Ginsberg Law Offices

Q & A: What is the Definition of “Medically Determinable”?

Jonathan
December 18, 2009
One comment so far

Hello and welcome to the 3rd installment of my Q & A series, which is designed to cover some of the more elusive topics associated with the Social Security Disability claims process. In this post, I will discuss the term “medically determinable,” another one of those unique Social Security terms that people often have questions about.

Question:

I understand that in order to qualify for Social Security Disability benefits, my condition must be a medically determinable physical or mental impairment. Can you explain exactly what a medically determinable physical or mental impairment is?

My answer:

The terminology or “lingo” used by the Social Security Administration is often confusing. A medically determinable physical or mental impairment is an impairment that results from anatomical, physiological or psychological abnormalities which can be determined by medically acceptable clinical and laboratory diagnostic techniques. In essence, a physical or mental impairment must be substantiated by medical evidence consisting or signs, symptoms and laboratory findings. An applicant’s statement of symptoms alone is not enough to meet the requirements of a “medically determinable physical or mental impairment.” In a nutshell: There must be medical evidence that substantiates the symptoms experienced. For example, if you are experiencing debilitating migraine headaches, you need to have medical tests done in order to establish the root cause of the headaches. Your saying alone that you have migraine headaches is not enough.

I cannot over emphasize the need for specialized medical and mental related test(s) in determining an individual’s impairment. Although general physicians are skilled doctors and deserve all the accolades available, Social Security Disability applicants must seek, in addition to the opinions of a general physician, the opinions/diagnoses of specialists when making application for disability. These specialized opinions are critical in order for an applicant to be awarded disability. Let’s quickly take the above example of someone suffering from debilitating migraine headaches. In their case, it would be wise to seek the opinion of a headache specialist or neurologist while pursuing their claim. On my migraine headaches and disability website, I posted an entire article about the benefit of seeking specialized treatment while pursuing a disability claim, which can be accessed by clicking on the link.

I understand that most applicants are unable to shoulder the costs of seeing a specialist and that most government-assisted programs do not cover these types of costs. I encourage applicants to solicit the financial help of family members as well as explore other available means so that they are able to see a physician specializing in their medical condition.

Q & A: What is required for a child to qualify for benefits?

Jonathan
December 11, 2009
View all 2 comments

Last week I started a Q & A series designed to cover some more elusive topics related to Social Security Disability claims. In part 2 of this series, which follows, I briefly discuss the requirements that have to be met in order for children to qualify for Social Security Disability.

Question:

What are the requirements for a disabled child to qualify for Social Security disability benefits?

My answer:

As with adults, there are two Social Security disability programs available to disabled children: SSI and SSDI. They differ according to the child’s age.

Program #1: SSI (Supplemental Security Income)

Under the Supplemental Security Income (SSI) program, a child from birth to age 18 may receive monthly payments based on disability or blindness if he/she meets the following two requirements:

He/She has an impairment or combination of impairments that meets the SSA’s definition of disability which is defined as a “medically determinable physical or mental impairment or combination of impairments that causes marked or severe functional limitations and that can be expected to cause death or that has lasted or can be expected to last for a continuous period of not less than twelve months.”
The income and resources of the parents and the disabled child are within the allowed limits.

Program #2: SSDI (Social Security Disability Insurance)

Under the Social Security Disability Insurance (SSDI) program, an adult child, which is understood as a person age 18 or older, may receive monthly benefits based on disability or blindness if he/she meets the requirements stated below:

He or she has an impairment or combination of impairments that meets the definition of disability as stated above;
The disability began before age 22; and
The adult child’s parent worked long enough to be insured under Social Security and is receiving retirement or disability benefits or is deceased.

It is important to note that a common thread to both of these programs is that the child at issue must not be doing any substantial work.

Q & A: Do I qualify for SSDI?

Jonathan
December 3, 2009
One comment so far

I have selected some questions that have recently been asked of me that I believe cover some more elusive topics related to Social Security Disability that I believe are worth discussing on this blog. This first topic, while not necessarily as elusive as the others – which I will post weekly as a Q & A series – is a good start since it involves a person who is just starting to explore the world of Social Security Disability. Someone with recent injuries poses the following Question:

I was recently in a car accident and required extensive surgery on my leg to replace several broken bones. I currently require the assistance of either crutches or a walker in order to be mobile.

In addition, I have begun having problems with blurred vision and migraine type headaches. I have an appointment with a specialist later this month to address these symptoms.

I have taken a twelve-week leave of absence from my job, which requires that I stand 95% of an 8-hour shift. Do I qualify for Social Security disability?

My answer:

No, not yet. The law that governs Social Security Disability defines disability as “the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairments which can be expected to result in death or which have lasted or are expected to last for a continuous period of not less than twelve months.”

As it stands, it is not conclusive that your medical conditions are expected to either result in your death or last for twelve months or more. Because of this, you would not qualify for disability benefits at this time. However, this is based solely on your broken leg as the chief medical condition. Test results and medical opinions are still pending in regards to the blurred vision and headaches that you are currently experiencing. It is important that you see a doctor (perhaps a neurologist) that specializes in headaches. Depending upon his/her medical opinion, you may be eligible to apply for Social Security Disability – especially if it is determined that these conditions will continue indefinitely and continue to impair your work performance.

But if your headaches and blurred vision are only temporary problems associated with your recent leg injury, and it is determined that they will subside with time, then you will not meet Social Security’s firm requirements. A broken limb is typically not enough to keep you out of work for 12 months or more.

Social Security Disability Appeal Forms: What is SSA Really Trying to Ask

Jonathan
November 22, 2009
Leave a comment

One of the least discussed but perhaps most frustrating aspects of the Social Security disability process has to do with the forms that Social Security requires when you apply or appeal. Over the years I have watched the forms evolve – and the trend is easy to detect: Social Security’s forms never get shorter. Instead they add questions which appear to ask for the same information again and again.

In fact, the redundancy and complicated nature of these forms led me to write a “how to” book about filling out these forms (my book is called the Disability Answer Guide and you can read more about it at www.disabilityforms.com.

The idea for my book came from a client who pointed out to me that when a person is depressed, has a limited education, is in pain, or is unable to concentrate, it can be very difficult to compose answers to a bunch of government forms that come with no instructions and seem to ask the same questions over and over.

This lament led me to the idea of a how to book where I could offer sample answers to the questions on the forms as well as a reasoned explanation from my perspective as to what information was really relevant to a Social Security disability application and how to frame your answers to “speak SSA’s language.”

Not surprisingly I regularly receive questions about Social Security’s forms – here is an example of such a question from a person I’ll call “Neil:”

i dont know how to answer these medical question on the second part of socurity such as what your favorite hobbies, and what to do do from the time you get up and the time you go to bed

Here are my thoughts: First, I reproduced this question exactly as I received it. I did so not to embarrass the writer but to highlight some of the problems inherent to the Social Security decision making system. Continue reading →

Who Collects Past Due Benefits if a Claimant Dies Before a Disability Decision is Issued

Jonathan
November 19, 2009
View all 5 comments

funeralscene I recently received a call from a colleague about a situation that is all too common given the delays associated with the Social Security disability adjudication process – the death of a claimant prior to a final adjudication.

In this case, my friend’s mother was married to a gentleman who had applied for benefits in the early 2000’s. He had been denied at his first hearing, then appealed and ended up before a judge a second time for a second hearing. Shortly after the second hearing (but before a decision was made) he passed away.

Because of the more then 7 year pendency of his claim the past due benefit amount was substantial – over $115,000. The question – who gets the money.

According to Social Security law (Code of Federal Regulations, Title 20, Section 404.503(b)), the surviving spouse would be the primary beneficiary if she/he was living in the same household as the claimant at the time of death. If the surviving spouse does not qualify, the surviving children collect. If there are no children, the parents of the deceased collect. If there are no parents, the surviving spouse who was not living with the claimant at the time of his death, and so forth.

Note that the funds do not go into the deceased claimant’s estate – they are payable directly to the spouse or other beneficiary.

I previously published a blog post about how I won a case for a deceased claimant. Prior to proceeding I submitted form HA-539, a Notice Regarding Substitution of Party Upon Death of a Claimant. Individuals eligible to receive benefits must complete and submit form SSA-1724, which is a form entitled Claim for Amounts Due in the Case of a Deceased Beneficiary.

Does It Matter Where I File My Application for Benefits if I Plan on Moving?

Jonathan
November 13, 2009
Leave a comment

I recently received a question from a woman named Carol who wants to know if she should wait to file for benefits because she is planning on moving to a different state. She writes:

I own a condo in central Florida. My parents live in north Florida near the Georgia border. I plan on moving to Macon, Georgia (Macon is about 100 miles south of Atlanta in the middle of the state). Should I file now? Should I file now and use my parent’s address? Should I wait until I move to Macon to file?

Application for Social Security benefits Here are my thoughts: I would advise you to file now and to use your current address as your home address. If you are concerned that your mail may not get forwarded you can use your parent’s (permanent) address. In general it is not a good idea to wait to file. If you wait you may lose the right to claim some of your past due benefits, or in a worst case scenario, your coverage for Title II benefits could run out. If you are not working, and expect to be out indefinitely, I generally advise potential clients to file sooner rather than later.

Now – what about the location where you would file? At the initial and reconsideration level of appeal, your case will be processed by a State Agency adjudicator. Adjudicators follow fairly rigid protocols and I have not seen any documentation to suggest that an adjudicator in one state is more or less likely to approve a claim than an adjudicator in another state. Those statistics may exist but I have never seen then.

The initial and recon appeal will eat up between 6 months and a year, by which point you would presumably be in Macon. When you move you would notify Social Security and your file may be transferred to a State Agency adjudication office nearer to where you live. Then again, it might not be transferred. I think it is certainly possible that filing an address change, thereby triggering Social Security to move your file could add to a delay in the processing of your case, but my experience has been that the State Agency adjudicators are expected to complete their evaluation within a set period of time. I don’t know that having the file moved will significantly add to a delay. This is especially the case now that Social Security disability files are electronic – physical files are no longer involved so transferring a case is an electronic process.

The biggest wildcard when you change venues will involve the hearing offices. Some hearing offices house judges who approve very few cases. Other hearing offices tend to trend more favorably to claimants. On the other hand the tendencies of the specific judge assigned to your case are much more important than the hearing office statistics. You can research statistics about the ratios of approval by specific judges. Local lawyers who practice in a particular hearing office can also be a good source of advice.

Ultimately I don’t know that I would spend a lot of effort “judge shopping.” If you have a good case with compelling medical evidence and support from a treating physician, you stand a good chance at winning, while weak evidence will not convince even a judge who tends to favor claimants. Further, if you ask Social Security to change your hearing office venue at the last minute you will face delay as hearing calendars are often filled months in advance. If you hire one lawyer for location 1, then switch, you may end up paying more than 25% of your past due benefits as lawyer 2 will want to be paid.

At the very least, if you are thinking about hiring a lawyer in central Florida, let him or her know about your possible move – you want to make your case less complicated, rather than the other way around.

Onset Dates, Consultative Exams and Cynical Judges

Jonathan
November 12, 2009
View all 2 comments

When you appear before a Social Security judge for a hearing, there are four possible outcomes:

you will be approved
you will be denied
your case will be continued to another date for a supplemental hearing
the judge will issue a “partially favorable” decision

Over the past couple of years I have noticed an increase in the number of partially favorable decisions I am receiving. I think this is because my clients, especially low income clients, do not have access to regular medical care and judges are using consultative exam reports to move the alleged onset dates.

Here is an example of what I mean: a couple of weeks ago, I tried a case before a judge who is generally considered to be very reluctant to approve cases. At the time of the hearing my client was a month shy of her 52nd birthday. She had a 10th grade education and past work as a short order cook. She alleged disability due to uncontrolled diabetes, numbness in her feet and hands, vision issues and pain.

She last worked 3 years previously, when she was 48 years old.

In reviewing this case, I saw it as a “grid rule” case. Grid rule 201.10 provides that a 50 year old claimant with less than a high school education, semi-skilled work but no transferable skills who was limited to sedentary work due to an exertional limitation would qualify for disability. Continue reading →

SSI Recipients May Be Eligible for Free Cell Phones and Free Minutes

Jonathan
November 10, 2009

Cell phone user SSI recipients and other low income Americans may be eligible for free cell phone or landline service under a program called Lifeline Across America. Participants can expect to receive discounted or free service for a limited number of wireless minutes, but for those living alone or who want the security of a cell phone for emergencies, the Lifeline program can be very comforting.

In June of this year, the New York Times published an article about the Lifeline program entitled Providing Cell Phones for the Poor.

The program specifications vary from state to state – and associated programs may provide subsidies for electricity and other utilities. You can find out what is available in your state by a simple web search – I typed “Lifeline + cell phones + Georgia” into Google and the search result documented a number of carriers offering the service.

Another service that provides free or low cost cell phones to low income individuals is Assurance Wireless – click on the link to learn more.

Thanks to Wisconsin disability lawyer Don Chewning for blogging about this important benefit to SSI recipients.

If you are interested in learning more about how to get one of these free or low cost cell phones, please visit:

Lifeline Across America

AssuranceWireless.com

SSA’s Disability Case Backlog Reduced for First Time in a Decade

Jonathan
October 30, 2009
Leave a comment

When I talk about the disability claims process, one of the most important things I can do for folks needing help during this difficult time is to make sure they know what to expect. This is especially true when it comes to the amount of time it could take from initial filing to a favorable decision.

When Georgia Congressman John Lewis set reduction of SSA’s disability case backlog as one of his top priorities, the Atlanta North processing time for claims was the worst in the country at 828 days, and in Atlanta proper it was 750 days. He noted that “people are waiting years for benefits they deserve, some are even dying while waiting. This is simply wrong…Somehow the richest, most powerful nation in the world must find a way to meet the needs of these Americans. They have suffered enough. They should not suffer at the hands of their government.”

Mr. Lewis testified before the Budget Committee, and urged his colleagues on the House Ways and Means Committee to give SSA the funds needed to hire more Administrative Law Judges and disability claims staff.

Last month, Social Security Commissioner Michael Astrue announced that for the first time in a decade, the agency ended its fiscal year with fewer pending disability hearings than in the previous year. It closed FY 2009 with 722,822 pending hearings – a reduction of more than 37,000 cases from its 760,813 hearings pending at the start of the fiscal year. Processing time for cases also improved over the same period, dropping from an average of 514 days in FY 2008 to 491 days in FY 2009.

“Our backlog reduction plan is working, and progress is accelerating,” Commissioner Astrue said. “Even in the face of a significant increase in our workloads as a result of the worst recession since the Great Depression, we have reduced the hearings backlog for nine consecutive months. Thanks to the efforts of thousands of hardworking Social Security employees and the additional funding we received from President Obama and the Congress, we have exceeded our backlog reduction goal for this year.” Click on the link to see SSA’s recent news release discussing these developments. Continue reading →

The WRONG Answers to the Question: “Why Can’t You Work”

Jonathan
October 4, 2009
Leave a comment

As I have discussed extensively on this blog and on my web sites, the ultimate question in any Social Security disability case boils down to this – would you be able to perform reliably a simple, entry-level job 8 hours a day, 5 days a week?

This question concerns itself with your capacity to perform work or work-like activities. Other factors like the job prospects in your town, your transportation issues, etc. are not relevant. As I tell my clients – imagine that a chaueffer driven limo will pick you up each morning and take you home each night – can you reliably fulfill the demands of an entry level job?

Far too often, disability claimants hurt their chances greatly by giving the “wrong” answer to this ultimate question. In a future post I’ll print out some examples of “good” answers to this question but today I want to focus on the wrong way to answer.

My colleague, Dallas disability attorney Stan Denman has graciously allowed me to reprint his take on this topic, which I think should be essential reading for all disability claimants and their lawyers. As a claimant you must take the time to understand how the disability process works and what the judge needs to hear. If you get the answer to this “ultimate” question wrong, you will not be approved.

Here are Stan’s Five “Case Killers,” in no particular order:

Ginsberg Law Offices

Top Five Bad Answers to Question: WHY CAN’T YOU WORK?