SOCIAL SECURITY DISABILITY

The Social Security Administration operates several different programs:

1. Disability insurance benefits (“DIB” or “SSD” Title 2)
2. SSI (Title 16)
3. SSI child’s benefits
4. Widow/er’s benefits
5. Survivor benefits
6. Retirement benefits
7. Disabled Adult Child benefits (“DAC” or “CDB”)

A claimant must follow SSA’s process:

1. Initial Application
2. Reconsideration or Federal Reviewing Official if denied
3. Hearing with an Administrative Law Judge
4. Appeals Council if under the old Reconsideration process. This is not available in applications filed after 8/1/06 in New England
5. Federal District Court
6. Federal Appeals Court
7. US Supreme Court

SSD v. SSI

Both programs provide benefits for disabled adults. Some claimants are eligible for both programs, some for SSD only, some for SSI only.

SSD is a program for people with a recent work history. When a person works, they pay SS taxes, and receive “quarters” of coverage. If a person has enough quarters, that person is insured for SS benefits. The amount of quarters needed varies, depending on the age of the claimant. Most people need 40 quarters to be covered, however younger workers need only 6 quarters. A claimant must also be currently insured. In general, a person who has worked 5 years out of the last 10 years is currently insured. Once a person stops work, SSD coverage will lapse after a period of time. That date is called the “date last insured.” For example, if a person’s date last insured is June 30, 2007, that person must be found disabled prior to June 30, 2007 in order to be eligible for SSD. If the individual does not become disabled until July 1, 2007, there is no SSD coverage. There is a 5 month waiting period after the onset of disability. Benefits can be paid up to one year prior to the date of application.

The amount of SSD benefit depends on the claimant’s earnings history. The higher the lifetime earnings, the higher the monthly benefit. There may also be benefits payable to the children of a disabled worker, up to 50% of the worker’s benefit. A SSD recipient is eligible for Medicare after a waiting period of 24 months.

SSI is a welfare program. The disability rules are the same as for SSD, but the income, asset and earnings rules are different. It does not matter if the claimant ever worked. The monthly benefit now is $721 for 2014. There is no additional benefit for children of the claimant. A claimant can have no more than $2000 in countable assets; a couple may have no more than $3000. Not all assets are “countable.” Countable income reduces the monthly benefit. No benefits are paid prior to the application.

HOW SSA DETERMINES DISABILITY

Different disability programs use different definitions of disability. SSA uses a sequential evaluation process.

1. Is the claimant working?

If the claimant is working at the substantial gainful activity level (SGA), the claimant will not be found disabled. Earning of $900 a month for 2007 are SGA. Sometimes earnings can be disregarded if work is considered an unsuccessful work attempt.

2. Does the claimant have a severe impairment?

If the impairment causes a physical or mental limitation in any basic work activity, it is severe. This is a de minimus standard.

3. Does the impairment meet or equal a listing?

This is a medical decision. There are 14 different listings, as follows: musculoskeletal system, special senses and speech, respiratory system, cardiovascular system, digestive system, genitourinary impairments, hematological disorders, skin disorders, endocrine system, impairments that affect multiple body systems, neurological, mental disorders, malignant neoplastic disease, and immune system.

Mental disorders are further subdivided into the following listings: organic mental disorders; schizophrenic, paranoid and other psychotic disorders; affective disorders; mental retardation; anxiety related disorders; somatoform disorders; personality disorders; and autistic disorders and other pervasive developmental disorders.

If a claimant meets or equals a listing, the claimant will be found disabled. If a claimant does not meet or equal a listing, the case proceeds to step 4.

4. Past relevant work

SS will determine the claimant’s residual functional capacity (RFC). This is what claimant can do, in spite of his limitations. Both mental and physical limitations are considered. How long can claimant sit, stand, walk?  How much can claimant lift and how often? How long can claimant pay attention to a task? Can claimant relate well to supervisors and co-workers? To determine RFC, we look at the ability to perform work related activities on a sustained full time basis.

SS will then determine whether a claimant can return to past relevant work (PRW).  For work to be PRW, it must have been performed in the last 15 years, and for a long enough period for the claimant to have learned how to perform the job. Sporadic work for only a short time may not be PRW.

For example, lets say a claimant has an RFC for only sedentary work, with PRW as a certified nurse’s aide. That person cannot return to PRW. The case will then proceed to step 5.  If a claimant can return to PRW, then the claimant is not disabled.

5. Other jobs.

If the claimant cannot return to PRW, then a determination is made as to whether the person can perform other work that exists in the national or regional economy. Vocational factors such as age, education, English language ability, and work experience are all considered. If other work exists in significant numbers, the person is not disabled

Drug and alcohol addiction

If drugs or alcohol are a material factor in disability, the claimant does not get benefits. If a claimant is not using drugs or alcohol and is still disabled, the claimant will win. Even if the claimant is currently using drugs or alcohol, if the impairment would still remain if the claimant stopped using, or if drugs or alcohol cannot be separated from the other disability, the claimant should win.

Role of the treating physician and other medical providers

The opinion of a treating physician or psychologist is accorded controlling weight if it is  supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the case record. The opinion of other medical providers such as APRNs, social workers and therapists are also very helpful, but are not accorded the same weight as are opinions of physicians or psychologists. Therefore, it is important that all reports are co-signed by a physician or psychologist.

The opinion of a medical provider is crucial in determining whether a person meets a listing, or in determining a person’s RFC. A diagnosis is not sufficient. A conclusory report that “This person is disabled” is also not sufficient. Such a conclusion will be given no weight by SS. SS needs information as to the claimant’s limitations in the activities of daily living, social functioning, attention and concentration, episodes of decompensation, and in the mental abilities needed for work. I have prepared forms which can be filled out and signed by a physician. A typed report prepared by the physician is also useful, as long as it contains the same detail as the forms.

A report on whether drugs or alcohol are material to claimant’s disability is helpful to SS in determining this issue.

SS needs to see the contemporaneous progress notes. A report which is not consistent with progress notes will be given little weight.  Progress notes which record the impairments in activities of daily living are helpful. It also helps if notes are legible.

CONCLUSION

Claimants rely on the cooperation of their medical providers to win SS cases. It is very difficult for SS claims representatives or judges to determine a claimant’s physical or mental restrictions without help from the claimant’s medical providers. It is extremely difficult to win a case without a detailed report from a treating physician. A victory in a disability case will give your patient dignity, housing, and possibly Medicare.