CONSTANCE R. SOMERS ATTORNEY AT LAW WURZBACH, SUITE 100 SAN ANTONIO, TEXAS PH: (210) FAX: (210)

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1 CONSTANCE R. SOMERS ATTORNEY AT LAW WURZBACH, SUITE 100 SAN ANTONIO, TEXAS PH: (210) FAX: (210) Certified In Social Security Disability Advocacy By The National Board Of Legal Specialty Certification May 26, 2017 Elder Law Section, San Antonio Bar Association The outline below covers all aspects of the disability claims process and may be a useful review tool. However, the presentation on May 26th will focus on how to deal with the deteriorating customer service at SSA; the declining approval rates at all stages of the disability process; the tremendous potential of CDB (childhood disability claims); and the pitfalls for SSI recipients who have special needs trusts. SOCIAL SECURITY FOR DUMMIES This outline covers three types of disability benefits: SSD benefit based on SS taxes which the claimant has paid into the system; SSI welfare benefit available to those who may never have worked or worked very little but who are very poor; and CDB (Childhood Disability Benefit), formerly known as DAC, paid to an adult disabled child from the earnings record of a parent. Claimant can find out how much his SSD check (or retirement check) will be by going to ssa.gov and creating an account. Once a claim is filed, this option is not available, so it should be done prior to filing claim. I. Medical requirements for all three benefits A. Disability must have lasted a year or be expected to last a year. B. For CDB benefit, disability must have started before 22 nd birthday. C. 1 st medical inquiry whether claimant meets or equals one of the Listing of Impairments - available at ssa.gov. If so, he wins. Note that a number of the listings have been changed recently. D. Next medical inquiry: where does he fit under the Medical Vocational Guidelines, a/k/a Grids, 20 C.F.R. pt. 404, subpart P, appendix What they are: These are a series of charts used if the claimant s impairment is musculoskeletal and affects the lower body. There is a separate chart for sedentary, light, medium, and heavy work. Page 1 of 7

2 You plug claimant into whichever chart fits his residual functional capacity, find the rule corresponding to his age, education, and work experience (i.e., unskilled, semiskilled, or skilled), and the rule will advise whether he is disabled or not. These rules favor older workers. 2. No one under age 45 is disabled under the grids. After age 45, result depends on the other factors listed above. 3. If claimant has impairments other than musculoskeletal (i.e., mental, severe pain, combination of several impairments, hand problems, etc.), the grids don t apply but can still be used as a framework for decision-making. E. Third medical inquiry: If claimant doesn t meet a listing and is not disabled under the grids, claimant must show that he cannot perform any type of work on a sustained basis, 8 hrs/day, 5 days/week. F. Opinion of treating doctor on medical issues used to be entitled to great or even controlling weight, if it is supported by underlying medical records. New rules effective for claims filed on or after took that away. Now opinion of treating doctor is not entitled to any more weight than the opinion of the paper pusher at DARS who has not examined the claimant. II. Social Security Disability, a/k/a SSD, SSDI, or DIB A. Non-medical requirements 1. Onset date: Cannot be before the claimant has stopped substantial gainful activity (SGA) SGA defined in 2017 as gross of $1,170/month (exception unsuccessful work attempts). 2. Claimant must be currently insured for SSD benefits i.e., must have paid 20 quarters of SS taxes during the past 40 quarters, or 5 out of the last 10 years. In 2017, it takes $1,300 to earn 1 quarter. 3. Financial requirement: NO REQUIREMENT FOR POVERTY. B. Time periods 1. Entitlement can be retroactive as far back as 1 year prior to date of application. 2. Waiting period of 5 full months after onset of disability before entitlement begins. Page 2 of 7

3 3. Ergo, claimant should apply within 17 months of onset date or he may lose potential back pay. C. Medical benefits Medicare 1. Medicare begins 2 years after the entitlement date (which often means 2 ½ years after the onset date) 2. No medical coverage in the meanwhile, unless claimant qualifies for Medicaid. D. Auxiliary benefits are available to minor children, adult disabled children, and spouse who is caring for them. Amount is usually ½ of claimant s benefit, paid over and above claimant s benefit, and it is divided among all of the auxiliaries. III. Supplemental Security Income (SSI) A. Non-medical requirements 1. Poverty this is a welfare benefit. 2. Income and assets of spouse are considered, including live-in GFs or BFs of opposite sex. Not clear how same-sex marriage recognition will affect this. 3. Allowable assets are limited to $2,000 if claimant is single or $3,000 for the family if he is married. House and one car are exempt. 4. SSI is available for disabled children, but income and assets of parents are counted until child turns 18, after which parents income and assets no longer count. 5. Any change in financial status must be reported to SSA and proof kept of the report because SSA WILL LOSE IT. B. Time periods 1. No retroactivity before date of application earliest date of entitlement is the month following the application. 2. No waiting period after date of onset. C. Medical benefits Medicaid Page 3 of 7

4 1. No waiting period for Medicaid; can be retroactive up to 3 months prior to application. 2. More generous than Medicare but fewer doctors accept it. D. Caps on SSI 1. In 2017, maximum SSI is $735, or $755 if claimant gets both SSD and SSI. Any other income, including spouse s income, may reduce it. 2. If claimant receives free room and board in someone else s house (other than spouse s home), benefit amount is reduced by 1/3, down May be possible to fix this by showing that claimant can pay fair share. E. There are no benefits for other family members under SSI. F. If claimant expects to receive a PI settlement or an inheritance, PI attorney or estate planner for parent/grandparent can set up a special needs trust for those funds, which allows claimant to retain SSI and Medicaid. ARC of Texas special needs trust is available if sum in question is too small for an independent trust. But receipt of funds, even into SNT, must be reported. Also, SNT document itself must be furnished to SSI and approved by them. Creating an SNT is NOT RECOMMENDED FOR AMATEURS. Rules for 1 st party SNTs (i.e., one containing assets belonging to the claimant himself, or a PI settlement) are much more restrictive than 3 rd party SNTs (ones created and funded by claimant s relatives with their own money). G. Overpayments of SSI are a huge problem and are almost never waived. IV. Dual Entitlement: If claimant is poor, he files for both SSD and SSI at the same time. After claim is approved medically, SSI will be processed first, so he will get retroactive Medicaid all the way back to 3 months prior to filing date. He may get current Medicaid for one or two months, but then SSD is processed and, if his SSD check exceeds the SSI limit, he loses Medicaid and must wait until 2 years after entitlement date to get Medicare. Thus there is often a big gap in medical coverage. V. Childhood Disability Benefits (CDB), a/k/a Disabled Adult Child (DAC) Page 4 of 7

5 A. Requirements 1. Child (now at least 18) must have become disabled prior to age 22 and must have remained disabled through the application date. 2. In most cases, child must never have performed work at SGA levels since age 22. Exceptions: sheltered work, brief unsuccessful attempts. 3. Child must not be married at time of application. 4. No requirement for poverty. B. Filing date -- Cannot be filed until a parent is either deceased or is receiving SS benefits. C. Proof of disability is often very difficult because the of the long time lapse between the child s 22 nd birthday and the date of the CDB application, but decisionmakers have been surprisingly lenient about this in some cases. D. Transition from SSI to CDB: Child may have been on SSI since age 18 and becomes eligible for CDB when parent dies or retires. Child would expect to lose Medicaid when this happens and gain Medicare, but special rule allows him to immediately re-apply for Medicaid and be covered by both medical programs, assuming other financial factors remain the same. E. CDB cases can yield a much higher benefit for the claimant than SSI, plus they re easier to manage because of no poverty requirement. VI. Application process A. Initial application 1. SSA can take application in a phone appointment with claimant. 2. Claimant or his attorney can file for SSD online. Attorney representation paperwork and SSI application must be sent by mail or delivered to SSA. It may take SSA field office 1-2 months to process online applications. Even if claimant will not be eligible for SSD because he has not paid into the system, best practice is to file an SSD claim while simultaneously mailing in the SSI paperwork. Page 5 of 7

6 3. Attorney representation at initial stage can be very useful claimants don t understand the rules, they don t complete the forms correctly, and the field offices are too overworked to be helpful. B. Initial stage: File goes to DARS in Austin where medical records are gathered, two more forms are sent to claimant to be completed, claimant may be sent for one or more consultative exams, and medical decision is made. This takes 2-6 months. C. Reconsideration stage: Recon must be requested within 65 days of denial, or late with good cause. File goes back to DARS where updated medical is requested. This takes 2-3 months. D. Once file arrives at DARS at either initial or recon stage, claimant s attorney can furnish additional medical evidence using a DARS bar code. Submission of helpful forms from treating doctors at initial or recon stage can sometimes result in favorable decisions. E. Hearing stage 1. San Antonio hearing office has 14,000 cases waiting for hearing expect a 16 months after the hearing was requested. However, after the hearing, it is currently taking 3 ½ months to receive the decision. 3. SA hearing office 20 judges. It is not possible to judgeshop. Hearings are done by video-teleconference for claimants in outlying areas. 4. Frequently a vocational expert and (much more rarely) a medical expert will bescheduled by the Judge to testify at the hearing. 4. Hearing represents claimant s last good chance for success. Allowance rate in San Antonio is 34% as of spring F. Appeals Council stage 1. Attorney should provide a brief setting out ALJ s errors. In 1% of cases AC may pay the case but usually best outcome that can be expected is a remand back to same ALJ (17%). 2. Claimant may have option of filing a new claim instead of filing an appeal. New claim is often the better option even though it almost always results in a loss of any benefits for the period before the ALJ s denial. Page 6 of 7

7 G. Federal Court cases denied by the Appeals Council can be appealed to federal court, though most lawyers will not pursue them to that level. Those who do go that far generally do so only for their own cases and only when there is very strong evidence. Federal court appeals have 2% allowance rate and 42% remand rate. Remands almost always go back to same ALJ with predictable results. If the attorney is successful in obtaining a remand or reversal, however, he may be able to get payment for his time through the Equal Access to Justice Act, even if the claimant does not prevail after the remand. H. Fees for attorneys and non-attorney representatives 1. All fees are contingent and must be approved by SSA. 2. Most of the time the fee is 25% of the retroactive benefits owed to the claimant and his auxiliaries. SSA holds out the 25% and pays it directly to the attorney or representative. 3. In most cases, the fee is capped at $6, An attorney or rep seeking an exception to the 25% limit or the $6,000 cap must file a fee petition, listing all hours spent on the case. Even when the claimant has signed the fee petition indicating his agreement with the requested fee, the approving authorities are sometimes stingy with the amount. If a fee is approved, the attorney must collect the approved amount from the claimant. A fee petition must be used if claimant changes lawyers mid-stream, and then the approving authority will split the 25% fee between the two attorneys unless the prior attorney has waived a fee. Page 7 of 7