Indiana Social Security Disability Attorney Blog

As 2013 makes its entrance a number of federal legislative changes affecting disability recipients will take effect. Included among those changes are the thresholds for what is considered “substantial gainful activity”, the maximum amount allowed for a worker retiring at full retirement age, the SSI federal payment standard and the estimated average monthly Social Security Benefits payable in January 2013.

Thresholds for “substantial gainful activity”: As might be recalled, “substantial gainful activity” is “work activity that is both substantial and gainful”. 20 C.F.R. 404.1572. In 2012, disability claimants working and grossing more than $1,010 a month (if non-blind) or $1,690 a month (if blind) were considered to engaged in substantial gainful activity. Those amounts have increased slightly for 2013. In 2013, disability claimants earning more than $1,040 a month (if non-blind) or $1,740 a month (if blind) are considered to be engaged in substantial gainful activity.

Maximum amount allowed for a worker retiring at full retirement age: in 2012, this maximum amount was $2,513. For 2013, this amount was increased slightly by $20 to $2,533.

Recently, the Social Security Administration announced in the Federal Register [http://tinyurl.com/bs4rqtw] that there will be a 1.7% increase in Social Security payments effective December 2012. The reason for the increase is due to an increase in the cost-of-living (COLA). Because of this increase, benefits for Social Security disability recipients will increase for 2013. The maximum benefit amount for monthly benefits in 2013 under the SSI program will be $710 for an eligible individual and $1,066 for an eligible individual with an eligible spouse. The maximum benefit amount for monthly benefits in 2013 under the Title II, SSDI program with be $1,132 for a disabled worker and $1,919 for a disabled worker, spouse, and one or more children (with the maximum monthly benefit topping out at $2,533 a month).

As a result of the COLA, the substantial gainful activity earning threshold has increased from $1,010 to $1,040 a month for non-blind workers. Fro blind workers the substantial gainful activity threshold has increased from $1,690 to $1,740.

Up until 1975, by enactment, determined what increases should be applied to Social Security Disability benefits. Beginning in 1975, Congress determined that Social Security Disability benefits should be adjusted by the COLA. Between 1975 and 2012, Social Security Disability benefits have been increased every year with the exception of 2009 and 2010. In those years, there was no increase.

Effective November 19, 2012 the local Social Security District offices will all close at 3 pm until future notice. These new hours have been made to allow the claims representatives to finish there daily cases without the need to stay after hours.

Starting January 2, 2013, the local offices will close at noon on Wednesdays. So, as of that date, the hours will be 9-3 on Monday, Tuesday, Thursday and Friday and 9-noon on Wednesday.

The hours for the national toll free number for the Social Security Administration (800-772-1213) remains the same, 7 am to 7 pm Monday thru Friday.

An injury to an arm or hand seem commonplace. Hunting accidents, car crashes, slip and falls are a few examples of how arms and hands can become injured. Without question, the loss of the use of a hand or in arm may serve as the basis for a disability award. But what makes a person disabled? The loss of the use of the arm? The pain caused by the injury to the arm? Or is the fact that no employer would hire a person who has no real use of an arm?

This question was answered in the case of Odle v. Secretary of Health and Human Services, 788 F.2d 1158 (6th Cir. 1985). Joe Odle claimed he was entitled to disability benefits because he had arthritis in his left arm along with the serious tendon injury in that same arm (Joe had injured his left arm while lifting heavy boxes from a pallet to a tractor-trailer). When splinting did not relieve his pain, a doctor performed exploratory surgery, which revealed extensive problems with his left wrist. A series of treatments by the doctor left Joe with limited use of his left hand and arm due to severe pain. Joe testified that since the tractor accident he has experienced continuous pain in his left shoulder, arm, and hand, saying that his hand “tingles all the time.”

Joe was able to prove that he was incapable of performing his past relevant work as a truck driver. He also proved through a vocational psychologist that he was basically unemployable because he only had the function of one arm. However, there was another vocational expert who testified at the hearing and identified several specific jobs that Joe could perform with the use of only one arm. The expert said that the claimant could work as a clerk for a self-service station, self-parking lot, or drug store, or as an unarmed guard or doorkeeper.

The ability to receive Social Security Disability benefits says something about all of us:

“The moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; and those who are in the shadows of life, the sick, the needy and the handicapped.” Hubert Humphrey (38th Vice President of U.S. 1965-1969)

One case decided by the Social Security Administration concerns individuals with disabilities who are subject to treatment that could lead to a restoration of their ability to work and whether they are required to follow their prescribed treatment plan to remain eligible for disability benefits.

The Social Security Administration makes clear right away in this ruling that those who fail, without good cause, to follow treatment that can be expected to restore that person’s ability to work, cannot be found to be disabled.

The first step before deciding whether this has occurred is determining whether there has been a failure to follow prescribed treatment. The SSA can declare that a failure has taken place only where all of the following conditions exist:

1. The evidence establishes that the individual’s impairment precludes engaging in any substantial gainful activity; and
2. The impairment has lasted or is expected to last for 12 continuous months from onset of disability or is expected to result in death; and
3. Treatment which is clearly expected to restore capacity to engage in any gainful activity has been prescribed by a treating source; and
4. The evidence of record discloses that there has been refusal to follow prescribed treatment.

If all of the above conditions are met and the person is found to have failed to follow a prescribed treatment, a determination must then be made as to whether the failure was justifiable.

The claimant or beneficiary should be given an opportunity to fully express the specific reason(s) for not following the prescribed treatment. Detailed questioning may be needed to identify and clarify the essential factors of refusal. The treating physician should also be contacted concerning the individual’s reasons for refusing treatment to clarify what the individual was told.

The following are examples of circumstances where a person’s failure to follow prescribed treatment will be seen as “justifiable” and thus will not preclude a finding of “disability”:

1. When the acceptance of a prescribed treatment would be contrary to the teachings of the claimant’s religion. In such a case, the claimant will be asked to identify church affiliation and provide a statement or other information from either church authorities or other members of the religious to substantiate that the individual is a member of the church. Additionally, the church’s position relative to medical treatment must be documented by obtaining either church literature or a statement from church authorities.
2. In an unusual case, a claimant’s fear of surgery may be so intense that it serves as a reason to not have surgery. However, lack of a guarantee that the surgery will be a success (something no doctor can provide) or fears based on stories of others who have failed to improve after similar surgery will not negate a finding of
“failure.”
3. A conflict among licensed medical doctors also serves as a valid reason for not pursuing a prescribed treatment. If a person has two treating sources who take opposing views regarding treatment, one recommending and one advising against the same treatment, failure to follow the recommended treatment is justifiable.
4. If the treatment carries a high degree of risk because of the enormity or unusual nature of the procedure that can be seen as a justifiable reason not to follow a prescribed treatment.
5. Finally, another justifiable reason is if the treatment recommended involves amputation of an extremity.

These are a sample of the most significant reasons why a refusal would be deemed justifiable, but there are other specific reasons that should be considered depending on the particular circumstances of your case.

If the decision to refuse treatment is not deemed justifiable, the SSA may decide to deny the disability claim or cease payment of benefits. However, before such a determination is made, the individual must be informed of this fact and of its effect on eligibility for benefits. The individual will be afforded an opportunity to undergo the prescribed treatment or to show justifiable cause for failing to do so.

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While many of those who receive Social Security Disability benefits are American citizens, disabled non-citizens who meet certain qualifications may be eligible for the exact same benefits. If you are a permanent resident and have paid taxes into the Social Security system for the specified number of years or a non-citizen veteran of the U.S. military then you too might be eligible for disability benefits.

Besides being a veteran or active duty member of the armed services, the Social Security Administration (SSA) says that those lawfully admitted for permanent residence under the Immigration and Nationality Act (INA) with a total of 40 credits of work in the United States are eligible to receive benefits. It is important to note that a spouse’s work hours may also count towards this number.

When you apply for disability, you must prove your non-citizen status. Non-citizens who have served in the U.S. armed forces also may need to give us proof of military service. The SSA says that the following documents will be required when applying for disability benefits:

• For non-citizens – a current Form I-94 or I-551 from the Department of Homeland Security (DHS) or an order from an immigration judge withholding deportation or granting asylum; or
• For those in the military – U.S. military discharge papers (DD Form 214) showing honorable discharge not based on your noncitizen status.

As with all things involving the federal government, there are exceptions to exceptions. Even if you meet all the other requirements to receive disability benefits, if you are part of the unfortunate few from some select countries you will not be able to receive SSD benefits. These countries are Cuba and North Korea.

It is important to note that being a citizen means more than just being born in one of the 50 states. You can apply for Social Security disability benefits as a citizen and have a few less hurdles to jump through if you have a valid birth certificate from any of the following places:

• The United States;
• Puerto Rico;
• Guam;
• U.S. Virgin Islands;
• American Samoa;
• Swain’s Island; or
• Northern Mariana Islands.

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Section 12 of the Social Security Administration’s Listing of Impairments discusses mental disorders. One such mental disorder that falls under the heading is autism. Autism is a neurodevelopmental disorder that affects communication and social interaction skills. According to the National Institutes of Health, autism is thought to exist at birth and is usually recognized by at least three years of age, though earlier diagnoses are possible. Symptoms can present themselves in young children and these including lack of attentiveness, not smiling, laughing, or making noise as much as infants without the disorder. Children with autism also exhibit less eye contact than others and engage in repetitive or limited behavior.

Current guidelines indicate that diagnosis of autism is proper when a patient shows at least six symptoms. Two of the symptoms ought to be linked to social interaction impairment, while one must be a communication impairment, and another one must be a restricted or repetitive behavior impairment. Communication impairment signs include a lack of responsiveness or strange gestures. Restrictive behavior can include purposeless movement as well as compulsive behavior such as rearranging objects and needing to control the physical environment. Ritual behavior is also a typical symptom of autism; people often need to do things the same way and at the same time everyday.

The Social Security Administration recognizes that the disorder rises to the level of severity necessary to receive disability benefits when a doctor finds that an individual has the following:

1. Deficits in reciprocal social interaction;
2. Deficits in communication and imagination; and
3. A restricted repertoire of activities and interests (not needed for Asperger’s syndrome).

Before benefits will be awarded to an individual the Administration says that these deficiencies must cause serious limitations in at least two of the following areas:

1. Communicative/cognitive functioning;
2. Social functioning;
3. Personal functioning; and/or
4. Sustaining concentration.

The SSA says that cognitive and communicative functioning may be measured through the use of age appropriate standardized testing for language development. One such indication of limited cognitive function is an IQ score of 70 or less. Social functioning is defined by Social Security Administration as a person’s ability to form and keep relationships. Personal functioning refers to the development of self-care skills. Examples of these include feeding oneself, personal hygiene, dressing and grooming. Concentration is, somewhat obviously, the ability to focus attention on a task, to stick with it, and to work at a pace that is reasonable for someone of the same age and circumstances. This area is measured both by observing the person and also measured by results obtained from standardized testing.

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According to the National Institutes of Health, chronic fatigue syndrome (CFS) is a condition that causes severe and ongoing tiredness that cannot be improved by simply resting and that does not result from another underlying disorder. The exact cause of the condition remains a mystery, but some have theorized that exposure to the Epstein-Barr virus might be to blame. Age, gender, prior illnesses, and stress are also believed to play a role. Symptoms of CFS can include sore throat, headache, low-grade fever, painful joints, memory or concentration problems, swollen glands, and generalized muscle weakness.

According to the Social Security Administration’s Fact Sheet, you must prove that the symptoms of your CFS prevent you from working in order to qualify for disability benefits. To make this determination, the SSA will use the medical evidence you have provided in support of your claim to evaluate whether your symptoms reach the level of severity necessary to qualify for disability.

The diagnosis of CFS requires that you experience at least four of the following symptoms for at least six months: