My wife has Diabetes Mellitus, Chronic Pancreatitis, IBS, chronic diarrehea and has suffered considerable weight loss due to nutrient malabsorbtion. She also has tremors in her arms and hands, we have not yet been able to find out the cause of this. She worked steady, up until the time She was diagnosed with Diabetes. Then the pancreatitis, and the rest has followed. She is 49 and will be 50 in a few months. We have just started the SSDI procedure, without any representation. What do you think Her chances are or winning without respresentation.
–Ryan

Jonathan Ginsberg responds: Ryan, based on the description you present, I would say that your wife stands a good chance at getting approved. The factors I see as positive are:

• she has a long and consistent work history – Social Security judges usually see claimants with long work histories as being credible
• I would focus on the chronic diarrhea, IBS and the pain of the pancreatitis as the main medical issues. These are serious medical problems with clear diagnoses.

I would ask one or more of her treating physicians to complete a “functional capacity” questionnaire describing how her medical symptoms result in work attendance and performance issues, now and on-going

At the initial and reconsideration levels of appeals, you will be dealing with State Agency adjudicators (not judges). I would take a look at the adult disability listings to see if her condition meets any of the listings. Generally at the State Agency level, a listing argument is going to make more headway, however I would also include any functional capacity documentation that you can generate.

–Jonathan

[tags] diabetes, Social Security disability, IBS, irritable bowel, diarrhea, tremors, pancreatitis, nutrient malabsorbtion, functional capacity, Social Security listing [/tags]

I have not seen any statistics to support this, but over the past few weeks, I have received a number of emails from SSDI and SSI claimants who have received letters from Social Security about a possible overpayment, or whose checks are actually being reduced to repay an overpayment.

Overpayments happen when an approved SSI or SSDI claimant attempts to work and posts earnings over applicable limits. In other cases, SSA determines that it miscalculated a claimant’s benefits and now wants to be paid back for their mistake.
Sometimes the overpayment amounts to tens of thousands of dollars. This can create a real hardship on disabled individuals. I discussed this issue on Episode 7 of ssdRadio.com
If you receive an overpayment notice, you have two options:

1) you can challenge the determination by filing a request for reconsideration of overpayment; and/or

2) you can request a waiver of overpayment because of family circumstances

If you do not ask for reconsideration in a timely manner (60 days), you lose your right to appeal on the merits and you are left with asking for a waiver.

I would be interested to hear from anyone who has had to deal with this overpayment issue, whether successfully or not.

–Jonathan

[tags] overpayment of Social Security benefits, reconsideration of overpayment, SSA-632-BK, SSA-561-U2 [/tags]

SSA has published a chart showing the maximum monthly SSI benefit payment amount for disabled individuals and for disabled individuals with an eligible spouse. For 2006, the SSI benefit is $603 per month for an individual and $904 for an individual and eligible spouse.

By contrast, SSDI payments are often much higher because they are derived from a calculation based on the claimant’s contributions into the system.

Thanks to Dallas personal injury and Social Security lawyer Bob Kraft for posting this helpful information on his frequently updated blog.

[tags] SSI payments, Bob Kraft, SSI vs. SSDI [/tags]

Charles Hall reports in his blog that the Veteran’s Disability Benefits Commission has voted 11-2 to table any discussion of proposals to offset veteran’s disability benefits by SSDI benefits received. This means that veterans who are receiving VA benefits are eligible to receive SSDI benefits in addition to their VA benefits.

An offset provision would have reduced the total available benefits to dual VA/SSDI claimants. For now, at least, there will be no offset and disabled veterans can continue to receive checks from both agencies.

Note that the Veteran’s Commission report speaks to the question of offsetting VA benefits. Whether Social Security will move to reduce SSDI eligibility because of VA benefits is a different question.

VA impairment findings have long been considered as valuable evidence in Social Security cases. In many cases that I have tried, the veteran’s service connected medical problems worsen over time and can be important factors in proving current disability.

–Jonathan

[tags] VA benefits, SSDI offset, Veteran’s Commission, service connected disability [/tags]

I want to know if you are opiate dependant, do you qualify for SSDI? I have been disabled for over 20 years, but have been too proud to apply till I really was in need of SOMETHING to help me with a home, electric, etc.and especially my methadone dependence…….that saved my life.
–Christine

Jonathan Ginsberg responds: Several years ago, Social Security added regulations which provide that if drug and alcohol dependency is a “material contributing factor” to your disability, then you cannot be awarded benefits. Another way to look at this – if you stopped using the drugs would you be able to work?

You do not say in your email why you are using methodone. I have seen clients who use methodone to address severe, chronic pain. My sense, however, here is that you are using methodone to control cravings for heroin or some other illegal drug.

Although drug dependence, like alcohol dependence, is recognized by psychologist and psychiatrists as a disease, I think you will have a hard time winning SSDI. If you have some other medical or mental health condition that exists independently of your opiate addiction, you might have an argument but I think you would have an uphill battle.

Secondly, if you have been disabled for 20 years, I presume that you have not worked. In that case, you would not have any earnings credits for Title II disability, although you could be eligible for SSI. Note that if you are married or you have other household income, your eligibility for SSI could be reduced.

[tags] opiate dependence and social security, material contributing cause, alcohol and drug use and social security disability [/tags]

When i got married i lost my ssi benifits is there a way to get them back?
–Paula

Jonathan Ginsberg answers: Paula, SSI is a disability program based on need and work limitations. There are strict income and resource limitations. What you have discovered is that SSI looks at household income and resources.

So, when you got married, your husband’s income and assets are considered in evaluating your eligibility. It would appear that his earnings take you over the limit and thereby disqualify you from SSI.

By contrast, Title II disability does not look at a spouse’s income or resources because those benefits arise from the claimant’s own earnings record.
–Jonathan

[tags] SSi and income and resources, SSDI, Supplemental Security Income, marriage status and Social Security disability [/tags]

I have a frontal brain injury causing a severe visual memory loss. This brain damage or TBI makes me depressed, have low energy , not able to focus , low concentration and I need to know how to apply these difficulties to each question asked on ssi and ssd applications.
–Paul

Jonathan Ginsberg responds: I have studied the Social Security disability application process in great detail. I have even written a book about it called the Disability Answer Guide. Here are the main “big picture” points about filling out the forms for your condition:

1. At the initial and reconsideration levels, the State Agency adjudicators are primarily looking for listing level impairments. It appears to me that the appropriate listing category for brain injury is Listing 11. I would suggest that you print out this listing, take it to your neurologist or neurosurgeon and ask for his help. A letter from the doctor tracking the language of the listing would be most helpful.

2. When you answer the questions on the form, focus on how your brain injury would prevent you for performing work activities. For example, every job requires a certain level of attendance and concentration. No doubt there are other general work activities that you can no longer do. Keep these limitations in mind when you answer the questions on the forms.

3. The State Agency personnel frequently do not get all of the medical records they need to make a decision. If you have not already been doing so, you should obtain and organized copies of your own medical records. I advise people to send these records in themselves to make sure that the State Agency adjudicator has all relevant records.

I also find that cases involving brain injury, mental health problems and even chronic pain require testimony from witnesses. You, as the claimant, may not be able to objectively describe how your condition has changed you. Therefore, you may want to include a statement or statements from friends, family or former co-workers that discuss these changes.
–Jonathan

Attorney Charles Hall published an interesting post on his very informative Social Security News blog. The post, entitled “Inconsistency Between ALJs” discussed a report by a Houston television station that revealed a tremendous difference in the percentages of favorable and unfavorable decisions issued by judges in the downtown Houston Office of Hearings & Appeals. Favorable decision rates ranged between 68% down to 7%.

I have noticed this inconsistency in hearing offices where I practice. Most of the judges I have appeared before are patient, considerate and willing to consider the claimant’s testimony. I have also been before one or two who are rude, condescending and give the claimant’s testimony very little consideration.

The real inconsistency, in my view, arises from the way various judges analyze the evidence. Some judges have no interest whatsoever in listening to the claimant – they are looking for medical diagnostic test results, lab test results and vocational conclusions by treating doctors.

I distinctly remember a case where my client was involved in a serious auto accident in January, but did not get an MRI until October. MRI tests are expensive and her doctor wanted to try conservative treatment like physical therapy and medications. The MRI showed disc herniations at several levels as well as other degenerative changes that were clearly consistent with her allegations of pain. There had been no other accidents and there was no question in my mind that this lady’s pain and limitation of motion arose in January, when she had her accident.

The judge, however, would not concede that my client’s back problems started in January. The October MRI report was the first objective proof of injury and he refused to grant the case with a January onset date. Instead, we were given the choice of amending our onset date to the October date of the MRI or face the risk of a partially favorable or even unfavorable decision. He also let us know that a fully favorable decision with the amended onset would be issued within a week, but any other type of decision might take several months because of the backlog.

My client did not want to wait nor did she want to risk her claim for benefits. By amending the onset, she gave up over $7,000 in past due benefits.

Had we drawn another judge, this never would have happened. But that is what a claimant faces – the draw of the judge is a huge factor in what is likely to happen.

It would seem to me that SSA would want more consistency but there is little qualitative review of administrative law judges. To my knowledge SSA has never surveyed the claimant’s bar about the judges and that is a shame because I suspect that most ALJs want to do a good job and many would be open to improving their performance.

I recently came across two very comprehensive web sites dedicated to mental health issues. Both of these web sites offer useful information about mental health disorders. I generally encourage my clients with mental health disorders and any witness who may testify in their Social Security hearings to learn what they can about the client’s mental health issues. Often it is difficult for a mental health patient to have insight about his/her condition since altered thought processes are often a symptom of the condition itself. For the claimant, reading about his/her condition helps reinforce testimony and for the witnesses, a little research can make their testimony more relevant as well. The first site I can suggest is bipolarcentral.com, a web site dedicated to Bi-polar Disorder. The site’s publisher, David Oliver, and I have correponded a bit and he explained to me that the impetus for this site was the plight of his mother, who is and was a bi-polar patient. David offers a great deal of useful information and he has published a book about living with a bi-polar relative. The other mental health research site I recently came across is the Mental Health Sanctuary web site published by Tim and Andrea Phiel, who live in Washington State. This site is very well organized in that it is divided into nine "sanctuaries" covering such topics as bi-polar disorder, depression, PTSD, Schizophrenia, etc. Each of these sanctuaries offers in-depth information, links to relevant blogs and web sites, therapist links, and other information. The site also utilizes the services of volunteers who can answer questions by email. Both of these sites are worth a long look by SSDI claimants disabled by mental health problems and by their families and friends.