Disability Defined

 What does “disability” mean for Social Security?

As a lawyer I can tell you – how something is defined can mean everything.  The term “disability” can have numerous different definitions depending on its setting. For instance, im sure many of you have heard that the military can sometimes deem someone to be disabled in percentages (ex. 35% disabled).  The definition of “disability” for Social Security purposes is defined in the Code of Federal Regulations at 42 U.S.C. § 423(d), §§ 1382c(a)(3). While the full definition is quite large its basic tenants are:

The inability to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result in

death or which has lasted or can be expected to last for a continuous period of not

less than 12 months;

This definition is important for several reasons. First off you will notice the absence of any percentages. This definition isn’t like the military’s – its either yes or no. Another aspect you may have quickly noticed is the durational requirement.  The impairment must be expected to end in death or last at least 12 months. So even the worst types of traumatic injuries may not meet the Social Security definition of disability if the condition is expected to improve within 12 months. 

*You must clearly understand the durational definition. Many people misconstrue this definition to mean that they must be out of work for 12 months before they can file for benefits. This is not the case. You do not have to be out of work for 12 months before you can file for disability under Social Security. Your condition must only be expected to last 12 months or longer. *

You will also find an absence of availability of jobs. Social Security is not meant to be an unemployment benefit. Therefore, if you cannot find a job, no jobs exist, nobody will hire you because of a criminal record, or that you have no transportation to a job will not be adequate grounds for a favorable disability decision. 

"INSURED" - WHAT DOES IT MEAN?

A disabled worker seeking to receive benefits from the Social Security Administration(SSA) must not only be disabled within the meaning of the law but also “insured”.  One must also be “insured” for retirement purposes but the calculations differ between the two types of benefits. One could be insured for retirement benefits even at an early age and not be insured for disability. This article will address solely the disability insured status requirements.

The formulae for becoming insured is to acquire “Quarters of coverage”. A quarter is represented by a quarter of the calendar year: Jan – Mar, April – June, July – Sept, Oct – Dec.  In order to obtain a quarter, a person must be paid a certain amount of wages during that quarter. The amount necessary is recalculated annually by SSA. To earn a quarter of coverage in 2011 is $1120. If a person earns more than is required for a quarter of coverage the excess can be applied to the next quarter. For example if you earn $2120 in Jan of 2011 then $1000 can be applied to your April – June quarter. It is quite possible for a person to earn an entire year of quarters in just a couple of months!

How quarters of coverage are applied to different individuals:

1.       For most workers to be insured they must meet the “20/40” rule. This means that you must have at least 20 quarters out of the last 40 quarters ending in the quarter that you became disabled.  A good rule of thumb that I use is – work 5 out of the last 10 years to be insured.

2.       A worker who is disabled prior to age 31 is not required to meet the 20/40 rule. This person need only have quarters of coverage in half of the quarters between age 21 and the date of onset of disability. If there are fewer than 12 quarters between age 21 and onset the worker must have 6 quarters of coverage nonetheless.

3.       Workers who are disabled due to blindness fall under a different test.

If a person does not meet the quarters of coverage requirement then they are not “insured” for Social Security purposes. The time when the insured status is expired is called the “Date Last Insured” (DLI).  It is extremely important to be determined by SSA to be disabled before the DLI or you could not be entitled to any benefits despite being severely disabled.  Persons who are not “insured” must rely on meeting the strict income and resource requirements of SSA’s Supplemental Security Income (SSI) provision.

New compassionate allowances

The Social Security Administration has a list of certain diseases and impairments that are deemed to be disabling. Persons with impairments that are on SSA's list of compassionate allowances are almost 100% guaranteed to be awarded benefits. An award decision usually comes within a couple of weeks. Should the person be denied benefits at the initial level, compassionate allowances cases retain priority status on appeal and receive expedited processing.

This month SSA announced twelve new conditions to the list. There are now 100 medical conditions in the  compassionate allowance category. The twelve new conditions are:

1. Aortic Atresia
2. Eisenmenger Syndrome
3. Endomyocardial Fibrosis
4. Heart Transplant Graft Failure
5. Heart Transplant Wait List -1A/1B
6. Hypoplastic Left Heart Syndrome
7. Left Ventricular Assist Device Recipient
8. Mitral Valve Atresia
9. Primary Cardiac Amyloidosis
10. Pulmonary Atresia
11. Single Ventricle
12. Tricuspid Atresia

You can view the complete list of compassionate allowances at ssa's website: www.ssa.gov/compassionateallowances.

Social Security Trust Fund Solvency

What is always a hot topic during elections and often discussed at the water cooler - Is the SSA trust fund going to run out? and if so - when?  The new report from the Board of Trustees was released on May 13th, 2011. The Social Security Act requires  the Board of Trustees to issue an annual report to Congress regarding the trust fund.

Before I give you the highlights of the 2011 report it is important to understand that there are actually two trust funds. The 'Old Age and Survivors Insurance' (OASI) and the Disability Insurance trust fund. For most intensive purposes they are treated as one trust fund.

The report found that if NO action is taken (i.e. no new laws that alter or amend the Social Security Act) that the trust fund will be able to pay 100% of scheduled benefits until 2036. The 2010 report stated that the  benefits would be payable until 2037.

More disturbing figures are discovered when you look at the solvency of each trust fund. The report finds that the disability trust fund will be depleted in 2018. That is not a typo - 2018. The much larger OASI trust fund is solvent through 2038.

Why is the disability trust fund in such danger? A recent paper by the Center on Budget and Policy Priorities opines that Baby Boomers have recently moved into their high-disability years. The number of disability beneficiaries has doubled since 1995. In addition, more women have moved into the workforce and have become eligible for disability benefits.

The entire 2011 Trustees Report can be found at www.ssa.gov/OACT. However, a much easier to read and understand paper was published by the National Academy of Social Insurance and can be found at www.nasi.org

SSA stops denials and suspensions based upon Parole violations

Beginning May 9, 2011 the Social Security Administration is  no longer suspending or denying benefits or payments based solely on a probation or parole violation warrant. The change comes as current pending litigation had certified those who were denied or suspended benefits as a result of this policy were deemed to be a part of a "class action" lawsuit against the administration.
This policy change applies to all cases at any stage of the administrative appeals process. Thus if you are awaiting a hearing on this issue it is possible that you could ask for an "on the record" hearing (meaning that you would not actually have to go to court) and attach the SSA new policy change.
Unfortunately, SSA will not take any action to remedy prior suspensions or denials based upon the previous policy.

Change in SSA policy - is diabetes disabling?

Effective June 7, 2011 the Social Security Administration (SSA) significantly changed its policy on how it views diabetes mellitus as a disabling condition. SSA provides criteria for multiple conditions and what must be present for certain conditions to be disabling. These definitions are referred to as "listings". Major disorders are grouped into large "listings" then subcategorized. For example skeletal listings are listed in 1.00 and back problems such as degenerative disc disease would be subcategorized as listing 1.04.

Diabetes mellitus previously existed under the Endocrine Disorders listing at 9.00 as listing 9.08.  SSA has now completely deleted diabetes mellitus as a listing level disabling condition. SSA justifies its change in policy stating that diabetes mellitus medical treatment has advanced significantly to the point where diabetes is detected as such an early age as to prevent long term disabling effects.

Current beneficiaries benefits will not be terminated.

While this is a blow to those who suffer the terrible effects of diabetes, there is still hope for being approved for disability benefits. While diabetes itself is not a listing requirement, the limiting physical effects of diabetes could reduce a persons ability to work to the point that they would be unemployable. Persons claiming diabetes as a disabling condition for social security benefits should contact an experienced attorney.

You can read the law change at 20 C.F.R. 404.1594(c)(3)(i) and 416.994(b)(2)(iv)(A). You can also read more at our website www.burtonandmckinnish.com

Social Security Hearings in Knoxville - What to expect

For many of my clients the Social Security Hearing is the first time they have ever been in a "courtroom" much less been called to testify. This blog is an outlay of what to expect at your Social Security Hearing in Knoxville TN.

INFORMAL SETTING

Social Security Hearings are not like what you see on T.V. courtroom dramas. The Hearing rooms are very small and informal. The tables are arranged in a "U" shape with the Judge at one end and you at the other. The court reporter and any experts (vocational or medical) will sit to your right. You will be escorted back to the hearing room from the waiting room by SSA staff. It is not uncommon for the Judge to not be in the room when you are first placed in the Hearing room. If a court reporter or an expert witness is in the room it is perfectly fine to engage with them in casual conversation. You should not however discuss your case or your disability with anyone in the room other than your attorney.

The tables will be equipped with microphones. Usually there will be one microphone for you and one microphone for your attorney. It is important to remember that these microphones do NOT amplify your voice so you will need to speak loud and clear to the Judge. The microphones are merely recording your testimony as required by SSA regulations.

The chairs that you will be sitting in are not special chairs nor are they particularly comfortable. Many of my clients suffer from back and knee related disabilities and have to stand up half way through the hearing. There is nothing wrong with having to stand up and move around if you are uncomfortable sitting. I advise my clients that they do not have to see permission from me or the Judge to stand.


INFORMAL RULES

You may have noticed already that I did not mention the Social Security's attorney. That is because SSA will not have an attorney at the hearing. The Judge will be asking you questions and your attorney will be asking you questions. The rules regarding testimony are relaxed in this setting. For example hearsay and and other types of testimony that would be excluded in a state trial will be admissible at the Social Security Hearing. You will most likely not see the attorney or the judge yell "Objection!" or any other type of argument as to admissibility of testimony at SSA hearings like what is normally seen in state trials.

One rule that is the same in Social Security Hearings and in state trials is that each must witness must swear or affirm to tell the truth under penalty of perjury.

DRESS CODE

None of the Judges in Knoxville have a written dress code. So if all you have is blue jeans then don't be afraid or ashamed to wear them to the hearing.  I have noticed that different attorneys give varying degrees of advice when it comes to what to wear to the hearing. I advise my clients to dress as if they were going to church and that if they do not go to church then to look "presentable".  I have heard of attorneys to advise their clients to look poor and impoverished.

I honestly do not think what a claimant wears to the hearing has much bearing on the Judge's decision. I am however superstitious about a couple of things.  I advise my clients against wearing shirts that sponsor social or sporting events (for example, "i just ran a 5k" t-shirt). Even if the shirt is not the clients or the client did not attend the event, I am superstitious about even wearing it to the hearing.  Also any shirts that reference alcohol or drug consumption is a big no-no.  I am also superstitious about women who paint their nails before a hearing. I noticed a Nashville Judge one time taking long stares at my clients nail polish. I couldn't help but wonder if the Judge was assessing this clients disability by the way she painted her nails.

LENGTH

SSA Hearings run from 30 -45 minuets. I have been involved in some hearings that have lasted less than 15 minutes. Depending on the facts and issues of each case, some cases can go longer than 45 minutes. Most cases that I have participated in that went longer than 45 minuets was not due to the medical issues but rather involved complex vocational and past work issues.

OUTCOME

The Judges in Knoxville have stepped away from informing the client at the hearing whether they have won their case. This practice has always been frowned upon since there is no security guard or bailiff in the Hearing room. I have noticed over the last few years that even the Judges who would tell claimants that they had won their case have not been issuing decisions from the bench.  In the majority of cases the Judge will issue you a written decision in the mail. The time frame varies greatly but I notice that my clients typically receive the decision in the mail within 8 weeks of the hearing.




I hope you have found this blog informative. If you have any suggestions about a blog topic you would like to see, please email me. As always, if you have any further questions related to Social Security Disability fee free to visit our website at www.burtonandmckinnish.com