IF YOU GET SICKER, WILL SOCIAL SECURITY INCREASE YOUR BENEFITS?

 

Here's a common question I get a lot.

 

  "My medical condition has gotten a lot worse since my disability benefits started ____ years ago. I now have new medical conditions that I didn't have in the beginning. Will I qualify for higher benefits because I am sicker now than I was before?"

The short answer is, No. Social Security does not offer any "degrees" of disability. It is all or none. You are either 100 percent disabled or not disabled at all. If you have been found disabled and given a benefit, that is a set benefit that will not change due to your future health or medical condition. You are getting 100 percent of the benefit available to you.

One of my clients recently called to say:

"When you helped me get my disability in 2004, it was based on back problems. Since 2004, I have developed severe depression and I was recently diagnosed with heart failure. Will this help me get a higher benefit?"

Unfortunately, it will not. When you were approved for disability benefits back in 2004, you got 100 percent of the benefits available to you. Worsening health does not increase them.

So, how does Social Security determine your benefit? It's based on your average lifetime earnings and how long you worked and paid into the trust fund through FICA (withholding) tax. The longer you worked before becoming disabled--and the higher your wages--the higher your benefit at any given time.

VOCATIONAL ASPECT OF SOCIAL SECURITY DISABILITY

 When you're trying to get Social Security disability, there are two very important aspects to deal with.  

One is the medical aspect.  You must establish through objective medical evidence, that you have at least one severe impairment that has lasted or will last at least 12 straight months.  Of course, you need more than just a diagnosis.  You need consistent medical treatment, preferably from a specialist.  Social Security wants to see that you are trying to get better and you're doing all you can to improve through medical treatment.

Second, is the vocational aspect of disability.  This means that you must relate your impairment to how it restricts your ability to work.  To do this, you will concentrate on functional restrictions.  How does your medical impairment restrict your ability to sit, stand, walk, bend, lift, carry or perform other functions required of most jobs?

You will need to address those restrictions very specifically.  How long can you sit, stand or walk at one time?  How much could you lift and carry during an 8-hour workday?  Let's say you feel you are limited to a lift/carry restriction of 20 pounds.  How often could you lift and carry 20 pounds?  

Occasionally?  This means from very little up to one-third of an eight-hour day.

Frequently?  This means from one-third of the time up to two-thirds of the workday.

Constantly?  This means without limitations.

If you are age 50 or over, the vocational factor is very important.  The decision maker must decide if you have the functional capacity to perform any of your past relevant jobs.  Therefore, your capacity must be well defined.  

How does a herniated disc in your lumbar spine restrict your ability to perform work-related activity?  Which work activities are restricted?  How severely are your work activities restricted?

For example, if you have a herniated lumbar disc with back pain, and it restricts you to lifting and carrying no more than 10 pounds, standing no more than 2 hours per 8-hour day, and walk no more than 1 hour per day, you don't have the functional capacity to perform a light or medium level job.  To determine if you can perform a job at the sedentary level, we would look at how long you are able to sit--because sedentary jobs require sitting about 6 hours each day.

As you prepare for your Social Security disability hearing, focus no only on your medical diagnosis, but also on the vocational restrictions that result from the medical problem(s).

It isn't enough to show that you have a herniated disc or spinal stenosis.  You must go a step further and show how those things restrict you from performing an 8-hour day of work, 5 days per week.

If you can get a Residual Functional Capacity form from your treating doctor, it can go a long way in proving the work restrictions caused by your medical condition(s).

In short, Social Security wants to know:

• What are your medical impairments?
• How do they keep you from working?

USING A PROBATIONAL WORK PERIOD TO WIN YOUR DISABILITY CLAIM

At your Social Security disability appeal hearing, the two key plays are the administrative law judge (ALJ) and the vocational expert (VE).

After claimant testimony and lawyer's arguments have been made, the judge will take sworn testimony from the vocational expert (VE).  The VE's answer to two questions will crucial in determining whether you win your benefits or not.  These 2 questions are:

1.  Based on the claimant's medical limitations that I have outlined, can he/she perform any past relevant work?  If yes, the claim may be denied.

2.  Are there any other jobs in the national economy that the individual could perform?  If yes, the claim is probably lost.

However, it isn't over yet.  Your attorney will get to grill the vocational witness about her testimony.  In this cross examination, your representative will challenge the VE's testimony about jobs and seek to find reasons that the job(s) really can't be performed.

One often overlooked question for the VE concerns probationary work periods.  A probationary period is a 90 day "trial" where the worker is given a chance to demonstrate that he/she can do a good job.  If so, the job becomes permanent.  If not, the worker is terminated.

Questioning of the VE might go something like this:

"Good morning, Ms. Expert.  Could you explain the usual tolerance for absence in the job of pickle pusher?  (The VE will usually testify that a worker is allowed about 1 day per month of absence; more than that will result in termination).

"Second, Ms. Expert, could you explain how much tolerance employers usually have for workers who are off task?"  (Most VEs will testify that employers will tolerate up to 10 percent off task, but more than that results in termination).

"Ms. Expert, you testified that this individual may be able to perform the job of Pickle Pusher, which you classify as an unskilled, light exertion job.  In your experience, is it likely that a new employee would have to undergo a probationary period or trial period before being hired on a regular basis?  If so, how long is the typical probationary period.  (90 days, usually).  Now, I have some specific questions.

First:  "What is the typical tolerance for absences during the 90-day probationary period?"  (Usually, no absence is tolerated during this period).

"So, if a pickle pusher missed even 1 day of work due to illness during that probationary period, he or she would likely be terminated, is that your testimony?"  (Yes).

"Also, what would the typical tolerance be for off task behavior during the probationary period?"  (No more than 5 to 10 percent, probably). 

"So, if an individual's pain, anxiety, panic attacks (etc.) kept him/her off task 15 percent of the workday, or more, there would be no work as a pickle pusher, is that correct?  (Yes).

Here's the argument.  During the 90 day probationary period, a new employee will have to meet tougher, stricter standards to prove that he/she will be a good fit for the job.  If a new worker cannot meet the higher standards during the probationary period, the normal standards for a pickle pusher job don't really apply.  Thus, the claimant could not keep the job, even if hired.  Thus, the job of pickle pusher is not really available to him/her, based on his or her medical or mental restrictions.  (These restrictions have been introduced into evidence, based on doctors reports/medical records, of course).

I have actually won cases on the basis of this cross examination.  It can certainly create doubt in the judge's mind about whether to believe the VE's testimony or take it with a "grain of salt."  If the claimant is on the fence--a borderline situation--this can tip the scales in the claimant's favor.

 

YOU MUST ANSWER THIS QUESTION CORRECTLY AT YOUR SOCIAL SECURITY DISABILITY HEARING

At your Social Security disability hearing, the judge will ask you a series of questions to decide whether you qualify for a benefit.  Here is one question that you must answer correctly, or your case will be denied.

QUESTION:  "Why did you leave your last job?"  This question may be worded slightly differently, but it's a common question at all disability hearings.

PURPOSE OF THE QUESTION:  The judge wants to know if you were forced to stop working by a severe medical condition (physical or mental)--therefore, you may be disabled-- OR if you stopped working for some other reason.

Other reasons individuals may stop working include, among many others:

Transportation problems

Had a fight with the boss

The plant or business closed

The recession (or COVID) caused layoffs or reduction in force

Stayed home to care for a sick family member  

     The problem is, none of these things are disabilities.  And the Social Security Act pays no benefit for any of these things.  So, if you admit you quit working for any reason other than physical and/or mental disability, you have lost your case at the get-go. 

    And it isn't enough to say, "I became too sick to work," or "I just couldn't do the job any more."

Be specific.  What part(s) of the job could you not perform?  Was it the lifting, standing, walking, sitting, bending, or something else?  Was it trouble concentrating, being absent too much because of back pain, or what?  Explain what it was about our job that you could not continue to do.

Hopefully, a few days before your hearing, your attorney/representative will sit down with you and go over what is expected of you and how to answer questions.  Good preparation equals a good hearing. 

STAY THE COURSE TO WIN A SOCIAL SECURITY DISABILITY CLAIM

"Stay the course" is a phrase used in the context of a war or battle--meaning to pursue a goal regardless of any obstacles or criticism." 

 This post is going to use a lot of numbers.  Let me say at the beginning:  The purpose of this post is to prove that claimants must be prepared to hang on and persist if they want to win disability benefits from Social Security.  There are lots of opportunity to quit--but you mustn't.

The complicated Social Security claim process has been described as a byzantine maze.  That is, highly complex or complicated and requiring attention to zillions of minute details.

I want to consider the total number of Social Security disability cases filed in 2016.  These numbers tell a story you need to know if you're trying to get benefits.

In 2016, a total of 2,582,092 applied for Social Security disability benefits. 

852,090 (33%) were approved. 

1,730,002 (67%) were denied.

Of those who were denied, only 633,474 (37%) asked for "Reconsideration." (Over 1 million claimants dropped out of the process after the first denial). Is this the real goal of "Reconsideration"?

76, 017 (12%) of those who did ask for "Reconsideration" were approved, while the other  557,457 (88%) were again denied.

219,022 (46%) of claimants who took their denials to a hearing before an administrative law judge were awarded benefits.

166,647 (35%) were denied by the judge

95,227 20%) were dismissed on technical reasons, such as late filing.

Look at these numbers carefully. 2,582,092 claimants started out to get benefits.

219,022 were awarded benefits, but only after they went before an administrative law judge for a hearing.

So, WHERE do most claimants win disability payments?  The obvious answer is "at a hearing with an administrative law judge."

What is so discouraging to me, as a disability advocate, is the huge number of claimants who dropped out along the way.  I understand why.  It's very discouraging to be questioned, examined, poked and prodded, then rejected numerous times and told "you aren't eligible according to our rules."  It's understandable that most people simply say, "Enough already!"

Yet, 46 percent of the hardy souls who stayed the course and took their appeals all the way to a judge GOT THEIR BENEFITS.  THEY GOT PAID!

If you are sick and tired of dealing with Social Security, please don't give up.  Get a legal representative to assist you and let him/her deal with Social Security for you.  It will take jigawatts of stress off your life, do away with your constant work on your appeals, and increase your odds of winning--all at the same time.

Stay the Course.  Appeal, Appeal, Appeal.  Then, appeal some more.  

 

 

 
 

DISABIITY BENEFITS FOR MENTAL CONDITIONS

 Social Security can pay disability benefits for mental impairments, such as severe depression, chronic anxiety, reduced cognitive functioning, and others.

The "Blue Book" Listings consider mental disorders under 11 broad categories:

1. Schizophrenia spectrum and other psychotic disorders
2. Depressive, Bipolar and related disorders
3. Intellectual Disorders
4. Neurocognitive 
5. Developmental Disorders
   
6. Anxiety and Obsessive-Compulsive Disorders
7. Somatic Disorders
8. Personality and Impulsive Control Disorders
9. Autism Spectrum
10. Eating Disorders
11. Trauma and Stressor-Related Disorders

Mental disorders are one of the most difficult disability cases to win.  Claimants with a long history of well documented illness have the best chance, especially if their disorder has caused multiple hospitalizations in recent years.

 

It can be very useful to have a treating psychiatrist or psychologist explain how the mental impairment restricts the claimant's ability to work on a "regular and consistent basis."  Social Security calls such an explanation a "Residual Functional Capacity - Mental," or a "Medical Source Statement."

Claimant's considering a Social Security disability application will need the following:

1.  Treatment by a licensed psychologist (Ph.D. or Psy.D), or by a psychiatrist (MD).

2.  An attempt to control the disorder with medications and/or counseling therapy.

3.  A history or medical documentation that the severe disorder has lasted, or is expected to last for at least 12 consecutive months.

4.  A satisfactory explanation, based on medical documentation, of how the mental disorder restricts the individual's ability to work a full-time job.

It is reasonable to expect that the original application will be denied, just as with other types of claims.  The second review, called "Reconsideration" will almost surely be denied, too.  The next appeal is a Hearing before an Administrative Law Judge (ALJ)--and this is the best chance for approval, especially if the hearing appeal has been well prepared with excellent medical documentation.

Disability advocates or attorneys handle these claims every day and know what Social Security is looking for.  They understand the high burden of proof required for approval.  They are also experts at guiding claims and appeals through the complicated Social Security system.  They will not charge a fee for representing you unless two things happen:  (1) Your claim is decided in your favor, and (2) You collect back pay or retroactive money from Social Security (lump sum payment).

________________

The Forsythe Firm

"The Disability People"

Huntsville, AL 35806

PHONE (256) 799-0297

5 THINGS THAT ARE CONSIDERED IN EVERY SOCIAL SECURITY DISABILITY CASE

 Here are 5 things that will be considered in every Social Security disability claim:

1.  Age

2.  Education

3.  Past Relevant Work

4.  Transferability of Skills

5.  Residual Functional Capacity

 

One or more of these factors may become critical in a particular case.  However, Social Security law requires that all 5 be considered.

I won't belabor this post by explaining what each of these things means.  

A claimant can take a long time researching and trying to figure out how these factors affect his/her claim.  

An easier way would be to call a disability attorney/advocate and ask for a free evaluation.  Professionals are trained to consider how each of the 5 things (above) will help you or hurt you in a disability claim.

For heaven's sake, don't go into your hearing without knowing how to define and defend these 5 important things, upon which the judge will render a decision.