DISABILITY: THE ESSENTIAL QUESTIONS (AND ANSWERS)

1)  At what age may I apply for Social Security disability (SSDI)?  Answer:  Adults may apply any time before your full retirement age.  (If you were born in 1948, for example, your full retirement age is 66).  Children may apply any time prior to age 18.  There are special rules for adults who became disabled prior to age 22.

2)  What monthly benefit may I expect from SSDI?  Answer: The benefit amount will vary based on your average wages and work history.  The maximum monthly benefit in 2016 is $2,639.  The average monthly benefit is $1,166.

3) Can my spouse or dependent children also receive benefits?  Answer:  Yes, dependents may qualify for benefits based on the wage earner's disability. Dependent grandchildren may also be eligible. A spouse who is caring for a disabled wage earner's dependent children under age 16 may also qualify. 

4)  Will I get Medicare insurance with my disability benefits?  Answer:  Yes but there is a waiting period.  Medicare starts 29 months after the official onset date of disability for SSDI claims. Note that this is 29 months from the disability onset, not from the date of your decision.  SSI beneficiaries get Medicaid and there is no waiting period for Medicaid.

5)  If my doctor tells me I am disabled and cannot continue working, are disability benefits automatic?  Answer:  No.  You must still apply and prove to Social Security that you are disabled according to their rules.  Many times, such individuals are denied and must appeal in order to get benefits.  Appeals must be filed within 60 days of denial.

6)  I saw my doctor today and he does not think I will be able to continue working much longer.  May I apply for Social Security disability now and keep working until I am approved?  I want to have my claim approved before I stop working.  Answer:  No, the system does not permit this.  You must not be working at substantial gainful activity when you apply for disability benefits.  If you are, you will be denied at Step 1, regardless of the medical evidence.

7)  I am 64 years old and retired. I worked for more than 40 years. I've been receiving Social Security early retirement benefits for about 2 years. I've been healthy until now. Recently, however, I was diagnosed with a severe illness for which there is no cure.  Since I am already receiving Social Security retirement, may I file a disability claim?  

Answer:  Yes, you may.  You are under full retirement age and it appears you have adequate work credits to support a claim.  Also, I assume your recent impairment will last for 12 months or more (the duration requriement), so you may file a disability claim and try to prove disability. As long as you are not working, your present income does not matter for a Title 2 (SSDI) claim.  If your claim is successful, your monthly benefit will be increased to the amount you would have received at full retirement age (payable from the onset date of your disability).  Also, you may qualify for earlier Medicare coverage, in the event you are not yet 65 when your case is decided.  You may continue to receive your retirement benefits while your disability claim is being decided.  Even if you eventually do not get a favorable decision on the disability claim, it will have no impact on your retirement benefits, which you will continue to receive.  So, you risk nothing by filing for disability.  A final thought:  At age 62, it may be easier to win a disability claim, compared to a younger individual, thanks to the medical-vocational guidelines.
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If you have a Social Security disability question that was not answered here, or on one of our many blog posts, please call the Forsythe Firm in Huntsville, AL at (256) 799-0297.
There is no charge or obligation for a consultation.

WHY THE 'FUNCTION REPORT' WINS DISABILITY CLAIMS

Social Security disability is awarded base on a claimant's limited ability to function.  It is not awarded based on diseases, but on functional limitations.

The primary way Social Security evaluates your functional ability is by a detailed questionnaire that they refer to as "the ADL (Activities of Daily Living) questionnaire.  The official name of the document is the "Function Report."

The Function Report is an 8-page document with Sections A-D and it contains approximately 60 questions.

I understand the temptation to ignore this form (just not bother with it) or to fly through it quickly because you feel it is a waste of time.  This is a crucial mistake.  You should spend a lot of time with this form.  In fact, this form should be your constant companion for a couple of days until it is completed lovingly, comprehensively, thoughtfully and very, very completely.

The Function Report will ask you things like:

• Do you cook your own food? How long does it take you? What do you cook?
• Do you spend time with others?
• What are your hobbies? How often do you do them?
• Do you go places on a regular basis?
• When you go out, how do you travel?
• Do you get along well with others?
• Do you need help caring for others or pets?
• Do you need help with bathing, getting dressed, or feeding yourself?
• How do your illnesses, injuries conditions affect your sleep?
• Are there things you used to do that your disability now stops you from doing?

Social Security will use your answers to these questions to determine (a) how your illness or injury affects your activities of daily living, and (b) are your allegations of symptoms consistent and credible.

If your application is denied (about 70% will be), the judge who hearings your appeal with use this same Function Report to evaluate consistencies in your symptoms and the credibility of your complaints.  This Function Report literally stays with you from the day your file your claim until the appeal is decided, perhaps 24 months later in some cases.

If you are unable to understand or complete the Function Report in loving, comprehensive detail--get someone who can help you:  a relative, your pastor, a friend, etc.  If you are represented by an attorney or advocate, he/she will understand this form and help you complete it correctly.  But for heavens sake, do not ignore the form or (just as bad) fly through it checking boxes just to say you finished it.  (That's how I used to do my homework, with equally dismal results, I might add). 

USING OPINION EVIDENCE TO WIN DISABILITY

There are 2 types of medical evidence in a disability claim:  objective medical evidence and opinion medical evidence.

Objective medical evidence consists of things like X-rays, laboratory tests, MRIs or CAT scans.  These are found in your doctor's records.

Opinion evidence is quite different.  Opinion evidence is where your doctor or professional renders an opinion on how your medical condition affects your ability to perform certain functions.  

For example, an MRI may show that you have 2 herniated discs in your lumbar spine.  This is objective evidence.  It is what it is.  The doctor may then give an opinion as to how long you can sit, stand or walk.  That is opinion evidence.  If your doctor states:  "The patient would be limited to lifting no more than 10 pounds occasionally, sitting no longer than 30 minutes, standing no longer than 15 minutes at a time, or walking no more than 300 feet," that is opinion evidence.

Opinion evidence is used to form "residual functional capacities," that is, what is the most work like activity that an individual can perform on a sustained basis?  This will be use by decision makers to determine what type of jobs, if any, the claimant would be able to perform.  This, in turn, will determine whether the claimant meets the rules for Social Security disability benefits.

We should note here that broad, general conclusions by doctors are not useful.  For example, the statement, "It is my opinion that this patient is not able to perform any type of work and is totally disabled," is not useful.  This conclusion is reserved solely to the Commissioner of Social Security under the federal regulations (20 CFR 404.1527(d); SSR 06-03(p); SSR 96-6(p), etc.).  

A doctor's statement that addresses the patient's ability to sit,stand, walk, lift, carry, push, pull, concentrate, make decisions or perform other specific work related functions can be very useful opinion evidence.

VETERANS SOMETIMES GET FALSE INFORMATION ABOUT DISABILITY BENEFITS

Unfortunately, disabled veterans sometimes get wrong information, even from Social Security.

Sometimes, we have known of disabled veterans being told, in effect, that they cannot apply for Social Security disability benefits because they are still receiving military pay, or "still working."  However, the Wounded Warrior program permits disabled vets to apply for disability when they are receiving active duty pay if they are on medical leave, performing restricted duties or under therapy in a military treatment facility.

Social Security's website states the following:

Active duty status and receipt of military pay does not, in itself, necessarily prevent payment of Social Security disability benefits.  Receipt of military payments should never stop you from applying for disability benefits from Social Security. If you are receiving treatment at a military medical facility and working in a designated therapy program, or on limited duty, the government will evaluate your work activity to determine your eligibility benefits.

Even if you are told by someone at a Social Security office that you do not qualify for disability benefits, check this with another qualified source.  Social Security personnel are generally well trained, hard working and well meaning individuals who do excellent work.  But, like in all other areas of life, mistakes are made.  That's why you have attorneys and advocates to assist you with protecting your rights under the Social Security Act and to make sure that you get all the benefits you are entitled to, even when a mistake is made.

If you need to just check out a Social Security disability claim, or appeal an unfavorable decision, please feel free to contact the Forsythe Firm here in Huntsville for a no cost, no obligation discussion.  (256) 799-0297. 

"RECENT WORK TEST" FOR SOCIAL SECURITY DISABILITY

If you stopped working more than 5 years ago, you do not have coverage for disability with the Social Security Administration.

You need to have recent work to be eligible for disability benefits.  You must have worked at least 20 out of the last 40 quarters, or more simply put, you must have worked 5 out of the last 10 years.

If you stopped working at a job that pays FICA tax more than 5 years ago, you will not be able to get disability benefits, no matter how much you paid into the system.  That money remains in the trust fund (pool) until you reach retirement age.

Your Date Last Insured (DLI) is the date you stopped being insured for disability claims with Social Security.  If a disability begins after the DLI, it is not covered.  This is one more good reason not to delay in filing a claim as soon as you feel you have become disabled.

GETTING DISABILITY - THE MEDICAL EVIDENCE

The federal regulations reserve Social Security disability benefits to individuals who an prove disability with objective medical evidence.  Generally, you must be able to provide medical records from doctors, psychologists, clinics, hospitals or other acceptable medical professionals that show.......

• the existence of impairments
• the severity of impairments
• the duration of impairments (how long symptoms have lasted)

There are two types of medical evidence.  Objective medical evidence may include imaging studies, laboratory reports, EKG, and comprehensive examinations by a qualified doctor.  Subjective medical evidence refers to opinions of professionals who have viewed the objective evidence and given a professional opinion concerning your symptoms, diseases or injuries.

It isn't enough for a claimant to allege back pain, for instance.  It isn't enough for a doctor to make a note in her chart that the patient has complained of back pain.  Most helpful would be an X-ray or MRI study showing the probable source and cause of back pain, such as a bulging or herniated disc, foraminal canal stenosis,  degenerative disc disease, etc.  Then, your doctor might offer an opinion as to how the disease (or injury) would limit your ability to sit, stand, walk, bend, crouch, crawl, lift, etc.

"It is really by demonstrating significant limitations on the ability to perform common work related activities that you qualify for disability benefits."

How severe must the limitations be?  The answer lies in the combination of several key facts:  the claimant's age, level of education and past work experience.  For most claimants under the age of 50, the impairment must prevent the ability to perform any full-time work.  The rules are somewhat less stringent for persons over age 50. For example, a claimant who is over age 55, has a limited education and past relevant work that is unskilled may only have to demonstrate that he cannot perform any of his past work.  A younger individual will likely have to prove the inability to perform any and all work which exists in the US economy.

If you are suffering from a medical condition that you feel may lead to disability, it is extremely important to get prompt medical attention, continue to see your doctor(s) regularly and try to follow the recommended treatment plan. It is also important to tell the doctor(s) about all your symptoms and explain any problems you are having with such things as prolonged sitting, standing, walking, bending, lifting, concentration, fatigue....etc. 

 

HOW A VA RATING AFFECTS SOCIAL SECURITY DISABILITY

If you are a disabled veteran with a 70 percent or higher VA disability rating, there is an excellent chance you may also qualify for Social Security disability benefits.  The Social Security process is totally separate from the VA process, however a high VA disability rating only helps your Social Security claim.

Because of the similarity between a VA finding of unemployability and what it means to be disabled under the Social Security disability program, it is the rule in many federal circuit courts that VA disability ratings are entitled to “great weight.” (See McCartey v. Massanari, 298 F.3d 1072 (9th Cir. 2002); Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001); Brady v. Heckler, 724 F.2d 914, 921 (11th Cir. 1984); and De Loatche v. Heckler, 715 F.2d 148, 150 n.1 (4th Cir. 1983).) And one circuit court said that VA disability ratings were entitled to “substantial weight.” (Kane v. Heckler, 776 F.2d 1130, 1135 (3d Cir. 1985).) In addition, Social Security Ruling 06-3p says that the decision and the evidence used to make the VA decision “may provide insight into the individual’s mental and physical impairment(s) and show the degree of disability determined by these agencies based on their rules." 

The Forsythe Firm in Huntsville welcomes veterans who need guidance in applying for Social Security disability benefits or appealing a recent unfavorable decision.  We are local advocates with experience and a good track record in these cases.  There's never a fee unless you are successful (and this includes getting retroactive or back pay)!

We are close to Redstone Arsenal at 7027 Old Madison Pike NW, Suite 108--directly across from Bridge Street.  (256) 799-0297.

DON'T IGNORE MENTAL RESTRICTIONS THAT MAY GET YOU APPROVED

In Social Security disability cases, decision makers will often deny a claim on the supposition that the claimant can still perform unskilled, sedentary work.  Examples of such unskilled sedentary work might be a surveillance system monitor, or a document preparer.

All work has mental as well as physical demands.  The mental demands of unskilled sedentary work are defined by SSR 96-9p and SSR 85-15.  Those demands include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting.

The loss of any of the above abilities will substantially erode the occupational base for sedentary, unskilled work and will, therefore, justify a finding of disability.

Note that in order to work, a person must be able to meet the mental demands of full time, remunerative work "on a sustained basis."  A sustained basis means 8 hours a day, 5 days a week, or an equivalent schedule.

The customary breaks that would be afforded during full-time unskilled work would be two 15 minute breaks and a 30 minute lunch (meal) break during an 8 hour work day.  If additional breaks are required due to a physical or mental impairment, that may very well erode the occupational base and justify a finding of disability.  Other factors that could erode the occupational base would be excessive absences (more than 1 or 2 days per month), being off task for an excessive amount of time during the day, or being unable to deal with changes in a routine work setting.

These allegations must be supported by objective medical evidence.  It is helpful if a treating doctor or medical professional acceptable to Social Security provides additional opinion evidence as to the existence of and severity of any limitations.

UNDERSTAND SOCIAL SECURITY'S DEFINITION OF 'WORK'

Is there work that you are able to do?  If so, you are probably not disabled under Social Security rules.  So, let's consider what Social Security means by the term 'work.'

Work refers to the ability to sustain work activity for 8 hours a day, 5 days per week, or an equivalent schedule.  Anything less than that is not work under Social Security rules.

You are unable to work, for example, if you can......

• work 5 or 6 hours a day but not 8 hours
• work 3 or 4 days a week but not 5 days
• work part-time but not full-time
• work for a few weeks but then have to miss several days due to a flareup
• work for several months but then have to miss a month or two due to illness on a persistent, regular basis
• report to work 5 days a week but have to leave early several times a month because of illness, pain, depression, etc.
• work most days but often have to come in late due to sickness
• work most days but will be absent 3 or more days per month due to illness.

So, the real issue with Social Security is this:  Are you able to work full-time, 8 hours a day, 5 days a week, 52 weeks a year--without missing more than 1 or 2 days per month on a persistent basis?  In other words, can you sustain full time work?  If the answer is no, you are disabled.

Keep in mind that there are many different kinds of work, ranging from very easy work to very difficult work.  Social Security classifies work by its exertion requirement--from sedentary (sitting) to very heavy (lifting 100 pounds or more).  Work is also classified by the skill level required to perform the work:  unskilled, semi-skilled or skilled.

Therefore, it's very difficult to speak of "work" without asking, "What kind of work?"  You may be unable to do some kinds of work but able to do other kinds of work.  Individuals under the age of 50 generally must prove that they cannot perform ANY work available in the national economy.  Persons over the age of 50 may be only be required to show that they are unable to perform their past relevant work (work they performed during the past 15 years).

Other factors that will enter into a decision about your ability to work will include:  education, past work experience, your residual function capacity, and as we just mentioned, your age.