|Natalia Jofre:||Welcome to the Hill & Ponton Social Security Disability Blog. I am Natalia Jofre. I’m the Social Security section director here at our law firm.|
|Shelly Campbell:||I’m Shelly Campbell. I’m the senior Social Security attorney.|
|Natalia Jofre:||In a couple of our prior blogs, we talked about this. We went through the evaluation process, what that means, basically that the rules, the steps that Social Security looks at to determine if a person’s disabled. We talked about working and how Social Security evaluates that and then we talked about briefly the exception made for people that are legally blind. We’re going to talk about that in a lot more depth today. Legal blindness, first of all, not what everybody assumes because I know I’ve been to the doctor and the doctor’s like you’re legally blind. Well, this was true prior to LASIK surgery, but I could still work. I could still use glasses, contacts. That is my best-corrected vision.|
|I guess you give the definition of that, of what Social Security considers to be legal blindness.|
|Shelly Campbell:||Social Security considers an individual to be legally blind if their best-corrected vision is 20/200 or less or their peripheral vision is less than 20 degrees.|
|Natalia Jofre:||Right. Peripheral vision, this is what you see when you look forward. This over here is peripheral vision. If your basic scope of vision is no further than this, then that can qualify as legal blindness. Obviously, you’re not going to do that. This all needs to be in your medical records.|
|Shelly Campbell:||Right. They’re going to obviously need the medical records and the testing to support that. Your best-corrected vision is just going to be the vision, the best vision you have with your glasses, with your contacts, or in the situations where contacts or glasses are irrelevant, obviously, that wouldn’t be the case.|
|Natalia Jofre:||For example, you don’t have an eye. Well clearly, that doesn’t apply to you. We have had people call us though and say I’m legally blind or I don’t have a right eye, but they can see 20/20 in their left eye. They don’t qualify.|
|Shelly Campbell:||No, they don’t. This is one of the rules with Social Security that you either qualify for it or you do not. You can still be evaluated for your difficulties with vision under the disability program, but it just wouldn’t meet this particular exception because they wouldn’t be defined as legally blind.|
|Natalia Jofre:||Right. What Social Security is also looking at is okay is this person working? What’s different about people that are legally blind is they can make so much more money than a person that has any other disability. It’s a lot higher. You can look at our website. We’ll have the specific amount. We don’t mention it because it changes every year. It’s important to know because if you’re over that amount, then Social Security could automatically disqualify you. Now that being said, for people that are legally blind, you can discount a lot of expense. Right?|
|Shelly Campbell:||That’s correct. If you have expenses as far as cost to and from work, if you have to have transportation, seeing eye dogs, whatever you’re required to use to allow you to work, you are allowed to reduce that from your earnings.|
|Natalia Jofre:||I recently visited this facility where they help people who are legally blind and they were all in sheltered work and we talked a little bit about that during a different blog, but basically these people had special monitors, special books, they even had like a special iPad, where they were all designed to help them be able to do some type of work with all of this modern technology. It was very expensive equipment. All of that can be deducted from whatever they’re earning, and so it often allows them to still qualify and meet that basic income requirement.|
|Shelly Campbell:||Right. I think Social Security’s idea here is that although this person is able to work, the steps that they’re having to take and the accommodations and that the expenses that they’re incurring it gives them an exception and more of an opportunity to work because of the difficulties they face with employment.|
|Natalia Jofre:||Speaking of exceptions, one of the things too are how many earnings quarters do they have to have? Most people have to have worked and paid into Social Security tax five out of the last 10 years or at least a total of 10 years in their lifetime. With people that are found to be legally blind, they only need one-quarter of coverage for every year since their 21st birthday. That’s a huge difference because that means that if you worked for one year and you earned a full four quarters for that year, you basically have four years worth of coverage with Social Security.|
|Shelly Campbell:||That is correct, Natalia. They’re definitely trying to make it more easy for individuals that are legally blind to be paid under the disability program.|
|Natalia Jofre:||There’s a lot more. We could get into earnings quarters. We’ll do that during another blog, but it’s important for people to know that. It’s also important to know that this doesn’t have to be a lifetime disability and what I mean by that is I have a claim that we had that comes to mind. He had worked off and on his whole life, sometimes off the books. He was in construction, and so his work history was very erratic. He had some earnings. He had many years where he had no earnings recorded with Social Security. Well, when he was well into his 40s, he developed a condition and he became blind in a very short amount of time, within about six months. He was then able to be found disabled under the blindness rules.|
|Shelly Campbell:||That was great.|
|Natalia Jofre:||Even though he hadn’t qualified for regular disability up until then, he did have enough quarters under the blindness listings to qualify for benefits because he didn’t have to have as many quarters. I think what’s important for people to know is don’t ever sell yourself short, don’t assume that you’re not going qualify for benefits. Apply or talk to us or talk to Social Security, but talk to someone and make sure that you’re not basically convincing yourself that you don’t qualify. Let someone that knows what they’re looking for take a look at your case and whether you can qualify or not.|
|Shelly Campbell:||Definitely. There are a lot of exceptions and rules that people are not aware of. I would encourage anyone that feels like they would like their claim evaluated to contact us for more information.|
|Natalia Jofre:||Okay. Great. We’ll talk about the sequential evaluation process and the other rules and some other blogs, so stay tuned for those. Otherwise, thanks for watching and we’ll see you next time.|
|Shelly Campbell:||Thank you.|
|Natalia Jofre:||Welcome to the Hill & Ponton Social Security Disability Blog. I’m Natalia Jofre, I’m the Director for our Social Security section here at our law firm.|
|Shelly Campbell:||My name is Shelly Campbell and I am the Senior Social Security attorney here.|
|Natalia Jofre:||In our previous blog we talked about the sequential evaluation process. What that is basically, a series of questions, a series of rules that Social Security looks at to see if a person meets in order to qualify for disability benefits. Do you want to do quick recap on what those are?|
|Shelly Campbell:||Sure. The sequential evaluation process is really just five steps that Social Security uses to determine if someone is eligible for benefits. They are whether the individual is working, whether they suffer from a severe medical condition that prevents them from working, whether they meet certain listings, whether they can perform their past work or whether they can perform other work.|
|Natalia Jofre:||What we’re going to do today is talk about the very first one which is obviously very critical, whether the person is working. In future blogs, we’re going to talk about each of the steps, what they mean, how they’re applied, how Social Security basically looks at your case. Today, is the person working? There is an amount, the magic number, every year they come up with a new amount. If you want to know what that amount is, go to our website, we’ll have it listed there. Basically, if you’re making more than that amount, you can’t qualify for benefits.|
|Shelly Campbell:||That’s correct. No matter how disabled a person is, if they’re earning over what Social Security considers substantial gainful activity, they’re ineligible for benefits regardless.|
|Natalia Jofre:||The only exception would be?|
|Shelly Campbell:||For the blindness. There is an exception for people that are legally blind.|
|Natalia Jofre:||They have their own amount, it’s much higher that what a “regular person” would need to be under in order to qualify for benefits. There are different exceptions that can be applied, I feel like it’s important for us to say that we recommend that our clients not work, it makes your case much more difficult to prove.|
|Shelly Campbell:||Definitely, because the first step is really for Social Security to determine, has the individual been out of work for 12 consecutive months or do they plan to be out of work for 12 consecutive months. You can see how if you are actively working, you’re already starting in a more difficult position.|
|Natalia Jofre:||I can think of some cases like with breast cancer where a woman has been out of work, she’s newly diagnosed, she’s immediately treated, sometimes she can even have like a partial mastectomy. We’ve had clients that have literally been able to go back to work within six months. It’s not common place but it does happen. If that happens, you’re not going to meet that 12 months definition and you’re not going to qualify for benefits. By the same token we’ve seen people that have been out of work for 12 months or more but then they are able to go back to work. Social Security really likes those cases, don’t they?|
|Shelly Campbell:||They do. Those are called closed periods of benefits, and that is where an individual is injured or is diagnosed with some medical condition that takes them out of the workforce for 12 or more months. With treatment, they are able to get back into the workforce. It doesn’t mean that they still don’t have a claim for disability benefits, we simply ask Social Security to pay them for the time they were not working.|
|Natalia Jofre:||We see that happen a lot with people that have been involved in auto accidents. They have a really traumatic event, they’d go through physical therapy, they get better, 14 or 15 months later they’re able to go back to work. Judges like those cases because basically they feel like we’re going to pay you the benefits for the time you were out, but now you’re off of our payroll is basically the way Social Security looks at it.|
|Shelly Campbell:||Social Security and especially the judges really like to see the initiative of someone that has been injured but has been able to go through treatment, and then puts themselves back into the workforce.|
|Natalia Jofre:||Other people that can work and still qualify for benefits potentially would be people that are in sheltered work.|
|Shelly Campbell:||That’s correct. Sheltered work would be considered if someone is working for a friend or a family member, and accommodations are being made for them that wouldn’t normally be made if it were not the friend or the family member employing them.|
|Natalia Jofre:||Another exception sometimes are like organizations like Goodwill, Salvation Army. A lot of people are required to work in order to stay at the Salvation Army, but it’s normally maybe one or two hours a day and it’s very kind of like low level, not difficult work. They’re going to consider things like that, like what type of work are they doing, how much they’re making. Sometimes they’re not even paid, sometimes it’s just an exchange for room and board.|
|Shelly Campbell:||That’s true. In a lot of cases whether or not an individual is volunteering can also come into play. Even though they’re not earning income if they are volunteering on a regular basis, that is going to be considered employment as well.|
|Natalia Jofre:||Right, because Social Security’s mindset is, well, you’re not getting paid to do this work, but then they’re looking at what is your ability to work. You’re volunteering, you’re probably are able to work if it’s a significant amount of time.|
|Shelly Campbell:||Exactly, and you’re correct, they’re definitely going to look at the type of work you’re doing, the hours that you’re working and the earnings that you’re making to determine how substantial that work is.|
|Natalia Jofre:||Our next blog is going to be dedicated to the blindness rules, requirements, the exceptions made for them in terms of working. Please stay tuned if you like more information on that. If you like more information regarding the topics we discussed today or regarding a disability claim, feel free to contact our office or visit our website at hillandponton.com. Thanks for watching and we’ll see you next time.|
|Natalia:||Welcome to the Hill & Ponton Social Security Disability Blog. I’m Natalia Jofre, I am the Social Security Section Director for our law firm.|
|Shelly:||Hi, I’m Shelly Campbell. I am the Senior Social Security Attorney with the firm.|
|Natalia:||Today, we’re going to be talking about the sequential evaluation process. What is it? What does it mean? And, basically, it is the set of questions that Social Security asks to determine if a person can qualify for disability benefits.|
|Shelly:||That is correct, Natalia. It’s a series of questions that Social Security uses to determine whether an individual is going to be eligible for disability benefits.|
|Natalia:||What would the first question be?|
|Shelly:||The first question that Social Security is going to ask is, “Whether the individual is currently working?” If not, they’re going to want to know if the person has been out of work for 12 consecutive months, or if they plan to be out of work for 12 consecutive months?|
|Natalia:||Okay, and then the next step?|
|Shelly:||The next step they’re going to look at is whether or not the individual has a severe medical condition that prevents them from working?|
|Natalia:||Severe, such a wide range, right?|
|Natalia:||We’ve literally had clients call us because they had a stubbed-toe, they don’t know when they’re going to be able to go back to work. Obviously, there’s a wide range between stubbed-toe and terminal cancer, so?|
|Shelly:||That is correct, Natalia. Social Security, we use a process to determine whether the medical condition is actually severe, and by severe, it means that it has to actually affect your ability to work in sustained, gainful employment.|
|Natalia:||Okay, so then the next step would be?|
|Shelly:||The next step is to determine whether or not the condition is so severe that it meets what’s called a listing.|
|Natalia:||I know that listings are a set of rules that you have to meet Social Security’s exact criteria in order to be found disabled under that rule, different conditions have different rules, right?|
|Shelly:||That’s correct. Each medical condition has a listing, and if the condition is so severe that it meets or equals that listing, then the evaluation from Social Security stops, and the person is determined to be disabled.|
|Natalia:||All right, and then the next thing they’re going to look at is work?|
|Shelly:||That’s correct. If the individual does not meet a listing, the next thing they’re going to look at is the type of work that the individual did over the past 15 years.|
|Natalia:||They look at that pretty specifically. I know that we’re going to be talking about that some more. I do want to go back really quick to when we were talking about working, because I do think it’s important for us to just mention that there is an exception made for people that are legally blind. We’re going to be dedicating an entire blog to just that, because there’s a lot involved regarding that, but I do want to just mention that exception, so going back. Step four is work, work for the past 15 years, basically looking at is there any type of work you’ve done in the last 15 years that you can still do, right?|
|Shelly:||That’s basically it. They’re going to be looking at the work that you’ve completed in the past 15 years. Whether you’re able to return to that work? If not, whether you would be able to perform some different type of work, or whether the individual could be retrained to perform different work?|
|Natalia:||That pretty much encompasses the step five.|
|Natalia:||Can you be retrained to do any other type of work, right?|
|Shelly:||That is correct.|
|Natalia:||Okay, great. Well, if you have any questions regarding the sequential evaluation process or whether you could qualify for disability benefits, and you’d like to talk to us, feel free to call our office or visit our website, hillandponton.com. For now, that’s all we’ve got. We thank you for watching and we’ll see you next time.|
For veterans who have been approved for Social Security Disability Benefits and who are also seeking VA Disability benefits, it is very important to have some basic knowledge regarding the Social Security side of things, while navigating through the VA disability process.
Here are the basics, in a nutshell:
- Notify the VA Right Away: The VA should be notified right away if a veteran has been approved for Social Security Disability Benefits. Notifying the VA in writing is very important, because once the VA has knowledge that the veteran is on Social Security, then that triggers their duty to assist, which requires the VA to attempt to obtain the Social Security file. Veterans should never assume that the VA already knows that they have been approved for Social Security Disability. It is always better to notify them up front, so that way, the bases are covered.
- Obtain Your Social Security Earnings Record: Social Security keeps track of your annual earnings for each year that you have worked and paid Social Security taxes. If you are pursuing individual unemployability benefits through the VA, then it is critical that you obtain a copy of your SSA Earnings Record. The main reason you should get this document, is because the Earnings Record may show a pattern of decreased, unstable, and/or inconsistent earnings, which could help to support your VA claim that you are unemployable and unable to work on a gainful basis. In my experience, the VA never requests a copy of the Earnings Record on its own accord. Therefore, because this document could be invaluable to winning your VA claim, you should work on getting a copy of this document early on in the process. In most cases, the Earnings Record can be downloaded online, directly from the Social Security Administration’s website.
- Get a Copy of Your Complete Social Security Disability File: There is normally a treasure trove of information contained in the Social Security Disability file. Here is a list of the types of evidence that you should pay particular attention to:
- Disability Worksheets/Reports – Social Security always requests that claimants fill out forms regarding the extent of their disabilities. The questions that are asked in these forms are very comprehensive and cover many different topics that may be of relevance to the VA disability case. For example, Social Security will always have claimants fill out a worksheet called a “Function Report” regarding their activities of daily living. The Function Report asks the claimant to describe what they are like on a day-to-day basis, and asks the claimant to describe their limitations, both physical and mental, in their own words.
It is also very common for Social Security to have a third party, such as a spouse, close friend, or adult child, to also fill out a Function Report in order to give statements regarding any limitations that their loved one may have. In my experience, loved ones are often much more forthcoming about the full extent of limitations. This type of lay evidence, from both claimants and third parties, could later turn out to be key evidence when trying to win the VA case, because VA law requires the VA to consider lay evidence as a part of the decision-making process.
- Consultative Examinations – Most veterans know that when they file for VA disability benefits, the VA will normally send them to a Compensation and Pension (C&P) Examination to evaluate their disabilities. Social Security also has a similar process. In the Social Security world, this type of exam is known as a “Consultative Examination.” If a claimant is sent to a consultative exam, then there will be a report from that examination which will discuss the doctor’s opinions regarding the claimant’s limitations. If the Social Security doctor gave restrictions that would prevent or limit the claimant from being able to work, and if those limitations are relevant to the VA case, then that is favorable evidence that you should make sure the VA receives.
- Favorable Decision/Disability Determination and Transmittal Form – Once Social Security Disability Benefits have been approved, SSA will issue a written decision which explains the medical basis for the approval, and they will also make a decision regarding the date that they find you disabled. The date that you are found disabled is known as the “onset date of disability.”
If the Social Security claim is approved at the initial or reconsideration level, the rationale for the approval will be found in the “Disability Determination and Transmittal Form.” If the claim is approved by a Social Security Judge, then the Judge will issue a decision, also known as a “Fully Favorable” or “Partially Favorable” Decision, which will explain the medical and vocational basis for the approval. Make sure to obtain a copy of the Social Security decision and submit that to the VA for consideration.
Although the criteria for obtaining Social Security Disability Benefits is very different than the criteria for obtaining VA Disability Benefits, evidence from the Social Security case can still be very useful in a VA Disability case. For more information on this topic, please feel free to check out our video blog.
The short answer, maybe. SSA has a duty to analyze and consider the reason(s) you have chosen not to pursue certain treatment avenues. On many levels, there is a huge distinction between one person’s well-thought, educated choice in consideration of one’s body autonomy and another person’s willful non-compliance with a medical provider’s suggestion or prescription for treatment. Let’s consider the differences using a Social Security Regulation as our backdrop:
SSR 82-59 stands for the proposition that an individual with a “disabling impairment” for which there is a recognized medical treatment must avail him/herself to such treatment “unless there is a justifiable cause for the failure to follow such treatment.”
The adjudicator or Administrative Law Judge must first determine whether “failure” to follow treatment is a relevant issue. Doing so requires that the SSA representative identify that a treating source prescribed treatment “which is clearly expected” to restore an individual’s ability to return to work and that the medical evidence demonstrates that the individual has refused this prescribed treatment. Interestingly, if the Administration believes that a particular treatment may restore a person’s ability to work, but no treating source has prescribed that treatment, SSA must allow the claim. This provision is often where the Administration fails to follow the SSR and it is incumbent upon the claimant (or claimant’s attorney) to argue this point.
Moreover, where it is determined that the treating source did prescribe treatment clearly expected to restore a claimant’s ability to return to work, the Administration must consider the reasons why the claimant did not “follow orders.” The individual must be given an opportunity to express his/her position. The treating physician may also be contacted, essentially, to corroborate the claimant’s statements.
The SSR highlights what it considers “justifiable cause” for failure to follow prescribed treatment. It should be noted that although there are 8 causes listed within the SSR, the list is not meant to be an exhaustive list of examples; rather, it is meant to illustrate the types and kinds of causes that would reasonably lead to a conclusion that the individual made a well-considered decision about his/her medical impairments.
If a disabled person is already in payment status (that is, has been found disabled and is receiving benefits), the Administration must, upon determination that failure to follow prescribed treatment may be an issue, contact the disabled person. “The individual will be afforded an opportunity to undergo the prescribed treatment or to show justifiable cause for doing so.”
If you have received a Notice from the Administration advising that a review has been conducted on your case and the Administration has determined you are failing to follow prescribed orders, consider contacting an attorney to ascertain whether the medical decisions you are making for yourself fall under the “justifiable cause” provisions of SSR 82-59.
Your hearing has finally been scheduled!
What should you expect and how to prepare?
It has probably been close to one year (the average wait time for hearing in 2013 is 378 day) since you filed your appeal for a hearing with Social Security. Now that the wait is over, how are you going to prepare for a final decision? Clearly Social Security has made it nearly impossible to approve your claim due to their strict disability approval policy. Hopefully this information will get you prepared for your hearing.
An Administrative Law Judge or ALJ is interested in understanding your side of the story. The initial decisions were based off of medical findings to determine your eligibility, and now the ALJ wants to hear it from you. If you’re feeling nervous that’s perfectly normal as this could be your last chance to prove your case. Remember the ALJ already has the material evidence to your case and needs to understand your side of the story. The best you can do is be prepared for different questions.
By working with Hill and Ponton, you will be at a great advantage by understanding each question prior to the hearing. Your case manager and attorney have been working simultaneously in preparing your case through adjudication. He or she will be able to guide you through the questions to become better prepared. The judge may ask about your education, past jobs, daily activities, physical, and mental limitations that prevent you from working. Answering questions truthfully will help the judge understand you are disabled and unable to work, therefore approving your claim for benefits.
Most people get the wrong idea of how an administrative hearing works. We see on television shows how dramatic they make it and think yours will be the same way. This is incorrect. A hearing before an Administrative Law Judge is a closed hearing, which means there is no one there who does not have a say in your claim. The hearing may only take 20 minutes and should never last more than an hour. Most likely you’ll be in a small conference room, and you’ll be sitting together at a table. It will be you, your Hill and Ponton attorney, the judge, an assistant to the judge, and either a vocational expert or a medical expert or sometimes both. Your disability story must come directly from you. Relax, be yourself, and answer the questions truthfully.
When you are awarded Social Security disability benefits, a finding is made that you are entitled only at the time the benefits are awarded. There is never a finding that the disability is permanent. The Social Security Administration is continually reviewing awards of disability to terminate benefits in cases where the claimant no longer qualifies.
It is important that you understand how this review process works.
How often will a review of entitlement to benefits occur?
After you win your benefits, the SSA will periodically review your claim to make sure that you are still disabled. Congress has mandated that no matter what kind of disability that you have the SSA must review your entitlement to benefits. How often they review your benefits depends on the severity of your disability and the likelihood that you will recover. The SSA has three different groupings for reviews:
1. If medical improvement is “expected,” your case normally will be reviewed within six to 18 months.
2. If medical improvement is “possible,” your case normally will be reviewed no sooner than three years.
3. If medical improvement is “not expected,” your case normally will be reviewed no sooner than seven years.
To find out when your claim is going to be reviewed, you should look on your award certificate. Most award certificates give your review date. If there is no review date in your award certificate, you must try and guess which of the 3 groupings listed above best describes your condition.
What happens in the review process?
The SSA initiates the review process by sending you a letter with questions about your condition. Based on your answers the SSA will either write back and say that there is no need for a review or say that a full medical review is called for.
If your claim is going to be reviewed, the SSA will ask you to come into the local branch for an interview. In the interview they will ask you for a copy of your current medical file, any information on new hospital stays, and, if you worked since you became disabled, the dates and types of jobs you did. The SSA will send your records to a medical examiner to go over your files and look for signs of improvement. The SSA bases their decision on the medical information that is collected from your doctors.
What are the reasons that SSA will stop benefits?
1. File right away.
Some types of Social Security benefits only start a month after you file for them. By waiting to file you may be losing benefits to which you are entitled.
2. Always appeal a rejected claim.
You should always appeal through the hearing level, at least. Also if you are denied by a judge then you should file a new claim. If you are disabled do not stop fighting untll you get your benefits.
3. Be sure to get examined by your doctors.
If you have your own doctors get evidence from them to support your claim. Never go to the doctors appointed by Social Security if you do not need to. Your doctors will be more familiar with you and your condition.
The law requires that the Social Security office try to get evidence from your doctors before they send you to their doctors.
4. Fill out the application carefully.
Often people do not take the time to completely fill out the forms or to list all the problems they have, including psychological problems. Social Security needs to know about all of your problems in order to make a fair decision on your case.
5. The prior work form is very important.
This is one of the most important forms that you will complete. Remember, in determining whether or not your are disabled, Social Security is going to first decide whether or not your can do your old jobs. That means all of the jobs that you have performed for 6 months or more in the last 15 years. This is why it is so important that they know all of the difficult parts of your past work, especially the heaviest weights that your had to lift or carry, and the extremes of having to walk or be on your feet. Please take your time and really think about the demands on your prior jobs, and make sure that they are clearly listed in the form.
If you are found disabled, and entitled to regular disability benefits and you have minor children, in most cases they will be entitled to a benefit as well.
In order to be entitled to a benefit, your children have to be 18 years of age, or under, not married, and not yet graduated from high school.
If any of your children are under 16, and if your spouse, doesn’t work, or earns under a certain amount of money, your spouse may also be entitled to a benefit.
The SSA generally allows a benefit equal to 50% of your benefit for your family.
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