H.R. 1502 and Your Disability Benefits

Bob, 55 years old, has severe arthritis. He has been working the same job as a machinist for the last 20 years. Due to the economy, Bob is laid off from his job. Since he is still in need of income to care for himself and his wife, Judy, he applies for unemployment benefits while he looks for other work. 

As the months go by, and Bob finds his arthritis seems to be getting worse. He has a harder time getting around and doing simple things like opening jars. After a visit with his doctor, the doctor tells Bob that perhaps he should consider filing for disability. Bob’s doctor is concerned that he would have a hard time going back to work as a machinist.

This puts Bob in an unusual situation. Bob wants to go back to work, but no one is calling him in response to his job applications, and his doctor warns if he goes back to strenuous work such as a machinist he may not be able to perform like he used to.

So, what is Bob supposed to do?

Fortunately, Bob can apply for disability while he is receiving his unemployment benefits and still seeking work. However, Congress might be putting and end to this option soon.

The purpose of H.R. 1502 is “to amend title II of the Social Security Act to prevent the concurrent receipt of unemployment benefits and Social Security disability insurance, and for other purposes.” Also known as the “Double Dip Elimination Act,” should this bill become law, it will prevent people like Bob from collecting disability benefits for any month in which he was receiving unemployment.  

Those months in which a person is collecting unemployment would be considered the same as engaging in substantial gainful activity (SGA), a term used by SSA to describe a certain monthly amount earned by working. The current SGA amount for non-blind individuals is $1,040.00. 

This basically means that people like Bob may have to choose either one route (collecting unemployment and seeking work) or the other (seeking disability). If someone in Bob’s position does collect unemployment while seeking disability, any months in which unemployment was received will disqualify him from any disability benefits he may be entitled to for those months. 

This is particularly disheartening when you take into consideration the amount of past-due medical bills most disability claimants are faced with. Many awarded-claimants rely on their back-benefits to catch up on these bills, as well as the mortgage, credit card bills and auto loans.

A memorandum released by the Social Security Administration to Regional Chief Judges on November 15^th, 2006, references Supreme Court case Cleveland v. Policy Management Systems Corp and states:

 “The Court noted that, under the presumptions embodied in our five-step sequential evaluation process, a person can qualify for Social Security disability benefits even though he or she remains capable of performing some work. Similar logic applies to applications for unemployment benefits.

“In addition, it is often uncertain whether we will find a person who applies for unemployment benefits ultimately to be disabled under our rules, and our decision-making process can be quite lengthy. Therefore, it is SSA’s position that individuals need not choose between applying for unemployment insurance and Social Security disability benefits.”

While it can be argued that collecting unemployment benefits while telling the government you can’t work is contradictory, there are exceptions to the rule, such as in Bob’s case.

The ultimate purpose of H.R. 1502, according to Representative Johnson, Chairman of the Ways and Means Committee, is to save our country $1 billion over the course of ten years. This may be the case, but at what cost to the individual benefit claimant? We still have a chance to tell Congress what we think of this bill. Write to your Congressman today and voice your opinion on H.R. 1502 before it is voted into law.

Written by Anna Westfall

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The Consequences of Failure to Follow Prescribed Treatment

If you are currently in the process of a Social Security disability claim, you probably understand how important it is to receive medical treatment and generate medical records for disability adjudicators to review. However, the truth is what is contained within those records is what’s really important.

According to SSR-82-59, the failure to follow treatment prescribed to you by your doctor could result in the prevention of benefits being payable to you, or cessation of benefits should you already be receiving them. The ruling states:

“Individuals with a disabling impairment which is amenable to treatment that could be expected to restore their ability to work must follow the prescribed treatment to be found under a disability, unless there is justifiable cause for the failure to follow such treatment.”

In order to identify a failure to follow treatment, all of the following conditions must exist:

1.       The evidence establishes  that the individual’s impairment precludes engaging in any substantial gainful activity (SGA) or, in the case of a disabled widow(er) that the impairment meets or equals the Listing of Impairments in Appendix 1 of Regulations No. 4 Subpart P; 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 SGA (or gainful activity, as appropriate) has been prescribed by a treating source, and

4.       The evidence of record discloses that there has been a refusal to follow prescribed treatment.

Once the “failure” is identified, SSA must then determine whether or not the failure is justifiable.

First, SSA must determine if the prescribed treatment was recommended by a physician who is actually attending to the claimant’s medical needs. In other words, this person cannot be a consultative examiner seen on one occasion. Hospitals, clinics or other medical facilities where the claimant goes for medical care are also considered treating sources.

Next, SSA must consider whether or not the prescribed treatment is expected to restore the claimant’s ability to go back to work. If it is not, then the issue of failure to follow prescribed treatment is dropped. However, if a treatment exists that SSA believes may restore the claimant’s ability to go back to work, but said treatment has not been prescribed by a treating source, SSA may refer that individual to Vocational Rehabilitation Services.

Once the issue of failure to follow prescribed treatment is identified, the claimant is then allowed an opportunity to explain the failure. The claimant should be asked if he or she understands the implications of the treatment prescribed, as well as the implications of failure to do so. The claimant should also be made aware by SSA the reason for this questioning and the possible consequences. 

Of course, a claimant could have very good reasons for not following prescribed treatment. Some justifiable reasons identified by SSA are as follows:

-          Acceptance of prescribed treatment would be contrary to the teachings and tenets of the claimant’s religion.

-          Cataract extraction for one eye is prescribed but the loss of visual efficiency in the other eye is severe and cannot be corrected through treatment.

-          Intense and unrelenting fear of surgery. However, SSA may require this be documented by the treating source who recommended the surgery.

-          The individual is unable to afford prescribed treatment which he or she is willing to accept, but for which free community resources are unavailable.

-          Any duly licensed treating medical source who has treated the claimant advises against the treatment prescribed for the currently disabling condition.

-          The claimant is presently unable to work because of a condition for which major surgery was performed with unsuccessful results, and additional major surgery is prescribed for the same impairment.

-          The treatment carries a high degree of risk because of the enormity or unusual nature of the procedure.

-          The treatment recommended involves amputation of an extremity.

The issue of failure to follow prescribed treatment is a complicated yet important one. Our blog covered only a few very important points. If you are in a position where you feel you might be under this type of scrutiny, it is advisable to seek the counsel of a disability attorney.

Written by Anna Westfall

Source: http://www.socialsecurity.gov/OP_Home/rulings/di/02/SSR82-59-di-02.html


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