Presumption Associated With Applying for Social Security Disability

By applying for Social Security Disability, a claimant is stating to the Social Security Administration that they are unable to perform full time work due to physical or mental impairments.  Stated another way – even if an employer offered you a job, you would not be able to physically and/or mentally perform the required duties.

How Working Impacts the Presumption of Disability

The Social Security Disability process can be lengthy which may result in financial strain on an applicant.  Thus, many people are forced to attempt to return to some form of work.  This decision may have a technical or practical impact on an application for disability.

Technical Impact

• The Social Security Administration allows an applicant to engage in work activity for a limited time before finding the claimant technically ineligible.  This process is called an ‘unsuccessful work attempt.’
• The Social Security Administration has stated, “We generally consider work that you are forced to stop or to reduce below the substantial gainful activity level after a short time because of your impairment to be an unsuccessful work attempt. Your earnings from an unsuccessful work attempt will not show that you are able to do substantial gainful activity.”
• If an applicant engages in work above substantial gainful activity for 6 months, they will be technically ineligible for
  Social Security benefits.

 Practical Impact

• As stated above, there exists a presumption that a claimant for Social Security disability is unable to work on account of physical or mental impairments.  Thus, when an applicant decides to work, he or she is sending a conflicting message to the Social Security Administration.
• Although a claimant may not be rendered technically ineligible for engaging in work activity, an Administrative Law Judge may use said work to decrease the credibility of an applicant.

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Blanchard most recently served as Director of Sales Operations for Disability Group, and was responsible for identifying the specific benefits that each prospective new client of Disability Group deserves based on case criteria. In his new role as Chief Sales Officer, Blanchard will be responsible for managing the internal daily operations of the case analyst department, expanding the services offered to prospective clients, and overseeing the management of each prospective new disability client inquiry.

Blanchard has 15 years of experience managing and leading client acquisition strategies, business development operations and case analysis for legal firms. In 1997, he joined forces with Ron Miller, Founder and Managing Director of Disability Group, at Miller & Associates. During his tenure at Miller & Associates, Blanchard held positions of responsibility leading operations, marketing and attorney management of the firm.

Pennington has been promoted to Chief Operating Officer from a position of Vice President of Operations where she was responsible for ensuring that those with disabilities are able live fulfilling lives by aggressively securing the benefits that each client deserves. In her new role, Pennington will be responsible for monitoring and managing the quality of services each client receives from Disability Group, and continuing to streamline and enhance current internal systems and processes.

Pennington is an accomplished executive with 20 years of experience building, leading and empowering technology, operations and finance teams. Prior to joining Disability Group as the Vice President of Operations, Pennington served as Chief Information Officer at Crystal Stairs where she provided executive oversight to enterprise-wide projects designed to expand services, reduce legal exposure and improve quality of services. Pennington is a member of Project Management Institute, on the Board of Trustees at Pitzer College, and a Board Member of National Women’s Political Caucus. She has an MBA from UCLA Anderson School of Management and an MPH from UCLA School of Public Health.

“We are pleased to announce that these key members of the Disability Group team have been promoted to positions of increased responsibility,” stated Ron Miller, Founder and Managing Director of Disability Group. “These promotions recognize the significant contributions that each of these talented executives has made to Disability Group and will continue to make in the lives of each and every client we serve.”

About Disability Group:
Founded in 2006 in Los Angeles, California, Disability Group (http://www.disabilitygroup.com) is dedicated to serving the needs of the disabled as the second largest nationwide advocacy groups. With locations nationwide, Disability Group serves clients’ Social Security Disability and Supplemental Security Income needs in all 50 states, Puerto Rico, and all U.S. territories.

For more information, visit http://www.disabilitygroup.com or call Linda Fisk at 424-243-8337.

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Right now, there is a lot of discussion and debate about the health of the Social Security trust fund. And, to help clarify the discussion, it might be helpful to remember that Social Security is split into two funds — one for retirement and survivor benefits, and one for disability.  Some analysts suggest that the retirement fund is projected to run out of money in 2035 while the disability fund is projected to run dry in 2016. Combined, the two funds will last until 2033. 

The reality is that our government is quite functional in the operation of these programs. Millions of people regularly receive the benefits they’ve been promised through systems and processes that have very modest administrative costs.

The rise in Social Security claims has been anticipated for decades, and  the Office of the Chief Actuary of the Social Security Administration recently reported in a congressional committee that a temporary redirection of 0.2% of the FICA tax, for just 12 years, would meet the current and future demands of the Disability Trust Fund.

In addition, the Trustees project that Social Security benefits will increase next year, though the increase could be small. They project a cost-of-living-adjustment, or COLA, of 1.8 percent for 2013; the actual amount won’t be known until October.  It’s also important to note that beneficiaries got a 3.6 percent increase this year, the first after two years without one.

Pundants and observers have offered many likely remedies, should there be any sort of anticipated shortfall including the possibility of simply abolishing the current trust fund model, and paying for promised benefits by allocating appropriate government budgetary funds .  Just as the government finances other promised benefits, like pensions and healthcare for retired government workers and military retirees, the government could also budget for social security disability benefits.

In addition, the Trustees suggest several changes that could restore the program to solvency for the next 75 years. An immediate payroll tax increase of about 1.3 percent for both workers and employers would correct the projected deficit, as would immediately reducing benefits by 16.2 percent, or some combination of these two approaches.  In the end, there are many solutions to any anticipated shortfall in funding, and we are confident that we will be able to meet the demands on the current system.

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What are “Grids”?

If a person applying for disability benefits is found to be unable to return to their past work, then the next question is whether they can do any other work.  If the claimant can do other work then they will NOT be disabled.  If they cannot do any other work, then they WILL be found disabled under Social Security’s rules.  To answer this question Social Security looks to the Medical-Vocational Guidelines, or “Grids” to see where a claimant falls in regard to the combination of the following 4 factors;

1. Age
2. Education,
3. Past Relevant Work and
4. Residual Functional Capacity.

Those who fall into certain combinations are found to be automatically disabled.  For example a person who (1) is between the ages of 56-60, (2) has less than a high school education, (3) has past work that was unskilled and (4) can only do a desk would automatically be found disabled per the Grids. See the full Grid below.

Age

The first part that will be covered is how age factors into this equation. The older a person is, the less likely it is that Social Security will find that they can do other work.  Think of the adage: “You can’t teach an old dog new tricks”.  In this way, Social Security has a lower expectation that an older person will be able to a job that is different from their past work.  So for Social Security purpose claimants, being older works in their favor because it make it easier to fall into a “Grid” that finds them disabled.

For example, someone who is over the age of 50 can be found disabled, even if there are other jobs available for them.  If you had a 50 year old person who was a laborer their entire life, they would be found disabled, even if they could do an easier desk job.  However, anyone under the age of 50 would have to show that they cannot do any job whatsoever, in order to be found disabled.  However, if someone who is under 50 could do an easier, desk job then they would not be found disabled and could not be awarded benefits.

Conclusion

This system takes out the guesswork and subjective discretion that can be present in other parts of the Social Security process.  It is a more objective way to answer the question of whether a person can do other work.  Of course, there are other finer points that come into play, but this is generally how the Grids work. For further explanation on how your age will affect where you fall in the Grids you should contact a Social Security attorney. See below for a full chart of the Grids.

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Do alcoholics and drug addicts really receive Social Security disability benefits?

No.  Although in the past administrative law judges may have awarded disability benefits to some claimants who became disabled due to alcoholism or drug addiction, current federal law prohibits Social Security from paying disability benefits on the basis of alcoholism or drug addiction.  Individuals, who, however, become disabled due to other impairments such as heart attacks and strokes, may be awarded benefits for their impairments so long as these impairments are apart from their substance abuse. 

I don’t appear disabled; will the administrative law judge hold that against me at the hearing?

The administrative law judge will consider many factors during your hearing in order to determine whether you are entitled to benefits.  Although the administrative law judge may consider physical attributes such as your general appearance at the hearing or whether or not you are using a cane or a walker, it is a well known fact that many people who may appear very healthy are actually disabled.  This may be especially true for individuals whose illnesses are mental in nature.   It is important to remember that the administrative law judge will look first to the description of your symptoms and impairments in your doctor’s medical records. 

My doctor has stated I am disabled, why isn’t this enough for me to win my claim?

Ultimately, the finding of disability is determined by Social Security, who has set up it’s own definition as well as additional requirements needed for an individual to be considered “disabled.”  While the opinion of your doctor will be very important in proving your claim, Social Security is entitled by law to consider other factors, including the opinions of other doctors.

The VA/State Disability/DMV found that I am disabled, why is Social Security denying my claim?

While Social Security may consider the opinions of the VA and other organization or agencies, the Social Security Administration is not bound by these decisions.  Social Security’s standard for finding an individual disabled is different than the standard used by the VA or other agencies and organizations.

Why does it seem like my claim is taking so much longer to be scheduled for a hearing than the claim of my friend or relative?

It may seem that way, but if two claims are pending before the same exact hearing office and were filed at close to the same time, it is likely the wait time for these claims to be scheduled will be close to the same.  The wait times for various hearing office do, however, vary state to state and within that state, between various local hearing offices.  Nationally, the wait time for a hearing can be anywhere between twelve to sixteen months.  These wait times are actually a part of the public data published by Social Security.  No law firm can expedite the scheduling of a hearing.  There are, however, specific circumstances in which Social Security may expedite a case to a hearing such as in the case of a terminally ill claimant or if there is a dire financial situation a claimant is facing.  

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 The effect returning to work has on your disability benefits depends on whether you receive Social Security Disability Insurance benefits (SSDI) or Supplemental Security Income benefits (SSI).

What happens if I receive SSDI benefits and I go back to work?

If you receive SSDI benefits, you can test your ability to work and still be considered disabled.  This is known as a trial work period.

How does the trial work period work?

During the nine-month trial work period you attempt to re-enter the workforce. The nine months do not have to be consecutive; they just need to be within a sixty-month period.  The Social Security Administration does not consider work performed during the trial work period as showing your disability has ended.  During the trial work period, you will receive your full SSDI benefits check.

What constitutes a trial work month?

In 2011, a trial work month is any month in which your total earnings are $720 or more.

What happens after the trial work nine-month period?

After the nine-month trial work period you are placed in an extended period of eligibility (EPE) for disability for 36 months (3 years). While in your EPE, any month you earn less than $1000 you will receive benefits. The following five years after that, if you are unable to work you may ask the SSA to start your benefits back up without filing a new application or having to wait while your condition is reviewed to determine if you are still disabled.

What happens if I receive SSI benefits and go back to work?

If you are disabled and return to work, you may receive your SSI payments until your earnings, added with any other income, exceed the SSI income limits. Remember SSI is a type of welfare program for people with limited resources who become disabled. The asset limit for SSI is different in each state. Even if you exceed the asset limit for SSI and your payments stop, you may still qualify to receive Medicaid coverage. If your SSI payments stop because of your earnings and you become unable to work, you may ask the SSA to start your benefits again. You will not have to file a new disability application if your request is made within five years after the month your benefits stopped.

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When applying for disability benefits through the Social Security Administration there are two programs which you can apply for, Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI). Both programs require that you meet Social Security’s definition of disabled, however the technical requirements and benefits for each program differ.

Supplemental Security Income (SSI)

SSI is a needs based program for disabled individuals with little to no income or resources. In order to qualify for SSI you must meet the following requirements:

1. Be disabled (as defined by the Social Security Administration),
2. Be a legal resident of the US and authorized to work in the US or be a US Citizen,
3. Have limited income, and
4. Have limited resources ($2000 max for an individual, $3000 max for a couple).

Children under that age of 18 can also qualify for benefits if they meet the above requirements. However, with children they look at the household income and resources (not just the child’s).

When awarded SSI you will receive a set monthly payment plus Medicaid. You may also receive a lump sum payment to cover the retroactive benefits from the time you filed your application to the date awarded.

Social Security Disability Insurance (SSDI)

SSDI is an insurance type program that you must have paid into to be eligible for. In order to qualify for SSDI you must meet the following requirements:

1. Be disabled (as defined by the Social Security Administration), and
2. Have earned enough work credits (the number of work credits required varies depending upon your age. The work credits must also be recent. Generally if you worked 5 of the last 10 years at a full time job and you were paying into Social Security you will have enough recent credits).

When awarded SSDI you will receive a monthly payment based upon how much you paid in and Medicare, which kicks in two years after payments first start. You may also receive a lump sum payment to cover the retroactive benefits from up to one year prior to when you filed your application to the date awarded.

Which to Apply For

Using the above information, determine which program you believe applies to you. If you think you may qualify for both programs, than you can apply for both.

For additional information or to file an application contact the Social Security Administration or an experienced Disability Law Firm. 

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The Social Security Administration has established regulations pertaining to what types of medical providers can give opinions and provide evidence regarding an individual’s conditions and functional limitations.  Normally, evidence from chiropractors, nurses, and physical therapists will not be given considerable weight because these professions are not considered “acceptable medical sources” by Social Security.

Who qualifies as an “Acceptable Medical Source?”

• Licensed physicians
• Licensed or certified psychologists
• Licensed optometrists
• Licensed podiatrists
• Qualified speech-language pathologists. 

What if I have evidence that is not from an “Acceptable Medical Source?”

Social Security will consider evidence from other sources when evaluating the strength your claim. These other sources may include:

• Audiologists
• Chiropractor
• Licensed clinical social workers
• Naturopaths
• Nurse practitioners
• Physician assistants
• Therapists

Can I present evidence from non-medical sources?

Yes. Non medical sources such as educational personnel, employers and family caregivers may also be considered.

It is important to note that although Social Security will accept evidence as it pertains to your disability from a variety of sources, the existence of the condition must be established by an “acceptable medical source.”  Once this has been done, the other sources may provide evidence regarding the functional limitations and the severity of the condition.

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At your Social Security Disability Hearing the ALJ has already reviewed all your medical records. He knows your doctor’s perspective on your condition, now he wants to get your perspective on your condition.

The ALJ will ask you lots of questions in order to get a better idea of your condition and how it affects you. To improve your chances of getting a favorable outcome, you want to be a good witness. Below is a list of things you can do when testifying that will help you be a good witness:

1. TELL THE TRUTH – The most important thing you can do at your hearing is to testify truthfully and completely. Even if you think the truth may hurt your claim, you should still tell it. One false statement can substantially diminish your credibility and hurt your chances of receiving a favorable decision.  
2. Be Specific – When the ALJ asks you a question, be as specific as possible. If the ALJ asks you how long you can stand, do not say “a little while.” To one person a little while could mean 2-3 minutes, however to another person it could be 2-3 hours.
3.  Get to the Point – Judges hear several cases a day; they don’t have time for long, drawn out stories or explanations. They want to get the necessary information as quickly as possible. If the question is what medications are you currently taking, do not tell the judge every medication you have ever taken, simply tell him the medications you are currently taking.
4. Give Complete Answers – Make sure when you testify that you are telling the whole truth. If the ALJ asks you whether you can wash dishes, and you can, say “yes.” However, if it takes you several hours to wash dishes due to pain in your hands, then you want to mention this. Instead of telling the ALJ “Yes, I can do dishes,” you should say “Yes, I can do dishes as long as I have several hours and can take frequent breaks to lie down.”
5. Answer Verbally – A tape recording will be made of the hearing so it is important that you answer each question verbally. Do not nod or shack your head. Also, if the ALJ asks you to identify where your pain is, do not just point (as the recorder will not pick this up); make sure to state where specifically you are pointing.
6. Do Not Answer a Question You Do Not Understand – If you do not understand what the ALJ is asking you, let him or her know. You want to make sure you understand what the ALJ is asking for so you don’t accidently give him incorrect, misleading or irrelevant information.
7. Listen Carefully – Listen carefully to the questions being asked and always let the ALJ finish his or her question before responding. You want to make sure you are giving the ALJ the exact information he or she is looking for.
8. Don’t Exaggerate – Embellishing your conditions or your limitations can really hurt your credibility. If you exaggerate and tell the ALJ that you cannot do something at all and there is evidence in your records that you can, the ALJ may begin to believe that you are just saying what you think will get your claim awarded and not telling the truth.
9. Don’t Get Angry – The whole process of applying for Social Security Disability can be very long and difficult. You may feel like you have been put through the ringer, but don’t get angry with the ALJ. The ALJ is simply doing his or her job. There is nothing he or she can do to speed up the process. The best thing you can do for your claim is to simply give the ALJ the information that he or she needs to make an informed decision on your claim. 

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