It does happen that a disability claimant dies before the appeal has been completed. In that case, if the claim is for Title II benefits, the surviving spouse of the claimant may claim the benefits due to the claimant up to the month of the date of death of the claimant. If the
claimant had no surviving spouse, then SSA distributes the money that would have been paid to the claimant in the following order:
> the child or children of the deceased claimant
The simple answer is that when you are no longer working due to medical condition which you expect to last in excess of 2 months, you should file immediately. There is a “durational” component to disability claims. What that means is that in order to qualify for disability benefits, the medical problem causing you to be disabled must have lasted or must be expected to last for a time period of 12 months or more. The point here is that medical issues which cause someone to be unable to work but only for a short time (that is, less than 1 year) are not problems for which federal disability benefits can be awarded.
This often comes up when a person is injured, say a simple fracture, but the fracture is expected to heal before 12 months. Routine surgery is another example. A person who has had surgery, which is a very invasive procedure, is typically returned to their pre-surgery state of well being within less than 12 months. Another example is a severe case of the flu. Normally, this type of illness is resolved well within the 12 month period. If that matter is resolved within the 12 month period, then disability would not be awarded.
However, if the fracture results in a non-union causing an inability to weight bear; or if the surgery did not heal the illness or injury of if the flu developed into some other medical issue that did last more than 12 months, then in all of these instances the 12 month durational requirement may have been met.
For those patients who have multiple sclerosis, fatigue is a common, if not predominate, symptom. As they know, fatigue is not the same thing as tiredness. Tiredness can be taken care of with rest or sleep. Fatigue on the other hand is really a lack of energy. The feeling or symptom is something that cannot be resolved with sleep. Often times it is chronic. Environmental factors such as wetness or heat, make fatigue worse.
When SSA evaluates a claimant with multiple sclerosis, it considers the fatigue of the person. SSA’s policy on looking at fatigue is:
The best means of assessing fatigue is by inference in terms of the claimant’s activities of daily living, the extent of physical activity before fatigue occurs, and the frequency at which the claimant requires periods of rest.
Effective June 7, 2011, the listings in the endocrine body systems, (Listings 9.02 through 9.08) dealing with diabetes mellitus and thyroid disorders will be deleted. As a consequence, those diseases will no longer be considered a reason to award disability based upon the fact that a claimant may have diabetes mellitus or a thyroid disorder. Several advocacy groups, including the American Diabetes Association opposed the changes.
SSA basically said that due to medical science significant advances in detecting diabetes mellitus and thyroid disorders at earlier stages and newer treatments have resulted in better management. As a result, SSA concluded that “most” diabetes mellitus conditions and thyroid disorders do not reach listing level. Even if they do reach listing level the severity does not remain for the required 12 month period.
Now diabetes mellitus and thyroid disorders will be considered under other listings such as blindness, renal failure and amputations. These disease will also be considered in the determining the claimant’s residual functional capacity. Also these diseases
As many claimants know the time between filing a request for hearing and actually having a hearing very long. Sometimes the wait can be in excess of 2 years! In an effort to reduce this time delay, SSA has created the “video hearings”. These hearings are held through a video conference system (VTC). The administrative law judge appears before a camera in his/her office (usually at in another state) and the claimant and claimant’s representative appears before a camera at the ODAR hearing office closest to the claimant. The advantage to having a video conference is that hearings are held sooner than having to wait for a hearing with a in the same room.
This system has been particularly useful in ODAR hearing offices which are unusually busy such as the Indianapolis ODAR. As far whether a hearing before a judge in the same hearing room or a VTC hearing has a bearing on the outcome of the case, my experience is that neither form of hearing is “outcome determinative.” If the case is won it is not because the hearing was before a live judge or a video judge. Conversely, if the case is lost it is not because of having appeared before a live judge or a video judge. With all that said, SSA has by regulation, created an absolute right for a claimant to decline a video hearing. [ 20 C.F.R. §§ 404.936(e) and 416.1436(e).] As long as the claimant informs SSA “a the earliest possible opportunity, before the time set for hearing” the regulations provide that the ALJ will change the time and place for the hearing.
The numbers are in for 2010 for the percentage of cases which are allowed at the initial stage and allowed at the reconsideration level. The initial stage is when a person files a disability claim for the first time. Many of the people who are denied at the initial level believe that everyone is denied “the first time”. Actually, the numbers suggest that no quite “everyone” is denied. Rather on a national level, 35.4 % of the people who file disability are awarded benefits! Indiana is close to this number. In Indiana, 33.3% of the initial cases are allowed.
If a person is denied at the initial level, the next step is to ask that the initial denial be “reconsidered”. This stage is called the reconsideration level. At this level, there is no hearing because this is the opportunity for SSA to determine whether it made a mistake. Basically this is a paper review by physicians hired by SSA. Nationally in 2010, the allowance rate was 12.7%, Indiana’s allowance rate at the reconsideration level was 5.9%, tied the lowest in the nation with Mississippi.
The next level is the hearing level. If you have any questions about the disability process, please call our office 765-644-8410.
Physicians and psychologists must make a determination about how their mentally ill patient is functioning on a daily basis. This determination or assessment is used by mental health practitioners to: determine when treatment is needed, track the progress of treatment and select the site of service (whether treatment is to be administered in-patient or out-patient). The scale ranges from 1-100.
According to the fourth edition of the Diagnostic and Statistical Manual of the Mental Disorders published by the American Psychiatric Association (DSM-IV), a score between 1-10 is suggestive of “persistent danger of severely hurting self or others (e.g., recurrent violence) OR persistent inability to maintain minimal personal hygiene OR serious suicidal act with clear expectation of death.” On the other end of the spectrum is the scale between 91-100 which describes a person who is “superior functioning in a wide range of activities, life’s problems never seem to get out of hand, is sought out by others because of his or her many positive qualities. No symptoms.” Somewhere in between are many who suffer from mental illness with varying degrees of severity.
It is not unusual to read in mental health records that a client with mental health issues has been assessed with a GAF score between 50-60. According to the DSM-IV, this score means that the person has “moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).” Clients with severe mental health issues commonly have scores under 50.
Narcolepsy is a chronic disorder resulting in an irresistible urge to sleep and frequent daytime “sleep attacks.” This disorder is viewed as a neurological problem rather than a mental illness or something caused by anxiety. Little is known about the exact cause of the condition. Some researchers believe that the brain producing a reduced amount of a certain protein is the likely cause. Unfortunately, there is no known cure for this condition. Treatment is geared toward either reducing or controlling the symptoms.
Narcolepsy may be accompanied by one or more of the following symptoms: periods of extreme drowsiness (every 3 to 4 hours during the day), dream like hallucinations, sleep paralysis, and cataplexy (a sudden loss of muscle tone while awake resulting in an inability to move). Sleep periods can range from a few seconds to a half an hour.
Without question, narcolepsy can form the basis of an award of Social Security Disability benefits. This particular disease is not found in the Listings of Impairments. As a consequence, it is important for a person representing a disability claimant to know how SSA looks at this disease. First, narcolepsy is not a listed impairment. SSA considers the closest listing to equate with narcolepsy to be Listing 11.03, Epilepsy-Minor motor seizures. Second, SSA examiners evaluate narcolepsy after a period of 3 months of prescribed treatment. Therefore consistent treatment records are a must. Third, as in all disability cases, it is vital to provide as much medical evidence that is available including: physician treatment notes, results of electroencephalogram (EEG), a list of the medications used and their responses, a detailed description of the narcoleptic attack along with other events that sometime accompany a narcoleptic attack (such as cataplexy, hypnagogic hallucinations or sleep paralysis).
Many claimants who file a claim for Social Security Disability benefits receive a letter from SSA entitled “Potential Private Pension Benefit Information”. This letter informs a claimant that he/she may be entitled to some private pension benefits upon retirement. Normally, the letter gives a specific pension name, plan names and address. It may also disclose an estimated amount of benefits.
How does the SSA know this information? Why is the SSA sending that information? Is this SSA disability? All private pension plans are required to report the names and social security numbers of the plan’s beneficiaries to SSA and the IRS. SSA computers are able to match a Social Security Disability claimant’s social security number to the social security numbers reported by the plan. Federal law requires that SSA notify all potential plan beneficiaries of the fact that they have been reported as a potential beneficiary under a private pension plan. Many plan beneficiaries do not know that they are potential beneficiaries of private pension plans. The government actually wants the plan beneficiaries to know of the existence of their plan. The government also encourages plan beneficiaries to make a claim for benefits if proper.
The notice does not insure that a person will actually receive private pension benefits. Instead it is meant only as a notice that the matter should be followed up with by the person receiving the letter. The notification letter has nothing to do with the disability claim itself.
As many of you known, if there is no agreement on the federal budget by midnight tonight, there will be a partial government shutdown. This shutdown will last until there is a budget agreement. As of today, SSA has issued plans for how it will operate during any shutdown. Here are some of the highlights:
Will Disability Payments Continue? Yes. SSA has recognized that disability payments under Title II and Title XVI are funded indefinitely through trust funds. As a consequence, those payments will continue.
Will the Local SSA Offices Be Open? Yes, the SSA offices in Indianapolis, Anderson and throughout the nation will be open but on reduced hours and for only critical functions. For example, disability applications and adjudications will continue but the issuance of new and replacement SS cards will not occur.
Indiana Social Security Disability Attorney Blog