Social Security: by Larry Gordon

 

Social Security
I have worked with the Social Security Administration and been involved with the disability process for my entire career. I first worked for the nation’s Chief Administrative Law Judge beginning in 1977, and then entered private practice as a disability attorney in 1983. Unfortunately, length of the disability process has always been a challenge for the Social Security Administration. To show how times have changed, the Administrative Law Judge (ALJ) that I worked for in Atlanta from 1978-1983 tried to get all his cases scheduled for a hearing within 90 DAYS of when the hearing was requested by the claimant!! Today, that wait time is over 400 days in many parts of the country and throughout much of the South.

Thus, it was no surprise to me, but very sad nonetheless, to read that the Washington Post reports that in the past year, approximately 10,000 persons passed away before getting a final decision from the Social Security Administration. (There is an expedited process for dire need cases for people who have a terminal illness or other dire need circumstances. These people will have their case often finalized before the person dies). The above cited number, however, is staggering!!

All claimants should be aware that if there case is a strong one, however, many ALJ’s may accept a request for “on-the-record” review. This means the ALJ will review the medical records and the vocational profile of the claimant to see if a favorable decision can be rendered without the claimant a hearing. If your case falls into such a category, you should make sure the lawyer handling your case has reviewed all of your medical records to see if such a request is in order. Most requests for “on-the-record” reviews are denied, but worth a try as you do not lose your place in line for a hearing.

From my perspective the lengthy delays border on gross negligence on the part of the Social Security Administration and the US Congress. This gross negligence goes back to at least, the last two presidential administrations. The last presidential administration is particularly at fault as the necessity for more judges was obvious. Part of the overflow of disability filings is caused by the large number of “Baby Boomers” (people born between 1946-1964) who have reached an age where they are more likely to file for disability. Despite this, the government has been terribly slow in hiring new Judges.

Unfortunately, there does not seem to be a significant movement to address these issues. We are lacking a very powerful lobbying group who represents the disabled community. As a result, our representatives and senators have not been pushed to remedy this problem. Hopefully, in time, we will see change. It is my hope that in the future, the number of people who pass away while waiting for their case to be processed will be dramatically decreased.

If you need help with the disability process or would like more information about options for how to request an expedited status, please Affleck & Gordon at 404-373-1649.

 

Social Security Disability: Eight Reasons You May Be Denied Benefits

Unhappy family financial stress

In some cases, the reasons are beyond your control. In other circumstances, you may be able to avoid doing something that leads to denial.

1: You Earn Too Much Income from Working

For SSDI, the benefit program for workers who have paid into the Social Security system over multiple years, one of the most basic reasons you could be denied benefits is that, when you apply, your income is above the limit where it is considered “substantial gainful activity” (SGA). This means you earn too much money to be considered disabled. The SGA limit for non-blind people is $1,180 per month in 2018, and the figure is adjusted annually. Income from investments does not count toward the SGA — only earned income counts, as it shows your ability to work.

For SSI, which is the disability benefit for low-income people, when you apply for SSI, you can’t be making over the substantial gainful activity level. Also, the upper income limit for earned and unearned income combined is around $1,500 per month. Any time your income is over the federal benefit rate ($735 in 2017) your SSI payment will be reduced. If you make too much, your payment would be reduced to zero.

2: Your Disability Won’t Last Long Enough

To qualify for SSDI or SSI benefits, the Social Security Administration (SSA) must believe that your impairment is severe enough to last at least 12 months or result in your death. The only exception to this duration requirement is for blind SSI applicants. Remember that you can file for disability before 12 months has passed from the onset of your disability.

3: The SSA Cannot Find You

The SSA and the Disability Determination Service (DDS) — the agency that determines your medical eligibility for benefits — must be able to communicate with you regarding your application. If these agencies cannot reach you to schedule examinations or communicate with you about critical matters, your benefits may be denied. If you retain an attorney to handle your case, you may not need to get in touch with the SSA, but be sure to stay in touch with your attorney. If you move while your application is being considered, make sure the SSA and your attorney know how to contact you. Claimants (those who are applying for Social Security disability) get denied every day because the SSA cannot find them.

4: You Refuse to Cooperate

Your medical records are vital to granting your disability. If you refuse to release those records to the SSA, your claim could be denied. Similarly, the SSA may need additional information about your impairments, either because your treating doctor’s medical records are incomplete or because you have no treating doctor. In these instances, the SSA will request that you be examined by an SSA doctor in something called a consultative examination (CE), at government expense. In some cases, the SSA will require you to attend more than one CE. If you refuse to attend or request that the SSA make a determination based on the medical records already in your file, you may be denied disability because of inadequate medical information or failure to attend the CE. If you can’t make it to a scheduled CE because of the time or location, talk to your claim examiner so the DDS can schedule a CE at a time or place that is convenient for you. If you repeatedly fail to show up for a CE, your claim will most likely be denied.

5: You Fail to Follow Prescribed Therapy

If you are being treated by a doctor, but fail to follow the doctor’s prescribed therapy when you have the ability to do so, you can be denied disability benefits. The SSA recognizes certain legitimate excuses for failing to follow prescribed therapy, but generally you should make every effort to follow your doctor’s orders.

Acceptable medical excuses. Failure to follow prescribed therapy can be excused for reasons beyond your control. Some examples follow.

  • You have a mental illness so severe that you cannot comply with prescribed therapy.
  • You have a fear of surgery so intense that surgery would not be appropriate. Your treating doctor must confirm the severity of your fear.
  • You physically cannot follow prescribed therapy without assistance.

Acceptable nonmedical excuses. It is possible that you cannot follow a prescribed therapy for a reason that has nothing to do with your medical condition. Acceptable nonmedical excuses for failing to follow prescribed therapy follow.

  • You don’t have the money to pay for treatment.
  • Your religious beliefs prohibit you from receiving medical therapy.
  • Your doctor prescribes treatment that another doctor disagrees with.

For the SSA to deny your claim for failing to follow therapy, the therapy that you fail to follow must be one that is clearly expected to restore your ability to do substantial gainful activity. If your treating doctor tells the SSA that the prescribed therapy is not likely to result in your ability to work, the SSA won’t fault you if you don’t follow such therapy.

6: Your Disability Is Based on Drug Addiction or Alcoholism

The SSA will deny benefits to anyone whose drug addiction or alcoholism (DAA) is a contributing factor to his or her disability. The key factor is whether or not the SSA would still find you disabled if you stopped using drugs or alcohol. It is best to refrain from the use of drugs and alcohol when making a claim for disability benefits.

7: You Have Been Convicted of a Crime

Certain conditions related to conviction of a crime or imprisonment will prevent you from receiving Social Security benefits.

  • If you were injured while committing a felony and were convicted of the crime, the impairment suffered — or the worsening of an existing impairment — during the commission of a felony cannot be used as a basis for applying for disability benefits.
  • If you were injured while in prison, the impairment suffered — or the worsening of an existing impairment — while you are in prison cannot be used to obtain benefits. But you can generally receive benefits after being released from prison.

8: You Commit Fraud

If you obtain disability benefits by dishonest means, the SSA can terminate your benefits and prosecute you for fraud. Filing a tax return for self-employment in order to receive a refund is a common problem.

Social Security Disability and SSI for Depression

Learn about your options for getting Social Security disability benefits based on depression

American doctor with depressed woman patient
American doctor with depressed  patient

To qualify for disability benefits, an individual with depression must either meet certain specific disability criteria (found in Social Security’s impairment listing manual), or be granted a medical-vocational allowance based on the severity of their depression and a combination of other factors (such as other impairments, work history, age, and a level of education).

Social Security publishes a list of common, serious illnesses (“Listings”) that qualify for disability if they meet the specified criteria. The purpose of the list is to grant disability quickly for severe impairments. Depression is covered in impairment listing 12.04 Depressive, Bipolar and related disorders. To qualify for either Social Security disability or SSI disability benefits solely on the basis of depression, you must show you have severe depression by having at least five of the following symptoms:

  • depressed mood
  • diminished interest in almost all activities
  • appetite disturbance with change in weight
  • sleep disturbance
  • observable psychomotor agitation or retardation
  • decreased energy
  • feelings of worthlessness or guilt
  • difficulty concentrating or thinking, or
  • thoughts of suicide or of death.

Bipolar disorder must be characterized by three or more of these symptoms:

  • pressured speech
  • flight of ideas
  • inflated self esteem
  • decreased need for sleep
  • distractibility
  • involvement in activities that have a high probability of personal consequences that are not recognized or
  • increase in goal-directed activities or psychomotor agitation

You will have to prove by treatment records from your therapist that these symptoms exist and that they cause serious functional limitations despite treatment for some period of time. If you regularly see a psychiatrist or psychologist, he or she should be recording your symptoms. If not, you may want to track your condition using a self-rated depression scale:

(http://healthnet.umassmed.edu/mhealt/ZungSelfRatedDepressionScale.pdf)

Social Security requires that your symptoms of depression cause you serious difficulties (one extreme or two marked) with:

  • understand, remember or apply information
  • interact with others
  • concentrate, persist, maintain pace, and
  • adapt or manage oneself

Affleck & Gordon are experienced attorneys who represent individuals in Social Security disability appeals. We offer a free consultation and will be happy to answer any questions you may have.