Social Security |
DISCLAIMER: THE FOLLOWING MATERIAL IS NOT INTENDED AS LEGAL ADVICE, BUT MERELY AS GENERAL INFORMATION. IF YOU HAVE QUESTIONS ABOUT YOUR SPECIFIC SITUATION, CALL SWANSON THOMAS & COON AT (503) 228-5222. A SOCIAL SECURITY PRIMER
What is the Social Security Disability Program? The Social Security Program is the most important financial protection plan and social safety net in the country. Social Security and Medicare will pay $590 billion in benefits in 1997. Anytime one's income is affected by significant events such as retirement, disability or death, Social Security can pay benefits, which increase with the cost of living. The disability section of the Social Security has two parts: 1. Title II, SSDI. This program for workers functions like an insurance plan. There are requirements that a claimant for disability must have: a.Contributed to the program (paid social security taxes) over a sufficiently long period to be fully insured; and b.Contributed to the program recently enough to have disability insured status. 2. Title XVI Supplemental Security Income (SSI). This is a federal welfare program for the disabled and for those over 65. There are both income and asset limitations for eligibility. The income limitation is based upon the SSI benefit amount of $484 a month after several different types of earned and unearned income are factored in. The asset limitation is $2,000 for an individual and $3,000 for a couple. Several assets are excluded, including a home of any value and one car of any value if it is used for work or to obtain medical care. Social Security's statutory definition of disability is: "The inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." Social Security Regulations provide for a five-step sequential evaluation process for determining disability. In addition to the sequential process, the claimant's impairment must be expected to result in death or have lasted or expected to last at least 12 months. This is called the duration requirement. It is not part of the five step process, however it could logically be inserted into the process following step 2. Because the evaluation process is sequential, if the proof of disability fails at any step other than step 3, the claimant is found to be not disabled. Step 1: Income Levels. Work generating more than $500 per month after appropriate deductions constitutes substantial gainful activity (SGA) and disqualifies an applicant for disability benefits -- Social Security regulations do allow for what are termed unsuccessful work attempts and trial work periods without penalties. Step 2: The Severity Step. Virtually any reduction in residual functional capacity (what the claimant can do even with his impairments) satisfies the "severe" requirement. The duration requirement: The regulation implies that the impairment be continuously severe. However, claimants with symptoms that wax and wane will still qualify under this requirement if the active periods of their illness are sufficient to preclude them from engaging in SGA on a sustained basis. Step 3: The listing of impairments. At step three, which is not crucial to a finding of disability but more of a short cut to it, claimant's medical signs, findings and symptoms must meet or equal one of the set of medical listings of impairments. With the medical listings you sometimes get strange results as to who meets the definition of disability. For example: Example 1: A lawyer, 35, has ten years of trial experience, is not working but is looking for a job, loses her foot and left hand (non-dominant) in a car accident but has a prosthesis and functions well. She is disabled under 1.09 of the medical listings. Example 2: A bookkeeper, 40, has a college education, is quadriplegic with only limited use of his right hand and arm and no use of his other extremities. He works a few hours a day as a bookkeeper and earns just over $500 a month after deductions. He is not disabled because of his earnings. The mental impairment section of the medical listings is divided up into categories. Those categories are: (1) Organic Mental Disorders In order for a claimant to meet a listing, his mental impairment must first have certain symptoms particular to that impairment. For example, under the listing of Organic Mental Disorders, listing 12.02, the claimant must demonstrate on a consistent basis one of the following: (a)Disorientation to time and place Once the claimant demonstrates one of the above through adequate medical documentation, the claimant must then document the severity of his impairment. Under the Organic Mental Disorders listing, the claimant must show that his or her functional limitation under the four categories of: (1) daily activities; (2) social functioning; (3) concentration; and (4) decompensation in the work place is in at least two of the categories marked, frequent or repeated. If the claimant is able to prove the impairment and its severity through proper documentation supported by clinically accepted diagnostic techniques, then the claimant will be found to be disabled at step 3. Step 4: Not able to work at previous job. If the claimant is not found disabled at step 3, the next part of the sequential evaluation is step 4: Whether the claimant is capable of doing any work that she has performed in the last 15 years given her functional limitations. Step 5: Other work available. If the claimant is found not to be able to return to any previous work, then Social Security must prove that he can do work that is available in the national and local economy in significant numbers. Here, the older a claimant is, the easier it is to be found disabled. For example, someone who is 50 years old and limited to sedentary work (that is, work that does not involve lifting more than ten pounds occasionally and is limited mostly to sitting), will be found disabled if his skills from prior employment are found to be non-transferable. For instance, a claimant who has worked at heavy unskilled labor all of his life and has a back injury which limits him to a sedentary position, will be found disabled if over 50, while a person under the age of 50 with similar history will not be found disabled. Documentation for Health Care Professionals: The documentation in a claimant's medical record can make the difference in whether a claimant will qualify for benefits. 1. Weight of evidence. Under Social Security law, the opinion of a treating physician is entitled to more weight than the opinion of an examining physician or of a non-examining physician. If a claimant suffers from disabling pain or fatigue, her complaints cannot be rejected if they are supported by evidence of an ailment that could cause pain or fatigue without specific, clear and convincing reasons for doing so. 2. Concrete substantiation of severity of impairment. When finding that the claimant's severity of dysfunction meets the Social Security listings, health care professionals should be sure to explain findings in terms of concrete examples from the claimant's life history and clinical examinations. Include dates and times of incidents and treatments, as some impairments can wax and wane over time. Time periods of illnesses can be significant to a Social Security case where the insurance expired on a certain date. 3. Health care professionals should not advocate, but state opinions and substantiate them. Health care professionals who believe that a patient is entitled to Social Security benefits, should not say so in terms such as "I strongly believe that this patient should receive benefits." It will indicate to a decision maker that you may be biased and your opinion suspect. Also, do not mention litigation, lawyers or social security hearings in your records. Decision makers looking to discredit your opinion may harp on such remarks. Keep in mind that Social Security decision makers look at whether a patient can do a certain type of activity over a sustained period of time, eight hours a day, five days a week, 4.3 weeks per month. It helps your patient if your records indicate and include how well, and how long the client can concentrate on a particular type of task, how good his memory is, if he can get along with co-workers and supervisors, if he can use public transportation, if he can make it to the job on a regular basis, and will his symptoms interfere with regular job performance. Again, always document and substantiate the basis for your opinion in these matters. 4. Clearing up ambiguities in the record. Statements in a medical record such as "the patient is feeling better" or "the patient is improving" or "the patient is doing well," can be interpreted or misinterpreted by an Administrative Law Judge to mean that the patient's illness is no longer severe or disabling. Clarify any notes such as these in your records to indicate the level of improvement and the level of continuing severity so that a reader of your records later on understands the true implications of your notes. Typewritten notes and evaluations are usually read and used much more than hand-written ones. 5. Remarks about secondary gain or exaggerations of impairment. Remarks in the medical records about the patient's motivation for "secondary gain" or their apparent ability to "exaggerate their symptoms" are detrimental to a claim. Please be very thoughtful and careful when adding such remarks to a record. Remember, the "gain" in many of these cases, especially SSI cases, is only $485 per month. That amount is barely enough for anyone to live on. The gain in these cases are not tied into substantial monetary awards for a client, only the ability to sustain life. If you are convinced, however, that a patient is "faking it," give ample documentation to back up your assertions, and that will allow the patient to refute your assertions with facts of her own. 6. Encouraging your patient to apply - The Process. Although the social security system is set up for applicants to apply for benefits fairly easily over the phone, it is nevertheless an intimidating process for the unsuspecting and disabled to face a giant bureaucracy. If you believe your patient has a disability that will last longer than 12 months but the illness and disability is still in the initial stages, encourage your patient to apply, because the date that he applies will determine the amount of benefits he can receive. Our office, Swanson, Thomas and Coon, takes calls from claimants at any stage and answers questions they may have concerning the process, whether we represent them or not. The initial application is done over the telephone at 1-800-772-1213. Within several months, the applicant will get her initial determination. If the determination was unfavorable, she has the right to appeal that determination, called reconsideration. The applicant must file within 60 days of receipt of the denial. Both the initial application and the reconsideration process are handled by the State of Oregon's Department of Disability Services (DDS). The decision makers in these first two decisions never see the applicant, although they might decide to send the applicant out for an independent medical evaluation. Both of these processes can take more than a year if consultative examinations are required. If the applicant is denied after reconsideration, the applicant can then request a hearing. At the hearing, the applicant can have an attorney represent them and testify in person as to their disability. Over 60% of the initial denials are overturned and claimants are granted favorable decisions by the Administrative Law Judges if the claimants do not have attorneys. Having an attorney increases this percentage. A claimant can wait as much as a year and a half for a hearing. After the hearing, the judge will issue a written decision, which may not happen for up to a year. If the Administrative Law Judge has found that the claimant is not disabled, the claimant can appeal his decision to the Social Security Appeals Council located in Fairfax, VA. The appeal takes about 18 months. If that decision is unfavorable, the claimant can appeal that decision to United States District Court. District Court decisions can take as much as six to eight months to adjudicate. Those decisions can then be appealed to the Ninth Circuit Court of Appeals. Thus, a decision in a social security case has the potential of taking up to five or six years for a final decision. New laws for Social Security disability benefits Prior to March 29, 1996, if a claimant had a drug or alcohol addiction that rendered her unable to work, she would be found disabled under Social Security law. Now, if drug and alcohol addiction is found to be a material component of disability, benefits will not be paid. What does "material component" mean? If a claimant has a drug or alcohol addiction and also a mental impairment, a determination has to be made that if the claimant stopped using drugs or alcohol for a period of three months or more, she would still be disabled due to her other impairment. This is a less complicated determination to make when the other impairment is a physical one or when the claimant has stopped using drugs or alcohol for a substantial period of time. Problems arise however, when the claimant is still using. It is irrelevant to the "material" determination if drugs or alcohol abuse caused the mental impairment or if the underlying mental impairment led to drug use. Mental health professionals can make a finding that drug and alcohol addiction is or is not a material component of the impairment. If you make such a finding, be prepared to document and substantiate your opinion and analysis. Estimates by child advocate experts are that the new welfare reform act will probably cut 100,000 children from the disability rolls. The new standard is that a child has to have an impairment that meets a medical listing or has an impairment that is functionally equivalent to a listing. Because these regulations are so new, an attorney familiar with social security law should be consulted for a correct assessment of a child's disability. If you have questions concerning eligibility for the social security program or any related questions, we encourage you to call our office at Swanson, Thomas and Coon (503) 228-5222. Social Security Practitioner's Forum web page Social Security Administration web site
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