THINGS A JUDGE WILL CONSIDER

Most people who apply for Social Security disability will wind up before a judge, who must decide if they qualify for benefits.  What type of things will the judge consider?

In addition to your medical record, there are several factors that judge will look into:

1.  Your Work Record.  Judges like to see claimants who have a long, steady work history.  This gives the claimant a great deal of credibility.

2.  Are Other Family Members on Disability?  Judges don't like to see a household where multiple members of the family are on disability benefits.

3.  Have You Tried to Keep Working?  Judges will ask how you have tried to stay in the workforce.  They want to know about medical treatment, physical therapy, rehabilitation or looking for an easier job that you may still be able to perform.

4.  What Are Your Hobbies and Recreational Activities?  You say you are not able to work, but how do you spend your time?  Do you go to ballgames, hunt, fish, travel or engage in other hobbies?  Do these recreational activities indicate inconsistency with the idea that you are disabled?

5.  Do You Have Unreported Wages?  Judges want to know if you have worked "under the table."  They usually view this as dishonesty because no FICA or federal tax were paid on these earnings.  Such work may also indicate that a person really isn't disabled, since they have been working.

THE REALITY TEST

When you apply for disability, Social Security will send you a  lot of forms.  These forms will ask you about every facet of your everyday life.  They take the answers on these forms very seriously.

When you complete your disability forms, have a relative or friend review them with you.  Do the Reality Test.  Are my answers really accurate?  Have I under-stated or exaggerated any of my answers?  Strive for absolute honesty.

Often, I interview claimants with a spouse present.  As the claimant is telling me what they can and cannot do, the spouse is very often incredulous.  Their expression says, "You certainly can't do that!" Or, "Are you kidding me?"

We tend to minimize our inabilities and downplay our limitations.  Our family members may notice our limitations more than we do.

When filling out Function Reports, address your worst days--not your best days.  If you can trim the grass two days out of an average week but you cannot do it five days out of the week, then you have a severe limitation. 


The reality test simply asks, "Is this a true reflection of what I can do, day in and day out?  

Keep in mind, too, that just because you can do something once or twice around the house, performing that same function on the job all day is a different matter.  Can you lift 10 pounds?  You say, "Sure, I can lift 10 pounds with no problem."  If I rephrase the question, Can you do a job all day that requires lifting 10 pounds? the answer might be totally different.


The same might be true with a simple thing like sitting.  Around the house you sit in a recliner and read or watch TV.  At work, however, you would sit in a much less comfortable chair with both feet on the floor, not elevated.  How long can you sit in those conditions?

Perform the reality test.  I also recommend having your spouse or family member review your answers.  He/she may look at what you have written and say, "Are you kidding me?"

SSI vs. SSDI: 2 VERY DIFFERENT PROGRAMS

The US Social Security Administration (SSA) operates two basic disability programs--which have some similarities and some differences.

SSDI

• Called "Title 2" because it was created under Title 2 of the Social Security Act.
• SSDI stands for Social Security Disability Insurance (Yes, it is insurance).
• Requires a claimant to have worked and paid FICA taxes for a number of years
• Poses no income or resource restrictions to get a benefit
• Requires that the claimant be medically disabled
• Has a 5-month waiting period (no benefits for the first 5 months of disability)
• Comes with Medicare after 29 months of continuous disability
• Requires a disability lasting at least 12 straight months or expected to end in death.
• Maximum 2020 benefit is $3,011 per month; the average benefit is $1,258 per month.

SSI

• Called Supplemental Security Income
• Also called "Title 16" because it's covered by Title XVI of the Act.
• Does not require any work history to qualify.
• Has severe income and resource restrictions.
• Requires that the claimant be medically disabled or at least age 65.
• Has no waiting period; benefits available the month after the application.
• Comes with Medicaid with no Medicaid waiting period.
• Requires a disability lasting at least 12 straight months or expected to end in death.
• Maximum 2020 benefit is $783 per month (non-blind) but may be less. 
• Living arrangements and household income affect eligibility and benefits.
• *benefits for a blind individual may be higher

You will hear a lot of people talking about getting "a Social Security disability check."  You never know if they are talking about SSDI or SSI.  

I hear people say, "He gets a disability check but he never worked a day in his life."  Of course, that's absolutely impossible with SSDI but could be possible under SSI.

Which do you want to apply for, SSDI or SSI?  

You want SSDI in most cases because it potentially has a much larger monthly benefit.  It also has no financial restrictions.  But if you can't qualify for SSDI because you didn't pay enough in FICA (withholding) taxes, you should try for SSI.  In some cases, a person can get both SSDI and SSI benefits.  This would occur in cases where the combined SSDI and SSI benefits do not exceed $783 per month.

The medical requirement to get SSDI and SSI is exactly the same.  The big differences are in the financial restrictions for SSI and the larger benefit possible under SSDI.

CANCER AND DISABILITY BENEFITS

There are many forms and stages of cancer.  Depending on the type and stage of cancer, it very often qualifies for Social Security disability.

Cancer is usually considered disabling and eligible for benefits when

1.  it has spread beyond the regional lymph notes, or
2.  it has been treated and has recurred, or
3.  it has required a stem cell or organ transplant, or
4.  it's symptoms or treatment results in the inability to sustain basic work-related functions on an ongoing basis (8 hours per day, 5 days per week).

There is a Duration Requirement which says that a medical condition must have lasted at least 12 straight months, be medically expected to last at least 12 straight months or to result in death.  Most forms of cancer will meet the duration requirement but some may not.

Your doctor and medical team will provide specific information to help determine if you qualify for benefits.

What you, the claimant, can do to speed up your benefits:

A.  Notify Social Security on your application that you have cancer.  Be specific as to the location, type and stage of cancer.  Special attention is paid to claims involving cancer.

B.  Get a record of pathology from your doctor and send it to Social Security as soon as possible.  This may be a laboratory test or biopsy report showing a cancer diagnosis., giving the location of the cancer.

C.  Provide Social Security with the name, full address and telephone numbers of all the doctors who treat you.

D.  Ask your doctor to provide a written statement which details your specific functional limitations.  This will state, for example, what your limits are on sitting, standing, walking, reaching, lifting, bending, etc.  If you are likely to miss several days a month for chemotherapy or treatment, the doctor should explain this, also.

The more details you are able to furnish Social Security, the more likely you are to get a quick and favorable decision on your benefits.

Please remember that SSDI (the normal Social Security disability program) does not pay for the first 5 months of disability because of the waiting period.  However, if you have already been out of work several months before you file your application for disability, claim those months to reduce the time you must wait.  For example, if you file on 2/20/20 but became too ill to work on 10/20/19, you have potentially already met 3 months of the waiting period.

Don't be hesitant to ask for help with your claim. Any experienced advocate or attorney will be glad to assist you in getting the quickest possible resolution to your disability claim.  It's a complicated process for anyone, and especially so for a patient undergoing cancer treatment.

A SUPPORTIVE DOCTOR HELPS YOU SSDI CLAIM

Perhaps the strongest ally you can have when filing for Social Security disability is a supportive doctor.

Social Security will need 2 things from your doctor:

1.  Your complete medical records.
2.  An opinion of your functional limitations (called a Residual Functional Capacity statement).

Just like any other legal case, Social Security disability must be proven.  This proof always rests in your doctor's office.

If you are considering filing for disability, I urge you to talk to your doctor.  His or her support can be instrumental.

The truth is, Social Security denies about 75 percent of all disability applications at first.  Those denials require an appeal process in order to be approved.  

If we handle your SSDI case, we will obtain the necessary medical records for you.  We will also request a Residual Functional Capacity opinion from your doctor.  This detailed form is a lot of work for your doctor.  But it can form the absolute best piece of evidence to help prove your case.

Let me say something about the term "your doctor."  This refers to a qualified medical doctor who has treated you over a period of time and has an established professional relationship with you.  This is not a new doctor you see just to get forms filled out for disability.  The longer you have been treated by this doctor, the more weight is likely to be given to paperwork he or she provides.  Also, the term doctor refers to a licensed physician--either a Doctor of Medicine (MD) or Doctor of Osteopath (OD).  A podiatrist can provide evidence about foot or ankle disorders.  An optometrist can provide records concerning vision.  A licensed psychologist (Psy.D. or Ph.D.) can explain mental or psychological disorders.  A psychiatrist, of course, is an MD or DO. 

If your doctor is not supportive, it may be that you will have difficulty getting Social Security disability benefits.

Of course, doctors cannot approve you or sign you up for disability benefits.  But they can provide important evidence.

THE BIGGEST KILLER OF SOCIAL SECURITY DISABILITY CLAIMS

Here is the most dangerous and biggest killer of Social Security disability claims:


Failure to file an appeal within 60 days of denial.

This thief stalks every single Social Security disability claimant.

The law allows you 60 days to file an appeal and have an unfavorable decision reconsidered.  But only 60 days.  Wait longer and the door to the appeal process closes and you cannot reopen it.

It's important to realize that about one-half of Social Security denials are mistakes.  Mistakes get corrected in the appeal process.  But if your case never goes to appeal, the mistake is never corrected and you never get benefits.

The most important thing you can do if you get denied is to file an appeal within the 60 day time limit.

MOST COMMON DISABILITIES

The top 5 impairments for which SSDI benefits are awarded are:

1. Musculoskeletal system and connective tissue disorders: 30.5 percent of SSDI beneficiaries. Includes osteoarthritis, fibromyalgia, spinal cord injury, carpal tunnel, degenerative disc disease, amputations and more.
2. Mood disorders: (14.9 percent): Includes bipolar disorder, depression and more.
3. Nervous system and sense organs (9:3 percent). Includes stroke, Meniere’s disease and more.
4. Circulatory system (8.3 percent): Includes coronary artery disease, peripheral vascular disease and more.
5. Schizophrenia and other psychotic disorders(4.8 percent):.

Does a diagnosis for one of the above disorders automatically qualify for disability benefits?

No.  Social Security will look at severity, duration and functional restrictions of each disease or injury.

Severity:  The impairment must be severe.

Duration: Social Security must believe that the impairment has lasted or will last at least 12 straight months or result in death.

Physical Functional Restrictions:  The impairment must be shown to significantly reduce the ability to perform basic work functions (such as sitting, standing, walking, lifting/carrying, pushing/pulling, reaching, etc.).

Psychological Functional Restrictions must reduce functions such as the ability to understand, remember and carrying out instructions; appropriately relate to others, complete work in a timely manner, etc.

Claims are evaluated using medical evidence from the claimant's doctors and other providers. 

About 75 percent of applicants are initially denied and will require one or two appeals to be approved.  Most claims are approved in the appeals process, not in the initial application process.

Have you been denied with the past 60 days?  File an immediate appeal.