"CLOSED PERIOD" OF DISABILITY

Here's a question from our mailbag this week:  

I hear people speak of a "closed period" disability claim with Social Security.  What is that?"

A "closed period" of disability simply means that the disability began on a certain date and ended on a certain date.  A closed period could award back pay for a disability that was in the past but would award no future or continuing benefits.

Let's say that Clem Claimant hurt his back at work and had to stop working for back surgery.  Let's say he stopped working on June 1, 2011 and recovered, then he began working again on July 1, 2012.  Since Clem was off work for the required 12 months minimum, he could seek benefits beginning June 1, 2011 and ending June 30, 2012.  If approved, he would receive back pay for the 13 months - minus the 5 month waiting period.  (In this example he would actually receive pay for 8 months, 13 months minus the 5 months).

Since Clem has gone back to work full-time, he will not be eligible for any continuing benefits.  His disability period "closed" when he began working again. 

I have handled many hearings for claimants with closed period disability cases.  If there is medical evidence of a legitimate injury or illness that was severe enough to require the claimant to be off work, most judges have no problem approving a "closed period" of benefits. One issue that may arise in this type of case is: Does the claimant have transferable skills that would have permitted him to have performed any other work while he was off his regular job?  (If he could have performed some other type of work, based on his age, education and past relevant work experience, he may be found "not disabled" during the period in question).
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By Charles W. Forsythe
The Forsythe Firm
Social Security Disability Representatives
Huntsville, AL
(256) 799-0297          See Our Disability Website for More Free Info.


 
  Established in 1979, the National Organization of Social Security Claimant's Representatives (NOSSCR) is a professional association of over 4,000 attorneys and other advocates who help individuals with disabilities obtain Social Security and Supplemental Security Income benefits.   To be eligible for disability benefits, individuals must be unable to engage in "substantial gainful activity" because of a medically determinable physical or mental impairment which can be expected to result in death or has lasted for at least 12 months. NOSSCR members represent these individuals with disabilities in legal proceedings before the Social Security Administration and in federal court.   Learn more about NOSSCR here.

SOCIAL SECURITY & UNEMPLOYMENT BENEFITS

I often get the question, "Should I continue to draw unemployment benefits after I file for Social Security disability?"  That is a complex question.

First, there is a contradiction involved in getting unemployment benefits and Social Security disability benefits at the same time.  To qualify for unemployment benefits in Alabama, you must attest that you are able to work and available for work.  You are also supposed to be actively looking for work.

The requirement for Social Security disability is just the opposite.  SSDI requires that you have a severe physical or mental impairment that makes you unable to perform any substantial gainful activity (full time work).  Obviously, one cannot be both unable to work and able and available for work at the same time.

However, if a person cannot work and has no income, he/she may be forced to collect unemployment.  There is no law that says you are disqualified for disability benefits simply because you draw or have drawn unemployment benefits.  Some, even within Social Security, believe that it is unfair to ask an individual to choose between unemployment and filing for disability, especially since there is no guarantee that disability will be approved.  Even if it is, the process can take months or years.  

Collecting unemployment benefits while a Social Security disability claim is pending is just one of many factors that will be considered when your disability claim is being decided.

IMPROVE YOUR CHANCES WITH SOCIAL SECURITY

If you may be filing an application soon for Social Security disability benefits here are a few simple tips that may increase your odds of winning benefits:

• Be sure your application is complete, readable and leaves out nothing.
• Make your doctor's office aware that they will get a request for medical records.
• If possible get your doctor to complete a medical source statement that documents your functional limitations.  (See my footnote on what a doctor cannot do).
• Complete any additional forms you receive from Social Security or one of its agencies.
• Attend any consultative exams requested by Social Security
• If denied, make a written notice of appeal within 60 days.
• Continue to get regular medical treatment.
• Consider hiring an advocate to help with your appeal.

UNDERSTANDING YOUR DOCTOR'S ROLE IN THE DISABILITY PROCESS:

Contrary to what many think, doctors cannot tell Social Security whether you are disabled or not.  That decision is reserved for the Commissioner of Social Security alone.  What your doctor CAN do is describe how your illness, accident or symptoms restrict your day-to-day activities, including the ability to work.  Here are some examples of statements that a doctor could make to help Social Security determine whether you are disabled?

1.  Claimant can stand for ________ minutes at one time.
2. Claimant can walk for about ________ feet before needing to rest.
3.  Claimant can lift no more than _____ pounds occasionally and ____ pounds frequently.
4.  Claimant's concentration is (moderately, severely, extremely) impaired.
5.  This person would have trouble remembering and carrying out simple instructions.

Notice that these are measurable limits on the ability to function in a specific activity - not a judgment on whether or not the claimant is disabled.  There are many other statements a doctor might make which could support a disability decision.  More weight will be given to a doctor's opinion when he or she is

• a doctor with a treating relationship with the claimant (has treated you a long time)
• a specialist treating you for a disease or injury in his or her specialty area. (Example:  a cardiologist treating you for a heart condition).

NEW OFFICE HOURS FOR SSA

Social Security district offices (also called "field offices") will begin closing to the public each Wednesday at noon beginning January 2, 2013.  Local district offices in North Alabama have already been closing every day at 3:00 PM.  These changes are an attempt to deal with a hiring freeze and budget restrictions within the Social Security Administration.  Hopefully, the changes will be temporary, as they will have a negative impact on the agency's ability to serve the public.

As an alternative to visiting a Social Security field office, you may try one of the following:

Internet service at www.socialsecurity.gov

A phone call to 1-800-772-1213

Hearing offices (ODARs) should not be affected by the new hours.  If you have a hearing scheduled, it should be held as scheduled - even if it is scheduled when a district office is closed.

If our office can be of help to you in a Social Security disability claim - please contact us without cost or obligation:

THE FORSYTHE FIRM

(256) 799-0297  OR  1-855-854-CASH

 

SOCIAL SECURITY DISABILITY TERMS

"Each profession speaks to itself in its own language," someone said.  Social Security is no different.  Here are a few of the terms you will hear when lawyers or other professionals speak of Social Security disability. Definitions are given in that context.

Alleged Onset Date (AOD) - the date on which the claimant alleges his disability to have begun.  

Established Onset Date (EOD) - the date a judge or other decision maker decides that the claimant's disability began.  The EOD may the same as the AOD or a different date.

Administrative Law Judge (ALJ) - a special judge appointed by the Social Security Administration to hear disputes involving Social Security disability issues.  The primary function of the ALJ is to hear appeals of claims that have been denied.

Date Last Insured (DLI) - the last date that a worker is insured under Title 2 of the Social Security Act.  A claim for disability benefits must be filed by this date in order to be covered.  The coverage period is determined by how many quarters of coverage the worker has accumulated - and when.

 - Often called "SSI" or "Title XVI," this is a benefit for the poor and resource-restriSupplemental Security Incomected who become disabled or blind.  It is unlike Social Security Disability (Title 2) in several ways.  The maximum federal benefit in 2012 is $698 per month for an individual.  Claimants must have very limited financial resources and income to qualify.  Benefits are paid from the general US budget, not from the Social Security disability trust fund.  Applicants are not required to have worked in order to qualify for benefits, which is a major difference.  SSI is administered by Social Security and the medical qualifications for disability are the same as for Social Security disability.

Title II (2) or Social Security Disability (SSD) - The "regular disability" program provided to insured workers by Social Security.  This insurance is obtained by working and paying FICA taxes into the Social Security disability trust fund.   As a general rule, a worker must have worked 5 out of the past 10 years to be insured.  This rule varies for younger workers.

Appeals Council - A group of judges in Falls Church, VA. who review cases that have been denied by an ALJ and appealed by the claimant or his representative.  It can take 2 years or more to get a case before the Appeals Council.  The Council may take one of three actions on an appeal:  (1) Refuse to review the case, leaving the ALJ's decision unchanged.  (2)  Reverse the ALJ's decision and award some or all of the benefits.  (3) Remand the case back to the ALJ for a new hearing, or for other specified consideration.  Remand is the most common "relief" provided by the Appeals Council if it takes any action at all. Only in about 2 percent of cases will the Council reverse the ALJ's decision and grant awards on its own.

YOUR DOCTOR'S ROLE IN DISABILITY CLAIMS

Providing medical records promptly is the minimum your doctor can do to assist with processing a Social Security disability claim.  Your doctor cannot "sign you up" for disability or "get you approved."  But he or she can provide the medical data required for Social Security to make a decision.  If your doctor is willing to go a step further and complete a "Medical Source Statement," it will usually help your case.  There are two forms used by Social Security - Form HA-1151 for physical impairments and Form HA-1152 for mental impairments.

I find many doctors reluctant to "get involved" in a Social Security disability claim.  In trying to figure out why, I get the idea that it falls into one of two unrealistic attitudes that doctors have:

Attitude # 1:  Doctors don't want to invest the time in filling out forms.  They have enough paperwork as it is and they don't want more.  Also, they may be afraid of having to testify or fill out more paperwork later.  It's easier just to say no.

Attitude # 2:  Doctors sometimes believe that by completing a Medical Source Statement they are telling Social Security whether your claim should be approved or denied and they don't like that responsibility.  By filling out the form, some doctors believe they are "putting their approval" on your allegations of disability.  This is not true at all.  Under federal law, decisions about whether or not an individual is disabled are "reserved to the Commissioner of Social Security."  The doctor is doing nothing more than providing objective medical opinion - based on his or her examinations, evaluations and treatment. Decision makers will review your doctor's forms along with the entire medical record.  How much weight they give to your doctor's opinion depends on whether it is consistent with the entire medical record.

Disability claims are nearly always easier when the claimant has a long term treating relationship with a doctor who has followed the patient for a significant period of time and knows his/her medical history. 

If your doctor has an"absolutely no disability forms" policy - you may want to change doctors.  Right next to that sign that reads, "Copays due before service is rendered," that doctor may as well hang another sign in his waiting room that says:  MY PATIENTS MAY NOT BE ABLE TO GET SOCIAL SECURITY IF THEY BECOME DISABLED - BECAUSE I WILL NOT FILL OUT ANY FORMS.

BEST WAY TO GET SOCIAL SECURITY DISABILITY

I am often asked about the best way to get approved for Social Security disability.  If you have a legitimate disability that is expected to prevent work for at least 12 consecutive months, here is the only way to be approved.

First, file an application either online, by phone or in person at your local Social Security office.  You can call 1-800-732-1213 for more information about applying.  Be sure to complete all of the additional forms that you will be sent after your application goes in.  Expect a 70 percent denial rate which applies to all applications.  A denial does not mean that you cannot get disability benefits.  It means you will have to move on to the next level.

The next level is an appeal and this involves a hearing before an Administrative Law Judge (ALJ) - who is a special judge who hears Social Security appeals.  It will probably take a year or more to get before this judge, so patience and persistence is very important.

As with any legal proceeding, you must prove your case before the judge.  It is not as simple as going in and telling your story.  Disability hearings are guided by hundreds of rules and regulations and there are certain burdens of proof that you must meet.  Some forms of evidence are acceptable and others are not.   You will need both medical and vocational evidence.  In addition to proving that you have certain conditions, you will also have to prove why these conditions make it impossible for you to perform any work.

The outcome of your appeal will be affected by the type of work you did in the past, your education and skill level, your age and your residual functional capacity (RFC).  

In my opinion a trained and experienced disability advocate or attorney will be a tremendous asset in helping win your case.  Trying to do it alone is kind of like trying to land a Boeing 747 without any flying lessons.  You just might - but the odds are against it.  An advocate or attorney cannot charge you a fee unless you win with payment of back benefits.
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Charles W. Forsythe works for the Forsythe Firm in Huntsville, AL.  (256) 799-0297 or toll-free at 1-855-854-2274.

Learn more about help with Social Security disability 

Established in 1979, the National Organization of Social Security Claimant's Representatives (NOSSCR) is a professional association of over 4,000 attorneys and other advocates who help individuals with disabilities obtain Social Security and Supplemental Security Income benefits.   To be eligible for disability benefits, individuals must be unable to engage in "substantial gainful activity" because of a medically determinable physical or mental impairment which can be expected to result in death or has lasted for at least 12 months. NOSSCR members represent these individuals with disabilities in legal proceedings before the Social Security Administration and in federal court.   More about NoSScr at

CAN YOU DO SEDENTARY WORK?

Social Security disability adjudicators divide work into categories:  sedentary, light, medium, heavy, and very heavy.  Most of my claims win or lose on the ability to perform sedentary work.  If a worker is age 50 or older, cannot perform any of his past work and is limited to sedentary unskilled work, he will be found disabled under the "Grid Rules."

If this same individual is skilled or semi-skilled with skills that transfer to other work, he must prove that he cannot perform even sedentary work before he will be found disabled. The inability to do sedentary work can be due to either an exertional or non-exertional impairment.  Non-exertional impairments do not rely on "Grid Rules."

Vocational evidence, as well as medical evidence, must be used to guide a disability claim to successful conclusion.  Disability advocates are trained to use both types of evidence to win cases. More information about Alabama disability advocates 

A JUDGE GIVES GOOD ADVICE

I recently got a call from a lady who had just walked out of a Social Security disability hearing.  She was unrepresented.  The judge advised the claimant to get representation and offered to delay the hearing until it could be obtained.  Wisely, the claimant took the judge's advice and immediately began looking for a representative.

Rarely do judges hear disability cases where the claimant is not represented.  And there is a reason for that.

"I thought I just went before the judge and told her my story and that was all there was to it," the claimant said.  "When I got into the hearing room, I found that it was much more complicated and I wasn't prepared for what was about to happen."

People commonly under estimate Social Security hearings.  These are hearings before a real judge, with all persons giving testimony under oath. Complex Social Security law and procedural rules will be used.  Vocational testimony will likely be given by a vocational expert using terms that you don't understand:  past relevant work, skill level, SVP, exertional level, medium exertional, light exertional, sedentary, the Dictionary of Occupational Titles, etc.  You will not know how to cross examine the vocational expert to control potentially damaging testimony.  And you will have nobody to help prepare your own testimony prior to the hearing.

I tell claimants that going before an administrative law judge without representation would be equivalent to my getting into the ring with Mike Tyson or George Foreman and going 10 rounds.  It would not be a fair fight.  Believe me!  (Hurts to think about it)!

There is no risk in hiring qualified representation.  You cannot be charged a fee unless 2 things happen:  you win your case and you collect lump sum back pay off your claim.  Your representative will be paid a small percentage of your back pay.  Remember, back pay is not automatic.  You have to prove that you qualify for it.  That is another area where good representation isn't expensive - it's priceless.

 

MY DISABILITY CHANCES - WHY SO POOR?

What are the odds of being approved for Social Security disability benefits on the first try?  Why are the odds so poor?

In Alabama your odds of approval are 29.9 percent on the application level. That's using the latest statistics available for 2011.

Why are the odds so poor?  There are several reasons and I have space to address only a few.

ATTITUDE:  Social Security believes that people will lie or exaggerate to get disability benefits.  The attitude therefore is not being sure that everyone who deserves disability benefits get them--but making sure that nobody gets benefits who doesn't deserve them.  It's an exclusive process by design.

DEFINITION:  Social Security's definition of disability is also very exclusive.  In a nutshell, you must be unable to perform any of your past relevant work and any other work.  In short, if you can do anything full-time for pay then you are not disabled under Social Security rules.  So the definition is also very restrictive.

PROCEDURE:  A claims specialist must examine the medical records of a person she has never met and determine if he is completely unable to work.  She will rely upon doctor's treatment notes - which were never intended to prove disability.  Doctor's and hospitals put only the bare essential, short version of medical history into a patient's chart.  The records almost never say anything about vocational restrictions - the ability to perform work related activity or the lack of ability to function in the workplace. So if this is all the claimant has, it is set up for a denial - unless the claimant suffers an almost catastrophic or fatal illness.

Sometimes an attorney or professional advocate can improve the odds by knowing the kind of information that is needed and taking extra efforts to obtain it.  This extra evidence might include medical source statements, letters, vocational rehabilitation records or affidavits from former employers, friends or family members.  In the end, about 70 percent of applications will be denied and require an appeal hearing.  This is where an experienced representative or attorney can be most valuable.  I advise persons headed for a hearing not to go unrepresented.  If they don't want to hire me, I advise them, hire another experienced representative - but don't go alone.

BAMA FIRM - SOCIAL SECURITY DISABILITY

Social Security disability is provided by an insurance arm of the US Government under the Social Security Act.  When a worker earns money the government deducts FICA taxes and the employer contributes an equal share to the Social Security disability trust fund.  When the worker has worked a sufficient period of time to be insured he or she may file a disability claim upon becoming unable to work.  To receive benefits, a worker must prove

1. that (s)he is not engaged in substantial gainful activity (work)
2. that (s)he has a medically determinable impairment that will prevent work for at least 12 continuous months
3. that he or she cannot perform either past relevant work or any other work

The Social Security disability program has grown so massive, complex and difficult that a whole industry has sprung up to help claimants obtain their benefits.  First, there is the Social Security administration following thousands of pages of laws, rules and regulations handed down by the Congress.  There are contracted state agencies appointed to examine claims and make decisions.  There are administrative law judges and their staffs who hear appeals on claims that are denied.  There is also an industry of professionals, attorneys and other advocates who help claimants navigate through the system and get their disability benefits.  If it sounds complicated, it is.

Why do I need a professional to help with my Social Security disability claim? 

• About 70 percent of applications will be rejected, often in error.
• A majority of rejected claims can be won by an affective appeal.
• Social Security disability is governed by legal rules and regulations that usually require a professional to understand, interpret and use.
• An appeal hearing is a legal proceedure where sworn testimony is given, witnesses may be cross-examined and your case argued.
• Social Security law will dictate the outcome of your hearing.

We recommend that you consider an experienced professional advocate who has handled hearings before US administrative law judges.  A local advocate or counselor has the advantage of knowing the judges, being accessible to you, and being able to become personally acquainted with you prior to the hearing.  He or she may be able to recover more back pay and resolve your case more quickly.  You cannot be charged a fee unless your case has a happy ending and you recover back pay in a lump sum settlement.  Most representatives will qualify for direct fee withholding.  Social Security will approve and withhold the fee from the back pay and pay the representative by direct deposit from the US Treasury at about the same time the claimant receives his or her back payment.

The Forsythe Firm represents Social Security disability claimants at the following Social Security offices: 

In Alabama at:  Florence, Decatur, Cullman, Gadsden, Huntsville, Jasper, Anniston, Albertville (and others).

In Tennessee, we represent claimants at the Social Security hearing offices in:  Nashville, Franklin, Fayetteville, Tullahoma, Lawrenceburg, Chattanooga, etc.

Contact us for a free evaluation of your claim with no cost or obligation:
The Forsythe Firm, Telephone (256) 799-0297 or toll free 1-855-854-CASH.

You may email confidential details about your claim to us by visiting our website and clicking on "Tell Us About Your Claim."   

 
Established in 1979, the National Organization of Social Security Claimant's Representatives (NOSSCR) is a professional association of over 4,000 attorneys and other advocates who help individuals with disabilities obtain Social Security and Supplemental Security Income benefits.   To be eligible for disability benefits, individuals must be unable to engage in "substantial gainful activity" because of a medically determinable physical or mental impairment which can be expected to result in death or has lasted for at least 12 months. NOSSCR members represent these individuals with disabilities in legal proceedings before the Social Security Administration and in federal court.  Learn more at www.nosscr.org