Returning to Work: How Does That Affect My Claim?

While waiting for a Social Security claim to be decided, a person might return to work for different reasons. Bills that need paid might be piling up exponentially, or a person might feel their condition has improved to a point where they can return to work permanently. You might think this would end the claim, but not necessarily so. The Social Security Administration has specific regulations in place that allow someone to try to return to work without affecting their pending claim or benefits they may already be receiving. This article will discuss the two most common issues:

Unsuccessful Work Attempt

While a person’s claim is pending, they may try to return to work but find they are unable to do so because of their disability, or because their disability is not being accommodated in the work place. When this occurs, Social Security calls it an Unsuccessful Work Attempt.

An Unsuccessful Work Attempt (UWA) is defined by Social Security as:

An unsuccessful work attempt is an effort to do substantial work in employment or self-employment which was discontinued or reduced to the non-SGA level after a short time (no more than 6 months) because of the individual's impairment or the removal of special conditions related to the impairment that are essential to the further performance of work.

In order to be considered an UWA, however, there must be a significant break in the continuity of the person’s work (at least 30 days between jobs). There must have also been another significant change to have taken place that would end work attempt: “…the impairment or the removal of special conditions related to the impairment that are essential to the further performance of work causes the work to be ‘discontinued’” as defined in DI 24005.001D.2. This must be proven to Social Security so that it does not count against the claimant. If a claimant missed a lot of days or work, did a poor job, or relied heavily on coworkers because of his or her disability, these would be factors of an UWA.

Social Security has different criteria for the varied amounts of time of a claimant’s UWA, which you can read about here: https://secure.ssa.gov/poms.nsf/lnx/0424005001. Overall, it is important to remember that a work attempt cannot be considered an UWA by Social Security unless it was ended because of a disability or accommodations for a disability were taken away.

Trial Work Period

This is an option for Social Security Disability Insurance claimants only. It does not apply to SSI. Social Security defines the Trial Work Period as:

A beneficiary receiving Social Security disability benefits may test his or her ability to work and still be considered disabled. We do not consider services performed during the trial work period as showing that the disability has ended until services have been performed in at least 9 months (not necessarily consecutive) in a rolling 60-month period. In 2011, any month in which earnings exceed $720 is considered a month of services for an individual's trial work period. In 2012, this monthly amount remains at $720. (please visit http://www.ssa.gov/oact/COLA/twp.html for more information regarding how Social Security comes up with this figure)

There are several factors to keep in mind regarding the Trial Work Period. First, if a claimant is working and making under $720 per month, they can still be considered disabled and this does not trigger a Trial Work Period. Along those same lines, if a claimant continues to earn over $720 per month consistently for nine months over a 60 month period, Social Security will re-evaluate the claim and possibly stop benefits if they feel the person is well enough to return to work permanently.

When the Trial Work Period ends, the claimant enters the 36 month re-entitlement period, or “Extended Period of Eligibility” (EPE). During the Extended Period of Eligibility, Social Security may continue claimant’s benefits in any month that his or her gross earnings were not at the SGA level.

Conclusion

Much credit should be given to a disabled individual who wants to return to work. Contrary to popular belief, most people who receive disability benefits want to work and will return to work if it is possible. Because Social Security understands this, these regulations exist to protect disabled people from losing the benefits they are either fighting for or have already won, in case the return to work is unsuccessful.

Written by Anna Westfall and Attorney Andrew November

Continuous Medical Treatment – The “Meat” of your Social Security Disability Claim

To be found disabled under Social Security’s rules, a claimant must:

• Be unable to do any substantial work because of his/her medical condition(s); and
• The medical condition(s) must have lasted, or be expected to last, at least 1 year, or be expected to result in death.

Disability must be proven with medical records documenting current treatment. Past medical treatment or bare minimum medical treatment is not enough. Social Security must see that your disabling condition exists and is continuing through the present.

In order to achieve this, it is important to establish a relationship with a doctor who treats your disabling condition(s). Keeping follow-up appointments with your doctor and following his or her treatment plan is very important. Each time you miss an appointment or fail to comply with treatment, it is noted by your doctor’s office staff, which is then seen in your medical records.

Social Security must also see that the medical evidence “jives” with the disabilities you are claiming. Remember when we talked about credibility and the role your medical records play? Doctors often take SOAP notes (Subjective, Objective, Assessment, Plan), which record what the patient feels (Subjective) as well as the doctor’s findings (Objective). These records are reviewed alongside your allegations of disability to see whether there is a correlation between the two. Because of this, it is important to be honest with your doctor and to make sure you express all of your concerns to him or her.

Along those same lines, medical records are a valuable source of information regarding how your disability worsens or improves. Because your disabling condition must last, or be expected to last, twelve months or more, your medical records will outline the progression of your disability for Social Security. By keeping follow up appointments with your doctor, as stated earlier, it is easier to track the severity of symptoms as well as uncover any new symptoms that may have developed since you became disabled.

Overall, the most important point to take away from this blog is to make every effort to continue your medical treatment. Even if you have a test, appointment or procedure scheduled for the future, let Social Security or your representative know. By helping to assure Social Security has all of your pertinent information, it could mean the difference between an approval and a denial.

Written by Anna Westfall and Attorney Andrew November

“What is taking so long?” The Levels of Adjudication Explained

Anyone who has applied for Social Security benefits has probably wondered why it takes so long for the Social Security Administration to make a decision. A claimant’s first impression is that Social Security just doesn’t care about their disabling conditions or their situation. This is not the case. Rather, evaluating a disability claim requires a lot of work, time and care in order for the right decision to be made.

Initial Application

After you complete your application at your local Social Security office, a claims representative will request medical records from all of the treating sources your provided. Because oftentimes it will take a doctor’s office or hospital a month or more to fulfill the request, some of the wait time comes from Social Security waiting for your records to arrive so that they may be reviewed. Reading through these documents, which sometimes can be hundreds of pages, is also a time-consuming process.

In the meantime, you may be asked to complete forms regarding your daily activities, symptoms, or past work history. Completing these forms to the best of your ability and returning them to Social Security before any deadline they may give you helps the evaluation process move more smoothly.

You may also be asked to attend a physical or mental exam, where you will be evaluated by a doctor employed by Social Security. After the appointment is completed, the doctor who examined you must take the time to write a report, which is subsequently sent to Social Security to be reviewed and considered along with your medical records and any forms you completed.

Typically, this initial process takes 3 to 6 months, but sometimes longer in more complicated cases.

Reconsideration

If your initial application is denied, you may file an appeal called the Request for Reconsideration. Afterwards, Social Security will do just that: they reconsider their first determination, alongside any new medical evidence, forms you complete, or further exams you may be sent to.

When you appeal the first decision, you are asked to fill out form SSA-3441. This form asks you if there have been any changes in your condition, any new conditions, and for more information about your treating sources and how recently you may have treated with them. As in the initial application, Social Security will request any updated medical records that may exist. You may be asked for clarification in some of your answers.  It is important that Social Security is aware of any new treatment.

As with the initial application, reconsideration of the first determination also takes approximately 3 to 6 months, depending on your claim’s circumstances.

Hearing

Once all of the evidence is reviewed alongside the initial determination, and you are denied again at the Reconsideration level, you may request a hearing in front of an Administrative Law Judge (ALJ). You will be asked to complete another SSA-3441 when you appeal, however, updated or missing medical evidence must be provided either by the claimant or the claimant’s representative to be added to the file.

At this stage of your claim, the file that has been created for you thus far in the determination process is organized and exhibited in preparation for a hearing. Once the hearing staff has prepared your file, either you or you and your representative will be asked to attend a hearing. By law, you will be notified at least 20 days prior to the hearing date so that you can make suitable arrangements to attend.

In the past, the wait time for a hearing in the state of Ohio was at least two years! Fortunately, with the opening of a new national hearing center in St. Louis, Missouri as well as new hearing offices opened in the state of Ohio, that wait time has been greatly reduced. However, the exact wait time still varies from claim to claim, as some people may have more complicated claims than others that require extra time to prepare.

Conclusion

When you are unable to work and you have no income, you want answers fast so you can be certain of your future. Fortunately, the Social Security Administration understands the plight of the disabled person and will make every effort to make a timely determination for you, but it cannot happen overnight. Understanding the process helps a claimant make sense of all the time he or she must wait for an answer. The wait can be daunting, to be sure, but taking an active role in making sure Social Security gets all the information they need in a timely manner, such as completing forms accurately and attending state-sponsored exams, is the best course of action for a claimant.

 Written by Anna Westfall & Attorney Andrew November

Obtaining Representation and How It Affects Your Claim

Often times when claimants represent themselves in court, the Administrative Law Judge will postpone the hearing in order for the claimant to obtain legal representation.

The Social Security Administration’s policy on claimant representation states:

     Although SSA neither encourages nor discourages representation (see GN 03910.010B.), SSA is required to inform claimants of their right to be represented, if they choose, by an attorney or non-attorney at each step of the administrative review process. SSA also provides more detailed information to claimants who inquire about representation, or who are not represented when SSA makes an unfavorable determination or decision.

Why Choose Attorney Representation?

First, you must remember that each and every one of our clients has specific factual and legal circumstances.  This blog is not intended to create an expectation of success for prospective clients. Rather, this blog is intended to highlight some of the things an attorney can do in a case.

Typically, a doctor’s office and hospitals will charge $20 or more to provide copies of medical records. Usually, representatives are able to obtain your medical records at no charge, as long as they are facilities inside the state of Ohio (some other states have analogous rules).

Another reason why having attorney representation is helpful is that attorneys and their assistants deal directly with the Social Security Administration (SSA), the Bureau of Disability Determinations (BDD), and the Office of Disability Adjudication and Review (ODAR) on your behalf. Often times it is difficult to get through to a representative at SSA to have a question answered or to get information. Your representative will make every effort to get your questions or concerns addressed with SSA, BDD or ODAR in a timely and professional manner, and communicate the results to you quickly and in a way you can understand.

Along those same lines, having an attorney representative means having a professional on your side that can help you better understand what is happening with your claim. With knowledge of the law as well as an understanding of your disabling condition(s), an attorney can create a “game plan” to assist  your claim as well as explain the  terms and law you will hear.  Without a professional such as an attorney, you would have to depend on whatever information you are able to obtain from Social Security, the internet, or the public library.

Of course, every person’s case is different, and each requires different amounts of attention and care. Deciding whether or not to obtain attorney representation, or representation of any kind, is a personal choice that must be made carefully. For more information, please visit http://policy.ssa.gov/poms.nsf/lnx/0203910030 which was also referenced in this blog.


Written by Anna Westfall and Attorney Andrew November

DISCLAIMER: The information contained in this blog is for information purposes only, and may not apply to your situation. This blog is an informative piece and is not intended to make any representations regarding future outcomes.

Read What Some of Our Clients Are Saying About Balin Law...

To Paulette F Balin & Associates,

Just a short note of thanks for your great help in helping me to help myself in these trying times. God bless you all for what you do!

-          Martin A., Cleveland, OH

Dear Ms. Balin,

Thank you for all the work you did on my disability claim. After 17 months of waiting and two denials, I was completely surprised when, on April 15^th, to receive an award letter. I am deeply grateful and appreciative for the time you and your staff put on my claim.

-          Barbara T., Bedford, OH

To Paulette F. Balin & Associates, LLC,

First off, I want to let you know I’m not a very good writer. Second I want to thank you for your help, kindness, putting up with me calling so much, standing up for me, and all your hard work. How I came to have you represent me was from another client you had, and said you did a wonderful job, so she referred you. That’s why I would like to recommend your office to others. I’ve been treated good from your office, whether I was on the phone, letters, or in person. I’m not sure what else I can write except thanks again so much for the great job you are doing on my behalf.

-          Peggy K., Louisville, OH

DISCLAIMER: Each and every one of our clients has specific factual and legal circumstances.  The above statements are testimonials of gratitude from former clients that are not intended to create an expectation of success for prospective clients.

“Why doesn’t anyone believe me?” How Social Security Views Your Allegations of Pain and Other Symptoms

When someone suffers from a physical or mental impairment, they often experience day-to-day symptoms that can result in the need to file a claim for disability. Because symptoms vary so much from person to person, it is important that Social Security has a policy in place to evaluate a claimant’s symptoms to verify whether or not the symptoms are severe enough to interfere with basic work activity.

Allegations of symptoms alone are not enough to find someone disabled. A few things must be taken into account in order to find out whether or not someone is disabled.

Medically Determinable Physical and/or Mental Impairment

First, a Social Security claim adjudicator must consider whether or not the physical and/or mental impairment(s) alleged could reasonably be expected to produce the symptoms a claimant alleges. If a medically determinable physical and/or mental impairment cannot be established, the symptoms can not be considered to interfere with basic work activity.

Secondly, the adjudicator must determine the limiting effects the alleged symptoms have on basic work activities. In order to do so, the adjudicator must establish credibility of the claimant’s allegations.  This requires consideration of the entire case record, including the medical evidence of record.

Establishing Credibility

The statements made by the claimant as recorded in the medical evidence of record, as well as through interactions with Social Security employees, must be consistent in order for an adjudicator to find a claimant’s allegations as credible. Other sources an adjudicator can turn to in order to assess credibility may also be statements by third parties and reports completed by the claimant that state medications taken, treatments tried, and factors that either precipitate or relieve pain. Another important factor an adjudicator must keep in mind is that symptoms vary from person to person. What is excruciating pain for one person may be simply a nuisance to another.

Once credibility is established, the adjudicator must have an explanation to back up the allegation of credibility. He or she must cite specific reasons that must also be supported by the evidence in the record.

Medical Evidence of Record and other Sources of Information

As mentioned in the previous section, statements made by the claimant in the medical evidence of record should match up to other records and findings in the claimant’s file. Another reason why medical evidence is important in this aspect is because there may be clinical observations of the symptoms in the records. However, even if the clinical observations are absent from the medical evidence of record, the allegation of symptoms still cannot be totally discounted. An adjudicator must take all of the allegations into consideration in the context of all of the evidence of record.

Longitudinal history established in medical records is also helpful when determining credibility. If an adjudicator can see that a claimant has been persistent in his or her attempts to find relief of his or her symptoms, this can give weight to that person’s allegations of symptoms. However, this is a double-edged sword. If a person, in their attempts to find relief from alleged symptoms, does not follow through with treatment with no good reason, credibility may be damaged. On the other hand, there may be good reasons why a claimant did not follow through with treatment (lack of income, transportation, etc.) that may not be readily apparent in the medical evidence of record and must be investigated further by the adjudicator.

Exams conducted by a state agency of the Social Security Administration must also be taken into account when determining the credibility of a claimant and his or her allegations of symptoms. However, the adjudicator is not bound by these findings. They must explain whether or not they give weight to the state examiner’s findings and why.

Overall, there is a great deal of investigation and research a claim adjudicator must perform in order for the Social Security Administration to make the right decision on a disability claim. This is important for a person to keep in mind when they are applying for benefits. To put it simply, “Honesty is the best policy.” If a claimant is truthful in their allegations of pain or other symptoms, the adjudication process is easier and more clear-cut for all parties involved.

For more information, please visit http://www.ssa.gov/OP_Home/rulings/di/01/SSR96-07-di-01.html

- written by Anna Westfall and Attorney Andrew November

Working While Your Claim is Pending: A Delicate Balance

As we already know, Social Security Disability benefits are for people who are unable to work. However, because claimants still need to eat and have a roof over their heads, stopping work entirely isn’t always realistic. A person may not be able to go back to their past job, but they need to make ends meet somehow.

Fortunately, the Social Security Administration understands this, and has guidelines in place so that people can still take care of themselves while their claim is pending. The following needs to be kept in mind by anyone who is even considering working while their claim for SSD or SSI is pending:

-          Your gross earnings must stay below the limit set by Social Security, called Substantial Gainful Activity (SGA). SGA is raised each year to accommodate the cost of living. Currently the SGA for 2011 is $1,000. In order to still qualify for disability benefits, you must keep your gross earnings well-below that figure.

-          Keep in mind that the type of work you chose to do may also affect your claim. While earning more than SGA is complete bar to receiving benefits, work under SGA is evidence for the Social Security Administration  of what you can and can't do. So while you're still able to receive benefits for the months you worked under SGA, you're also creating evidence that may support or hurt your case.

-          Do not think you can hide your work history from Social Security. Because they look a your earnings, they will always be able to tell when you worked and how much you earned in any given year, as long as they are jobs in which you paid taxes. They even receive information simply of your hiring.

-          If you are being represented, always discuss the possibility of returning to work with your attorney/representative before taking the job. He or she will want to advise you as to whether  it is a wise move in regards to your claim. This is especially important if you are considering self-employment, because the rules are different than discussed above.

The Social Security Administration can even help you go back to work if you are disabled and have been receiving benefits. That information can be found here: http://www.socialsecurity.gov/pubs/10095.html

No one wants to lose their home or be buried further in debt. By keeping these guidelines in mind, a person can still potentially succeed in proving their claim without jeopardizing their basic needs.

- written by Anna Westfall and Attorney Andrew November