IN THE NATIONAL ECONOMY THE CLAIMANT CAN PERFORM?
If you are unable to do your past work, a finding of disability may be afforded in your case. To determine whether a result of disability is appropriate at step five Social Security looks to “the grids.” “The Grids” are a series of guidelines used by the agency to determine disability for those who did not meet a listing. They consider age, education, past work, R.F.C., and skill applicability.
Age plays the most significant factor within the grids. The grids divide age into categories. They are: younger individuals (49 and below), Closely approaching advanced age (50-54), advanced age (55-59), and closely approaching retirement age (60 and above). Work is also divided into different categories. They are: Heavy (lifting 100 pounds occasionally, 50 pounds, frequently while standing and walking all day), medium (lifting 50 pounds occasionally, 25 pounds frequently while standing and walking all day), light (lifting 20 pounds occassionally, 10 pounds frequently while standing and walking all day), and Sedentary (lifting 10 pounds occasionally, 5 pounds frequently while sitting all day).
For example, if you are age 49 or below and are capable of any work in the national economy, you will be determined to be not disabled. Usually, however, if you are age 50 and your limitations lead you to only being able to perform work at the sedentary level, you will be found disabled. There are dozens of scenarios and caveats to each rule within the grids. There will be more articles on “the grids” throughout this site.
This article has been a very broad explanation of the methods and philosophy Social Security uses when determining disability. There are many more rules that complicate each application for Social Security Disability benefits. This is why it is imperative to have a lawyer who is proficient in the many laws which guide the system.
by Derek Devermont, Esq. | May 10, 2019 | Disability Lawyers
People with mental disabilities are often reluctant to apply for Social Security Disability Benefits or SSI. Because mental conditions do not appear in x-rays or an MRI, many people who suffer feel the stigma of not being believed. Social Security takes mental conditions very seriously if presented through the correct lens and applied to precise criteria in the law.
Social Security primarily evaluates mental conditions in listings 12.00-12.15. Listings are criteria designated to specific medical conditions where, if every element is satisfied, the claimant is automatically considered medically disabled. There are listings for Neurocognitive disorders (12.02), Schizophrenia (12.03), depression (12.04), intellectual disorders (12.05), Anxiety/OCD (12.06), somatoform disorders (12.07), Personality/impulse control disorders (12.08), autism (12.10), neurodevelopmental disorders (12.11), eating disorders (12.13), and Post-traumatic stress disorder “PTSD” (12.15). Each listing has criteria specific to the condition. Evaluating whether someone meets the criteria of a listing requires an understanding of law and medicine.
If you don’t meet a listing, you still may be found disabled. If the criteria of a listing isn’t satisfied, Social Security will look to the work restrictions created by the medical condition. For instance, a person with post traumatic stress disorder may not meet a listing but have work restrictions as a result of the mental disorder. That individual will most likely not be able to perform all a job requires if the symptoms force him to be absent from work more than twice a month. In such an example, this person would be found disabled.
Mental Disorders And Physical Disorders
Mental disorders can also combine with physical disorders and, as a result, a claimant may be found disabled. It is also important to remember age can be a factor in this analysis. For example:
55-year-old Sandra suffers from depression and a herniated disc in her lower back. In her past, she worked as a banker. This job required her to sit all day and was very skilled. Her back pain limits her to doing “light work (lifting up to 20 pounds/standing and walking six hours), but her depression limits her to “Simple repetitive tasks.” Physically she can do her job, but her mental limitations preclude the advanced work she did in the past. Under these facts, she would be found disabled under grid rule 202.06.
There are endless laws and exceptions to laws that are used to determine one’s disability. This is why it is always best to hire an attorney to represent you in your claim for Social Security Disability or SSI benefits.
by SSD - SSI Appeal Lawyer | Apr 20, 2019 | Disability Lawyers
Buying a home is always an intimidating and daunting task for any potential buyer. If a disability recipient can afford it, it will not affect their ability to receive Social Security Disability. SSI, however, has different rules and parameters.
Social Security Disability is a benefit for those who worked and paid into Social Security System over a prolonged period (generally) and earned 40 credits. You may be eligible to receive Social Security Disability if your spouse had paid into the system or you are the child of a parent who had paid. Social Security Disability can only be offset by worker’s compensation payments or state disability. A recipient of Social Security Disability can have a million dollars in the bank and own ten houses without it negatively impacting the claimant’s ability to receive the benefits. SSI is different.
SSI has an asset cap. SSI is for those who haven’t paid into the system. A recipient of SSI cannot have more than $2000 in assets ($3000 if married). Virtually everything counts as an asset. Money in the bank, life insurance, stocks, and bonds all count as assets. If a claimant’s assets exceed the allowable maximum, he or she will not be able to receive SSI.
It is important to note; however, there is an exception. Claimants who receive SSI are allowed to have one house and one car and still receive SSI. One house and one car will not be counted as assets. An issue arises when an SSI recipient exceeds the asset cap while trying to save for a down payment to buy a house.
Most SSI recipients who own a home obtained it before becoming disabled or inherit the house from a deceased relative. Bottom line: Those receiving Social Security Disability can purchase a house without issue. Those receiving SSI can buy a house but must be careful not to exceed the asset cap.
by Derek Devermont, Esq. | Apr 11, 2019 | Disability Lawyers
Cases that are denied often land in front of a judge when appealed. As I’ve said before, judges are human. They suffer from bad days, where they woke up on the wrong side of the bed. Conversely, they are sometimes susceptible to good days where everything seems grand. Generally, however, Judges have their personalities and tend to fall into one of a few categories. In this article, I will discuss the various categories judges tend to fall into and the traits aligned with each. I will discuss the landmines and the best ways to deal with the difficulties arising from each personality.
THE NEW JUDGE
With the recent increase in hiring, this specific kind of Judge is becoming very common. Like anyone who starts a new career, the new Judge tends to be very nervous and uncertain. They usually have a script and they adhere to it religiously. They have heard horror stories back in training of mistakes other judges made and been frightened into following policies with compulsion. Picture a baby calf learning to walk and being too scared to run.
The worst mistake is to be impatient or condescending to this new Judge. A wise man once said to me, “no one wants to look stupid.” This is all too true with new judges and is often their biggest fear. There can be a temptation to take over the courtroom in the name of efficiency. The new Judge will quickly become threatened and hostile. They are the ultimate authority and will lash out suddenly reminding you they are in charge. This will not serve the claimant well.
Instead, be patient. Let the Judge run the courtroom as he or she sees fit. If you have a suggestion, make sure your delivery is as respectful as possible. Proposals as to how the hearing should proceed should be stated in a manner that highlights the authority of the court and does not make the Judge’s knowledge appear deficient. Start by saying, “I know your honor already knows this….” or “I’m sure the court has already thought of this, but I’ll bring it up anyway.”
When leaving, make sure to compliment the court on the experience and tell them it was a pleasure to appear in front of them. Do everything you can to not leave on a negative note. If, however, the court’s conduct interferes with the ability to receive a fair hearing, then always do whatever is necessary to preserve a fair process.
THE VETERAN
The veteran is the Judge who has been hearing cases for decades. This Judge has figured out exactly how they want things to run and usually conducts Social Security Disability hearings with efficiency. This Judge will often be very laid back, but frequently will have their mind made up about the case before the claimant walks in the door. This can work for you, but it can also work against you.
If the Judge has made up their mind about the case before the attorney has said a word, it can be an uphill battle towards winning. The key is to know the sensitivities of each Judge. As previously discussed in prior articles, judges have their opinions about various conditions. If you have a case in front of a judge who isn’t sympathetic towards mental disorders, point to the items in the record about physical ailments to which that particular court is sympathetic. Dig into the file and focus on the issues that move the court hearing your case. To do this it is necessary to have an attorney who knows each Judge well.
The Veteran Judge also has a good memory. They know the attorneys they enjoy seeing, and they know the attorneys who aren’t as pleasant. In a close case, a good relationship with the court can be the difference between winning and losing your Social Security Disability or SSI case.
THE ACADEMIC
The academic Judge doesn’t want to hear sad stories or emotional struggles. This Judge wants nothing other than the law and the citations in the record that apply. Any attempt to pull on the academic’s heartstrings will be met with annoyance and disfavor.
The key to winning in front of this Judge is competence. They expect you to know the file by memory and appreciate deep legal reasoning. This Judge wants a concise, thoughtful, reasoned argument. They will often spar with you and challenge your theory, but this exercise will probably be for sport as this Judge like intellectual stimulation. If you can prove to be competent, this Judge will always be happy to see you, and the reward of respect will come with favorable decisions.
THE JUDGE WHO WANTS TO DO THE RIGHT THING
This Judge looks more to the spirit and purpose of the law of disability programs than the precise text of the regulations. In front of this court, the more profound stories of struggle and medical symptomology can weight heavily and guide the result.
If the claimant is sympathetic, it is incumbent on counsel to bring out the tales of daily struggles. The Judge should be made aware of the claimant’s difficulties doing simple things (buttoning a shirt, getting out of bed, showering). A comparison of the claimant’s current state should be made against his or her prior capabilities. The court should be made to see that a denial of social security disability benefits would be an injustice.
If the claimant is not sympathetic is can be necessary for counsel to become a surgeon with the law. “Your honor, I understand where the court is coming from, but in the end this is a court of law, and we must follow it” is a phrase I have said countless times. Counsel should seek to cut off all avenues leading to an unfavorable decision.
THE NOTHING TO LOSE JUDGE.
This is the Judge who denies almost everyone for every reason. In front of this Judge, it won’t matter what you say or what you do; the court’s mind is made up. In such a case, a positive relationship with the court will garner you nothing, but will only make it easier for the denial of benefits.
In front of such a court, cover every single base for appeal. Ask every question possible and cover every piece of law. If the court becomes agitated, it is of no consequence. At this point, counsel is no longer trying to persuade the “nothing to lose judge,” but rather the judges who will hear the next appeal.
The strategy of each case is wholly reliant on the court hearing it. The most critical decision a claimant will make is choosing an attorney who knows the courts and all the judges within.
by Derek Devermont, Esq. | Mar 19, 2019 | Disability Lawyers
The most straightforward answer is to hire the right attorney. What does an attorney need to be successful in a claim for Social Security Disability or SSI benefits? MEDICAL EVIDENCE.
Every person who applies for disability benefits says they’re disabled. It is unheard of for someone to apply for benefits and say “I’m fine. I want money.” The way Social Security separates those that are disabled, from those who think they’re disabled but aren’t, from those who are faking a disability is medical evidence. Medical evidence is the medical records created when patients see doctors. Social Security looks to the records under the theory that an MRI cannot be faked and it is difficult to argue with years of mental health treatment.
The reality is just going to doctors is unlikely to result in a favorable decision for Social Security Disability. The medical evidence needs to be presented and argued in the right way to result in a successful claim for disability benefits. Having an experienced, knowledgable, attorney who cares for his clients will put a claimant in the best possible position to receive benefits.
by SSD - SSI Appeal Lawyer | Mar 6, 2019 | Disability Lawyers
A herniated disc is a condition that affects the back and/or neck. A herniated disc can cause enormous amounts of pain that can leave a patient unable to do the most basic activities of daily living. The pain often isn’t limited to the back and neck regions but will travel into the legs and arms, leaving them compromised or immobile. People with herniated discs can be limited to using a cane, walker, or even a wheelchair. Surgeries can vary from shaving down the spine, fusing sections of it, replacing parts of it, and installing metal rods. Social Security analyzes disabilities due to herniated discs under LISTING 1.04. The most commonly considered listing is 1.04(A).
If you meet the elements of listing 1.04, you will have automatically met the medical requirements to be found disabled. Listing 1.04 is broken into different parts. It is titled disorders of the spine.
The preamble to listing 1.04 states:
“Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With: ”
These are all various conditions of the spine. They are very similar and translate to large amounts of pain.
If the elements of the preamble are satisfied, the analysis moves on to see if the claimant meets 1.04(A), 1.04(B), or 1.04(C). If the claimant meets the elements of one of the sections and has the condition in the preamble, they will be found to have met the medical requirements to be found disabled.
1.04(A) is the one usually achieved.
Listing 1.04(A) states:
“A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine)”
Perhaps the most critical part of 1.04(A) is the requirement the condition results in “compromise of the nerve root…or the spinal cord.” There are a few different ways to prove the existence of nerve root compression. Social Security, however, puts the most significant weight on imaging, namely an MRI. Anything other than an MRI will be viewed cautiously by social security when determining whether nerve root impingement is present.
The listing then talks about the “neuro-anatomic distribution of pain.” The pain is most commonly known as radiculopathy. Radiculopathy is the presence of pain in the extremities (shoulders, legs, hands, arms, feet) caused by the compromise of nerve roots in the neck or back. The nerves are being affected and sending signals to other parts of the body to feel pain. The pain can be debilitating.
The next requirement of listing 1.04(A) is “limitation of motion of the spine.” Most people with back conditions meet this particular element. It merely means the ability of the claimant to twist and maneuver the spine is more limited than the average person who doesn’t have the same spinal disorder.
“Motor Loss” is one of the rarer elements of the listing. Atrophy is the rarest form of motor loss. More commonly, loss of strength is found. This is usually done in the form of a resistance test. A doctor will test the ability of each hand and leg to push against resistance. The disparity between one side and the other can indicate there is a loss of strength due to an underlying neck or back condition.
Motor loss must also be accompanied by reflex loss or loss of sensation. Loss of sensation can come in the form of numbness or tingling. It means the ability to feel light touches or pinpricks is less than that of the average person. It’s not uncommon for people who routinely drop glasses or fall to have a loss of sensation. Reflex loss is similar but different. Reflex loss is found when people don’t respond to the standard reflex tests with a reflexive reaction. An Achilles reflex can be absent while sensation is still normal, but only one has to be present to meet the listing.
If you have a neck condition and all of the above is present, you meet 1.04(A), and you will be found to have satisfied all the medical requirements to obtain disability. If the condition is in the back, however, there is still one more requirement. Back conditions must have a “positive” finding on the “Straight leg raising” exam. The exam is while the patient is seated and supine (lying down). The leg will be lifted, and if this induces pain before the leg reaching a 45-degree angle, then a positive finding will be found.
More frequently, claimants with back conditions will have some of the elements in 1.04(A), but not all. All hope is not lost. In such a situation, social security will look to see if the claimant “equals” a listing. Equalling a listing occurs when all the elements aren’t met, but the condition creates limitations equal to that of someone who fits the listing. If a claimant equals a listing, they will be found to have met the medical requirements for disability.
If a claimant does not meet or equal a listing, social security will turn to the grid rules to determine disability status. The grids take into account the restrictions and compare them to a claimant’s past work and jobs currently available. If the grids call for a finding of disability, then a claimant will be found medically disabled.
by Derek Devermont, Esq. | Feb 9, 2019 | Disability Lawyers
Many people make the mistake of pursuing their Social Security Disability or SSI claim without the advice and representation of a lawyer. Statistically, those who are represented by lawyers are significantly more likely to be granted benefits than those who choose to go through the process alone. There are many reasons why representation is beneficial. In this article, I will go through a few of them and attempt to clarify why everyone should seek representation in claims for disability benefits.
DISABILITY IS A COMPLEX QUESTION OF LAW, NOT MEDICINE
If you ask most people whether an attorney should be hired for representation in a criminal case or lawsuit, the answer is almost always “yes.” There is an understanding that civil and criminal defense cases are complicated and require a trained eye. It is common for those applying for Social Security Disability to believe the decision as to their disability is a medical decision because their condition is medically based. This belief is WRONG.
Social Security Disability cases are intricate and contain more legal entanglements than their legal counterparts. Disability determinations are not only controlled by statutory law (Regulations), but also influencing authorities known as POMS, SSR’s, HALLEX, and case law. Often the law coming from these sources conflict with each other. Only a lawyer, who is a specialist in the field, can make sense out of the confusion and guide the claimant to a favorable decision.
JUDGES ARE PEOPLE TOO
While judicial determinations deciding disability find their basis in law, those laws are applied by people. They are people, like everyone, who have individual personalities and quarks. Perhaps this is most accurate when a disability case is in front of a judge. Different judges can be more sympathetic to orthopedic conditions, but hardnosed when a case is based on a mental condition. Across the hall, there could be a judge who is hard on orthopedic ailments, but sympathetic to cases involving diabetes. It is essential to know what conditions each judge is sensitive to when formulating a case strategy. Only an attorney who practices in the courts daily can have this kind of insight.
An attorney having a positive relationship with the court is vital to being successful in a disability claim. If the judge isn’t happy to see the attorney, he is going to view everything the attorney says through a negative lense. It is much more challenging to persuade a court who views counsel with suspicion and dislike.
An attorney’s knowledge of each judge and the relationship with that court can be the difference between winning and losing a claim for Social Security Disability or SSI benefits.
THE JUDGE IS NOT THE ONLY ONE IN THE COURTROOM
In most cases, the court will appoint experts to assist with the decision-making process by giving testimony under oath. Usually, these experts come in the form of a vocational expert (expert on job requirements and availability) and/or a medical expert (doctor brought in to examine medical evidence). A claimant’s attorney will also have the opportunity to examine kindly, or hostility cross-examine, each witness. The key is to know when to take which approach.
Just as the Judges are human, so are the experts. A positive relationship can determine how open they are to alternative theories. If an expert has a dislike for the attorney, that expert may dig into their position without considering an alternative approach to their testimony.
A negative relationship can result in this interaction:
- Attorney: Madam expert, I know you testified to “A,” but my client said “B.” Would you agree that “B” is reasonable?
- Expert: Counsel, the evidence supports “A.”
Conversely, a positive relationship with an expert could have this interaction in the same case:
- Attorney: Madam expert, I know you testified to “A,” but my client said “B.” Would you agree that “B” is reasonable?
- Expert: Yes, Counsel, even though I testified to “A,” I would agree that your client’s testimony is reasonable.
These are two very different interactions, which will result in very different outcomes.
There is, however, a time for hostility with experts. Very often, experts will feel they can take advantage of an attorney the expert may not know well. Obviously, the longer the attorney has been practicing, the less likely an expert is going to try and take advantage of counsel. There are times, however, when even the most experienced attorney has to become aggressive with an expert. At this point, it is crucial to conduct the questioning professionally but in a manner that leaves a lasting impression.
MEDICAL EVIDENCE IS NOT EASY TO READ
Social Security Disability and SSI claims can have thousands of pages of records that must be reviewed carefully. To the untrained eye, this can be an impossible task. Medical records frequently contain medical jargon, which is confusing to those who are unfamiliar with proper terminology. An attorney would do this arduous task for his client seeking disability. The client has enough to worry about without adding the chore of tearing through medical records.
After reviewing the records, the task becomes applying medical evidence to the law. The court should not be relied on to do this for the claimant. The judge is only human and may not be aware of all the rules or may not have thought of a specific theory linking the medical evidence to a particular law. This is the ultimate benefit of having representation. An attorney will be able to precisely and coherently cite the evidence and apply it to the law in a manner that is persuasive and clear to the judge. If done correctly, a claimant will be put in the best possible position to prevail in their claim.
NOTHING TO LOSE
Attorneys in the Social Security Disability field operate on contingency.
The attorney only gets paid if the claimant wins their case and the payment will be a percentage of the retroactive benefits. If the claimant loses, nothing is owed to counsel for representation. This means, with an attorney, the claimant is put in the best possible position to win with minimal risk.
by SSD - SSI Appeal Lawyer | Feb 2, 2019 | Disability Lawyers
There is not a “listing” for sleep apnea. Listings are criteria for specific medical conditions where, if the requirements are satisfied, the claimant will be automatically be found medically disabled. The listings that might be applicable to sleep apnea concern other medical conditions.
Social Security writes:
“We evaluate the complications of sleep-related breathing disorders under the listings in the affected body system(s). For example, we evaluate chronic pulmonary hypertension due to any cause under 3.09; chronic heart failure under 4.02; and disturbances in mood, cognition, and behavior under 12.02 or another appropriate mental disorders listing. We will not purchase polysomnography (sleep study).”
While it is possible to “equal” one of the listings described above, it is challenging. All hope, however, is not lost. It is still possible to be found disabled even if the claimant does not meet or equal the requirements of a listing. What is required is an analysis of the adverse effects a claimant’s sleep apnea would have on his or her ability to work.
Sleep Apnea
The most prevalent symptom of sleep apnea that prevents work is excessive sleepiness. Sleep apnea prevents one from ever becoming fully rested. The breaks in breathing thrust the body into panic and shock while sleeping, causing a claimant to be unable to maintain sleep for prolonged periods or sleep at all. Forms of insomnia are common in those who suffer from sleep apnea. If sleep apnea is causing an employee to fall asleep while working, or not being able to concentrate during work periods, that employee most likely will be unable to work and therefore be disabled.
Sleep apnea can also be psychologically detrimental. Depression and even forms of psychosis aren’t uncommon. The brain needs sleep as much as the body. When it doesn’t get the required rest and fuel from sleep, the mind will start to break down. Depression can result in such a feeling of hopelessness and despair that getting out of bed becomes an impossible task. Such everyday activities of daily living (showering, dressing, socializing, shopping) become too much to bear. If sleep apnea has such a substantial negative consequence that a claimant is suffering these symptoms, he or she may qualify for Social Security Disability or SSI.
by Derek Devermont, Esq. | Jan 29, 2019 | Disability Lawyers
Social Security Disability was signed into law in 1956 by President Dwight Eisenhower as an amendment to the Social Security Act. It was a fiercely debated issue that filled the halls of Congress and the White House. What seems a common-sense public entitlement program was controversial and met with staunch opposition. Thankfully, wisdom defeated fear, and the Social Security Disability safety net is available to all who are disabled.
There is a lot of confusion surrounding Social Security Disability, it’s benefits, and it’s limit. Social Security Disability is a benefit reserved for those who are disabled. When most people receive payment for their work, a portion is paid out to Social Security to fund the program. It is easiest to view this payment as a fee for an insurance policy. Just as any insurance policy requires payments for coverage, so does Social Security Disability require payments to ensure coverage should the employee become disabled.
A few payments won’t make you eligible for Social Security Disability. Before the medical analysis of disability begins, Social Security works to decide whether the claimant has made enough payments into the program to eligible. These payments usually have to add up to the “40 Credits” standard. To meet this standard, the claimant must have worked five out of the last ten years from the onset of the disability and paid into the system consistently on a nearly full-time basis.
There are many benefits to Social Security Disability. The amount of the monthly payment will be dependant on the amount paid into the system. The maximum amount capable of being received is $3,000. Whatever amount an applicant receives will be paid till retirement, or medical improvement eliminates the disability.
Social Security Disability also comes with Medicare. Medicare provides health care coverage that is often better than many private insurance plans. Many who apply for Social Security Disability have very little wealth and therefore treat at clinics by doctors in situations that are less than ideal. Medicare opens almost every doctor’s door and provides not only more options for treatment but better treatment.
Social Security Disability, however, can be offset by certain forms of income. Funds attained from Worker’s Compensation, or State Disability payments will suffer offset from SSDI payments. There will not be any payments available from SSDI if the amounts received from Worker’s Compensation or State Disability are higher than the calculated value of SSDI. Other forms of income will not offset SSDI. Veteran’s Benefits, Pension Plans, Insurance payments are all capable of being received simultaneously with SSDI.
All hope is not lost if a claimant doesn’t meet the financial requirements to be eligible for Social Security Disability. For those who stayed home to raise kids, suffered prolonged periods of incarceration, or didn’t pay into Social Security, there is Supplemental Security Income (SSI).
SSI is not the same quality benefit as SSDI. The highest amount for an individual $931.72 in California. The amount is higher if the disabled has children or a disabled spouse. The benefit also does not come with Medicare, but rather is supplemented with MedicAid (Medical in California).
SSI is also a benefit that is subject to massive offsets. If a claimant is living rent-free in a home, Social Security will most likely subtract 1/3 of the receivable amount. If the claimant has relatives who provide funding, Social Security will deduct from the SSI payments. Social Security finds every possible way to subtract funds form this benefit.
SSI also has an “asset cap.” Not including one house and one car, A claimant cannot have more than $2000 in assets if single; $3000 if married. Social Security considers just about everything to be an asset, excluding the one house and one car. If a married couple has two cars, they will most likely exceed the maximum allowable asset cap. Stocks, Bonds, Life insurance policies will all be labeled assets, potentially leaving a claimant ineligible for SSI benefits.
A typical scenario is the SSI beneficiary who inherits a car from a deceased relative. The recipient doesn’t know this new asset has made him/her ineligible to receive benefits by thrusting him/her over the asset cap and Social Security isn’t immediately notified. Social Security finds out 10 years later about the car and declares an “overpayment.” An overpayment is Social Security demanding to be paid back the ten years of benefits paid in error due to the asset. Very often, this amount can exceed $100,000.
Whether it’s Social Security Disability or SSI, the benefits can be challenging to obtain and keep. The laws are thousands of pages long and convoluted. The best remedy to this problem is to hire an attorney.
by Derek Devermont, Esq. | Dec 30, 2018 | Disability Lawyers
As complex as a social security disability or SSI case is for an adult, it is even more complicated when pursuing these benefits for a child. Just as with adults, Social Security has a specific methodology and law for evaluating disability cases where the claimant is under 18.
Just as with adult cases, Social Security looks to “the listings” when deciding whether a child is medically disabled. “Listings” are set criteria designated for specific conditions. When each element of a listing is satisfied, the child is automatically disabled. Although the children’s listings cover many of the same conditions as the adult listings, the criteria and severity required to be found disabled are different. There are also differences between the requirements for infants, toddlers, and teenagers. The listings are very detailed and convoluted.
If a child doesn’t meet a listing, that child may still be found disabled. In such cases, Social Security will evaluate a child’s condition in the context of the “Domains.” The domains are areas of functioning, and social security is evaluating the child’s restrictions in each “domain.”
The “domains” are:
- Acquiring and using information
- Attending and completing tasks
- Interacting and relating with others
- Moving about and manipulating objects
- Caring for yourself
- Health and Physical well-being
For a child, who does not meet a listing, to be found medically disabled, he or she must have a “marked limitation” in two of the domains or an “extreme limitation” in one. A “marked limitation” is a “serious” limitation in that domain of functioning. An extreme limitation goes further than marked. These terms are defined in 20 C.F.R. § 416.926a
This article is an overly simplified explanation of the rules pertaining to Social Security disability or SSI cases for children. The reality is the rules become far more involved and complicated. It is always best to hire an attorney to handles these types of cases.
by Derek Devermont, Esq. | Oct 20, 2018 | Disability Lawyers
Most people who apply for Social Security Disability or SSI receive an unfavorable decision after filing their initial application. Often this is the result of financial assets, lack of medical records, lack of treatment, errors in paperwork, or the adjudicator not knowing the law. Many, if not most, make the mistake of refiling a new application rather than filing an appeal. Failing to file an appeal can be an enormous mistake costing the claimant large amounts of money in retroactive benefits.
If Social Security finds you disabled as of the day you allege you became disabled, they then owe money in retroactive benefits as if they had been paying you since the date you became disabled (provided that date isn’t more than a year behind the application date). Here is an example. Steve files an application for Social Security Disability benefits on January 1, 2019, alleging he became disabled on January 1, 2018. On January 2, 2019, Social Security agrees he became disabled on January 1, 2018, and Monthly benefits are $1000 a month. Social Security owes Steve 12,000 dollars because they found him disabled on January 1, 2018, and they owe him money from the date of disability.
Another example. Steve files an application for SSI benefits on January 1, 2016, alleging he became disabled on the same day. He is denied. He appeals. On January 1, 2019, Social Security finds him disabled as of January 1, 2016. His benefits are $1000 a month. He is owed $36,000 in retroactive benefits.
The next example is where things get tricky, and the advantage to appealing becomes apparent. SSI only grants benefits as of the application date. Steve applies for SSI benefits on January 1, 2016, alleging disability the same day. He is denied. He doesn’t appeal but files another application. He is denied. He keeps refiling. Finally, he files a claim for benefits on January 1, 2019, alleging his disability began January 1, 2016. On January 2, 2019, Social Security grants him disability and finds he became disabled on January 1, 2016. He won’t receive any money in retroactive benefits. Why? Because Social Security pays back benefits on SSI cases only as of the date of the application. By not appealing, he lost 36,000 in back benefits. There are exceptions to these rules, but this is the general rule.
There are different types of appeal. If denied at initial application, the first stage of appeal may be “reconsideration.” A “request for reconsideration” must be filed within 60 days of the initial denial. Many in Social Security feel the “reconsideration” stage is a waste of time. You go through the same procedures as you did when you filed the initial application and minimal changes. In the name of efficiency, many districts have eliminated this phase of appeal, and those denied at the initial application will appeal by filing a “request for hearing.”
You have 60 days from the date of denial on reconsideration, or if you’re in prototype district denial of your initial application, to file a request for a hearing. Submitting a “request for hearing” means a Judge will hear your case and you disagree with Social Security’s determination saying you are not disabled. Up until this point, the people deciding your case haven’t been lawyers or judges. They have been bureaucrats within Social Security. Now, your case will be evaluated by lawyers within Social Security and decided by a judge.
The hearing will take place in a small room due to privacy concerns. Depending on the judge and the issues within your case, it can last anywhere from 30 minutes to 2 hours. There are often a medical expert and vocational expert. You will need an attorney to cross-examine and question them should they give unfavorable testimony. There will be an opening and closing statement. It is probably most important to have a lawyer at this stage. Once a judge makes a decision, a presumption is created, the decision is correct.
If not appealed, it becomes final.
The last of the administrative stages is an appeal to the “Appeals Council.” It is challenging to win at this stage and requires precise analysis of each law. The uphill battle at the appeals council highlights the importance of hiring an attorney and winning before this level of appeal. This level of appeal can take 2 or more years.
by SSD - SSI Appeal Lawyer | Oct 6, 2018 | Disability Lawyers
Social Security retains the right to review any disability determination and reverse it
Social Security’s determination that a claimant is disabled does not mean the benefits will continue forever. Such reversals can cause chaos in the lives of the disabled and can produce significant amounts of uncertainty.
The burdens of poverty and disability weigh on claimants enormously. When a disability determination is under review, entire lives are thrown into upheaval with no end in sight. Reviews generally happen under a few circumstances.
If the disability is expected to resolve, it will be put up for review
A claimant must have a disability that has lasted or is expected to last for a year or more to be eligible for Social Security Disability or SSI. But, there are many conditions that last longer than a year, but are expected to resolve. For example, many forms of cancer may disable a claimant for a year but resolve medically shortly after a year’s end. In such an instance, Social Security will take a second look at the claimant’s level of impairment due to cancer. During this time the claim is under review.
Social Security can question the decision of a judge and put the case under review
Often Social Security questions the decisions of the judge’s who decide disability status. Social Security will take a look at an Administrative Law Judge’s decision determining disability if they feel the judge’s decision is flawed. If Social Security feels the judge’s decision was made in error, Social Security will reverse the finding of disability and remand the case for a new hearing.
The decision to review a judge’s decision must, however, be made no later than 60 days after the decision was issued
A disabled individual needs to notify Social Security of a return to work
Sometimes people who are on disability benefits attempt to go back to work but do not notify Social Security. Eventually, Social Security sees the income on tax records and notices they have been paying benefits to an individual during the time he or she was working. In this circumstance, not only will Social Security review the determination of disability and cease the paying of benefits, but they will also declare an overpayment and demand the distributed funds be repaid.
The key is to have the right lawyer.
by Derek Devermont, Esq. | Apr 2, 2018 | Disability Lawyers
Social Security Disability and SSI applications can be done partly online and partly through physically submitted documents. There are a series of forms that encompass the minimum requirements for a completed application.
If you wish to have an attorney represent you, a “1696” must be submitted. The attorney and the claimant must sign this form. It contains the contact info for both including the addresses to which mail will be sent. The address on this form will most likely decide which court and district office will be handling the adjudication of the claim for benefits.
Social Security will also require the claimant to sign an “SSA-827”. The “827” allows Social Security to acquire your medical records from the doctors from whom you’ve receive medical treatment. It is essential to notify Social Security of the various places you currently seek medical treatment, but also the sites you have treated in the past. In this regard, it is generally better to put too much than too little. Do not omit a clinic or doctor’s office because you feel the treatment received wasn’t related to your disability. Let your attorney and Social Security decide what is relevant to the claim.
You will be asked to describe your past work. This is where a lot of claimants make a mistake, and it often costs them dearly. In most cases, Social Security will decide whether the claimant is capable of performing his/her past work.
Generally speaking, if a claimant is capable of performing his/her past work, then a finding of non-disability will be issued. Frequently claimants describe their past work as easier and than it was performed. One of the most common examples is that of a “caretaker.” A caretaker cares for other disabled people. Most of the time isn’t spent lifting or carrying. For this reason, when described, many claimants represent the job as requiring minimal lifting. They forget they needed to help the person they cared for stand up or get into a bathtub or shower. When doing this task, the caretaker was required to brace the weight of the disabled client. This is well over 50 pounds, usually. Although this task was necessary only a few times a day, it remains an essential component of the job. Therefore lifting that amount of weight was part of the job’s duties and the occupation could not be performed without the capacity to raise a substantial amount. When a claimant leaves out the job required to lift 50 pounds and instead describes the duties as lighter, this can often lead to an unfavorable decision.
Social Security may send you to a medical evaluation called a “consultative exam.” The exam is intended to be a thorough evaluation of your health and capacity to perform work. In my opinion, it will be a rushed exam done by a subpar doctor. The doctors who do these exams get paid per exam, not by the hour. This motivates them to squeeze in the most amount of exams possible in a day, and this is done by spending very little time per patient. The consultative exams are one of the reasons it’s necessary to treat frequently. Your treating physician’s opinions and records can be used to contradict the findings of the consultative exams.
Eventually, the claimant will receive a letter with either a finding of disability or denial for disability benefits. If a denial is received, the next step is filing an appeal. If an appeal is necessary the claimant is on track to plead their case in front of an administrative law judge.
by Derek Devermont, Esq. | Oct 12, 2017 | Disability Lawyers
It is not uncommon for the disabled surviving spouse of a deceased individual to feel hopeless and vulnerable. Many times the survivor has never worked due to a disability. For this individual social security enacted a survivor’s benefit. This benefit allows the disabled widow/widower to draw upon their deceased spouse’s social security and receive disability benefits. For example:
Mary and Jim have been married for 25 years. They are both 55. Jim has worked the entire time making a good salary. Mary has never worked because she suffers from depression and herniated discs in her lower back. Jim is in a car accident and dies. Mary is left without income.
Mary would be eligible to receive survivor benefits from social security. She will be able to benefit from all the years her husband paid into social security and receive social security disability.
This same type of benefit can be made available to children who have deceased parents.
These cases, however, are very complicated, and it is always best to seek out the representation from an attorney when pursuing survivor benefits. The expertise of an attorney can be the difference between winning and losing a claim for disability benefits or survivor benefits.
by Derek Devermont, Esq. | Apr 12, 2015 | Disability Lawyers
Filling out an application for Social Security Disability or SSI can be a daunting and intimidating process.
SSD/SSDI and SSI Applications
Many questions in the applications seem deceptively simple but are in actuality complex, and the answers can be the determining factor between winning and losing a claim for benefits. Answers regarding past work must be analyzed in detail as well as questions regarding functional capacity.
Social Security Disability
At Devermont and Devermont, our staff sits with each claimant applying for disability and goes through the application question by question. First, we explain what every question is asking and clarify your answers when needed. Next, We will make sure that everything written in the application for benefits is accurate, precise, and in the best interest of the claimant.
Too often are people denied benefits because they didn’t understand the questions on the application and the impact of their answers. At Devermont and Devermont, we seek to cure the pitfalls of the application process that cost people their benefits and result in denials.
by SSD - SSI Appeal Lawyer | Jan 6, 2015 | Disability Lawyers
Being denied Social Security Disability or SSI can be a heart-wrenching experience for an applicant. If you’re applying for disability benefits, you believe this is the last and only option. The denial means there isn’t hope or possibilities, and you are now vulnerable to the elements. Fortunately, Social Security and the courts have built a road meant to allow a claimant who has been denied Social Security Disability benefits the ability to challenge the denial. The procedure is known as the appeal process. In the appeal process can be salvation for a claimant’s previously denied claim for benefits, but the appeal has to approached correctly.
First and foremost, the date of the denial for benefits controls whether an appeal can be filed. Generally speaking, all appeals for disability benefits must be filed within 60 days of the denial. Depending on the type of appeal, an extra five days for mailing may be allotted in addition to the traditional sixty days. Do not rely on the additional five days. Strange things can happen with mail, and it isn’t uncommon for Social Security to fail to acknowledge the extra five days for filing. Also, the quicker the appeal is filed, the faster the case will be decided. Waiting until the last day to file an appeal makes the process take longer.
Appeals can take a significant amount of time from the beginning to the end. Sometimes this can be an advantage. For people who haven’t been treating consistently or frequently, this is the opportunity to build a medical file. Cases are decided almost entirely on medical records. Many use the appellate waiting period to start receiving treatment and accumulate medical records. The medical treatment received during the appeal process can often be the difference between winning and losing.
If you are looking to appeal your case, the best thing you can do is hire an attorney. The appellate process is complex, and flying blind is not advised. Make sure the attorney is a social security disability and SSI specialist. This will put you in the best possible position to prevail in your case.
by SSD - SSI Appeal Lawyer | Nov 20, 2014 | Disability Lawyers
Degenerative disc disease is a condition that affects the back and/or neck. Degenerative Disc Disease can cause enormous amounts of pain that can leave a patient unable to do the most basic activities of daily living. The pain often isn’t limited to the back and neck regions but will travel into the legs and arms, leaving them compromised or immobile. People with Degenerative Disc Disease can be limited to using a cane, walker, or even a wheelchair. Surgeries can vary from shaving down the spine, fusing sections of it, replacing parts of it, and installing metal rods. Social Security analyzes disabilities due to Degenerative Disc Disease under LISTING 1.04. The most commonly considered listing is 1.04(A).
If you meet the elements of listing 1.04, you will have automatically met the medical requirements to be found disabled. Listing 1.04 is broken into different parts. It is titled disorders of the spine.
The preamble to listing 1.04 states:
“Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equina) or the spinal cord. With: ”
These are all various conditions of the spine. They are very similar and translate to large amounts of pain.
If the elements of the preamble are satisfied, the analysis moves on to see if the claimant meets 1.04(A), 1.04(B), or 1.04(C). If the claimant meets the elements of one of the sections and has the condition in the preamble, they will be found to have met the medical requirements to be found disabled. 1.04(A) is the one usually achieved.
Listing 1.04(A) states:
“A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine)”
Perhaps the most critical part of 1.04(A) is the requirement the condition results in “compromise of the nerve root…or the spinal cord.” There are a few different ways to prove the existence of nerve root compression. Social Security, however, puts the most significant weight on imaging, namely an MRI. Anything other than an MRI will be viewed cautiously by social security when determining whether nerve root impingement is present.
The listing then talks about the “neuro-anatomic distribution of pain.” The pain is most commonly known as radiculopathy. Radiculopathy is the presence of pain in the extremities (shoulders, legs, hands, arms, feet) caused by the compromise of nerve roots in the neck or back. The nerves are being affected and sending signals to other parts of the body to feel pain. The pain can be debilitating.
The next requirement of listing 1.04(A) is “limitation of motion of the spine.” Most people with back conditions meet this particular element. It merely means the ability of the claimant to twist and maneuver the spine is more limited than the average person who doesn’t have the same spinal disorder.
“Motor Loss” is one of the rarer elements of the listing. Atrophy is the rarest form of motor loss. More commonly, loss of strength is found. This is usually done in the form of a resistance test. A doctor will test the ability of each hand and leg to push against resistance. The disparity between one side and the other can indicate there is a loss of strength due to an underlying neck or back condition.
Motor loss must also be accompanied by reflex loss or loss of sensation. Loss of sensation can come in the form of numbness or tingling. It means the ability to feel light touches or pinpricks is less than that of the average person. It’s not uncommon for people who routinely drop glasses or fall to have a loss of sensation. Reflex loss is similar but different. Reflex loss is found when people don’t respond to the standard reflex tests with a reflexive reaction. An Achilles reflex can be absent while sensation is still normal, but only one has to be present to meet the listing.
If you have a neck condition and all of the above is present, you meet 1.04(A), and you will be found to have satisfied all the medical requirements to obtain disability. If the condition is in the back, however, there is still one more requirement. Back conditions must have a “positive” finding on the “Straight leg raising” exam. The exam is while the patient is seated and supine (lying down). The leg will be lifted, and if this induces pain before the leg reaching a 45-degree angle, then a positive finding will be found.
More frequently, claimants with back conditions will have some of the elements in 1.04(A), but not all. All hope is not lost. In such a situation, social security will look to see if the claimant “equals” a listing. Equalling a listing occurs when all the elements aren’t met, but the condition creates limitations equal to that of someone who fits the listing. If a claimant equals a listing, they will be found to have met the medical requirements for disability.
If a claimant does not meet or equal a listing, social security will turn to the grid rules to determine disability status. The grids take into account the restrictions and compare them to a claimant’s past work and jobs currently available. If the grids call for a finding of disability, then a claimant will be found medically disabled.
by Derek Devermont, Esq. | Nov 10, 2012 | Disability Lawyers
There are many possible stages of appeal in Social Security Disability and SSI cases. The most important rule, when appealing a denial for social security disability or SSI, is to make sure the appeal is filed within 60 days of the date on the denial.
Hard and Fast Rule
Social Security has a hard and fast rule that, for an appeal to be timely, it must be filed within 60 days of the day on the denial.
If it is filed beyond the 60 days, Social Security may deny the appeal on that basis alone. It is possible, although difficult, to get Social Security to accept and appeal even if 60 days have passed since the date of the denial. To do this the claimant must establish “good cause” for the late filing.
Good Cause SSD Denial
“Good Cause” is a valid and acceptable reason that prevented the claimant from filing the appeal within 60 days.
Examples of good cause are:
- Claimant was in a psychiatric facility
- Disability Denial was sent to the wrong address
- Claimant was in the hospital
- Disability Denial was sent in a language the claimant doesn’t speak
- Claimant was incarcerated
- Claimant’s mental condition made them unable to file on time.
- All of the above are examples of “good cause” that has led Social Security, most of the time, to accept late appeals.
The various stages of appeals are:
- Request for reconsideration:
- This is an appeal of a denial of an initial application. Social Security has mostly done away with this stage, but it does exist in some jurisdictions.
- Request for a hearing:
- This is an appeal of an initial application or a denial at the reconsideration level. A request for a hearing will lead to the case being heard before an Administrative Law Judge.
- Appeals Council Review:
- When a judge upholds a denial, the next stage of appeal is to have the Appeals Council Review the Judge’s Decision. More than one administrative law judge usually reviews cases sent to the Appeals Council.
- Federal District Court:
- If the denial of benefits was upheld by the appeals council the case, if appealed, will be heard by a federal judge.
