CONFUSING DISABILITY TERMS: WHAT DO THEY REALLY MEAN?

Some important terms stand out in Social Security disability regulations.  Here is what they mean.

Alleged Onset Date (AOD).  This is the date the claimant alleges to have first become disabled.  If it becomes the Established Onset Date (EOD), meaning that the Social Security Administration agrees that the claimant did indeed become disabled on that date, benefits may be paid back to that date.  So the AOD/EOD affects how many months of back pay or past due benefits the claimant is entitled to receive.

Waiting Period.  The waiting period for all Title 2 (regular disability) claims is 5 full calendar months.  This is really an elimination period.  5 months of benefits will be subtracted from the Established Onset Date.  For example, if you are found to have become disabled on March 15^th, your waiting period will include the months of April –August and your first benefit payment eligibility will be for the month of September.  This does not necessarily mean you would have to wait 5 months to get a benefit. It depends on when hour established onset date was. 

Duration Requirement.  Social Security regulations require a claimant to be disabled for at least 12 consecutive months in order to receive disability benefits.  And the 12 months must be from the same impairment(s).  For example, if a person is disabled for 5 months because of a heart attack, then becomes disabled again for 7 months because of back surgery, the two impairments cannot be combined to satisfy the 12 month duration requirement.  A claimant does not necessarily have to wait 12 months before filing an application for disability benefits, however.  If he/she expects to be disabled for a period of 12 consecutive months by the same condition or combination of conditions, the application can be filed immediately.  The requirement is that the claimant provides medical documentation that he/she can reasonably be expected to be disabled for at least 12 consecutive months.  Disability expected to last less than 12 consecutive months are not covered by Social Security.  Benefits may be awarded before the 12 month period expires.  The duration requirement is intended to eliminate benefits for impairments that are expected to last less than 12 months.

Date Last Insured (DLI).  This is the date the claimant’s Social Security disability insurance expires.  Yes, disability insurance does expire if you stop working and stop paying FICA taxes.  If your DLI is 12/31/17, for instance, you must file a disability claim before 12/31/17 or prove that you became disabled prior to 12/31/17.  Otherwise, you lose the right to file a new claim after 12/31/17.  If you are receiving disability benefits from Social Security, this date has nothing to do with when your payments will stop, when your case will be reviewed again, etc.  It simply means that there was a point in time beyond which you could not file a new disability claim.  That date is called The Date Last insured (DLI).  If you are receiving disability benefits, you obviously filed a claim prior to the DLI, so the date means nothing to you at this point.

SOCIAL SECURITY AS "INSURANCE"

Individuals qualify for Social Security disability coverage because they have worked and paid into the Social Security Disability Trust Fund (SSDTF).  They are required to have worked a minimum number of quarters to have coverage, often referred to as Title 2 coverage.  The contributions made by each worker, and matched by each employer, are referred to as FICA taxes.  FICA stands for Federal Insurance Contributions Act.  Contributions (taxes) are mandatory for most workers.  The current tax rate for Social Security is 6.2 percent, paid by the worker and another 6.2 percent is paid by the employer.  An additional Medicare tax of 1.45% of added.  Note:  The 12.4 percent Social Security tax funds both the Retirement Trust Fund and the Disability Trust Fund.

The minimum quarters of coverage required to be insured vary according to the age of the worker.  A very young worker may only need to have worked about 1 year to be insured under Social Security disability.  An older worker will need more work.

When a person stops working, contributions to FICA also stop.  However, Title 2 disability insurance coverage does not stop immediately.  For most individuals, they will lose Social Security disability coverage about 4 years after they stop working.  They may eventually regain coverage if they start working again.

Individuals who have not worked, or have stopped working and lost their Title 2 disability insurance coverage with Social Security, can only file Title 16 claims, often called "SSI" for Supplemental Security Income.  These claims do not require a work record or quarters of coverage. SSI claims are means tested.  There are income and resource limits for receiving SSI benefits.  Also, the monthly benefits available for SSI are usually less than for regular disability based on a work record.  For instance, the monthly maximum benefit in 2015 for Social Security Disability (Title 2) is $2,663.  The monthly maximum for SSI is only $733.

Can We Help You With a Disability Claim or Appeal? 

The medical qualifications for Title 2 and Title 16 (SSI) are exactly the same.  In short, both programs require the claimant to prove a disability based on the same medical standards (except for certain dependent's benefits based on a parent's disability).

FORSYTHE FIRM AT BRIDGE STREET

The Forsythe Firm, located directly across from Bridge Street in Huntsville, is dedicated to the practice of Social Security disability advocacy.  It's the only thing we do.

"We get paid only for success."

As a full service disability advocate firm, the Forsythe Firm can help clients--

• file the initial application for Social Security disability
• complete the attending questionnaires, interrogatories and supporting forms
• handle correspondence and phone calls to Social Security on your behalf
• gather medical evidence 
• appeal unfavorable decisions
• write supportive briefs to explain why you should be approved
• attend hearings before administrative law judges as your representative
• file further appeals with the Appeals Council if that is required
• advocate for your right to receive back pay or past due benefits
• help you collect all the money to which you are entitled

We get paid only for success:  If you do not win your case and collect retroactive pay or past due benefits, we will never charge you a fee for any service.  Our partners are direct pay eligible with the Social Security Administration.  This means that when you are approved for back pay, Social Security will withhold and pay our fee directly.

If you have a Social Security disability claim, we hope you will visit us in the beautiful Bridge Street area for a free case evaluation.  7097 Old Madison Pike NW, Suite 108, Huntsville, AL.  (256) 799-0297.

RESIDUAL FUNCTION CAPACITY

To decide a disability claim, Social Security must determine the claimant's residual function capacity (RFC).  This term defines the maximum level of exertion and function that an individual can perform when doing work related activitie--such as walking, lifting, standing or pushing/pulling.  RFC also includes postural activities such as sitting, kneeling, crouching, crawling, bending, etc.  The mental abilities of work must also be evaluated, including the ability to remember, concentrate, finish tasks, understand and carry out instructions or respond appropriately to supervisors and co-workers.

Strictly in terms of exertion, there are 5 levels of exertion:

Sedentary work - requires the ability to sit for up to 6 hours out of an 8 hour day, stand up to 2 hours of an 8 hour day and occasionally* lift and carry no more than about 10 pounds at a time or frequently* lift and carry 10 pounds.

Light work - requires an ability to stand for up to 6 hours per 8 hour day and occasionally lift and carry up to 20 pounds at one time or to frequently lift 10 pounds.

Medium work - will require an individual to stand at least 6 hours per day and to lift and carry no more than 50 pounds at one time or to lift 25 pounds or more frequently.

Heavy work - will require a person to lift and carry no more than 100 pounds at one time or to frequently lift 50 pounds or more, along with at least 6 hours of standing/walking per day.

Very heavy work - means that an individual must be able to lift and carry more than 100 pounds at one time or to lift 50 pounds or more frequently.

If a person is found to be capable of medium work, he is assumed that he can also do light and sedentary work, unless there are special circumstances, such as an inability to sit for prolonged periods, etc.

I think you can easily see how important it is for the Social Security decision maker to properly determine your residual function capacity (RFC).  Primarily, the RFC is developed from medical records but your testimony can also be considered.  I like to have a treating physician complete a residual function capacity form which states the claimant's particular limitations.  When this form is provided by a licensed treating doctor who has a history of providing medical treatment to the claimant and when the RFC is consistent with the entire medical record, decision makers will often use it to determine residual function capacity.  If the treating physician will not provide an RFC form, then the administrative law judge or other decision maker must come up with his own RFC--which can be problematic.
---------------------
* The term "occasionally" means very little to one-third of an 8-hour workday.
* "Frequently" means one-third to two-thirds of an 8 hour workday.
* "Constantly" means more than two-thirds of the time.

HOW DO WE EVALUATE YOUR DISABILITY CASE?

As Social Security disability advocates, the Forsythe Firm often has to evaluate a disability case to see what its merits and weaknesses are. The critical factors of any Social Security disability case are:

• the claimant's age
• residual functional capacity (the most you are able to do, functionally)
• education
• past work history
• duration of the impairment (how long it has lasted or is expected to last)

We will also need to determine whether you are now engaged in "substantial gainful activity (SGA)."  In 2015 if a person is working and earning at least $1,090 per month in gross wages, tips, salary or commissions, he is performing substantial gainful activity and is not eligible for Social Security disability benefits, no matter how severe his/her impairments may be, or what his or her age is.  In short, a person cannot work full-time and collect SSDI at the same time.

A small percentage of claimants may meet a Listing set forth in 20 CFR 404. Subpart P, Appendix I.  These individuals have very severe impairments which are very specifically defined in the Listing and should qualify for SSDI benefits if they are not working and if their impairment has lasted or is expected to last at least 12 months OR end in death.  Most claimants, however, will not meet a Listing level impairment.

Further, we will evaluate your claim to determine if a Medical-Vocational Guideline is met.  Generally speaking, these "grid rules" are easier to meet for individuals who are at least 50 years of age with limited education and unskilled work experience.  Others could also meet a grid rule.

If a claimant does not meet a Listing or a Medical-Vocational Guideline, we must determine whether he/she can perform any job which exists in the national or regional economy.  The bottom line here is often whether a claimant can perform unskilled sedentary work.  By "work," we mean work that is performed 8 hours a day, 5 days per week or an equivalent schedule, on a persistent basis.  

These are certainly not the only factors to be considered but they are major considerations in evaluating the odds of getting Social Security disability.  At the Forsythe Firm, all case evaluations are free and without obligation.  Keep in mind that opinions can vary from one representative to another.  Even if we may not agree to represent you it does not mean that another representative will not and it certainly does not mean that your case cannot be successful. 

www.ForsytheFirm.com 

SOCIAL SECURITY HEARINGS: CRITICAL THINGS YOU MUST KNOW

When Social Security denies a disability claim you must request a hearing before a US administrative law judge (ALJ).  Here are a few critical things you must know about the hearing process if you are to win your disability benefits.

The ALJ will deal only in facts.  If it is not in your medical record, it did not happen.

The ALJ will need specifics.  Generalities will not suffice.  Avoid terms like "not very often, not very much, every now and then, or a whole lot.  You will need to provide answers in terms of minutes, hours, yards, feet, pounds, etc.

Winning requires a limited residual functional capacity.  A residual functional capacity (RFC) is the most you are able to do in terms of work-like activities, such as sitting, standing, walking, lifting, bending, concentrating, staying on task, etc.  The RFC must come from the medical records.  You need to provide evidence that will help the judge develop a properly limited RFC, else you may lose your case.  (This is so important that I plan to write a separate post just on the RFC itself).

The burden of proof is on you until you reach Step 5.  In parts 1-4 of the sequential evaluation process, Social Security does not have to prove anything.  They assume you are NOT disabled unless you can prove otherwise. They do not have to prove that you are not working now.  They do not have to prove that you do not have a severe impairment.  They do not have to prove that you don't meet a Listing.  They don't have to prove that you can perform some of your past relevant work.  The burden of proof with all these facts rests with you, the claimant.

The Burden of proof shifts at Step 5.  At the last part of the hearing, "Step 5," the burden of proof shifts, at least partially, from the claimant to Social Security.  In this final consideration, Social Security must prove that there exist a significant number of jobs in the US economy that you could perform, considering your age, education, residual functional capacity and previous relevant work experience.  They will attempt to prove this using testimony from a vocational expert.  Unless you can challenge the vocational expert there is a high probability that you will lose your hearing and your benefits.

For free information and consultation about an upcoming Social Security disability hearing, please contact the Forsythe Firm at (256) 799-0297.  www.Get-SS.com

FOCUS ON FUNCTION

I was recently asked this question.  "If you could give just one piece of advice to somebody who is about to apply for Social Security disability, what would it be?"

My answer was worded in two ways but they both really mean the same thing.  Here they are.

Focus on why you can't work, not why you can't get a job.

OR

Focus on functional limitations

The Social Security Act does not cover employment problems.  Social Security will not pay a benefit because you can't find work or because no one will hire you.  That is an employment problem, not a disability problem.

Instead, focus on particular functional limitations that make you unable to work--even if you could find a job.  Functional limitations can be divided into two very general categories.  I will state the two categories here and give a few illustrations of what I mean:

Exertional Limitations

• Due to back pain, I cannot lift and carry up to 10 pounds occasionally.
• I am unable to walk more than 25 yards without stopping to rest.
• I am not able to push and pull with my upper extremities.

Non-Exertional Limitations

• I have a severe vision impairment.
• I can't concentrate or pay attention for longer than 30 minutes at a time.
• I can't sit in one position for more than 30 minutes due to hip pain.

It's easy to get sidetracked into a discusson of "Why I can't get a job..." or "Nobody will hire me because..." 

Instead, focus on "Why I am unable to work."  The more specific you are concerning your functional limitations, the better.  Define your limits in terms of minutes, hours, pounds, feet or yards, when possible. "I can only sit for about 30 minutes at a time."

In summary, functional abilities include such abilities as:  sitting, standing, walking, pushing or pulling, concentrating, remembering, following instructions, getting along with supervisors or co-workers; bending, stooping, crawling, lifting, etc.  Note that functional abilities or limitations may involve both physical or mental activities.

SOCIAL SECURITY WILL NOT PROVIDE YOU WITH AN ADVOCATE OR REPRESENTATIVE

Some people have the mistaken impression that a Social Security employee will work for them to get their Social Security disability benefits approved.  This is not correct.  The Social Security office will provide you with forms and answer questions.  They will take your application, over the phone or in person.  However, they will not represent you nor will they advocate for you to be approved.

Everyone who works for Social Security is supposed to be neutral, meaning they are not supposed to show any interest in whether or not you are approved, outside the duties required to process your application.

If you wish to have an advocate--someone who diligently works to protect your interests and to help get your case approved--you must appoint such a representative yourself. Social Security is not allowed to do so.

What is a Social Security disability advocate?  An advocate is a person who works on behalf of another person's interests, to represent that person's best interest and try to achieve what the person being represented wants to achieve--in this case, being aproved for Social Security disability benefits.  A legal representative or advocate may help you by....

• advising or counseling you on the best course of action concerning your claim,
• helping gather and evaluate medical evidence,
• developing a legal theory of your case to help prove you meet requirements for disability benefits,
• speaking to Social Security on your behalf,
• writing briefs, memos or other documents to support your case,
• appearing before administrative law judges or other government sources to represent your interests and help argue your case,
• filing motions, petitions and appeals on your behalf

Generally, a legally appointed advocate can do practically anything that you may do in a Social Security matter except sign your name.  Also, an advocate or representative may not testify under oath on your behalf; however, he or she may help you explain evidence or state your case.  Your representative may also advise you concerning the testimony you will provide.

Your advocate or representative is also a problem solver--someone who anticipates problems with your claim or hearing and works to prevent or resolve such problems in your best interest.

Your advocate's goals will always be to

• protect your best interests,
• get the most benefits you are entitled to, including any back pay,
• get your claim approved as quickly as possible
• always act ethically and honestly.