Social Security Disability (for adults) in 2017 December 21, 2017 Ann J. Atkinson, Attorney at Law 19501 E. Mainstreet, #200 Parker, Colorado 80138 303-680-1881 atkinsonannj@gmail.com Definition of disability and the 5-step sequential evaluation process. 42 U.S.C. 423 (d)(1)(a): The term disability means... the inability to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months;... 20 C.F.R. 404.1520 (paraphrased): 1. Are you performing substantial gainful activity, (SGA) and have you performed SGA since the onset of your disability? If YES, claim DENIED. (Usually. There are many exceptions to this rule.) If NO, go on to Step 2. 2. Do you have a medically determinable impairment (i.e., demonstrated by objective signs and clinical findings) that is severe (i.e., causes work-related limitations)? If YES, go on to Step 3. If NO, claim DENIED. 3. Do you have an impairment that meets or medically equals an impairment found in the Listings of Impairments (20 C.F.R. 404, Subpart P, Appendix 1). If YES, claim GRANTED. 1
If NO, go on to Step 4. 4. What is your residual functional capacity ( RFC )? Does that RFC allow you to return to any of your past relevant work? If YES, claim DENIED. If NO, go on to Step 5. 5. Does your RFC allow you to perform other work that exists in significant numbers in the national economy? If YES, claim DENIED. If NO, claim GRANTED. NOTE: Step 5 is the only step at which the claimant s age, education, and work background are taken into account. 2
When a claimant receives denial of disability benefits on the first application, what are the chances of success on appeal? See below. NOTE: we do not have the reconsideration step in Colorado. 3
What is the best way to prepare a case for an Administrative Law Judge hearing? 1. Sign up for online access to the claimant s Social Security file (through the hearing office). 2. Gather and submit all medical records as soon as possible. 3. Be aware of recent regulatory requirements and practice changes: a. All evidence known to you that relates to whether or not you are disabled, 20 C.F.R. 404.1512. b. The 5 day rule, 20 C.F.R. 404.935. c. Social Security Ruling 17-4p. d. Hearings out of the Colorado Springs hearing office and some others are scheduled 4. Obtain medical source statements from treatment providers with opinions regarding the claimant s limitations in work activities. 5. Present a pre-hearing brief to the ALJ, outlining the medical evidence and arguing your theory of the case. Have three possible avenues for approval, argue them in the alternative. Make it easy to grant benefits, hard to deny. Go through the sequential evaluation process and show why your client should win. 6. Prepare the claimant to testify (e.g., tell the truth, don t exaggerate, be precise). Make sure you review with the client the work history forms and earnings records posted to Social Security, so client can be prepared to testify as to what job was performed for each employer, and how it was performed, i.e., both the physical and mental requirements of the job. 7. Manage expectations with your client regarding processing time. 4
Making a record for appeal. 1. Medical expert testimony cross examination. 2. Vocational expert testimony cross examination. a. Be sure your client s RFC is in a hypothetical question. b. Be aware of obsolete jobs that VEs testify about all the time. (E.G., Addresser, Tube Clerk.) c. Ask to submit post-hearing argument in rebuttal, if necessary. 3. Do appeals and learn from your mistakes. Sub-regulatory sources of law: POMS, HALLEX, SSRs. (All available at www.socialsecurity.gov.) 1. Program Operations Manual System (POMS): internal documents on almost every possible situation, designed to guide the rank and file SSA employee on how to administer the program. Binding on all agency components. 2. Hearings, Appeals, and Litigation Law Manual (HALLEX): Policy statements and procedures to guide ALJs and the Appeals Council. 3. Social Security Rulings (SSR) and Acquiescence Rulings (AR): a. AR: explain how the agency will apply case law, applicable only to the circuit in which it is deemed to apply. b. SSR: interpretations of policy, binding on all components in the Agency. 5
Is there any difference between a physical health case and a mental health case? There is no difference in terms of process or the law. Client management can be more difficult with a mentally ill client, of course, and often a mentally ill client is not the best witness for him- or herself. It is valuable to obtain Third Party Function Report forms (SSA-3373) from people who know the client well. Social Security changed the Listings for mental health impairments in January 2017. This is a major overhaul of the assessment of mental health conditions. See: Listings of Impairments, 12.00 et seq. at 20 C.F.R. 404, Subpart P, Appendix 1, available at: https://www.ssa.gov/disability/professionals/bluebook/12.00- MentalDisorders-Adult.htm Can an elderly person get SSDI and OAP? If a person is on SSDI or SSI, what happens when he or she reaches full retirement age? At full retirement age, a person receiving disability benefits under Title II (i.e., Social Security Disability Insurance or SSDI ) will have their benefit automatically converted to a full retirement benefit, which will be virtually the same amount. Once someone is reaches full retirement age he or she is no longer entitled to any disability benefit. Title XVI (Supplemental Security Income or SSI ) benefits are available to those who are either disabled or full retirement age. A beneficiary must apply for any other benefit to which he or she may be entitled under Title II (SSDI or Social Security retirement, whether early or full). Therefore, if someone gets SSI due to disability, and then reaches even early retirement age, he or she must apply for early retirement. The retirement benefit will then be offset against the SSI amount according to a formula: the first $20 of the retirement benefit is 6
not offset, but the remainder of the retirement benefit is offset dollar for dollar. Old Age Pension ( OAP ) is a Colorado program that is need based. Between ages 60-64, the claimant is eligible if he or she does not have resources amounting to more than $2,000 ($3,000 for a married couple) and a monthly income below $771. $771 is also the maximum benefit amount. OAP is reduced by any income the claimant receives from SSDI or SSI. In 2017, the maximum SSI amount is $735. Helpful handbooks and resources to help you get started: 1. National Organization of Social Security Claimants Representatives (NOSSCR). www.nosscr.org. 2. Bush, Thomas, Social Security Disability Practice. (James Publishing). 3. Bohr, Sarah (Sarah Bohr Publications): a. Pocket Guide to Key Social Security Rulings. b. Pocket Guide to Social Security Disability Law c. Winning Appeals Council Arguments. 4. Hirschman, Ann, Medical Proof of Social Security Disability, 2d (Thompson Reuters). 7