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Leslie Gaines, Senior Attorney

What Veterans with Social Security Disability Benefits Need to Know When Pursuing VA Disability Benefits

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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.

Attorney Randi Johnson

Can SSA revoke my benefits if the Agency determines that I did not pursue all possible medical treatments?

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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.

Matthew Hill

What to Expect at an ALJ Hearing.

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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.

Matthew Hill

I already have Social Security disability benefits. Can Social Security ever take them away?

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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?

There are two reasons that SSA will stop paying benefits. The first reason is if you are working at what they feel is a “sustainable” level. In financial terms this means earning $840 or more per month for the year 2006. The other major reason that the SSA will stop your benefits is if they feel your condition has improved enough for you to work.
Matthew Hill

5 Important Things to Remember When Filing for Social Security Benefits

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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.

Matthew Hill

Can I get Social Security benefits for my family?

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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.