Can I Work While I Receive Social Security Disability?

The short answer to this question is yes, you can work and still receive disability benefits. As you might imagine, however, there are several limitations and caveats. The first major thing to consider is what type of benefits are you receiving, i.e., disability insurance benefits (“DIB” or “SSDI”) or supplemental security income (“SSI”). Let’s start with the first.

If you are receiving SSDI benefits (disability paid to those who have worked enough to be eligible), you can earn up to $880 per month in 2019 (that’s gross, or before taxes, insurance or any other deductions). If you earn more than $880 in a month, that counts as a “Trial Work Month.” There is no limit to how much you can earn during a trial work month. You get 9 trial work months in the 60 months (5 years) after you are found disabled. These do not have to be consecutive (meaning you could earn over $880 one month, then under for 1 or more months, then over again, and that counts as 2 months). Once you have used your 9 months, you have 36 months (3 years) of an “Extended Period of Eligibility.” During these 36 months, you can still receive benefits, if your earnings for that month are not “substantial” (defined as not over $1,220 per month, gross). There are exceptions/modifications to the substantial earnings rule, such as if your work is done under special conditions (i.e., you receive special assistance, or are given extra breaks, etc.). Another exception is if you have “income related work expenses (i.e., you have to pay out of pocket expenses to get to work, for things like special transportation, etc.).

If you are receiving SSI benefits (disability paid to those with limited income and resources), social security will reduce your benefits by your earnings. They will not count the first $85 you earn in the month, but will then reduce your benefits by 50 cents for every dollar you earn. For example, if you earn $500 in a month, they don’t count the first $85, which leaves $415. They then reduce your monthly benefits by half of that, or $207.50. Moreover, if your income, when added to any other resources, exceeds Social Security’s limits, your benefits stop altogether. The resource limits vary from state to state, but generally you cannot have more than $2,000 if you are single, or $3,000 if you are married (they do not count 1 car and they do not count your residence, i.e., house, apartment, trailer as a resource).

Whatever the case, be sure to always contact social security and inform them of the start, end or change related to any work you do.

by Scott Bowers


Widow Benefits

When a spouse dies, the surviving spouse may be entitled to benefits.  If the surviving spouse is over the age of 60, he or she is eligible to receive their spouse’s benefits.  However, if the surviving spouse is disabled, they are entitled to these benefits at the age of 50.  The disability needs to occur during the prescribed period that is the disability started within seven years of the spouse’s death and the disabled spouse reaches the age of 50 during that seven-year time span.

If the living spouse does not have children collecting benefits from the deceased spouse, the surviving spouse is entitled to receive 71.5% of the decease’s SSDI benefit amount.

To be found disabled, the surviving spouse must provide medical evidence that he or she has a physical or mental health impairment.  The impairment must prevent the individual from earning substantial gainful activity and be expected to last at least 12 months or until death.  In 2019, substantial gainful activity means earning $1220 or more before taxes in a month from employment.  In addition, the impairment either must meet a listing or that the impairments limit the individual from doing any work in the national economy.  However, at the age of 50, Social Security considers the individual’s age and it may be easier to qualify for disability.

If a person believes he or she is unable to work due to a medical condition, is 50 or older, and their spouse is deceased, they can contact Hoglund Law 1-855-512-4357 to have an attorney review their claim.

Written by Deborah Bensch

Deborah Bensch graduated from Southern Illinois University Law School in May of 2006. She has been with Hoglund Law since the fall of 2011 practicing solely in Social Security Disability. Prior to joining Hoglund Law, she practiced in public interest law.

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What will my Social Security Judge ask me at my Disability Hearing?

Q & A with 25+ year Social Security Disability Attorney Andrew Kinney

 

Q:  What will my Social Security judge ask me at my Disability hearing?

A:  While each Social Security hearing is different, there are two main kinds of questions your Social Security Disability judge may ask you:  Questions about your physical limitations and questions about your mental limitations.  Questions about your physical limitations can include:

  • What physical problems limit your ability to work?
  • What chores do you do at home? How do you do them?
  • Have any of your doctors asked you to do exercises? If yes, do you do them?
  • How long can you stand at a time before you need to sit? Why?
  • How long can you sit before you need to stand? Why?
  • How long can you walk in blocks before you need to stop? Why?
  • How much can you lift at a time?
  • Do you drive? How far?
  • Do you shop for groceries? Do you go alone?

Questions about your mental limitations can include:

  • What mental problems limit your ability to work? Why?
  • Do you see a psychiatrist or psychologist for your mental health? If yes, who?
  • What medications do you take for your mental health? Do they have side effects?
  • What mental health symptoms do you have despite taking medications?
  • How well do you get along with other people? Who do you keep in contact with?
  • Can you care for your basic needs?

Q:  How should I prepare for these kinds of questions at my Social Security hearing?

A:  While it is important to know what kinds of questions you will be asked at your hearing, I recommend that my clients simply pay attention to the judge’s questions and answer them directly and simply.  Do not write out answers ahead and try to read the answers.  Do not ask your attorney in the hearing about how to answer the judge’s questions.  Do not be defensive about your answers.  Also, think of examples of limitations you have day-to-day that will help the judge picture your limitations.  For instance, when asked about how well you get along with people, you may answer the question, and then add how often you may need to be alone in your room, and then comment on a specific time this recently happened.  Your attorney should be ready to ask you for examples of how your physical or mental issues have actually impacted your life.

Q:  How should my Social Security attorney prepare me for the questions at my hearing?

A:  Every Social Security hearing is different depending on unique combinations of medical problems.  Your attorney should go through your medical records and ask you about any discrepancies between what you and your doctors think is wrong.  This way, you can think through what the judge may need to understand about your medical issues and treatment.  Also, your attorney may need to ask you about how often you have your symptoms and how long they last.  For example, if you have migraines or seizures, the judge at your Social Security hearing will need to know how often your experience these issues and how long each episode may last.  Finally, your attorney should help remind you of the basic timeline of events in your medical record, such as injuries or surgeries.  This will help you answer questions about how you have felt over time leading to your hearing.

Q:  How do my answers at my Social Security hearing help the Social Security judge?

A:  After speaking with you at your hearing, your Social Security judge will ultimately decide whether your physical and mental limitations would allow you to return to your past kind of work or other work full-time.  Based on your age and medical problems, your attorney at your Social Security hearing can explain to you what factors may allow you to be approved for Social Security disability benefit.

Written by Andrew Kinney

Andrew Kinney is a graduate of the University of Notre Dame and Marquette Law School. He is in his 25th year of practice in Social Security Disability law. He speaks nationally on Social Security Disability practice, founded the Minnesota State Bar "Social Security Disability Section," and is an editor of the Social Security Pratice Guide, a five-volume legal guide published by LexisNexis.

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Child Support and Retirement, Survivors, and Disability Insurance

Some Social Security Disability applicants have child support obligations. Those obligations do not go away when an individual is forced to stop working due to his or her medical conditions. If those obligations are not paid on time, it is quite possible that the arrearages can add up over time while an individual fights for his or her disability benefits. If and when benefits are awarded, those benefits can be garnished depending on the program he or she is approved for.

There are two different disability programs. One, Supplemental Security Income (SSI) is based on financial need. The other, Retirement, Survivors, and Disability Insurance (RSDI), is based on an individual’s work history and how much he or she paid into the system. By rule, SSI benefits cannot be garnished for any reason or by any entity. RSDI, though, may be garnished to pay past-due child support. This includes any backpay an individual receives, not just ongoing monthly benefits.

Those who receive RSDI often also get auxiliary benefits for their minor children. Those benefits are sent to the adult who has majority-custody of the children in question. These are not a substitute for child support obligations that must be paid.

In situations such as these it is prudent to consult an attorney for assistance in petitioning the court to lower your child support obligations. This will not reduce an individual’s past-due child support obligations, but may reduce your future obligations due to a significant change in his or her circumstances.

 

By Adam Kachelski

Written by Adam Kachelski

Adam Kachelski is a 2014 graduate of the University of Wisconsin School of Law. He lives and works in Cincinnati.

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The Two-Way Street of Updating Medical Evidence

A complete medical record is paramount in getting your Social Security disability claim approved. At the hearing level, the most common question I get from my clients is, “are all the records in?” The Social Security Administration recently enacted a new regulation that requires the Administrative Law Judge be provided, or informed of, all written evidence within five business days of the hearing. 20 CFR 404.935.

Attorney representatives typically request, pay for and submit medical records prior to a hearing. For the reasons explained below, timing is key in order to comply with the new 5-day rule.

First, it would be impractical for representatives to constantly hound all of their clients in case some new and material medical evidence has come into existence. Too much time would be wasted and the representation of SSD claimants would no longer be a viable practice. On the other end of the spectrum, representatives must exercise due diligence in pursuing relevant evidence in their clients’ claims.

Second, depending on the state, claimants can wait up to two years for a hearing after the previous denial. Social Security usually sends a Notice of Hearing about 90 days before the date of the hearing. This creates a dilemma. ALJs are very concerned with the claimant’s recent medical evidence, which shows whether ongoing benefits are warranted and whether any medical improvement has occurred or is likely to occur. So, if the file is updated too early, additional updates will be necessary to add new evidence. If the file is updated too late, the 5-day rule might be violated. Depending on the source, requests for records can be outstanding for 30 days or more, despite follow-ups and re-requests, before the records are produced. This results in a small window in which records requests will generate complete submissions just in time but not too late.

The best way to handle this situation is with a team effort. When this issues arises in hearings, I have had multiple judges describe to my clients a “two-way street,” where representatives and clients both have an obligation to communicate with each other. If you don’t notify your representative with your new address or phone number, your representative has no way to reach you and therefore no way to know where you have been going for treatment. They can update with sources they already know about but not with new sources. The longer you do not return their phone calls or respond to their letters, the more likely you will violate the 5-day rule and a strict judge will refuse to consider key evidence. If your representative is unable to reach you after several attempts, he or she is allowed to drop your case.

An ALJ can approve a case without a hearing if the evidence is strong enough, although this is very rare. However, as above, it is impractical for representatives to frequently contact their clients just in case there is new, significant medical information. A representative will always contact their clients to update the file before the hearing. Until then, clients must contact their representatives with new medical information so the representative can obtain the records and submit them to the ALJ. New medical information might be a new doctor, diagnosis, test or hospitalization.

Written by Charles Sagert

Charles A. Sagert is a Social Security Disability attorney in Roseville, MN.

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What documents will I need when I apply for Social Security Disability Benefits?

Certain documents will need to be provided to Social Security when you apply for benefits.  Providing original documents in a timely manner will expedite the process.  Some examples of documents you may need are:

  • Your Social Security card
  • Your birth certificate
  • Your children’s birth certificates and Social Security numbers (if applying for them)
  • Proof of U.S. citizenship or lawful immigration status
  • Your spouse’s birth certificate and Social Security number if he or she is applying for benefits based on your earnings
  • Your marriage certificate
  • Your military discharge papers
  • Your most recent W-2 or tax return

Once documents are gathered, benefits can be applied for in person or online at sss.socialsecurity.gov/applyforbenefits .  Applying for benefits is only the beginning of the process.  Knowing one’s rights along the way is very important to a favorable outcome and as such, you have a right to representation.  For questions related to how to apply for disability or any other issues related to your Social Security Disability claim, please contact us at Hoglund, Chwialkowski, and Mrozik.

by Lyndsey Sharpe

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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Medicare Wait Period and Retroactive Benefits

Once disability is determined either at the initial level or by an Administrative Law Judge, you may become eligible for Medicare.  Medicare coverage is available if you are approved for Disability Insurance Benefits under Title II and after a 24 month wait period.  This wait period commences upon the onset date of disability. (The date you are determined to have become disabled.)  For many, this wait period will be either completed or near completed by the time you are approved by an Administrative Law Judge as the Social Security Disability evaluation process can take several years.

During the waiting period you may accumulate medical bills.  In some cases Medicare coverage may be retroactive.  If you paid for medical services you can ask your provider to resubmit medical claims to Medicare and generally healthcare providers have one year from the time of service to resubmit claims.  The two parts of Medicare that you will be enrolled in are Hospital Care (Part A) and Medical Insurance (Part B).  The hospital care (Part A) will be provided for free through Medicare as the taxes you paid financed this coverage.  The medical coverage (Part B) which is mostly doctors’ bills, will most likely require additional premiums for which you will be responsible.

There are additional parts to Medicare that are available such as prescription drug coverage and gap coverage.  For questions related to Medicare, how to apply or any other issues related to your Social Security Disability claim, please contact us at Hoglund, Chwialkowski, and Mrozik.

 

By Lyndsey Sharpe

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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What Should You Know about your Social Security Lawyer?

Q & A with Social Security Disability Attorney Andrew Kinney

 

Q:  What should you know about your Social Security Lawyer?

A:  If you have a Social Security Disability or SSI claim, denials lead to a Social Security hearing with a judge and usually at least one expert witness.  At the hearing, you should have an attorney with you.  Attorneys only charge you if you are approved.  You should know the following things about your Social Security attorney:

  1. Verify that your “attorney” is actually a licensed attorney. Non-attorneys can represent people at Social Security hearings.  If you want an attorney—especially one who is skilled in cross-examination and legal argument—ask the firm which state or states the attorney doing your hearing is licensed in.  All licensed Social Security attorneys are licensed in at least one state.  Once you know this, you can verify this online.  If you learn your “representative” going to your hearing is not an attorney, you have the right to change who is helping you.  If your Social Security hearing is already scheduled, you can contact the hearing office to ask about how you can change your representation.

 

  1. Ask about your Social Security attorney’s experience. The most important experience is your attorney’s understanding of Social Security law and medical concepts.  Ask your attorney doing your hearing about years of practice in Social Security law, the number of Social Security hearings he or she has completed, and about how your medical evidence may allow you to be approved.  Reach a comfort level with the answers.  Otherwise, you can ask a multiple attorney Social Security firm to switch the attorney assigned to your hearing, or fire the firm altogether.  This is your right.

 

  1. Verify that the firm you are hiring actually will do your hearing. Surprisingly, some firms merely sign up new clients (meaning YOU!) and then pawn them off the regional attorneys who are not employees.  This means two things.  First, you have no idea who your attorney may be at your hearing.  Second, the firm you are hiring has not trained your attorney.  These are significant issues to learn about.  Find this out from the firm listed on your “fee contract.”

I hope this blog will prove helpful when hiring a Social Security attorney.  If you have questions about your own Social Security claim, you can call our law firm (and our Hoglund Law Offices lawyers) at 855-780-4357.

 

Andrew W. Kinney, Esq.

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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What Medical Evidence Can Win Social Security Disability Benefits?

Q & A with 25-year Social Security Disability Attorney Andrew Kinney

 

Q:  How does Social Security look at medical evidence?

A:  Social Security requires medical evidence to prove that you have medical problems that limit your ability to work.  That means you must regularly treat for your physical and mental health issues.

Q:  What kind of medical treatment is important?

A:   You need to get medical treatment that helps you get better or, at a minimum, keeps you as healthy as possible.  It is an error to see doctors only to prove something to someone else.  While Social Security lawyers may know what medical treatment you should pursue based on the law, remember:  Your doctors know best.  It is a grave mistake to take medical advice from any attorney.

“It is a grave mistake to take medical advice from any attorney.”

At Hoglund Law Offices, we encourage our Social Security disability clients to regularly get the right medical treatment from doctors they trust.  We also encourage our clients to ask about specialist treatment when their primary physicians determine it is necessary.  Communication with doctors is key.  Failure to treat properly is leading cause of lost Social Security claims.

“Failure to treat properly is leading cause of lost Social Security claims.”

Q:  What specialist medical treatment is best?

A:  This depends on your medical issues.  Ask your primary care physician if a specialist can help you best.  For example, your primary care physician may recommend a particular rheumatologist, cardiologist, gastroenterologist, neurosurgeon, or some other specialist to diagnose and treat your specific medical problems.  Also, do your own research about the choices you have.  Your primary care physician may later supplement that treatment.

Q:  What medical treatment does Social Security expect?

A:   Social Security requires examinations and testing that confirm your medical diagnoses.  Social Security also requires medical evidence that proves how you are limited by your medical problems.  At Hoglund Law Offices, we regularly seek opinions about our clients’ medical limitations from treating providers.  A medical opinion can be the most important evidence in a Social Security disability claim.  For questions, call our law offices at 855-780-4357.

Andrew W. Kinney, Esq.

Written by Andrew Kinney

Andrew Kinney is a graduate of the University of Notre Dame and Marquette Law School. He is in his 25th year of practice in Social Security Disability law. He speaks nationally on Social Security Disability practice, founded the Minnesota State Bar "Social Security Disability Section," and is an editor of the Social Security Pratice Guide, a five-volume legal guide published by LexisNexis.

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4 Key Factors to Win your Social Security Disability Hearing (Part 2)

Q & A with 25-year Social Security Disability Attorney Andrew Kinney

 

Q: What are the main factors to help me win my Social Security Disability hearing?

A:  There are 4:  Your judge, your facts, your testimony, and your lawyer.  The first two factors were discussed in a previous blog.  The last two factors are discussed below.

Q:  Can my hearing testimony affect whether a Social Security judge approves me for Social Security Disability benefits?

A:  Yes.  There are two aspects to this question:  (1) Telling the truth, and (2) helping the judge learn about your limitations.  First, tell the truth at your Social Security hearing.  Do so in a simple and straightforward manner.  Your frankness about yourself is crucially important at your Social Security hearing.  The judge is trained as a lawyer.  Lawyers identify inconsistencies in facts.  You may relax, though, at this thought.  Your truth can never be wrong.  You know yourself better than anyone.  This leads to the second part—how your medical problems limit you.

Second, you can only help the judge learn about your limitations when you have insight into your medical problems.  You do not need to be a doctor.  But you do need to understand how your medical problems limit you more now than before you had them.  For example, you need to think about how your left shoulder issues limit your ability to reach forward at the grocery store.  Or, you need to think about how often you have trouble getting out of bed since your diagnosis of depression.  Some people have more insight than others about how their medical conditions limit them.  You need to learn how to explain your medical limitations to a judge.  This is where an experienced Social Security lawyer can help.

Q:  Is my lawyer a key factor in winning my Social Security claim?

A:  Yes.  I have seen it all.  Sometimes law is overlooked or misapplied at hearings.  Sometimes experts need pointed cross-examination.  Your Social Security lawyer will be with you at your hearing to argue how the law and facts support your claim for Social Security disability benefits.  An experienced lawyer, however, will also help you organize your thoughts and explain yourself at your hearing.  Some hearings turn on specific limitations, such as your ability to handle objects or be around people.  An experienced lawyer will know how your own words can make your day-to-day life come alive at your hearing.  If you would like to ask about having a Hoglund Law Offices attorney at your Social Security disability hearing, call us now at 855-780-4357.

Andrew W. Kinney, Esq.

Written by Andrew Kinney

Andrew Kinney is a graduate of the University of Notre Dame and Marquette Law School. He is in his 25th year of practice in Social Security Disability law. He speaks nationally on Social Security Disability practice, founded the Minnesota State Bar "Social Security Disability Section," and is an editor of the Social Security Pratice Guide, a five-volume legal guide published by LexisNexis.

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4 Key Factors to Win your Social Security Disability Hearing (Part 1)

Q & A with 25-year Social Security Disability Attorney Andrew Kinney

 

Q: What are the main factors to help me win my Social Security Disability hearing?

A:  There are 4:  Your judge, your facts, your testimony, and your lawyer.  The first two factors are discussed below.

Q:  What can I do about my judge (ALJ) for my Social Security Disability claim?

A:  Nothing.  Once a judge in your region is randomly assigned to your Social Security hearing, even if you move, you must work with the one you have.  You can, however, ask your Social Security lawyer about the tendencies your judge has based on the kind of facts your claim presents.  Good legal argument aligns with your judge’s tendencies.

Q:  What can I do about the facts of my Social Security claim?

A:  The facts of your medical conditions are only as supportive as how much they limit you and how well your providers document them.  Follow your doctor’s advice, but if your medical problems allow you to keep working part-time or more, you may wish to delay an application for Social Security Disability and keep working (you should also speak with a Social Security lawyer about this decision depending on your monthly gross income).

If, however, your medical problems prevent you from working part-time or more, the quality of your treatment counts.  Here are some guidelines:

(1) Treat with physicians regularly, and with specialists when necessary.

(2) Add treatment from a licensed psychologist to your mental health treatment.

(3) Make sure your providers spend adequate time listening to you at your appointments (the sign of a good provider).

(4) Track that your providers perform physical examinations (or mental status examinations) at each appointment when necessary.

(5) Check your medical records from time to time (perhaps every 6 months) to make sure your symptoms and your doctor’s findings have detailed information that is accurate about your problems.

(6) Ask your providers if any imaging or testing would help them better understand and treat your medical problems.

(7) Keep track of your medical treatment in writing and make sure to tell your Social Security lawyers about all places you have treated (so they can request copies of your treatment records for the relevant timeframes at least two months before your Social Security hearing).

(8) Ask your doctor and/or psychologist who knows you best if you should work part-time or more.  If not, ask that your doctor or psychologist to be clear in their treatment notes about how you are limited.  Also, ask if he or she would be willing to complete an opinion form about your ability to work in the future.  Contact your Social Security lawyer about those willing to do so immediately.

 

Your testimony and lawyer, the other two key factors to win your Social Security Disability claim, are discussed in Part 2 of this series.

If you would like to ask about having a Hoglund Law Offices attorney at your Social Security disability hearing, call us now at 855-780-4357.

 

Andrew W. Kinney, Esq.

Written by Andrew Kinney

Andrew Kinney is a graduate of the University of Notre Dame and Marquette Law School. He is in his 25th year of practice in Social Security Disability law. He speaks nationally on Social Security Disability practice, founded the Minnesota State Bar "Social Security Disability Section," and is an editor of the Social Security Pratice Guide, a five-volume legal guide published by LexisNexis.

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Social Security Disability and Bipolar Disorder

One of the more common mental disability claims made with the Social Security Administration is for Bipolar Disorder.  Bipolar disorder, also known as manic-depressive illness, is a brain disorder that causes unusual shifts in mood, energy, activity levels, and the ability to carry out day-to-day tasks.
The National Institute of Mental Health defines four types of bipolar disorder.  “All of them involve clear changes in mood, energy, and activity levels. These moods range from periods of extremely “up,” elated, and energized behavior (known as manic episodes) to very sad, “down,” or hopeless periods (known as depressive episodes). Less severe manic periods are known as hypomanic episodes.”[1]
The Social Security Administration’s Listings Rules allows the finding of “Disabled” if the Claimant is able to show that he or she suffers from at least three of the following:
  1. Pressured speech;
  2. Flight of ideas;
  3. Inflated self-esteem;
  4. Decreased need for sleep;
  5. Distractibility;
  6. Involvement in activities that have a high probability of painful consequences that are not recognized; or
  7. Increase in goal-directed activity or psychomotor agitation.[2]
These must be documented in appropriate medical records.[3]
Once it is established that the Claimant suffers at least three of the above Bipolar symptoms, the next step is to establish that these symptoms either cause extreme limitations in one or marked limitations in two of the following:
  1. Understand, remember, or apply information.
  2. Interact with others.
  3. Concentrate, persist, or maintain pace.
  4. Adapt or manage oneself.
The Social Security Administration considers “extreme” or “marked” limitations where the Claimant’s functioning in this area independently, appropriately, effectively, and on a sustained basis is seriously limited (marked) or completely incapable (extreme).[4]  The Administration uses all of the relevant medical and non-medical evidence in the Claimant’s case record to evaluate the level of mental disorder.
The most difficult part of any Disability Claim for Bipolar Disorder is to prove the level of extremity of these four areas.  If you are seeking a Disability for Bipolar Disorder, it will be likely that you will need a Medical Source Statement from a treating mental health provider (psychologist, psychiatrist, therapist, etc.).  That mental health provider should specifically address the Claimant’s functional limitations (mild, moderate, marked or severe) in the above four categories.  The mental health provider should be familiar with how the Social Security Administration defines these categories (See Listing Definitions 12.00E1 – 12.00E4) and address his/her understanding of these definitions within his/her description of the Claimant’s limitations in these areas using specific examples from the Claimant’s experience when available.
Of course, the Medical Source Statement should be carefully drafted as to not over-state the Claimant’s limitations in comparison to the rest of the medical and non-medical evidence in the Claimant’s case record or it may be given less weight and viewed by the fact-finder as inconsistent with the rest of the evidence.
If you believe you have Bipolar Disorder and some (or all) of the above symptoms and limitations apply to you, you should seek the assistance of a qualified attorney that can assist you with your application for benefits.   A good attorney will help you navigate the application process and make sure you have the best representation before the Administrative Law Judge at your disability hearing.

 

For more information, please contact the attorneys at Hoglund, Chwialkowski, & Mrozik PLLC today.

 

By Tyler Rasmussen

 

[1] https://www.nimh.nih.gov/health/topics/bipolar-disorder/index.shtml

[2] https://www.ssa.gov/disability/professionals/bluebook/12.00-MentalDisorders-Adult.htm#12_04

[3] Id.

[4] Id.

Written by Jennifer Mrozik

Jennifer is a partner in the firm and practices exclusively in the area of Social Security disability law. She continues to lead efforts to find solutions for clients in the sometimes difficult Social Security claims process.

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Can I receive Disability Benefits for Adult Autism?

Autism is a developmental disorder that affects how the brain processes information. The condition impairs social interaction, communication, and language skills. More extreme forms of Autism can cause repetitive behaviors, which is easily noticed by others. For example, self-injurious behaviors such as self-biting or head banging. Since there are variation of symptoms, the condition is now medically known as autism spectrum disorder (ASD). ASD covers a wide range of skills, symptoms, and level of impairment.

In children, parents may observe odd behaviors in their child’s social skills such as avoiding eye contact when communicating. Developmental mild stones help parents and physicians monitor a child’s social development. If there are major concerns after these screenings, the child is referred to a specialist for further testing. If Autism were diagnosed in teen or adult years, it would be a milder form than if diagnosed in a child. Most adults diagnosed with Autism are considered to be in the high functioning end of the spectrum. They can read, write, and communicate. Therefore, they are able to maintain a job and live alone.

Social Security does not have a specific listing for adults with autism. This can make is very difficult to prove you are disabled. The Social Security Administration does not have a set criterion for finding disablement of adult autism. Social Security determines if a person is eligible for benefits based on how severe the condition is as with most cases. It is important that you are seeing a specialist and documentation showing to the extent of your condition.

For more information, please contact the attorneys at Hoglund, Chwialkowski, & Mrozik PLLC today.

 

By Shana Knotts

 

 

 

 

 

 

 

Written by Jennifer Mrozik

Jennifer is a partner in the firm and practices exclusively in the area of Social Security disability law. She continues to lead efforts to find solutions for clients in the sometimes difficult Social Security claims process.

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Why So Many Medical Records?

The importance of medical documentation cannot be stressed enough in Social Security Disability law. Without medical records, attorneys find themselves at an immediate disadvantage to efficiently do their job. When speaking with clients, we at HCM, presume they are giving us all the information that they know of regarding their disability. However, even the most reliable person would still be required to provide medical documents in front of an Administrative Law Judge (ALJ) regarding their alleged impairments.

When a person is experiencing a severely debilitating disorder, such as severe depression, it is likely that a listing argument can be made. More specifically, a Disability Evaluation Under Social Security-Listing of Impairments- argument. When these listings are met, it is an easy way for an ALJ to determine a person deserving of SSI, DIB, or Concurrent benefits under the Social Security structure. However, it is nearly impossible to obtain a favorable decision through a listing argument if no medical records are present supporting the alleged diagnosis. As mentioned before, severe depression can use listing 12.04 Depressive disorder. This particular listing requires that several medical characteristics be met. Without medical documents stating these necessary elements, a person can never be found disabled by an ALJ and be awarded any form of benefits via a listing argument.

Obtaining medical records can be a strenuous process, but as mentioned before, is of the utmost importance. Having doctor appointments, and getting check-ups, not only allows your disability attorney to do a better job, but also informs you of your medical condition. Ideally, your medical issues will alleviate themselves through treatment, and you will be able to return to work. If this doesn’t occur however, then having these necessary records allows for your attorney to advocate for you in the most zealous way possible.  Why so many medical records? So that both you can receive the most beneficial help available to you.

 

By Alec Rolain

Written by Jennifer Mrozik

Jennifer is a partner in the firm and practices exclusively in the area of Social Security disability law. She continues to lead efforts to find solutions for clients in the sometimes difficult Social Security claims process.

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Social Security Disability Benefits During Prison

Some of those who apply for Social Security Disability benefits, like any other group of people, have spent time in prison. When applying for disability benefits, this can affect potential backpay and can terminate your benefits if you go to prison while receiving them.

According to Social Security’s rules, disability benefits cannot be paid if a person who otherwise is eligible for benefits is incarcerated for 31 or more days because of a conviction. This includes those who are confined by court order to a mental health facility due to a crime. Incarceration includes confinement to a halfway house.

As a result, if a person served longer than thirty days due to criminal conviction during a time that he or she is arguing they are entitled to benefits there are precluded from being paid from that time if and when they are found disabled.

If you are incarcerated while receiving benefits, the same rules apply in that you are not eligible for payments during that time if you are imprisoned for longer than 30 days, and if that time period spans multiple months, you will not be eligible for benefits for any of those months affected. During that time auxiliary benefits to eligible children or your spouse may continue.

If you are imprisoned for a substantial length of time, a year or longer, you must file a new application for disability benefits, as you will be deemed to be no longer disabled due to a prison time of that length.

Criminal history can affect a Social Security applicant’s backpay and criminal activity can affect a Social Security recipient’s current and ongoing benefits. Those with a criminal history who are applying for Social Security Disability benefits are encouraged to speak with an attorney regarding any effect that history may have on their case.

Contact one of our attorneys at Hoglund, Chwialkowski, Mrozik, PLLC. at 855.513.4357 to find out more.

 

By Adam Kachelski

Written by Jennifer Mrozik

Jennifer is a partner in the firm and practices exclusively in the area of Social Security disability law. She continues to lead efforts to find solutions for clients in the sometimes difficult Social Security claims process.

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Illiteracy and Social Security Disability

Illiteracy alone does not warrant a finding of disability, as a claimant must have medical conditions that impair his or her ability to work in the national economy. That said, illiteracy is a feature of the claimant’s education level, which is considered when determining the availability of any jobs, along with the claimant’s age and work history.

A claimant who cannot read or write simple messages (as defined in Section 404.1564 of the Code of Federal Regulations) is considered functionally illiterate. An illiterate 45-49 year-old person who is limited to sedentary work (jobs that are primarily performed seated) by his or her medical conditions with unskilled or no prior work history is considered disabled automatically by the Social Security Medical-Vocational Guidelines (see 201.17). A person with the same limitations younger than 45 is not disabled, again per Social Security’s rules.

As one gets older, the rules change in a claimant’s favor. An illiterate person age 50-54 limited to light work (jobs primarily performed standing and walking, with limited lifting and carrying) with unskilled or no prior work history is considered disabled, while a person younger than that with the same limitations is not disabled. Interestingly, after age 55 illiteracy is not a factor in determining disability per the Social Security Medical-Vocational guidelines, though logically illiteracy does not cease being a relevant consideration.

Even if the guidelines do not command a finding of disability, illiteracy is a relevant factor in a claimant’s disability case. The inability to effectively read and write will always limit a claimant’s job prospects, and coupled with the claimant’s medical restrictions can effectively preclude work in a competitive environment. Therefore, a Social Security Disability attorney can be invaluable, as he or she can prepare for close questioning of vocational experts who testify as to the availability of jobs at disability hearings.

Contact one of our attorneys at Hoglund, Chwialkowski, Mrozik, PLLC. at 855.513.4357 to find out more.

 

By Adam Kachelski

Written by Adam Kachelski

Adam Kachelski is a 2014 graduate of the University of Wisconsin School of Law. He lives and works in Cincinnati.

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Working “Under the Table”

Working “Under the Table” and its Effect on Social Security Disability Applications

 

 

While applying for or receiving Social Security disability benefits, whether or not an applicant is working is crucial to the Social Security Administration’s (SSA) analysis of the case. If an applicant is working above substantial gainful activity (SGA), a paid dollar amount per month that rises with inflation, it becomes difficult, if not impossible, to successfully argue that an applicant is disabled, no matter what that conditions and struggles an applicant has. Often, the SSA gets information about the applicant’s work activity from employers who report wages and withhold taxes from standard paychecks. In that situation, it will become obvious fairly quickly if an applicant is working, as well as working above SGA.

Things become more difficult, however, if an applicant is doing “under the table” work, or work that is not reported to the SSA. This is more frequent in cash-based employment, or in more informal employment arrangements. SGA rules still apply in these situations, and it is imperative that an applicant is honest about any work, under the table or not, that he or she is performing while applying for disability. Through frank discussion with the applicant’s Social Security Disability attorney, they can discuss the ramifications of work on any given case. It is all the more important to be honest about under the table work, as it will reflect poorly on an applicant’s credibility in situations where evidence of unreported work is discovered in records or from third parties.

If an applicant is found to have been working above SGA after already being approved for benefits, for example, it could result in investigations by the SSA, along with forfeiture of the benefits already disbursed by the same. In these situations, honesty is absolutely the best policy.

Please contact one of our attorneys at Hoglund, Chwialkowski, Mrozik, PLLC. at 855.513.4357 to find out more.

By Adam Kachelski

Written by Jennifer Mrozik

Jennifer is a partner in the firm and practices exclusively in the area of Social Security disability law. She continues to lead efforts to find solutions for clients in the sometimes difficult Social Security claims process.

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Why was My Case Chosen to Undergo a Continuing Disability Review?

A Continuing Disability Review, or CDR, is a periodic review of an approved claim by the Social Security Administration. During the CDR, your medical records will be reviewed to determine if your conditions are have improved. If the review show your conditions have improved enough for you to return to gainful employment, your disability benefits will end immediately.

The timing of the review is based on the medical evidence in your case. There may be medical documentation of a future surgery. If Social Security believes that your condition can positively benefit from the surgery, then a review of your case would be required. How often the review takes place is dependent on your age in condition. Younger disabled claimants are often subject to a review earlier more frequently than older claimants. The review can takes place from six to eighteen months after the approval of disability benefits. However, in most cases the review period is three years. Claimants over age 55 are more likely to receive a review in seven years, as medical improvement in their conditions are not expected.

If Social Security has determined your condition(s) have improved, they must determine if the improvements are enough for gainful employment in the national economy. You will have the opportunity to appeal this decision within 60 days. A hearing officer would handle the CDR appeal. If the hearing officer find that your conditions have medically improved, you will only have ten days from the denial to ask for the continuation of benefits until your appeal is heard and decided by a judge.

 

Please contact one of our attorneys at Hoglund, Chwialkowski, Mrozik, PLLC. to find out more. Call us today at 855.513.4357.

 

By Shana Knotts

Written by Jennifer Mrozik

Jennifer is a partner in the firm and practices exclusively in the area of Social Security disability law. She continues to lead efforts to find solutions for clients in the sometimes difficult Social Security claims process.

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Strengthening a Social Security Disability Claim

What the client can do to strengthen the case? 

 

A social security disability case can be strengthened or weakened by the actions of the client.  The first thing the client needs to do is be completely honest with their attorney.  This can relate to severity of impairments and the ability to handle daily activities.  Your attorney needs to be completely informed and up to date on your case.  Keeping things from your attorney can be detrimental and possibly lead to an unfavorable decision.

The client also needs to be treating on a regular basis for all the severe impairments they are alleging to the Social Security Administration (SSA).  This means, treating with a psychiatrist/psychologist if you are alleging mental health issues as a severe impairment.  Frequent treatment seems to hold more weight with the SSA.  It is very important that you are not just seeing a family doctor one time per year and alleging multiple severe impairments that keep you from working.  You need to be treating with a specialist regarding your different impairments.  Being compliant with your treating source is very important also.  Make sure you are taking the medications and attending the treatment sessions as scheduled by your medical provider.

The client needs to make sure they are keeping contact with their attorney.  If your phone number or mailing address changes, your attorney needs to be kept up to date.  Keeping regular contact is important for the attorney to successfully develop the case and get the social security disability claim approved.  Further, if you are treating with new medical sources, you need to update the attorney with this information as well.  The attorney is not able to find out where the client is treating, without assistance.

 

For more information, please contact one of the attorneys at Hoglund, Chwialkowski & Mrozik.

 

By Beau Chinn

Written by Jennifer Mrozik

Jennifer is a partner in the firm and practices exclusively in the area of Social Security disability law. She continues to lead efforts to find solutions for clients in the sometimes difficult Social Security claims process.

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The Necessity of Medical Records for Social Security

In the Social Security Disability process medical support of a claim is paramount. Barring medical records documenting a claimant’s condition, there is no hope of success. Unfortunately, one cannot walk into a hearing before an administrative law judge claiming to suffer from maladies and expect success absent doctors’ notes. While it is common for state disability determination agencies to ask claimants to attend one-time examinations by doctors employed by the agency for that purpose, doctors who regularly treat the conditions of a given claimant can provide the most helpful information.

In the disability adjudication process, state agencies and Social Security Disability attorneys gather medical evidence from claimant’s health care providers. Unfortunately, these records gatherers are only able to gather the evidence they know exists. It is the responsibility of the claimant to inform necessary parties of this information. Further, the sooner records-gatherers are informed of the evidence, the sooner it can be submitted and evaluated by disability adjudicators.

In fact, it is more important than ever that disability claimants notify their attorneys of new medical evidence quickly, whether a new appointment, scan, or treating source. This is due to a new rule the Social Security Administration has put into effect requiring evidence be submitted within five business days of a disability hearing, absent good cause. Without delving into specifics (if claimants have questions about this, it is strongly advised they speak with counsel), the sooner a claimant advises attorneys of the records source, the sooner the records may be requested after a hearing has been scheduled. That way, both the attorneys presenting the case on behalf of the claimant as well as the administrative law judge hearing the case can better evaluate the claim.

Medical records, more than anything else, make or break a Social Security Disability claim. Providing documentation of ample treatment gives adjudicators a more complete picture of a claimant’s health, increasing the chances of success.

 

By Adam Kachelski

Written by Jennifer Mrozik

Jennifer is a partner in the firm and practices exclusively in the area of Social Security disability law. She continues to lead efforts to find solutions for clients in the sometimes difficult Social Security claims process.

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Burdens of Proof

When applying for Social Security Disability, the Administration must use a five-step analysis to determine if a claimant is disabled. Going through the steps, if at any point the claimant does not meet a step, the analysis ends and the Administration will find that the claimant is not disabled. The steps are:

 

  1. Is the claimant engaging in substantial gainful activity (making more than $1,170 per month before taxes in 2017)? If the claimant is making more than the limit, he or she is not disabled.
  2. Does the claimant have a severe impairment (An impairment that materially limits the ability to perform work activities)? If not, the claimant is not disabled.
  3. Does the claimant meet or equal a listing due to his or her impairments (Listings outline specific impairments and certain objective findings that, if documented, result in a finding of disability)? If not, the analysis goes to the next step.
  4. Can the claimant perform his or her past relevant work (work done at substantial gainful activity for a long enough period to learn the skills involved in performing the work, done in the last 15 years)? If yes, he or she is not disabled.
  5. Can the claimant perform any other work, as outlined by Social Security’s rules and regulations? If yes, the claimant is not disabled.

 

The burden of proof is on the claimant for the first four steps of the analysis. If the claimant proves that he or she cannot do any past relevant work, the burden shifts to the Social Security Administration to determine if there are other jobs available. This becomes important at a hearing, as an administrative law judge at hearing will have a vocational expert present to testify as to the availability of jobs for a person matching the claimant’s residual functional capacity. If it is established that he or she cannot do past relevant work, the onus is on the judge to establish that there is other work available. If the judge does not question the vocational expert about the existence of other jobs, by definition the Administration has not proven that there are jobs available for the claimant.
These issues can become very esoteric. Consult a Social Security Disability attorney if you have any questions about the disability adjudication process.

Written by Adam Kachelski

Adam Kachelski is a 2014 graduate of the University of Wisconsin School of Law. He lives and works in Cincinnati.

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Why can Medical Experts be Wrong at Social Security Disability Hearings?

Q & A with Social Security Disability Attorney Andrew Kinney

Q: When do administrative law judges (ALJs) use medical experts (MEs) at Social Security Disability hearings?

A: It is up to ALJs. Some regions of the country, such as Minneapolis, have a rotating list of MEs that certain ALJs choose to have appear at Social Security hearings. Other ALJs, especially with rising use of video hearings, do not employ MEs.

Q: What do MEs do at Social Security hearings?

A: MEs give ALJs information about what medical problems you (the “claimant”) have, explain whether these medical conditions are disabling under Social Security law (“meet or equal listings”), and describe how medical conditions limit you.

Q: Are MEs ever wrong at Social Security hearings?

A: Yes. Now, bear in mind that the outcome of some Social Security claims can be unclear. But when the balance of medical evidence swings toward a finding of disability, subjectivity plays too large a role.  (Simple proof of subjectivity is the wildly varying approval rates across all Social Security ALJs. Any business would tighten up objective standards in this scenario.)

Generally, in my experience, MEs can be wrong for two reasons. First, some MEs feel the need to say what they believe the ALJs want to hear. Second, some MEs do not prepare properly. In this blog, let’s talk about the first group.

The first group of MEs lets personal motivations interfere with their duty to independently evaluate medical evidence. It is inappropriate, but true. These MEs are inclined to say what they believe ALJs want to hear. Why? They may want the ALJs to approve of what they are saying to get more hearings (increasing pay) or renew their annual contracts (increasing future pay). They may want the hearings to go faster. They may want ALJs to inflate their egos or confirm political biases toward those who do not work.  There are a host of other motivations as well.

Q: How do MEs interpret what ALJs “want to hear”?

A: Easy. MEs can listen to the tone and content of ALJ questions to claimants, attorneys, and the MEs themselves. They read into ALJ commentary about attorneys’ opening arguments. They pay attention to ALJ facial expressions that are missed on the audio hearing recordings. The informed cynic in me would also allow for the possibility of pre-hearing, off-the-record ME “discussions.”

 

Q: How can my Social Security attorney uncover possible ME bias at my Social Security hearing?

A: Experience. At Hoglund Law Offices, we want our Social Security Disability hearing attorneys to fight ME bias. As an attorney in Social Security hearings, I look for ME bias. I listen to the questions, answers, and comments made by everyone in hearings across time. With experience, your Social Security attorney can unveil patterns of ME bias that extend from hearing to hearing. This enables him or her to anticipate how “alternate” medical facts may arise in ME testimony about you.

Q: What can my attorney do to fight possible ME bias at my Social Security disability hearing?

A: Three ways:

  1. Form questions for you that anticipate ME bias (direct examination),
  2. Attack bias directly in ME cross-examination, and
  3. Expose possible errors in opening and closing arguments.

An example may suffice to illustrate these ways in action. If you have bad knees, your attorney may know that your ME will likely ignore the impact of your obesity in your ability to walk. Your Social Security hearing attorney could:

  • Mention the requirements of a Social Security ruling about obesity (SSR 02-1p) in opening argument,
  • Ask you on direct examination about your attempts to lose weight,
  • Ask the ME on cross-examination, “Is obesity always a choice, or is metabolism a contributing factor?”, and
  • Identify how the ME testimony ignored the impact of obesity in closing argument.

Q: How do we reduce the possibility of ME bias?

A: Identifying problems is easy. Fighting them is admirable. But fixing them is a challenge.  These policy changes may reduce ME bias:

First, allow MEs to appear only by phone. This reduces the likelihood of pre-hearing discussions and the “poker game” played by bad MEs trying to interpret what ALJs may “want to hear.”

Second, base individual ME contract renewals on anonymous ALJ “ME report cards” that are tabulated and ranked using nationwide metrics. Rank each ME on degree of preparation, clarity of opinions, understanding of the relevant law, and professionalism. “Independent” ME testimony should stand on its own and minimize politics.

Third, renew ME contracts independently of all hearing offices. MEs inclined toward being a “favorite” may be less inclined to try to please any one set of ALJs and, instead, just do their jobs.

 

If you would like to ask about having a Hoglund Law Offices attorney at your Social Security disability hearing, call us now at 855-780-4357.

Written by Andrew Kinney

Andrew Kinney is a graduate of the University of Notre Dame and Marquette Law School. He is in his 25th year of practice in Social Security Disability law. He speaks nationally on Social Security Disability practice, founded the Minnesota State Bar "Social Security Disability Section," and is an editor of the Social Security Pratice Guide, a five-volume legal guide published by LexisNexis.

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Can I Work Part Time While On Social Security?

In Social Security Disability (SSDI) and Supplemental Security Income (SSI) cases we often hear the question, “Can I work part-time?”  Most individuals and families cannot “get by” waiting for an award decision from social security for several years without some monthly income.  We understand real individuals and real families and the hardships disabling impairments can create. Under Social Security rules, the phrase Substantial Gainful Activity (SGA), is the guide post in assessing each situation.  Social Security generally considers those engaged in substantial gainful activity (SGA) as NOT eligible for disability benefits.  Substantial Gainful Activity basically means working and earning $1,170 per month or $1,950 a month if you are blind.  SGA is not just about the monetary amount though, other factors may impact your case, such as the number of hours you work or volunteer and the type of work or volunteering you do.

Once you are receiving benefits there are exceptions to SGA.  Under the SSDI benefits, the program that looks at your disabling impairments and your work history, you may qualify for a “trial work period.”  The trial work period allows SSDI beneficiaries to attempt to go back to work without penalty for a period of up to nine months in a five-year period without losing their monthly SSDI benefits.

Under SSI benefits, the program that looks at your disabling impairments and your financial need, there is also a “work incentive” programs that allow you to work and have your SSI benefits be reduced by 50 cents for every dollar you earn after counting the fwith irst $65.00.  An example would show a recipient receiving SSI, presumed to be $735, and working and earning $1,050.00 a month, less the $65 dollars, then divided by two.  This example looks like $1,050-$65=$985 then divided by 2 =$492.50.  This individual would receive: SSI benefits reduced by $492.50 , so $735-$492.50= $242.50.

Consult with an attorney for more information about social security disability and working while applying.

 

By Jonathan Breyfogle

Written by Jennifer Mrozik

Jennifer is a partner in the firm and practices exclusively in the area of Social Security disability law. She continues to lead efforts to find solutions for clients in the sometimes difficult Social Security claims process.

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Appealing Hearing Denials

If a claimant for Social Security Disability benefits is denied by an administrative law judge after hearing it is possible to continue the disability claim, the next step in the process would be to file an appeal with the Social Security Appeals Council. The Appeals Council reviews whether the judge followed proper procedure and whether the decision was reasonable based on the evidence submitted. If an error was made, the Appeals Council can overturn the decision and approve the claim or remand the case back to the judge for additional proceedings.

If the Appeals Council does not overturn or remand the decision, they will deny the claim. To continue the case, Claimant and counsel will need to file for a hearing in federal district court. At this stage, the judge assigned to rule on the case has a limited scope of review. The judge may only determine if the Social Security Administration’s decision was supported by “substantial evidence” and if proper legal standards were applied in evaluating the case. This is a very limited scope of review. So long as the decision by the judge was not unreasonable, the claim will be denied on those grounds. Federal judges do not wish to second-guess the decisions of the Social Security Administration when it comes to these matters, and will only intervene if the decision is so bizarre that no reasonable adjudicator could reach that conclusion based on the evidence.

Federal judges are more likely to approve cases on “legal standard” grounds, as a major part of their job is to interpret and apply the law. If the Social Security Administration did not follow its own regulations in such a way that prejudices the claimant, a remand at the very least is necessary to rectify this error. If a claimant wins in federal court, the claim will likely be returned to the Social Security Administration for additional proceedings

If you have additional questions about the appeal process, consult with a Social Security Disability attorney for guidance.

Written by Shana Knotts

Shana joined Hoglund, Chwialkowski & Mrozik in October 2012 and works in the law firm’s social security department. As a senior paralegal, she works diligently to support our attorneys post-hearing. She also oversees our medical records department, ensuring records are submitted in a timely manner. Originally from Florida, Shana graduated from MSB with a B.A. in Paralegal. She then went on to work at a Social Security Advocacy Firm, gaining in-depth knowledge of the social security process. This experience allowed a smooth transition to Hoglund, Chwialkowski & Mrozik in 2012. In her free time, Shana enjoys traveling, reading, watching movies and spending time with her husband.

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The Recency Element of Past Relevant Work

The Recency Element of Past Relevant Work

Social Security will deny a disability claim if they find the claimant can do “Past Relevant Work” (PRW), either as it was actually performed or as that type of work is generally performed based on the appropriate Dictionary of Occupational Titles code.[1] In order for a prior job to be PRW it must meet three elements: Substantial Gainful Activity (SGA), Duration and Recency.[2]

  1. SGA

This element is satisfied if the work met the definition of SGA under 20 CFR Sections 404.1571-404.1575 and 416.971-416.975.

  1. Duration

This element is satisfied if the job lasted long enough for the claimant to have learned the skills necessary to resume that type of work and achieve average performance without significant re-training.

  1. Recency

This element is met if the job was performed within the 15 years prior to the date of adjudication or the Date Last Insured, whichever comes first. The scope of this period may be extended if there is a continuity of skills, knowledge and processes that can be established between such work and the claimant’s more recent work. However, the scope of this period may not be shortened.

In the interest of certainty, Social Security has formulated rules for decision-makers to follow. Some rules seem “black and white” and I often tell my clients “Social Security has to draw the line somewhere.” However, in certain cases, these rules would produce an unfair result when the exact language of the rule is not matched but the underlying rational behind the rule is present. For most of these rules Social Security has created exceptions that prevent unfair results. For example, there are several exceptions to the SGA guidelines, including the subsidized work environment[3] and the unsuccessful work attempt.[4] In the context of the Grid rules, Social Security acknowledges that in some cases it would be unfair for the rules to change overnight when the claimant reaches a certain age, so the borderline age situation was developed.[5] In the context of transferrable skills, Social Security recognizes that as a claimant gets older, obtaining employment would be increasingly more difficult unless only a minimal amount of adjustment is required, such that the claimant could be expected to perform “at a high degree of proficiency with a minimal amount of job orientation.”[6]

These concepts should be applied to the PRW 15 year rule. For example, take an individual of advanced age (55-60), who worked in manual labor for the last 14 years but is now reduced to the sedentary exertional level. The Grid rules would ordinarily direct a finding of disability.[7] However, if this individual worked as a telemarketer for three months 14.5 years ago, the Grid rules would direct a denial (unless other limitations prevent the claimant from doing that work). In this case, using the rational above, vocational analysis of PRW should address whether any significant changes have occurred in telemarketing work since the claimant last performed it. This might reveal two things: First, that there are currently comparable jobs available but in fewer numbers. Second, that despite the claimant’s prior work experience, telemarketing is so different now that the knowledge from this experience is obsolete and the claimant would need to be completely retrained. In this case, the rational behind the recency element is not met, and telemarketing should not be found to be PRW.

This could be a critical issue in your Disability case. Consider a free consultation with a disability attorney who is familiar with these rules and regulations.

 

By Charles Sagert

[1] 20 CFR § 404.1560; SSR 82-62.

[2] SSR 82-62.

[3] SSR 83-33.

[4] SSR 05-02.

[5] 20 CFR § 404.1563(b); HALLEX II-5-3-2.

[6] SSR 82-41.

[7] 20 CFR Part 404, Subpart P, Appendix 2.

Written by Shana Knotts

Shana joined Hoglund, Chwialkowski & Mrozik in October 2012 and works in the law firm’s social security department. As a senior paralegal, she works diligently to support our attorneys post-hearing. She also oversees our medical records department, ensuring records are submitted in a timely manner. Originally from Florida, Shana graduated from MSB with a B.A. in Paralegal. She then went on to work at a Social Security Advocacy Firm, gaining in-depth knowledge of the social security process. This experience allowed a smooth transition to Hoglund, Chwialkowski & Mrozik in 2012. In her free time, Shana enjoys traveling, reading, watching movies and spending time with her husband.

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Social Security approved me for disability benefits, now what?

Social Security Disability Insurance and Social Security Insurance are the two benefit programs that a disabled person can submit a claim for. While both benefit programs are for disabled individuals, they slightly differ in the requirements. Social Security Insurance(SSI) are for individuals who have not worked but are disabled and have little to no income or resources. Social Security Disability Insurance(SSDI) are for individuals that paid FICA taxes over many years. So for this program, you do not need to meet income limits in order to qualify. A finding of disability and the required work earnings are sufficient.

It may have been a long and frustrating road to get to this point but you are finally here. Your decision, may it be fully or partially favorable is now a reality. You are given back your independence and now know that you will have the ability to pay bills and buy the things that you need. Now, you’re wondering how long will it take to get your money. Unfortunately, you may have to wait another 1-3 months before you receive your first payment.

Social Security Supplemental Income(SSSI) will consider your resources such as spousal income, cash, bank accounts, stocks personal property, vehicles, life insurance, and anything that can be exchanged for cash. Social Security Disability Insurance(SSDI) will consider other employment or disability money received during the time your claim was pending such as, unemployment benefits, workers’ compensation, or long term or short term disability payments. Social Security will have to verify all sources of income before sending you your first check. However, being upfront and having these documents readily available could be of benefit in terms of speeding up this process.

 

For more information, please contact the attorneys at Hoglund, Chwialkowski, & Mrozik PLLC.

By Shana Knotts

Written by Shana Knotts

Shana joined Hoglund, Chwialkowski & Mrozik in October 2012 and works in the law firm’s social security department. As a senior paralegal, she works diligently to support our attorneys post-hearing. She also oversees our medical records department, ensuring records are submitted in a timely manner. Originally from Florida, Shana graduated from MSB with a B.A. in Paralegal. She then went on to work at a Social Security Advocacy Firm, gaining in-depth knowledge of the social security process. This experience allowed a smooth transition to Hoglund, Chwialkowski & Mrozik in 2012. In her free time, Shana enjoys traveling, reading, watching movies and spending time with her husband.

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Client Communication

When attorneys meet clients for social security disability cases, they usually have a lot of questions.  First question usually is, how long does the social security disability process take?

It is important for the social security disability attorney to explain each stage separately and that on average, a client will likely end up at hearing before being approved, if they are ever approved.  This will take over two years.

It is important that clients are aware this is normal and having low income or significant pain or difficulties will not speed their case up.  Getting an attorney in general does not speed the process up, but the proper attorney will make sure appeal deadlines are not missed, that all the medical records are ordered and received, and that the claimant is prepared when the hearing time comes.  This is primarily why it is prudent to hire an attorney.  Clients need to have realistic expectations of this long process.

Another frequently asked question is can I work?  Although attorney can quickly explain SGA limits, which is currently $1,130 before taxes, it is important to go beyond that, and discuss that this is an inquiry to be made with their doctor. Discuss working restrictions from a physical and mental aspect with their doctor beyond just the allowable dollar amount from social security is prudent.  Attorneys know that this is a long process and people need to get by, but these questions need to be discussed with counsel and a doctor to make the most informed decisions.

Client communication is an ethical obligation and an important aspect of effective representation in a social security disability case.  For example, an attorney cannot be effective if the claimant does not give the attorney all of their medical sources and symptoms of their conditions, and a client cannot be helpful if they are not made aware of how the process works and what the social security looks at.  Communication is key to obtaining benefits.

 

By Joshua Tripp

Written by Joshua Tripp

Joshua Tripp practices in the social security disability department of Hoglund law offices. Prior to focusing on social security disability alone, Mr. Tripp has practiced in several civil areas of the law including personal injury, probate and family law.

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Student Loans and Disability

Many people applying for Social Security disability have financial obligations that are put on hold during the determination process. One of these affecting more and more applicants are student loan payments. If you are approved for Social Security disability, you may be eligible to have these loans discharged. The U.S. Department of Education has a fairly simple process for determining disability, and once you meet their standards, your federal student loans may be discharged. Private loans are typically not eligible for this process, and you would need to contact your individual loan company to find if you are eligible for any other disability discharge.

After Social Security finds you disabled, make a copy of the determination letter laying out your benefits as well as when your next disability review date is, typically scheduled for five to seven years after the approval. Submit this letter to the Department of Education, along with the other forms required, available on their web site, www.disabilitydischarge.com. They may temporarily suspend your loan payments while deciding whether you qualify for loan discharge.

Once the discharge is approved, there are other requirements that must be met, such as your income must remain below a certain level, you may not apply for any other federal student loans, or you must continue to be disabled under Social Security’s rules. If these are not met, the loans may be reinstated. Keep in mind you may be responsible for any tax burden related to the discharge of the loans. Typically, the discharged loan amount is reported to the IRS, and may be considered income to you, the tax payer.

If your disability case is pending with Social Security, then you may be able to apply for a loan discharge before they find you disabled. If you have a supportive doctor that is willing to complete the necessary certification paperwork, showing that your condition may either result in death, has lasted for a continuous period more than 60 months, or can be expected to last more than 60 months, this may be sufficient for the Department of Education to discharge your loans. The same post-approval requirements would apply.

If you are receiving Disability Income or Supplemental Security Income from Social Security, and your federal loans are approved for discharge, this will not affect the benefits you receive.

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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The Importance of Choosing the Correct Onset Date

When applying for Social Security Benefits, you will need to fill out the initial application to get your claim started. On this initial application, you will put in the start date of your disability. This date is known as your Alleged Onset Date. It is a date that Social Security will use to build your case.  Sometimes it may not be as easy to pinpoint this date. However, it is strongly recommended that you try and choose as close of a date to when your condition(s) begin to worsen. There are many signs that lead up to figuring this date. One example would be a decrease in your work hours or having to end your employment. It is good to keep a journal of any major medical events that have affected your daily routine. Also, it is important that you speak to your doctor about any disruptions that you are experiencing in you daily routines due to ongoing symptoms. The more information you have in your medical records, the more of a benefit it will be to you when choosing you Alleged Onset Date.

Social Security does not always agree with the date that you have chosen. If Social Security chooses a different date, it will be a later date. Your medical records may support a different date of disability. The change in the Alleged Onset Date (AOD) by Social Security is known as the Established Onset Date (EOD). The newly Established Onset Date (EOD) chosen by Social Security may affect the amount of backpay that you receive. You can Appeal this decision if you do not agree with the date that Social Security has chosen. Having an expert to assist you through the process would help you avoid mistakes.

 

Please contact one of our attorneys at Hoglund, Chwialkowski, Mrozik, PLLC. today for more information.

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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What If I Don’t Fit Exactly Into Disability’s Age Categories?

What if I Don’t Fit Exactly Into Disability’s Age Caegories? by Scott Bowers

In order to receive Social Security disability benefits, the Social Security Administration (SSA) must find that you are unable to do a full time job due to your medical conditions. The general rule is that they cannot consider whether someone will hire you, or whether you can find a job. However, because the SSA recognizes that older workers may have more trouble adapting to new types of employment, it will consider factors other than just your medical conditions when you reach a certain age.

            The SSA groups disability claimants into 4 basic categories:

1. Younger individuals (18 through 49)

2. Closely approaching advanced age (50 to 54)

3. Advanced age (55 and over), and

4. Closely approaching retirement age (60 and over)

If you are in the first age group, the SSA will not consider you disabled if you are capable of ANY kind of work, including sedentary, unskilled work (i.e., simple jobs that do not require lifting over 10 pounds, or standing/walking for prolonged periods of time). However, if you are in the closely approaching advanced age, you could still be found disabled even if you are able to do sedentary work, depending on your education and past work experience.

            However, what happens if you are about to turn 50 in a few months, but have serious medical issues that limit your ability to work? Luckily, the SSA recognizes that you do not just instantly become disabled the day you turn 50. Thus, if you are within a few days or few months of changing age categories, the SSA may deem you to be older than you are. However, there are some rules to this, and it does not happen automatically.

            First, “within a few days to a few months” does not have an exact definition, but it does mean a period of less than 6 months. Thus, if you are 53, the SSA will not consider moving you to the advanced age category.

            Second, there must be a “borderline age situation.” This means that in addition to being close to the next age category, using your actual age would result in a denial AND moving you to the next category would result in an approval. For example, if you are able to do light work (i.e., some standing and some sitting, and lifting up to 20 pounds occasionally), and you are 3 months from your 50th birthday, you would be denied in either age category.

            Lastly, there are 4 factors that must be considered:

1. Time period

2. Education

3. Past relevant work (PRW)

4. Residual functional capacity (RFC)

There are many considerations that go into arguing these factors (i.e., they cannot be double weighed – that is if education is already factored when deciding if it is a borderline age situation, it cannot again be a factor when considering an allowance). Thus, it is always recommended that you seek the help of an attorney for your disability claim.

Written by Hoglund Law

The attorneys of Hoglund law are licensed in Minnesota, Wisconsin and Ohio. Hoglund, Chwialkowski & Mrozik, PLLC is based in Roseville, Minnesota. In addition to handling cases involving bankruptcy & social security, Hoglund, Chwialkowski & Mrozik, PLLC handles faulty drugs and toxic exposure.

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