Overview of Social Security Disability Claims By Joseph L. Koplin Moschetto and Koplin, Inc., P.S. 1800 112th Avenue N.E., Suite 300E Bellevue, WA 98004-2954 E-mail: [email protected] www.moschettokoplin.com (425) 641-6000

The Social Security Administration (“SSA”) administers two different disability programs: Social Security Disability (“SSD”) and Supplemental Security Income (“SSI”). Both programs require proof of total disability, but there are very significant differences between the two programs. SSD is disability insurance. In order to qualify, you must have paid in to the system. Social security payroll taxes are deducted from your paycheck; if you are selfemployed, you are required to pay self-employment social security taxes. If you have paid into the system for 20 of the 40 quarters preceding the date of onset of disability (basically, five of the past ten years prior to when you became disabled), then you qualify for SSD, assuming you meet the other requirements. It doesn’t matter how rich you are for purposes of SSD. Bill Gates could qualify if he met the standard for total disability. Supplemental Security Income (SSI), by contrast, is a public entitlement program, a type of public assistance. It is needs-based. It doesn’t matter if you’ve paid into the system or not. You can qualify even if you’ve never worked. It requires that you have very limited income and assets. If you make too much or own too much, you don’t qualify.

And the amount you receive on SSI is generally significantly less than the

amount you receive on SSD. Often, people applying for SSI are already on state public assistance. In Washington, the Department of Social and Health Services (DSHS) has caseworkers who work with their clients to help them qualify for SSI. Why? Among other things, it transfers the financial burden from the state to the federal government. Overview of Social Security Disability Claims Rev. 2/11/2012

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DSHS will work with their clients’ social security attorneys to obtain the necessary medical records and other evidence for a successful appeal. I will assume that most of the attendees at this conference are more concerned with SSD than with SSI, and the remainder of this paper will focus on how to successfully obtain SSD benefits. Applying for SSD is basically a three (or more)-step process: (1)

Initial application;

(2)

Reconsideration;

(3)

Request for Administrative Hearing; and if necessary:

(4)

Appeal (Appeals Council, Federal District Court, 9th Circuit Court of Appeals)

You cannot receive SSD benefits for the first five full months after onset of disability. Example: you became disabled on January 1, 2006. You cannot receive disability income benefits (“DIB”) for the months of January through May, 2006. The first month you can collect benefits is June, 2006. The date you file the application becomes your protective filing date. You can receive retroactive benefits up to twelve months prior to the date you filed. Let’s assume that you became disabled on January 1, 2010 but you don’t file your application until March 1, 2012.

If you are granted benefits, you will receive current benefits and

retroactive benefits to one year prior to the protective filing date: March 1, 2011. Assume that your initial application for disability is denied.

Statistically,

approximately 2/3 of benefits are denied on the first application. Of those initial denials, most will be denied again on reconsideration. However, on further appeal to a social security administrative law judge, the overwhelming majority will be approved. 2/3 of all denials are reversed at the administrative hearing stage. If you are represented by a competent attorney, your chances of reversal increase to 90%. Overview of Social Security Disability Claims Rev. 2/11/2012

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You can’t put yourself in a position to win your case if you don’t appeal denials at the initial or reconsideration stages. Many people get denied, assume that the system is stacked against them, become despondent, and give up. Don’t allow yourself to fall into this mindset. Assume that each denial is a hoop you need to jump through, and keep going. Odds are that you will eventually win your case. As I will discuss in the live sessions, the disability analysis is a five-step sequential process: 1. Are you working? If you are working, then you are not disabled. Social Security defines “work” as being engaged in “substantial gainful activity” or SGA. In 2012, you are engaged in “substantial gainful activity” (SGA) and therefore considered to be working if your gross earnings exceed $1,010.00 per month ($1,690.00 per month if you are blind). 2. Do you have a medically diagnosable “severe” impairment or multiple impairments? The medical impairment must be “severe.” A medical impairment is not severe if it does not significantly limit your physical or mental ability to do basic work activities. 20 CFR §404.1521. In rare cases, a person may be profoundly disabled but medical science cannot explain the etiology of the impairment.

Without a diagnosis, it will be difficult or

impossible to win your case. The opinion of a medical specialist is critical. 3. Do you meet a “Listing”, and if not, does the severity of your impairment equal a Listing? Social Security has published very detailed regulations covering fourteen different categories of Impairments. Listings 5.00 and 13.00.

Listings which reference cancer are found in

Since a profound illness can cause clinically significant

depression or other mental health conditions Listing 12.00 for mental health conditions Overview of Social Security Disability Claims Rev. 2/11/2012

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should also be considered.

If you can demonstrate a diagnostic “match” or the

equivalent of a match, Social Security should theoretically grant your claim without the necessity of a hearing. 4. If you don’t meet a Listing, can you do your past relevant work, defined as your work during the 15 years prior to the onset of your disability? 5. Even if you can’t do your past work, is there other less demanding work that you can do and which is available in the national economy, taking into consideration your age, education, and transferable skills? This is a medical-vocational analysis, and for this purpose the Social Security judge will often require a vocational counselor to attend the hearing to help the judge work through this analysis. In determining disability, the judge must consider all of your exertional and your non-exertional impairments (i.e., fatigue, depression, etc.). You may be able to perform the physical demands of work in the sense that you can sit, stand, lift, carry, walk, etc., but lack the physical endurance to sustain competitive employment. Or you may lack the cognitive endurance to maintain concentration, focus and attention. You may be capable of intermittent work but not continuous work. If you can only do a few hours of work a day, if you required extended work breaks, if your medical condition will require frequent absences from the workplace, then you are not going to qualify for most competitive work, and most vocational witnesses and administrative law judges will recognize this. How can an attorney increase your chances of winning your appeal? Consider this statement: I would never get an attorney because they are going to do what you do, get medical reports. Most do nothing just take their fee.

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I disagree.

If your application has been denied at the Initial and/or

Reconsideration stages, you probably need representation to prove your claim. Your lawyer will obtain and review the claims file, analyze your case, identify the strongest issues in your appeal (Do you meet a listing? Are you disabled based on Social Security’s medical-vocational grids?), advise you on consulting additional medical specialists, obtain additional medical evidence for your appeal, interview your key providers and obtain specific narrative reports, interview family, friends, former coworkers and obtain detailed declarations to submit to your claim file, and identify key witnesses to testify at your hearing. In the right case, the lawyer can write up your appeal and ask the judge for a Decision “On The Record” (meaning that the evidence is so clear that there’s no reason to wait for a hearing). If the judge agrees, your lawyer has saved months or even years of waiting for your case to resolve. How does the lawyer get paid? The lawyer receives 25% of your retroactive benefits, up to a maximum of $6,000.00.

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Social Security Disability and Cancer The primary Listing for cancer-related illnesses is found at Listing 13.00. Per the Listing, this list is by way of example of conditions that Social Security considers severe enough to prevent you from working. If your cancer is different, it may still equal a listing in severity. 13.01 Impairments Generally 13.02 Soft tissue tumors or the head and neck 13.03 Skin cancer 13.04 Soft tissue sarcoma 13.05 Lymphoma 13.06 Leukemia 13.07 Multiple system myeloma 13.08 Salivary glands 13.09 Thyroid glands 13.10 Breast 13.11 Skeletal system – sarcoma 13.12 Maxilla, orbit or temporal fossa 13.13 nervous system 13.14 Lungs 13.15 Pleura or mediastinum 13.16 Esophagus or stomach 13.17 Small intestine 13.18 Large intestine 13.19 Liver or gallbladder 13.20 Pancreas 13.21 Kidneys, adrenal glands, or uterus – carcinoma Overview of Social Security Disability Claims Rev. 2/11/2012

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13.22 Urinary bladder – carcinoma 13.23 Cancers of the female genital tract – carcinoma or sarcoma 13.24 Prostate gland – carcinoma 13.25 Testicles 13.26 Penis 13.27 Primary site unknown 13.28 Malignant neoplastic diseases treated by bone marrow or stem cell transplantation Listing 5.00, Digestive System, also has several references to cancer in discussing chronic liver disease and chronic viral hepatitis but the listing loops back to Listing 13.00. There is an underlying similarity to most of these Listings. The claimant will be approved if he or she has a type of cancer for which there is little or no treatment, if he or she has an inoperable malignancy, has cancer which cannot be controlled by any sort of treatment, or has a cancer which has mestastisized. Lawyers see very few of these cases because the disability and the claimant’s qualification for disability is obvious. Even if the claimant does not meet or equal a Listing for cancer, there may be limitations due to treatment for the disease. Surgery or radiation may leave the claimant with permanent damage. Radical mastectomy can lead to weakness to the arm on the affected side and may lead to lymphedema or the affected arm. A cancer diagnosis and treatment may lead to secondary depression or anxiety which would qualify under the Listings for mental health. If you don’t meet or equal a listing under 13.00, you may meet another listing. Because cancer may cause secondary depression, you and your lawyer should consider whether you meet a Listing under 12.00 for mental health disorders (depression, anxiety). See, for example, Listing 12.04 for Affective disorders (generally depression). Overview of Social Security Disability Claims Rev. 2/11/2012

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Social Security asks whether there is medical documentation of a disturbance of mood manifested by (for example) anhedonia, appetite disturbance, sleep disturbance, psychomotor agitation or retardation, decreased energy, feelings of guilt or worthlessness, difficulty concentrating or thinking, suicidal thoughts, or hallucinations, delusions, or paranoid thinking, or manic symptoms of hyperactivity, pressured speech, flight of ideas, inflated self-esteem, deceased need for sleep, easy distractibility, reckless activity, or bipolar syndrome. In addition to meet some of the above criteria (no one meets all or even most of these), Social Security asks whether the diagnosed mental health condition results in MARKED restrictions in activities of daily living, maintaining social functioning, and or difficulties in maintaining concentration, persistence, or pace.

Marked is more than

Moderate and less than Severe. What Marked actually means is really a judgment call. Social security also asks whether you have experienced repeated episodes of decompensation, each of extended duration. “Decompensation” is defined as:

4. Episodes of decompensation are exacerbations or temporary increases in symptoms or signs accompanied by a loss of adaptive functioning, as manifested by difficulties in performing activities of daily living, maintaining social relationships, or maintaining concentration, persistence, or pace. Episodes of decompensation may be demonstrated by an exacerbation in symptoms or signs that would ordinarily require increased treatment or a less stressful situation (or a combination of the two). Episodes of decompensation may be inferred from medical records showing significant alteration in medication; or documentation of the need for a more structured psychological support system (e.g., hospitalizations, placement in a halfway house, or a highly structured and directing household); or other relevant information in the record about the existence, severity, and duration of the episode. The term repeated episodes of decompensation, each of extended duration in these listings means three episodes within 1 year, or an average of once every 4 months, each lasting for at least 2 weeks. If you have experienced more frequent episodes of shorter duration or less frequent episodes of longer duration, we must use judgment to determine if the duration and functional effects of the episodes are of equal severity and may be used to substitute for the listed finding in a determination of equivalence. Overview of Social Security Disability Claims Rev. 2/11/2012

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In essence, a person decompensates if a minimal increase of stress (occupational, social, etc.) causes the person to significantly worsen and lose the ability to cope with normal daily stresses and routines. Quick Disability Determinations Social Security disability determinations can take months or years, but Social Security has created systems intended to provide benefits quickly to claimants whose medical conditions are so serious that they clearly meet disability standards.

The

Compassionate Allowance program attempts to implement this policy. Compassionate Allowances (CAL) are a way to quickly identify diseases and other medical conditions that invariably qualify under the Listing of Impairments based on minimal objective medical information. CAL allows SSA to quickly target the most obviously disabled individuals for allowance. There are currently 113 listed conditions. The list is contained in your Appendix of materials. Many cancers are included on the list. Also included is 42 USC §1920B, Presumptive Eligibility for Certain Breast or Cervical Cancer Patients, and SSA-POMS 11005.603 which directs Social Security field offices in processing QDD cases. Resources There are a variety of sources of information about the social security disability appeal process. Here are some suggestions: 1. Visit your local social security office. There are a number of brochures that you can grab off the rack that will give you an overview. 2.

Go to www.socialsecurity.gov. There is a wealth of information available

3.

You can find a social security disability lawyer in your area through your local

online.

Bar association, a local lawyer referral service, the yellow pages, word of mouth, the internet, or by visiting the website of the National Organization of Social Security Overview of Social Security Disability Claims Rev. 2/11/2012

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Claimant Representatives (NOSSCR) at www.nosscr.org. If you’re not comfortable with the first lawyer you contact, shop around. Interview several. If you know someone who has been pleased with the services of a social security attorney, word of mouth referrals are generally best. The two messages that I hope you will take away from this weekend’s presentation and this paper are: 1. If your disability application is denied at the initial or reconsideration stages, don’t give up. Don’t let your application lapse. Keep appealing to the next stage, and pay close attention to the time limits for appeal. 2. Don’t be afraid to hire a competent, experienced social security attorney at the administrative hearing stage.

An experienced social security attorney will

significantly increase the odds that you will eventually receive benefits.

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ATTACHMENTS

1.

2.

SOCIAL SECURITY DISABILITY BASICS a.

Wikipedia

b.

Social Security Disability Benefits

c.

Substantial Gainful Activity

d.

Disability Starter Kits

QUICK

DISABILITY

DETERMINATIONS

AND

COMPASSIONATE

ALLOWANCES 3.

CANCER-RELATED LISTINGS

4.

RETURN TO WORK OPTIONS (TRIAL WORK PERIOD, EXTENDED PERIOD OF ELIBILITY

5.

THE MEDIA

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