Your Right To Disability: Persistence Pays Off By Mac Sasser, Charlotte, NC From Nov/Dec CFIDS Chronicle The United States Social Security Administration (SSA) is the largest bureaucracy in the free world. During April of this year I visited the Social Security offices in Baltimore. They seemed larger than the Pentagon. One must ride buses between buildings housing thousands of government employees -- most of whom are processing information or the files of Social Security cases or are involved in making the policy that is used to decide cases. The process of filing for disability from SSA is lengthy and tedious. I will attempt to make the -process a little more understandable and perhaps a little less intimidating by explaining how a claim is processed. Before you apply, I strongly advise that you seek out an attorney or a representative who is very experienced with disability law. Remember, not just any attorney will do. Attorneys who concentrate on wills, real estate closings and other general civil litigation may not have the expertise on Social Security disability matters (I have been practicing in the Social Security system since I first started practice in 198 1). Usually, Legal Services offices in your community have at least one person in their office who is an expert on disability law and if they don't, they generally can recommend an attorney with the appropriate experience. Legal Services is a non-profit organization; thus, their attorneys, like me, do not charge a fee for services. If you decide to retain a private attorney, make sure his/her fee is stated clearly before the work proceeds. The final fee paid to your attorney must be approved by SSA. Either way, contact an attorney. Social Security disability decisions are based on a very complex set of laws and regulations. Winning a disability case is not simply a matter of having your doctor tell the Social Security Administration that. you're sick or can't work. There are four steps in the administrative process when one applies for disability. After you fill out a somewhat lengthy application (which you can find at your local Social Security office), your claim will disappear for a while. At this initial stage your claim is sent to Disability Determination Services (DDS) in Raleigh. The DDS is a state agency under the Department of Human Resources which answers to the governor but is paid by the federal government. Uncle Sam pays the salary of DDS employees because DDS is on contract with the Social Security Administration to decide the claims of all North Carolina residents who apply for disability. All those forms you fill out during this initial stage are for the benefit of the DDS, whose only task is to decide whether your claim fits the requirements of the disability regulations. DDS will contact doctors you have listed on your application and will gather your medical records. Some weeks or sometimes months later, you will receive a decision -- usually it's a denial. Denials at this stage are common since the regulations DDS follows are extremely restrictive. A high percentage of people who win their disability cases at a later administrative stage lose on their initial application, so don't give up hope. The second step is to appeal your case for reconsideration. If you don't appeal, you can forget about ever receiving disability. You have 60 days to appeal from the date you received the DDS denial. The DDS will decide, again, on your appeal. They send your claim "down the hall" to another worker and generally the claim is denied again. And again, you must not give up hope. The third step is to appeal the denial of reconsideration by asking for a hearing. Again, you have 60 days from the date you received your second denial to ask for the hearing. This is the most meaningful stage of the whole administrative process. The Social Security System purposefully makes their regulations extremely restrictive to weed out the quitters-- those people who do not naturally persevere, who do not try to object and get through the system in hopes of winning their claim. I must say, it is truly an effective process they have established since most people do give up. But don't! The hearing is the only time in the whole process when you are going to have the opportunity to face your decision maker and tell your story. This person, an Administrative Law Judge ( ), will see you and listen to your story and the arguments of your lawyer or representative. The will then make a decision based on what he/she hears at the hearing and reads in the record. In North Carolina, hearings take place in Charlotte, Greensboro, and Raleigh. s are generally lawyers and are experienced in the disability system. They generally do not follow the same rules and regulations that the DDS follows. Instead, they follow the law, read the statutes, the code of federal regulations and most importantly, they read federal court decisions which act as precedent (explain how the law should be interpreted). It is at this stage of the administrative process that your claim is most likely to be approved. Of course, with a "new" disease, which is poorly understood, like CFIDS, your chances of winning may be somewhat diminished. If you do not receive disability at this stage, the fourth step is to appeal to the Appeals Council (AC). The AC, located in Baltimore, Maryland, receives appeals from hearing decisions all over the nation. The Appeals Council relies on analysts and lawyers to review claim files and determine whether the ALJ has made any mistakes in deciding a case. They write their decisions based upon their review of these files. Their decisions also are not bound by the - regulations the DDS follows. Although they too can rely on the statutes, the code of federal regulations and case authority, they usually do not write a detailed decision. Most people denied at the hearing stage do not win here either. If your claim is denied by the AC, what happens? There is one more step you can take: appeal to federal court. This step and the hearing are tremendously important because you are most likely to win at one of these two stages. Even if you have made it through the entire process so far without an attorney, you simply must have an attorney to represent you in federal court. To succeed in federal court your file or record must be well-developed (which is unlikely if you have not been well-represented from the beginning) and legal briefs and arguments must be made to the court. In recent years, the federal courts have reversed or remanded large numbers of claims wrongfully denied by SSA. Q: What is a realistic estimate on how long it takes from step one through step four of the administrative process ? A: The answer is simple: a long, long time. You could be well by then. Sometimes this process can take years. Recently, Social Security has improved their speed and that's due, in part, to cutbacks of the number of terminations of disability benefits they're processing. This frees more employees to focus on the initial application. Q: Is there such a thing as applying for partial disability? A: No, you're either disabled or you're not disabled. There's no such concept as a 20% or 30% disability within the Social Security system. The definition of disability requires that you be unable to work for at least 12 months or suffer from an impairment that's likely to result in death. That's the underlying, fundamental definition of disability. Q: Does this mean you would receive disability for life? A: Not necessarily. One is not entitled to receive disability for life, but only for so long as his impairments prevent him from working. 3 Q: But it would take years to prove that! A: No, sometimes a claim wins approval at the hearing stage and the whole process might take only six to nine months. If you go through the Appeals Council stage you're usually adding another three to four months to the process. If you have to go to federal court, you're generally adding another nine months to a year (possibly longer) to the process. For example: assume you were disabled only for 12 months and say you became disabled in January of 1987. That is called the alleged onset date. You weren't sure how long you would be sick so you didn't apply for disability until March 1987. This is your application date. You had to go through all four steps we've mentioned above and you finally get an Appeals Council decision. Assume that the Appeals Council finds that you were indeed disabled, but its decision is not made until September 1988. You've been in the "administrative pipeline" for a year and a half. How long are you going to be entitled to benefits? Usually it's from the onset date (January 1987) to some unspecified future date when SSA finds you are no longer disabled. Yet, perhaps the Appeals Council won't nd that you became disabled until March 1987 or later. SSA doesn't have to agree with you about when you became too sick to work. They can find that you became disabled at anytime through the date of the decision. SSA generally tries to review cases once every three years and some cases are reviewed faster than that. Since Social Security can find that your onset date was later than you alleged, they can also find that your disability stopped too. As you can see, they have a wide rein in their decision making. Q: Can you appeal that? A: Yes. If you receive a favorable decision but you disagree with the onset date Social Security found, you can appeal that date. Generally, your checks won't be stopped if you contest the onset date, but if you should, make it clear to SSD that you want to appeal only the onset date and not the finding of disability. Q: So, if you are found to be disabled as of January 1987 for at least 12 months, do you get paid all the way back to January 1987? A: No, you don't. There is a five month waiting period for disability benefits when you become disabled. So, you could have an impairment that resulted in death in the sixth month after you became impaired and then you, or by that time, your estate, would be eligible for only one month of benefits. The general rule is that one doesn't get disability for the first five months he's disabled. Q: What if during this period, possibly 18 months to two years, you recover, but also, at that time, you are appearing before the federal court, ready to be interviewed, etc. and you're well. Isn't it going to be difficult to prove your case? A: No, not necessarily, as long as you can show that you were disabled for at least 12 months. You don't have to be disabled on the day your case is up for review by the federal court and you don't even have to be present at the hearing. The federal court hearing differs from the ALJ hearing: you don't give testimony and, generally, you don't submit doctors reports unless they're new and weren't available before. The arguments at the federal court stage are entirely legal arguments. It's not an evidentiary hearing. The federal judge relies only upon the record as it was formed during the administrative process. If you have new evidence to submit in your case, then I would tell the judge, "Your honor, we have some new evidence in my client's case and this deserves a remand of his/her case." The judge cannot use the new evidence to support a Finding of disability. He may acknowledge, however, that the new evidence exists and that it might have made a difference upon Social Security's decision. If so, the judge sends the case back ("remands" the case) to SSA to reconsider the new evidence. Q: After all this waiting, what does Social Security pay in the way of stipends? A: The Social Security program is divided into two parts: Social Security disability (SSD) and Supplemental Security Income (SSI). SSD is an insurance program and benefits are based on the wages you earn during your working lifetime. The amount of benefits paid is directly proportional to the amount of money you earned in your working life and the FICA taxes you paid on those wages. If you're interested, Social Security or your attorney can provide you with the formula. The SSI program is for people who don't have a significant wage history: it's a welfare program, a needs-based program. If you have never worked you cannot apply for SSD because you don't have wages from which to draw benefits. Congress said: "That's- not fair, somebody might be sick from the day that they were born." ' So, they developed a welfare program that is based on a finding of disability, identical to the finding of disability made in SSD cases. In addition, after you're found to be disabled, you have to prove that you're eligible because your income is low and your assets minimal. Once you've shown that, you're eligible for benefits up to the maximum rate of $354/month. - This amount increases every year with the cost of living. What if the benefits you receive from SSD are less than $354? You might then draw benefits from both programs. For example, if your SSD is $254 a month, you could receive an extra $100 a month to reach the statutory SSI cap. People with significant wage histories, however, will usually earn SSD benefits in excess of the SSI level. I've represented disability clients who have drawn over $700 a month. Most folks do not receive this amount of benefits, though. Some of you would be surprised what people can or try to live on. A majority of my clients are living on $360 a month ... or trying to. SSD and SSI are not meant to replace the wages that you earn in your lifetime. They are meant to provide some stipend on which you can exist and generally, -it's a very subsistence level of existence. Q: How many years -- that is wage earning years -- does SSD check: A: SSA uses a complex formula that includes looking at the years of highest earnings over a "base' period. Q: What happens if you perform odd jobs when you are able: A: Once you become disabled you can perform substantial gainful activity or work for up to nine months. This is called the trial work period and Social Security will not stop your benefits during this nine month period. This period is meant to encourage people not to stay on SSD. You could be earning $8000 a month in wages and still draw benefits for at least nine months. If you complete the trial work period, though, SSD is going to re-examine your file and probably find that your disability has ceased. Q: Since it's a long process, you could face a possible two years without an income. Do these programs tolerate any working at all? A: Not much. The- most fundamental concept about disability is whether or not the claimant can work. It is not an inquiry into how sick you are or what sort of sickness you have. When SSD begins to review your claim, they ask, "Is this person working right now?" By this they mean, is the claimant performing substantial gainful activity. It's assumed that if one is making more than $300 a month one is performing substantial gainful activity (SGA). If you're making less than $300 a month it is presumed that your aren't engaged in SGA, but Social Security might nonetheless find that the work you're performing, even though your earnings are less than $300 a month, does qualify as SGA and therefore, disqualifies you for SSD. If you're found to be engaging in SGA the inquiry stops right there. You are not disabled. Period. Q: When they deny you SSD do they always specify the reasons? A: No, not necessarily. At the initial stage, they summarize their decision. They compile your medical evidence and tell you what they've considered and then the summary says, "you've said you can't work, but we think you can do your former work, or some other work.' Q: What does Social Security consider work? A: If you tell Social Security you can clean house, climb stairs, grocery shop, wash clothes, or carry garbage, it reveals to them that you can do a little something; the question then might be whether you could perform these activities on a continuous basis, eight hours a day, five days a week. They do consider these activities. Just because you can do a little housework, however, does not mean you're not disabled; these are things Social Security is interested in. Q: When you fill out your SSD application, should you gather and submit your medical reports too? Will this speed up the administrative process: A: It should speed up the process if you have all your medical records. They will still make an inquiry to your doctors to find out if there are any more recent medical reports. If the medical evidence in your file is not sufficient to evaluate your claim, they will set up an appointment for you to see a local doctor SSA deals with on a regular basis. This physician will examine you for about a half-hour and write up a four or five page report on his/her f findings about your condition. To qualify, you have to have a "severe impairment." Q: What is considered a severe impairment? A: A severe impairment is one that significantly affects your ability to do work related activities. It could be just about anything. This is a very low threshold of inquiry. For example, you could have a stubbed toe and pass this test because you aren't able to put weight on the foot with the injured toe. Therefore, it might restrict, in some fashion, your ability to do work related activities. Q: Wouldn't SSA tell you to find a job sitting down? A: They might, at a later stage, but that is not the test here. The test at this point is to determine whether or not you have a severe impairment. Once it is determined that you do have a severe impairment, then your impairment is checked against the listings of impairments SSA maintains. This is a type of laundry list of severe, very debilitating illnesses, defined in exquisite detail in Appendix One of the Social Security Regulations (handbook). For each of these listings there are numerous criteria for medial diagnoses or laboratory tests. Your condition or impairment must match precisely or be equivalent to the listed illness in order for you to be found disabled on this basis. Remember the base inquiry of SSA: can you work or not'? If you have a listed impairment, then SSA presumes you cannot perform any work. The inquiry stops if you have a listed impairment. You are found disabled right then and there. If your impairment does not meet or equal an impairment Found in the listings of impairments, it is not the end of the battle. You must then answer the next question: Can you perform your past work? At this stage of the -process Social Security reviews all the jobs you have had in the last 15 years and they look for what these jobs required of you. Did you have to sit? Did you have to use your "mind:" Did you develop some skills? Did you have to lift ten pounds or 50? Did you have to stand? Did you have to use foot controls: An in-depth analysis of your previous employment is required because SSA must determine your residual functional capacity-- what activities you can still perform, despite your impairments. For example, if your body is paralyzed except for your left arm, then the ability to use your left arm is your residual functional capacity. Of course, in this example, the residual functional capacity is small and would not be sufficient to prevent a finding of disability. SSA categorizes residual functional capacity in levels of sedentary, light, medium, heavy, and very heavy work, with each having its own legal definition For example, Mr. Smith has the residual functional capacity to do light work and his past job was medium work. But he cannot perform his past job because medium is more than light. If Mr. Smith could perform his past job, he would be found not disabled. Q: If I work with computers and cannot perform this task anymore, am I reduced to babysitting: A: If you cannot perform your past work then the burden of proof shifts to SSA to show that you can perform a job other than your past job. Until this point, it has been your responsibility to show SSA that you are disabled. Now that you have shown SSA that you are disabled, i.e. cannot perform your past work, then they in turn try to prove that you are not disabled by showing that other jobs exist which you can perform despite your impairments (you have the residual functional capacity to perform other jobs). Q: What happens in the case when SSA tries to determine other jobs I may be able to perform, but I may need a recuperative period to perform this other job(s): A: You either can or cannot do other work; it is a black and white world to SSA; there is no gray area in the law. Whether you can do other work depends on a number of things. Besides your residual functional capacity, they take into consideration your vocational factors: age, education, and previous work experience. Were your past jobs unskilled, semi-skilled, or highly skilled: Each of these factors weigh heavily in SSA's burden of proof because they have only two ways of meeting this burden. They either rely on vocational expert testimony or resort to the "Grids." A vocational expert is a person who evaluates the requirements of jobs that exist in a particular industry. The ALJ may request a vocational expert to appear at your hearing. The vocational expert testifies on a given hypothetical situation presented by the ALJ. This testimony is based upon factors relevant to the individual in question such as jobs that can be performed at his/her age and with his/her educational qualifications, work history and residual functional capacity. (Your attorney does have an opportunity to cross-examine the vocational expert.) For example: the ALJ states that Mr. Smith is 52 years old, his work experience is considered unskilled, he dropped out of school after the eighth grade and he can perform a wide range of light work. The vocational expert will then testify about he various jobs Mr. Smith can perform that exist in his community. The second way SSA meets its burden of proof is by employing the ''grids'' -- a medical and vocational guideline found in Appendix Two of the Social Security regulations. SSA has set up a grid of all the factors I've mentioned above. The grid is like a cookbook: if you fit the recipe then the grids dictate a decision about your disability and SSA doesn't have o do anything else. They have met their burden of proof. If SSA cannot prove that you can do other work, then you are finally found disabled and you receive benefits (remember, however, the Appeals Council reviews cases and can reverse the ALJ's favorable decision). Q: Are benefit payments retroactive? A: Yes, for SSD, payments are retroactive back to the onset date, minus the five month waiting period and up to one year prior to the application date. SSI cases are paid only from the date of application; there are no retroactive payments for SSI prior to the application date. Q: Do Veterans Administration (VA) benefits affect your disability benefit amounts? A: Yes. Disability benefits under VA are offset against any SSD benefit; you cannot draw both after a certain cap. Q: If you are receiving disability from an employer's plan, will it affect the amount of Social Security benefits you can draw? A: It depends on your employer's policy. Social Security does not accept disability determinations of any other entity or agency such as Veterans Administration, a private policy or a Worker's Compensation determination. But the other determinations can be used as evidence in your case. If you receive disability from a private insurance carrier you can sometimes be penalized if you receive SSD benefits. The private insurance company will offset their benefits by the amount of money you are receiving from Social Security. In fact, a lot of private carriers require that before you can draw private benefits, you must first apply for Social Security benefits. Q: Why is it taking so long for CFIDS to become recognized as a listed impairment? A: Because Social Security is such a large bureaucracy, and more importantly, because SSA tries to make decisions based on "medically acceptable" diagnoses, which is something CFIDS may currently lack. Q: It is my understanding from what you have said that the whole process is very subjective and subject to the whims of those people who review your claim. Is that a correct conclusion? A: Yes and no. Evaluations of disability are, to a large extent, subjective because of the nature of human beings. The system has attempted to make the process more objective and that is the reason for the numerous and complex regulations. The mix of subjective and objective factors in the disability decision underscores the importance of finding a knowledgeable attorney or representative who knows their way through the process. Q: Is it necessary to have an attorney when you file your initial papers? A: No. But it is critical to have an attorney experienced in disability law when your initial application is denied (as most are) and you must appeal. Obviously, the earlier you have a knowledgeable representative working on your case, the better developed your case will be by the hearing stage. Vigorous advocacy generally doesn't begin until the hearing stage. Q: If one answers the initial application questions "incorrectly," could it damage their case? A: Possibly. The questions are not that complicated, however. Just remember to answer the questions as completely as possible. Don't be modest about your impairments, but don't exaggerate them either. The assistance of an attorney would be helpful particularly since the application can bolster your credibility later on in the process. However, it will not ruin your ease, in the hearing stage, if you make a mistake on the application. Q: Could you describe the typical fee arrangement(s) for certain legal services? A: A good disability attorney understands that he/she cannot charge an up-front fee in a disability case. The attorney may ask for a retainer to cover expenses incurred during your ease such as telephone calls, doctor appointments and travel expenses. These cases are usually handled on a contingency basis which means that the attorney's fees come out of the disability benefits that he/she "wins" for you and if they do not win, they do not get paid. Also, the fee that they charge must be approved by the Social Security Administration. The money for the attorney's fee does not come directly from you. Your attorney will petition Social Security to approve a specific dollar amount for his fee. The administration generally approves the fee or they may modify the petition and approve a lesser amount. A check is cut for your back benefits minus the amount that SSA withholds to pay your lawyer. After your lawyer's fee is approved, SSA pays your lawyer directly and refunds to you any monies reserved for his/her fee but not approved. Again, I encourage representation, whether it is by legal services or private attorneys. If you are interested in winning your case you will not hesitate to obtain an attorney and will not hesitate paying him (the maximum fee approved by SSA is usually 25% of the back benefit award) when you have the possibility of receiving benefits for as long as you are disabled. Q: Is this fee arrangement based on back benefits only? A: Yes. If you have little back benefits available you'll have a hard time finding an attorney to take your case. In these cases, there is no financial incentive for attorneys. Q: What is the possibility of bringing in congressional or senatorial help with your disability case? A: I think congressional offices can only help your case. I have seen cases move along faster with the aid f congressional and senatorial offices. Though Congressional offices do not make the determinations of disability, Social Security is generally responsive to the demands or inquiries made by congressional staffers. Q: Will psychological testing help my case? A: I believe it can be very helpful in determining if there is any organic, cognitive, or psychological problem with the individual and I often send my clients for psychological testing, although certain tests can be time consuming and expensive. The above article was reproduced through the courtesy of, and with the permission of: The CFIDS Association P.O. Box 220398 Charlotte, NC 28222-0398 704-362-2343 Basic membership in the CFIDS Association is $25.00 per year, and includes a subscription to the Chronicle, the quarterly journal of the Association. Additional contributions go directly to fund additional research and advocacy efforts. The CFIDS Chronicle serves as a clearing house for information about chronic fatigue and immune dysfunction syndrome (CFIDS) also known as Chronic Fatigue Syndrome (CFS) and Chronic Epstein-Barr virus (CEBV). The ideas expressed by each columnist are strictly his/her own. Some of the information contained herein is intended to help persons with CFIDS (PWCs) make informed decisions about their health. However, the CFIDS Association, Inc., and THE CFIDS CHRONICLE do not dispense medical advice or endorse any specific medical hypothesis or product and assume no reponsibility for any treatment undertaken by readers of this journal. IMMMMMMMMMMMMMMMMMMMMMMMMMMMM; : This file came from : IMMMMMMMMMMMMMMMMMJMMMMMMMMMMMMMMMMMMMMMMMMMMMMJMMMMMMMMMMMMMMMMMMM; : Wholenote BBS, Asheville, NC (704) 251-9863 : : Information on Chronic Fatigue Syndrome, Friedreich's Ataxia, : : support groups, and whatever other miscellanea I can find! : : Give us a call sometime at (704) 251-9863 : : Will McGuffin - sysop J. David Kiser - co sysop : HMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMMM<