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.

STILL WORKING BUT CONSIDERING SOCIAL SECURITY DISABILITY?

Here are things that individuals need to consider as they think about Social Security disability while they are still working:

First, there is no disability benefit available from Social Security if you are working and earning more than $1,090 per month. You must have stopped working to apply--or at least be earning less than $1,090 per month if working part-time.

Second, Social Security does not pay a benefit for the first full 5 months of disability.  At a minimum, you must be prepared for at least 6 months of no income after you stop working.  Getting approved within 6 months is, honestly, pretty much of a miracle.  It often takes much longer.

Third, not being able to perform your past work is not enough, in most cases, to qualify for Social Security disability benefits.  If you are under age 50, Social Security will look at your ability to perform other work, including jobs that are unskilled, sedentary and simple, routine jobs.  For example, they may find that you could perform such jobs as a food and beverage order clerk, a sack mender, a garment tagger or a silverware wrapper.

Finally, you must be able to support the functional limitations that prevent you from working with significant medical evidence, preferably from your treating doctor(s), and preferably one of those doctors will be a specialist.

Social Security disability today is a hard row to hoe.  If you are working, I would encourage you to continue working as long as possible.  When you come to the point where you can no longer work because of medical reasons, only then is it time to apply for Social Security disability.