If SSI owes you past due money, can you get an emergency advance from it?
–Shirley

Jonathan Ginsberg responds:  Unfortunately there is no process in place where Social Security can issue an advance even if there is a favorable decision.  I know how frustrating this can be.  I am currently working on a case for a disability client in which I won at the hearing back in July, and received a written favorable decision from the judge.

The Social Security payment office, however, does not show this case as a favorable decision and they are not processing the claim.   I have written the local office as well as the payment office and they have been unable or unwilling to do anything.  Now, we are trying to work through the regional commissioner’s office.

Needless to say, my client is not very happy about all of this – she is a single mom currently living with her parents.

I hope that the delay in payment in your case is only temporary – normally you get your check within about two months after getting a written favorable decision.  In SSI cases, by the way, you will have to go through an "income and resources" meeting to determine whether there will be any offsets to your monthly benefit.

[tags] lump sum payment, advance against lump sum, ssi lump sum, income and resource interview SSI [/tags]

My colleague, Georgia elder law attorney Victoria Collier called me this afternoon with an interesting question about adult SSI claims and part time work in a sheltered work environment.

Victoria called me to participate in by phone in an office meeting she was having with an SSI claimant (a young man who is mildly mentally retarded) and the director of the group home where he resides.   The claimant has been working for the Salvation Army in a very structured work setting.   He earns less than $700 a month and works part time hours.

Several years ago, he had been receiving SSI benefits, but was cut off, possibly due to an overpayment issue involving his representative payee.

He does not now have a current application, although he was denied several times over the past few years.  No appeal was ever filed on a previous application.

Here is what I told the claimant and his group home guardian:

1. file a new application by calling 800-772-1213.  Make sure to tell the representative that you want to file for both Title II disability and Title 16 SSI..

2. When you answer questions about the claimant’s work capacity, make sure to advise Social Security that he works in a structured work environment and that he works part time.  You would want to argue that this level of work does not rise to “substantial activity” because it is not equivalent to competitive work.

3. If he is denied, which is likely, make sure to file the appeal (called a Request for Reconsideration) within 60 days of the denial.

My guess is that this is one of those cases that will end up before a judge to decide whether the part time, structured work setting employment rises to the level of  "substantial activity." 

This is yet another example of a case that falls outside of the neat categories within which Social Security is most comfortable.  The administrative people at the State Agency Disability Adjudication Services office are not trained or authorized to make a judgment call.  The claimant will eventually see a judge but he will be waiting two to three years for his day in Court.

My SSDI case was decided favorable in August 2006 and then selected at random for quality assurance review. Monday, October 30, 2006 I was seen by a psychologist. He told me he would get his report in later that day. So, now I am patiently awaiting their final decision. I have several medical conditions, severe brain trauma (twice in 10 years), Ceberal aneurysm 1997, depression/anxiety, migraine headaches just to name a few.
Thanks,
Donna Marie

Jonathan Ginsberg responds:  Donna, SSA has instituted new procedures to review the status of beneficiaries.  However, I have never seen a Continuing Disability Review within two months of a favorable decision.  Are you certain that your approval was in August, 2006?

In any case, the purpose of the review is to determine whether you still meet the qualifications for disability, or have you recovered sufficiently to be capable of performing some type of work.

The issue, therefore, is whether you could perform any type of work.  It does not matter that a $7 per hour job would not support your family or that child care might cost more than you could earn.  It does not matter if you do not have a car to get to work or if the simple, unskilled job they identify does not actually exist in your community.  The only question that matters – if you were magically transported to a job site, could you perform a simple, unskilled job 8 hours a day, five days a week.

Assuming you have been continuing to receive treatment from your doctors and that your condition has not susbstantially changed, I see no reason why your eligibility for benefits should be changed.  My experience has been that the consultative psychologists that SSA uses are usually fair.   In any case, a treating psychologist would carry more weight with SSA than a consultative one.

If you get a notice from SSA that your eligibility is being terminated, then you would have the right to appeal and eventually present your argument to a Social Security  judge.

[tags] continuing disability review, CDR, quality assurance review [/tags]

I used a new type of case strategy this afternoon in a disability case I tried in one of the Atlanta hearing offices.  My case involved a 56 year old woman who suffers from multiple medical problems, including decreased kidney function, diabetes, hypertension, asthma, fatigue, coronary artery disease and the need for frequent urination.  She also consumes about 15 different medications, the main side effect of which is drowsiness.

Normally, when thinking about how to present my case, I try to identify one or two main medical problems and focus on those.  Often, if you try to question your client about five or six medical problems, the judge ends up confused and might conclude that none of the conditions are severe enough on their own to prevent the claimant from working.  As the old saying goes, "a confused mind always says no."

In addition, my client’s treatment has all been at Grady Hospital, which is the public hospital in downtown Atlanta.  Grady records are handwritten and hard to follow and the doctors rotate as Grady is also a teaching hospital.  Getting functional capacity forms or statements from treating doctors can be challenging at best.

Because my client suffers from so many interconnected problems, there was no way to identify only one or two as the most important.  I also had a somewhat limited package of records – there were treatment notes but no real reference to work capacity.

I decided to forgo trying to question my client about her medical problems individually.  Instead, I asked her about her life, what she did during the day, and about her frustrations arising from not being able to do various activities.

My client did a very good job expressing her frustration about having to use the restroom 15 times a night, and about not being able to babysit for her 2 year old granddaughter.

I also had her talk about her past work and about her pride in supporting herself and her family.

We ended up painting a picture of a person whose health began declining about 10 years ago, who tried to work through the pain and discomfort, and who eventually had to stop working because her body would not let her.

The judge only asked one follow-up question and his questions to the vocational expert suggested to me that he found her credible and believeable.

This is probably the first time that I really did not address the record specifically and it will be interesting to see how the judge writes his decision. 

[tags] social security hearing strategy, atlanta office of hearings and appeals, atlanta office of decision and review, Atlanta ODAR [/tags]

I’m getting SSDI. and worker’s comp.The Ins company wants to settle my claim. For 117,000.00. No medical. If I were to take the settlement, will this hurt my SSDI benefits? Have you ever heard of a Social Security savings claws? Thanks John

Jonathan Ginsberg responds:  John, your question raises several issues and your best bet will be to speak with an attorney about your case.   Firstly, I find it somewhat unusual that you are receiving both workers’  compensation and SSDI benefits.  In Georgia, where I practice, workers’ comp offsets SSDI, meaning that if a person is receiving weekly wage benefits from workers comp, his Social Security benefits are offset dollar for dollar.  In most cases, this means that no SSDI payments will be made while the claimant receives comp benefits.

Your State may be different, but if not you need to find out if you have been overpaid and what to do about that.

Similarly, I frequently see cases where a claimant who is receiving or has the right to receive SSDI has to deal with something called a Medicare set-aside (it may go by a different name in other States).   Because Medicare does not want to get stuck with medical costs arising from a comp injury, they require part of your comp settlement set aside to cover future medical costs.  This reduces your settlement check.

The bottom line, in my view, is that you need to speak with a lawyer who handles both workers’  compensation and Social Security disability.

[tags] Medicare set-aside, social security and workers compensation [/tags]

I tried a disability case today and left the courtroom very frustrated.  My client is a 58 year old woman with uncontrolled diabetes, numbness in her feet (diabetic neuropathy) and frequent fatigue.  She has had two heart attacks in the last ten years and can barely climb three steps to get to her house.  She has a high school education but limited reading and writing skills and has past work as a sewing machine operator – which requires foot pedal use.

Sounds like a good case, right?  It should be a clear winner, but I have an uphill battle to win.  Here’s why:

First, my client has received very little medical treatment over the past two years.  She has a few emergency room visits and a few visits with a local medical clinic who previously provided indigent care, but no longer does.

When the judge asked her if she has sought other free treatment, my client rambled on a bit about the free clinic only being open from 1 to 3 on Thursdays, and she did not have a home phone, and her daughter did not get home from work  until 3, and she did not know why her daughter has not yet called to make her an appointment.  My impression was that she has not put a lot of effort into getting to a free clinic.

My client also testified that she has not been taking medications because she can’t afford them, and that she can’t see because her vision is blurry, but she hasn’t had an eye exam for new glasses in over ten years.

Basically, my client painted a picture of herself as someone who has some legitimate medical problems but who is too lazy or unmotivated to seek any sort of free treatment.  Yes, free clinics are not particularly desirable – you generally have to wait in line and the quality of care is very basic.  But Social Security judges expect someone who wants a check from the government to make an effort – and that is not happening  here.

What else is wrong with this case.  My client testified that she babysits her two grandchildren, age 4 and 18 months.  She is not paid for this work.  To a Social Security judge, this looks like day care work – if she can do it for her 2 young grandchildren, could she not do this for a daycare center.   It very well may be that this work – and remember, she is not getting paid for it – may be the reason her case is denied.

Finally, this claimant’s testimony was awful.  Despite extensive preparation, my client was unwilling to rule out returning to a sewing machine operator job.  "Maybe" she could still operate foot pedals.   "Maybe" driving 30 minutes at a time is not a big problem.

Here is the lesson to learn from all this.  When you apply for Social Security disability, you have to be unable to work.  "Maybes" don’t work.  Part time work suggests that you the capacity for employment.  Your main focus needs to be seeking medical care that will make you better, even if that means going to the emergency room every few months.  You have to find a way to get your medications, even if it means sitting in line at a free clinic.  You need to realize that if you volunteer your time at a work like activity, a judge will most likely think you could work.  The bottom line here – you have to act in a manner consistent with a disabled person.

I argued successfully to the judge that my client needed to be seen by a Social Security doctor for a consultative evaluation.  Non-mental health consultative evaluations rarely help a case, but who knows.  I feel bad for my client that she has done so little to help herself but sometimes that is the way it goes.  My sense is that she would not be a very reliable or effective employee – hopefully at the end of the day, our judge will sense that as well.

[tags] Social Security hearing, uncontrolled diabetes, consultative examination, Social Security disability, Social Security hearing [/tags]

if you are in kidney failure and need a transplant are you eligible for Social Security?
–Maureen

Jonathan Ginsberg responds:  Maureen, generally speaking if you have the level of kidney failure that requires a transplant, you most likely meet a "listing" under the Genitourinary listings.  The specific listing for kidney failure and transplant is at 6.02, which you can ready by clicking on the link.

In my practice, I would create a checklist form that tracks the listing and perhaps adds some job reliability questions.  Then, I would submit the questionnaire to your treating doctor.  Assuming that the doctor agrees that you meet the listing, I would advise the Social Security claims rep/adjudicator – you should not have any issues getting approved based on your medical condition.

Note that even if you qualify medically, you still have to have enough credits to qualify on your earnings record.

[tags] kidney disease and social security disability, kidney transplant and social security disability, listing 6.02, qualifying for disability because of kidney failure [/tags]

How often to i get a rise in income ? I have Canser & diabetes only get under 1,000 per month and need a place to live. A bill collector started taking 200.00 per month for afender bender and take it straight off the top of my living money I think they are wrong I cant work with my disability .I would like you to look into this mater .Because if I could work I would now very depressed with no place to live now.They even wrote and said dont even think about tell Social secuity more or less that it would be useless to try to stop them.I say it was not my faulty but they are taking over 8,000 dollar from social secuity check I never got a court order to go to court who are these people ganster above the law?

–Roy

Jonathan Ginsberg responds:  Roy, your SSDI payment is calculated based on your earnings during the time you were working.   The amount of your Social Security payment is not based on the severity of your condition, nor do you get more based on your financial needs.  You do get a cost of living increase every year, but that is the only time your payment from SSDI will go up.

The garnishment you describe should not be happening.  Social Security disability benefits are not subject to a garnishment seizure, nor are Social Security disability funds that are placed into your bank account by direct deposit.  You should immediately contact your bank to advise them that the wage garnishment is illegal because all of the funds going into that account are from Social Security disability. 

If you have funds from other sources going into your Social Security account, the non-Social Security funds would be subject to a garnishment.

You should also contact the lawyer who has been seizing your money and advise him that your funds need to be returned since these funds were Social Security money.  You may need to ask for help from a lawyer or perhaps Legal Aid since this concept that SSDI money is protected may not be fully understood by the collection lawyer.