What does Medically Determinable Physical or Mental Impairment Mean?

A medically determinable physical or mental impairment is a medical condition that can be shown to exist by medically acceptable clinical and laboratory diagnostic techniques. (20 CFR §404.1508). Social Security Regulations specifically state, “a physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms.”

Even if you have a number of symptoms that are preventing you from working, if you have not received a diagnosis, you cannot be found disabled. (See 20 CFR §404.1529). This is why medical treatment is so important to Social Security disability claims. If your symptoms, such as pain, fatigue, weakness, or nervousness, are not explained with medical signs or laboratory findings that show a medically determinable impairment, Social Security cannot determine that your symptoms affect your ability to do basic work activities. (See 20 CFR §404.1529).

Obtain a Medically Supported Diagnosis Before Applying for Disability Benefits.

If you are experiencing symptoms that prevent you from working, you must receive treatment to determine the cause of your limitations. Once you receive a diagnosis, your symptoms must be supported by signs and laboratory findings. “Signs are anatomical, physiological, or psychological abnormalities which can be observed, apart from your statements.” (20 CFR §404.1528). Laboratory findings are “anatomical, physiological, or psychological phenomena which can be shown by the use of medically acceptable laboratory diagnostic techniques.” (20 CFR §404.1528).

In the simplest form, you must receive treatment, your doctor must confirm that the symptoms you express are occurring, and test results should support the diagnosis. If you have not been diagnosed, or your diagnosis is not supported by signs and laboratory findings, you cannot be found disabled.

I suggest to my clients that they have open conversations with their doctors about their medical condition. If you are unable to obtain a diagnosis from your primary doctor, ask for a referral to a specialist. If you are diagnosed with a condition, but have not underwent any medical testing, ask if a test could confirm your diagnosis. Make sure that your doctors are asking you about your condition on each visit, and that you report any symptoms that you are experiencing.

Persistence is so important when you are suffering from serious symptoms affecting your ability to work. Make sure that your doctor understands what you are experiencing, and that her or she is helping you obtain an explanation and treatment for your symptoms. If your condition cannot be explained by a physical condition, also ask your doctor to explore possible psychological causes.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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I meet with many individuals that are between the age of 62-65, and do not realize that they are able to pursue Social Security Early Retirement benefits and Social Security Disability Insurance benefits at the same time. These individuals normally assume that these programs are mutually exclusive, and that a decision has to be made to pursue one program or the other. In fact, the Social Security Administration will let individuals apply for both programs simultaneously.

There are some important reasons why individuals that are eligible for early retirement should consider applying for both programs; however, it is also important to know that there can be a negative impact on your Social Security payments if you are ultimately found not disabled.

What Happens when I Accept Early Retirement from Social Security?

When you elect to receive your Social Security Retirement at age 62 you are receiving a 25% reduction in your retirement benefit if you were born between 1943 and 1954. [See Social Security Administration’s Retirement Benefits by Year of Birth Page for reduction based on other years of birth.] This is a permanent reduction if you elect to start retirement at age 62. This means that if your full retirement benefit at 66 would be $1,000 per month, you will only receive $750 per month (for the rest of your life) if you retire early.

How Does Disability Impact My Early Retirement?

The exception to this lifelong reduction is if the Social Security Administration determines you are disabled at some point before you reach full retirement age. If you are found to be eligible for Social Security Disability and your payments start retroactively prior to the date you actually began receiving reduced retirement, your early retirement application is effectively withdrawn. The Social Security Administration will pay you the difference between your reduced retirement and your full Social Security benefit for each month that you have already been paid, and you will receive your full payment for each month going forward.

Example

For example, let us assume that an individual named John Smith was born on January 1, 1948. He turned 62 on January 1, 2010. John stopped working because of his health condition on May 2, 2009. Since he was unable to work, he applied for early retirement on January 1, 2010 when he turned 62. John’s full retirement rate is $1,000, but since he elected early retirement at 62, he is only entitled to $750 per month in retirement benefits. [If John is found disabled, he receives payment at his full Social Security rate of $1,000 per month]

Now since John has the necessary quarters of coverage for retirement, he is eligible to begin retirement benefits immediately when he turned 62. John is informed that he can also apply for disability since he stopped working because of a medical impairment that prevented him from continuing to perform work. John applies for Social Security Disability Insurance and alleges that his disability began on May 2, 2009.

The Social Security Administration determines on June 6, 2010 that John is disabled, and that his disability began on May 2, 2009. John is entitled to start disability payments in November 2009. He has already received early retirement benefits from January 2010 until May 2010. Since he was found disabled, he is entitled to his full Social Security rate of $1,000 per month. The Social Security Administration will pay John $1,000 for November and December 2009, and will pay him $250 per month from January 2010 until May 2010 (since he already received $750 per month from early retirement). His early retirement benefits will stop effective June 2010, and John will receive only his disability check of $1,000 per month going forward.

Since John was found entitled to Disability benefits prior to the date that his early retirement began, there is no reduction in his Disability payment. Even when John turns 66, he will continue to receive his full Social Security rate as long as he remained disabled until he turned 66. The benefit to John is that he received payments from January 2010 until May 2010 while he was waiting for his disability application to be decided. This would be important to John, because otherwise he would have no income during that period.

Warning

It is important to remember that if the individual in the example above had not been approved for Social Security Disability Insurance, he would have received the reduced retirement rate for the rest of his life. Individuals that are eligible to begin Early Retirement and apply for Disability should always remember that there is no guarantee that they will be approved for Disability benefits. If you do not want to risk receiving reduced retirement benefits for the rest of your life, then you should simply apply for Disability benefits if you are between the age of 62-65.

The second warning is that the Social Security Administration could determine that your disability began at a later date. If John had not been found disabled until May 2, 2010, his disability benefits would not begin until November 2010. Since he began retirement payments in January 2010, there would have been 10 months that he only received early retirement benefits. John would begin receiving disability benefits in November 2010, but his disability payment amount would be reduced by the number of months he already received early retirement. When John turns 66, he would have a permanent 10-month reduction on his retirement benefits.

In other words, when he turned 66, the Social Security Administration would pay John at a rate as if he had retired at age 65 and 2 months. For an individual born in 1948, starting benefits at age 65 and 2 months would result in a permanent reduction of 5.6%. John’s disability benefit and his retirement rate at age 66 would then be reduced to $944 per month. [Please see the Social Security Administration’s Retirement Benefits by Year of Birth Page for information about early retirement reduction rates based on year that you were born. See POMS RS 00615.110 for more information about benefit reductions when entitled to both Social Security Retirement and Social Security Disability Insurance Benefits.]

What to Remember

It is important to understand what your options are if you are eligible to apply for both disability and early retirement. Prior to pursuing both retirement and disability benefits, it is normally a good idea to speak with someone that has knowledge of the interaction between the two programs. If you decide to proceed without the assistance of an attorney, ask the Social Security Administration to run through scenarios with you of what will happen if you are found disabled on the date that you stopped working, but also if you are not found disabled until a later date, or if you are never found disabled.

It is also normally a good idea to consult with a financial planner when deciding how to proceed with early retirement benefits. A financial planner will be able to review the positive and negative consequences of receiving retirement payments at reduced rate.

This article was written by Steven Butler. Steven is a partner atLinarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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Today the National Organization of Social Security Claimants’ Representatives (NOSSCR) advised its members that HR 4532, the “Social Security Disability Applicants’ Access to Professional Representation Act of 2010″ was signed into law by President Barack Obama on February 27, 2010.

This legislation is important because it permanently enacted fee withholding and direct payment of fees in Supplemental Security Income (SSI) cases and allows non-attorney representatives the option of being directly paid for representation of claimants in Social Security Disability Insurance (SSDI) claims and SSI.

Both of these provisions were enacted as a five-year demonstration project in the “Social Security Protection Act of 2004” that was set to sunset on March 1, 2010. By signing the bill on February 27, 2010, President Obama has allowed the Social Security Administration to continue to withhold fees for representation provided in SSI claims.

Importance of Fee Withholding in SSI Claims

Prior to SSI fee withholding, it was difficult for individuals pursuing only SSI claims to find representation. (SSI is a poverty-based disability program that is available only for individuals with little or no income or assets. Normally individuals that only qualify for SSI have limited work histories). Since there was no avenue for direct payment in SSI only claims prior to the demonstration project, it was difficult for legal representatives to be paid in SSI claims. Although the Social Security Administration would approve an SSI fee, attorneys were required to collect the fee directly from the individual that was awarded benefits.

I am happy to see that the SSI fee withholding provision has now become permanent. This will help individuals that only qualify for SSI payments to continue to receive representation for their claims. If this bill had not been passed, it is likely that a large population of disabled individuals would have lost access to legal representation.

Concern about Non-Attorney Representative Provision

The second provision of the “Social Security Disability Applicants’ Access to Professional Representation Act of 2010″ made permanent a demonstration project that permits certain non-attorney representatives to have fees withheld and directly paid by the Social Security Administration. (This provision places qualified non-attorney legal representatives in the same position as licensed attorneys.) Although this provision was supported by NOSSCR, I have concerns about the impact this provision has on the quality of legal representation.

In order to qualify for fee withholding, individuals must only demonstrate that they have a bachelor’s degree or equivalent education, possess malpractice liability insurance, pass a criminal background check, pass an examination testing their knowledge of relevant provisions of the Social Security Act, and demonstrate ongoing completion of qualified continuing education courses. This is very different from the qualifications required of a licensed attorney.

Licensed attorneys are required to pass the State Bar Examination of at least one State in order to qualify to practice before the Social Security Administration. We are required to uphold the provisions of Social Security Administration, and are governed by professional conduct rules of the State (or States) that license us to practice law. Not only can our right to represent claimants before the Social Security Administration be stripped for unethical behavior, we can also face disciplinary actions from our own State and lose our right to practice law.

Enhanced Duties of Attorneys/Lawyers

As an attorney I am strictly governed in the handling of client money; in confidentiality of information I learn; in competency to perform my job; in management of my non-lawyer assistants; and in the content of my advertising materials. I must hold bachelor’s degree, have an accredited legal education, and pass an intense Bar Examination. This is important because legal rights are at issue when you are pursuing Social Security disability benefits. The representation permitted by this legislation would not normally be permitted by State Law.

I am not suggesting that non-attorney representatives are not capable of providing quality representation; however, I am concerned that they can advertise themselves in a way that does not make clear that they are not an attorney, and they are not required to adhere to the same ethical standards that an attorney must. I have seen non-attorney representatives engage in behavior that is intentionally misleading to clients and that would be a violation of the attorney rules of professional conduct. Although attorneys may also be guilty of this behavior, clients can file disciplinary actions that must be investigated when an attorney commits these acts. The Social Security Provisions fail to provide this same protection to disability applicants.

It is important that when an individual seeks representation, that they are aware of the experience and qualifications of their legal representation. Although a non-attorney representative can call himself or herself a legal representative, you must remember that these individuals are not required to have a formal legal education, and they are not required to follow the same ethical code that an attorney must.

For individuals seeking legal representation for Social Security Disability, remember that the fee permitted for a non-attorney representative is the same as an attorney representative. Realize that licensed attorneys are required by law to uphold a higher ethical standard and the violation of our professional ethics code can result in not only malpractice, but also the loss of the right to practice law. Inquire about an individual’s experience, qualifications, and legal philosophy prior to choosing a legal representative for a disability claim, and choose the individual that you think will best represent your interests.

This article was written by Steven Butler. Steven is a partner atLinarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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Recently James publishing launched JamesDisabilityLaw.com. I was excited to see the launch of the site, as I am a subscriber of five Social Security Disability practice guides published by James Publishing. The practice guides help me stay informed of developments in Social Security Disability Law, and educate myself on unique issues that I do not see on a daily basis. These practice guides are a great resource that have helped improve the representation I provide to my clients.

I was disappointed to see that JamesDisabilityLaw.com is not as helpful for claimants. Although some topics on the website are useful for individuals applying for disability, advice provided regarding representation is not. I have previously written several articles on this site about the advantages of having an attorney, how an attorney can help you with your initial application, and how you can improve your application before applying. Since I previously discussed these topics in detail, I will not rehash the entire articles, but I will simply state that you should never be discouraged from obtaining an attorney as early as possible in the disability process.

My problem with JamesDisabilityLaw.com is that the site suggests that you should not obtain an attorney to help until you are denied at the reconsideration level. You are also discouraged from obtaining an attorney when initially applying for benefits. The site indicates that most observers agree that this timing works, but no authority is cited for this proposition.

In the “Common Social Security Disability Questions” section of JamesDisabilityLaw.com, it is again indicated that the best time to obtain an attorney is before an Administrative Law Judge Hearing. What is surprising about this statement, is question 6 indicates that two of the biggest mistakes you can make in the disability process are: 1) failing to appeal; and, 2) failing to obtain appropriate medical care.

Why I disagree with advice from JamesDisabilityLaw.com

The reason that it is important to have representation while pursuing disability benefits, is that an attorney will advise you on how to strengthen your claim. The three biggest mistakes that I find people make in initial applications are: 1) failing to properly document treatment received; 2) failing to list all medical impairments; and, 3) failing to properly answer questions in disability questionnaires. All of these errors remain in your file throughout the disability process. Although you can file amendments to your application in the future, I have seen many individuals denied benefits because they improperly answered questions when they were unrepresented.

I would never suggest that every individual that is applying for disability benefits requires an attorney when pursuing disability benefits; however, there are advantages for everyone pursuing disability benefits to have representation. Although attorneys will charge a fee for the representation that they provide, you should be advised to weigh the advantages of the assistance with the cost for the services. This should be an individual decision based on your specific circumstances.

General disability websites do not provide state specific advice

When reviewing General Information about Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) payments, it is important to note that there are differences in the disability process based on the state you live in. Although the disability standard is the same, I have also written several articles discussing the difficulty of being approved at the Administrative Law Judge level in Delaware. (See High Delaware ALJ Denial Rates, Impact of High Denial Rates in Delaware, and Fiscal Year 2010 Denial Rates Remain High in Delaware). Mistakes made at the initial and reconsideration stages can cause you to continue to be denied benefits in the future, or to lose eligibility for considerable past-due benefits.

Because of the high denial rate at the Administrative Law Judge level in Delaware, it is important that you take every step to be approved for benefits at the earliest possible time. Steps taken to strengthen your claim before you get to the Administrative Law Judge level will also strengthen your claim if you eventually require an ALJ Hearing.

Initial consultations for Social Security Disability are usually free

The great thing about the Social Security disability process is that attorneys cannot charge any fee without authorization from the Social Security Administration. Since authorization is needed in order to charge a fee, most Social Security disability attorneys see you for a free initial consultation before agreeing to take your claim. This free initial consultation helps you make an informed choice of whether representation would help based on your specific circumstances. Although many individuals are successful in obtaining benefits without the help of an attorney, with the growing backlog of disability claims and the high ALJ denial rate in Delaware, it is important that you make an informed decision before proceeding with an application without legal assistance.

I have forwarded my complaints to JamesDisabilityLaw.com, and I hope that my feedback will help improve the website. There are several areas on JamesDisabilityLaw.com that help educate you on the disability process, but I am just concerned that by discouraging individuals from obtaining legal assistance, they may cause more people to be denied benefits.

UPDATE: I received a response from Jim Pawell, President of James Publishing, shortly after emailing my complaints. I am happy to report that Mr. Pawell graciously accepted my criticism, and is very open to including opposing viewpoints of representation on his site. I am hopeful that areas that caused me concern will be revised in coming days. I also encourage others to forward suggestions to Mr. Pawell. I truly believe that the goal of James Publishing is to provide a site that is complimentary to the excellent practice guides that they publish. I will continue to explore this site myself and provide feedback that can assist individuals pursuing benefits.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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When you apply for Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) payments from the Social Security Administration, it is important to realize that different standards are used to determine your disability based on your age. As an adult, it is hardest to qualify for benefits if you are between the ages of 18-49. The closer you are to full retirement age, the easier it is to qualify for benefits.

Below is a brief overview of what you must establish in order to prove that you meet the medical requirements of disability. These are just general guidelines, so it is always important that you speak to an attorney about your eligibility even if it appears that you will not qualify based on the information below.

Disability Benefits for Individuals Ages 18-49

• Generally to be found disabled:*
  
  • You must have a solid work history (have worked in 5 of the last 10 years before becoming disabled and earned sufficient lifetime work credits); and
    
  • You must have less than $1000/month (in 2010) of earned income; and
    
  • You must have a medical condition (or a combination of medical conditions) that prevents you from performing any of the work you have done in the last 15 years; and
    
  • You must be unable to perform any full-time work (regardless of pay or experience).
    

Disability Benefits for Individuals Ages 50-54

• Generally to be found disabled:*
  
  • You must have a solid work history (generally have worked in 5 of the last 10 years before becoming disabled and at least 7-8 years during your lifetime); and
    
  • You must have less than $1000/month (in 2010) of earned income; and
    
  • You must have a medical condition (or a combination of medical conditions) that prevents you from performing any of the work you have done in the last 15 years; and
    
  • You must be limited to lifting no more than 10 pounds of weight; and
    
  • You must be unable to stand for more than 15 minutes every hour in an 8 hour workday; and
    
  • There must be no sit-down jobs that exist in the economy that use skills that you have acquired from jobs performed in the last 15 years that you still have the ability to perform today.
    

Disability Benefits for Individuals Age 55-64

• Generally to be found disabled:^*
  
  • You must have a solid work history (generally have worked in 5 of the last 10 years before becoming disabled and at least 8.5-10 years during your lifetime); and
    
  • You must have less than $1000/month (in 2010) of earned income; and
    
  • You must have a medical condition (or a combination of medical conditions) that prevents you from performing any of the work you have done in the last 15 years; and
    
  • You must be limited to lifting no more than 20 pounds of weight; and
    
  • There must be no jobs that exist in the economy that use skills that you have acquired from jobs performed in the last 15 years that you still have the ability to perform today.
    

Documentation Required to Proof Disability

• You must have a documented medical impairment; and
  
• You must be receiving ongoing care for your medical condition; and
  
• You must comply with your doctor’s orders (take medication, attend scheduled appointments); and
  
• Your doctor should support your application for disability.
  

Advantages of Being Found Disabled as Opposed to Early Social Security Retirement

• Your Social Security Retirement benefits are not reduced (if you begin retirement early your benefits are reduced for the rest or your life); and
  
• You are eligible to begin Medicare coverage after 24 months of Social Security disability payments; and
  
• You protect your earnings record so that your retirement rate does not decrease.
  

When to Consider Social Security Disability

• You are injured in any way that prevents you from performing work;
  
• You are diagnosed with a medical condition that prevents you from performing work or is terminal;
  
• You retire from work early because you are unable to continue to perform your work
  

What Happens if You do Not have Sufficient Work Credits to Qualify?

• If you have limited income and resources, you may qualify for Supplemental Security Income Payments (SSI);
  
• SSI has the same medical requirements as SSDI, but you also have to establish financial need for eligibility;
  
• Social Security also considers income of spouse when determining eligibility.
  

This is just general information to help individuals that are considering applying for Social Security disability benefits. Please contact our office, the Social Security Administration, or another attorney if your situation matches the criteria discussed above.

^* The rules are slightly different for individuals that are illiterate or unable to communicate in English.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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Luckily, SSA has many services available online. The services are mostly easy to use, but caution is still necessary. Although many activities can be completed online, it is often still necessary to submit paper documents to complete the process.

The following are the most relevant online services for individuals that are pursuing disability benefits from SSA:

• Research Disability Requirements
• Request SSA Benefit Statement
• Check Status of Social Security Disability Claims
• File an Appeal of your Social Security Disability/Supplemental Security Income Denial
• File an Application for Social Security Disability Insurance Benefits

Although SSA has done an excellent job of providing online resources for individuals pursuing disability benefits, it is always recommended to consult an experienced legal respresentative before relying on the information found. SSA does not tailor information on its website to you specifically, and it is possible that information you find may not be accurate based on your unique circumstances.

Researching Requirements of Disability Programs

The SSA Website provides a wealth of details about SSA disability programs. One of the most useful tools is the Benefit Eligibility Screening Tool (BEST). BEST uses details that you provide to help determine which SSA programs, if any, you qualify for. Although this tool normally correctly identifies the programs that individuals may be eligible for, do not assume that the answers are always accurate. If BEST indicates that you do not qualify for benefits, I would still be available to help determine if the information that was provided is accurate.

My favorite part of SSA’s online services, is information that it provides to help you understand SSDI and SSI. An overview of the disability program requirements, application process, and the determination process are provided. There is also a section for Frequently Asked Questions about SSDI and SSI. Most information is general, but it still is a great educational resource. I provide much of the same details found on SSA’s website during an initial consultation appointment, but potential clients often find it helpful to have knowledge of the disability programs before we meet.

Request Social Security Benefit Statement

SSA normally sends a benefit statement to all adults with reported income several months prior to their birthday each year. The Social Security Benefit Statement provides information that is useful in determining eligibility for SSA disability programs. The benefit statement provides estimates of your eligibility amount for various Social Security Programs including disability, and helps an advocate determine whether you have sufficient work credits to qualify for SSDI.

If you have not received a Social Security Benefit Statement recently, SSA allows you to request a benefit statement from its website. It typically takes between 2 to 4 weeks to receive a statement after it is requested. I recommend that all potential clients request a Social Security Benefit Statement prior to applying for benefits. The statement provides the single best way of answering the question, “how much will I receive if I am approved for disability benefits?” If you do not have earnings information available when you meet with me, I am normally unable to answer that question. The Social Security Benefit Statement solves that problem.

There is no hazard of requesting your benefit statement without assistance from a legal representative, and I highly recommend that anyone considering applying for disability benefits request one.

Checking the Status of Your Disability Application

When you apply for SSDI or SSI you are provided with an application confirmation number. This number is provided whether you apply for benefits online or in person at your local SSA office. If you apply in-person, your application number is on your application receipt. When you apply online, the confirmation number is provided when submitting your application.

With an application confirmation number, you are able to check the status of your application through SSA’s website. Typically, the only information provided is that your application is pending. You are not provided with specifics of the process or alerted to problems with the processing of your application.

Although the information provided is not currently very useful, I expect that this will improve in the future. Currently, I warn my clients not to rely on any of the information that is found on the online status page. I have found that several times after an appeal is submitted, SSA’s website has not yet updated the status of the claim. If you are concerned about the information provided when you check on your status, I can work with SSA to obtain accurate information.

File an Appeal Online

SSA allows you to file an appeal of an initial denial or reconsideration denial of SSDI or SSI online. However, there are multiple steps that are necessary to actually complete the appeal. Although an experienced attorney is able process an appeal online without difficulty, an inexperienced individual can easily miss a required step when attempting to file an online appeal. If you fail to accurately complete your appeal, it is possible that you could lose substantial benefits or even eligibility.

I personally use the online appeal process for all my clients. It saves time for SSA because a claims representative does not need to enter all of the information by hand. It saves time for my office because we receive receipts confirming the submission of the appeal and I know the information was entered accurately.

The process is simple if you know what you are doing, but small mistakes can lead to the loss of substantial benefits. Before using the online appeal process, I would highly recommend obtaining the help of a legal representative. If you are unable to obtain help from an attorney, it is in your best interest to appeal in-person at your local SSA office.

Filing an Application for Social Security Disability Insurance Benefits (SSDI)

SSA encourages all individuals applying for SSDI to apply online. By applying online, you save valuable time for claims representatives. Instead of a claims representative having to take 30 to 60 minutes to meet with you to complete application, they simply review the information transmitted from the Internet and make sure that you have completed all steps necessary to apply for benefits. Since SSA resources are limited, online filings assist representatives with handling more claims.

SSA indicates that it takes an average of 30 minutes to complete an online application for SSDI. Although it is not very time consuming to complete, the answers that you provide will have a long-lasting impact on your eligibility for benefits. For individuals that are not well versed in the disability process, several mistakes can be made. Entering the wrong date can cost you several months or years of disability eligibility. Incorrectly providing information can also be considered fraud with criminal implications.

I agree that the online application is great productivity tool for SSA, but I am concerned that individuals can potentially harm themselves by completing an application without the help of an experienced legal representative.

The value of applying in person is that an SSA claims representative is also required to screen your claim for eligibility for other programs. When you apply online, you can currently only file an application for SSDI. Additional steps are necessary in order to complete an SSI application. Failure to apply for SSI can result in loss of potential financial and medical benefits.

I normally use the online application process to complete applications in my office. This allows my staff to review the information being submitted and confirm its accuracy. It is important to note that after you complete an online application on SSA’s website, several additional documents still need to be submitted before your application is actually complete. If you fail to submit all documents, your application may never be processed and you could lose potential benefits and even eligibility. If you need help filing an application for disability benefits, contact my office so I can determine if I can assist you.

Be Careful Using Social Security Online Resources without Help

Although I applaud SSA for embracing technology and using it to be more productive, many risk are involved with the online tools that have been made available. I recommend that individuals strongly consider scheduling a consultation with my office before pursuing Social Security disability benefits or appealing disability denials using the online tools.

The value of the free initial consultation is that there is no obligation when consulting my office for help. SSA Online services are helpful for individuals to educate themselves and obtain general information, but the services introduce inherent risks that were not present when you were required to interact with an SSA claims representative.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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Even if your doctor believes that you are currently unable to work because of your diagnosis, the most important question is how long the diagnosis will prevent you from returning to work. Early stages of breast cancer are normally treated with a lumpectomy followed by possible radiation, mastectomy, and/or chemotherapy. I have had several clients that have completed all of their treatment for breast cancer and experienced a complete remission within 6 to 10 months of their initial diagnosis. Since the Social Security Regulations require that an impairment be severe enough to prevent you from performing work for a full 12 months, these individuals are denied benefits unless side effects of treatment (or other medical conditions) otherwise limit their ability to perform work.

While the immediate concern with breast cancer will be the treatment of the cancer itself, it is important to pay attention to other symptoms that occur. Due to the traumatic nature of the disease, it is common to experience depression because of a breast cancer diagnosis. It is important to discuss any emotional symptoms that you experience with your doctor, and if necessary to even seek psychotherapy. If you fail to seek treatment for these symptoms, it is unlikely that the Social Security Administration will consider any limitations that are directly related to depression.

If you are required to undergo chemotherapy or radiation, it is also important that all side effects of your treatment be discussed with your oncologist and/or radiologist. It is normally determined that during chemotherapy and radiation an individual would have a difficult time performing full-time work, but it is still important that difficulties are recorded by your treating physician. Some individuals with mild symptoms are actually able to continue performing work activities while undergoing treatment. Since not every individual has the same side effects, your doctor must be aware of any problems you are experiencing.

If your cancer is detected early and your oncologist is optimistic that remission will occur after only a brief period of time, consult with an attorney to determine the likelihood of success if a disability application is pursued. Depending on your unique circumstances, an attorney can advise whether it is in your best interest to file a disability application immediately or if you should wait until after you have underwent your initial treatment. An attorney will also remind you of the importance of receiving treatment for other symptoms and not just those that you relate to your cancer diagnosis. This could be very important for establishing that the durational requirement of the Social Security disability program is met.

Luckily the majority of my clients with breast cancer have experienced complete remission within 6-18 months of diagnosis. Most of these individuals ultimately qualified for a closed period of disability benefits because their symptoms prevented them from performing full-time work for at least 12 months, but several were found to be ineligible for benefits because with treatment they were able to begin work again less than 12 months after their initial diagnosis. Only a small portion were eligible for ongoing benefits, and normally this was because the treatment was unsuccessful or because the cancer treatment caused severely limiting side effects.

The important thing to remember when you are diagnosed with breast cancer is that with early detection, the disease is much more treatable and remission is more likely. To have the best chance of being approved for Social Security disability benefits, it is important that you understand the process and the rules of the Social Security disability program. Consulting with an attorney early in the process will help protect your rights and assist you in better documenting your eligibility for the Social Security disability programs.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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Sample Social Security Disability Denial Letter

My clients are often concerned that they were denied benefits because their doctors indicated to Social Security that they could work. The notice specifically states, “the following reports and records were used to decide your claim”. It is often assumed that if a doctor is listed in the notice, that a medical report was provided regarding the individual’s disability status. This assumption is normally wrong. In my experience, 99% of the time only medical records were provided to the Social Security Administration after the Disability Determination Service requested information. The notice is simply providing a list of any doctors that provided medical information to the Disability Determination Service.

What Information did my Doctor Provide to Social Security?

Often your physician does not even realize that he or she has sent information to the Social Security Administration. This is because your doctor’s staff normally responded to the medical request on your doctor’s behalf. In Delaware, the Disability Determination Service is only authorized to provide a flat fee of $15 for any medical evidence requested from your doctor. Most doctors are not willing to provide a detailed medical opinion regarding your disability and to make copies of all of your medical records for $15. Consequently, they simply provide a copy of your medical records.

The reason that it is important to understand that Social Security simply relied on medical records, is because otherwise you may assume your doctor believes that you can work and that you are not disabled. I have had multiple clients that have told me that they did not appeal a decision because they believed that their doctor indicated to Social Security that they could work. They never discussed the decision with the doctor, and sometimes even switched to a new doctor because they blamed the denial on their doctor’s report.

But if Social Security Denied me, doesn’t that mean that my Medical Records don�t Support Disability?

If you are pursuing disability benefits, it is important that you discuss your disability application with your doctor. Tell your doctor that you plan to apply for benefits, and ask for him or her to provide you with a letter in support of your disability application. If your physician provides detailed information indicating the limitations that you experience because of your medical condition, it is more likely that the Social Security Administration will actually know your doctor’s medical opinion.

It is not sufficient for your doctor to indicate that he or she believes that you are disabled; he or she also needs to provide an explanation to support that conclusion. Ask your doctor to provide a detailed description of your medical diagnosis, any test results that support your diagnosis, your symptoms and limitations, and how your medical condition would interfere with your ability to complete a normal workday or workweek. The Social Security Administration normally rejects a simple conclusion that you are unable to perform work. Social Security needs to know why your doctor believes that you cannot perform work. Without this detailed information, the Disability Determination Service must try to determine what your doctor thinks based on his or her records alone.

After you receive a denial from the Social Security Administration, I recommend again discussing your disability with your doctor. Ask your doctor to read your decision and determine if your doctor agrees with the decision. If your doctor disagrees with the determination, ask your doctor to provide another letter explaining why he or she disagrees with the conclusion. Ask your doctor if additional treatment is available or if you should be referred to a specialist. Make sure your doctor understands the importance of you receiving disability benefits.

Work with an Attorney to Review and Appeal your Denial.

It is important to remember that the notices sent by the Social Security Administration are form letters. You will not receive a detailed explanation of why your records do not support your disability, instead you will receive only a short summary indicating that your condition will not last long enough in order for you to qualify for Social Security Disability, that you can still perform some type of work, or that you do not meet other non-medical requirements of the disability program. Because this information can be misleading, it is important that you simply do not abandon your claim and accept the conclusion of the Social Security Administration without understanding the decision.

The majority of attorneys that handle Social Security disability claims will see you on a free consultation basis, and usually are willing to review your decision and try to make a determination if additional information can be provided to the Social Security Administration that will establish that you meet the disability eligibility requirements. Take advantage of this free consultation before deciding to abandon your claim, and find out how an attorney can help improve your claim.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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Most people do not realize that there is a clause in their LTD policy that indicates that if you are approved for SSDI, your LTD benefits will be reduced. Your LTD benefits are normally reduced by almost the entire amount of your SSDI (there is a normally a clause in your LTD policy that states that you will receive a minimum monthly amount of $50-$100, even if your SSDI is greater than your LTD benefit). This is why you are required to apply for SSDI if you are approved for LTD benefits. If you are approved for SSDI, your LTD company will issue an overpayment and require you to repay any amount that you receive in SSDI for the same month that your received LTD benefits.

Most individuals that are approved for LTD benefits sign a form acknowledging that they are being paid at their full LTD rate, but informing them they will be responsible for repaying a SSDI offset if they are eventually approved for SSDI. Once you are approved for SSDI, the LTD company will request a copy of your SSDI Notice of Award, and will compute how much you should have received on a monthly basis in LTD payments if you had received your SSDI payments when they were actually due. You must repay the difference between what you should have been paid by the LTD company and what you were actually paid.

It is important to remember that you do not have to use the legal representative offered by your LTD company. You can hire your own attorney to help you with your SSDI application. I normally recommend that individuals contact their LTD carrier prior to hiring their own attorney. It is important that you receive a written statement from your LTD carrier indicating that if you are approved for SSDI, you will receive a credit for the attorney fee before the LTD overpayment is assessed. If you receive a credit for the SSDI attorney fee, you end up having the assistance of a private attorney for free.

Reasons why you should consider obtaining your own attorney.

• The attorney will work directly for you. They will not represent the interest of your LTD company in any direct way. They will not share information with your LTD company without your authorization.
• You get to choose someone that you are comfortable with. Most of the legal representatives used by LTD carriers are national companies. You normally work with a non-attorney during the SSDI process, and you cannot visit a local office of the person representing you. If you choose your legal representative, you can make sure that you are actually working with an attorney.
• If your LTD benefits are terminated, you may also lose the legal representative that your LTD company hired. The legal representative provided by the LTD company may have a primary responsibility to your LTD company and not to you. If you are no longer eligible for LTD benefits, your LTD company may not have an interest in continuing to pay for your legal representation for your SSDI application.
• National legal representatives do not have local knowledge. The companies used by LTD carriers may not be familiar with the nuances of the local Social Security offices and the Administrative Law Judges in your area. Since they do not represent a large number of individuals in your area, they do not approach your claim with the same unique knowledge that a local attorney has.
• You support your local community. A local attorney normally lives in the same community as you. The local attorney pays local taxes, and uses the money that they earn to help other local businesses prosper. By obtaining a local attorney, you help your own community, and you help the local attorney stay in business so that they can also be available to assist friends and family members with similar issues.

Why it is important to pursue SSDI while obtaining LTD benefits.

Although you are required to apply for SSDI based on your LTD policy that is not the only reason that you should pursue SSDI. There are several other advantages for you if you are approved for SSDI.

• You may be eligible for SSDI longer. Most LTD policies define you disabled for up to 24 months if you are unable to perform the duties of your past work, or if you are unable to work because of a mental illness. After 24 months, you are normally only entitled to continue to receive LTD payments if you have a physical condition that prevents you from performing any full-time work. If you are under the age of 50, you will only be approved for SSDI if you are able to establish that you are unable to perform all full-time work. However, you are entitled to continue to receive SSDI with no time limit even if you are found disabled and remain unable to work solely because of mental illness.
• Medicare Coverage. If you are approved for Social Security Disability, you also become eligible for Medicare after you receive SSDI for 24 months. The only way that you can receive Medicare before the age of 65, is if you are found disabled by the Social Security Administration and receive SSDI.
• SSDI is not reviewed as often. Once you are approved for SSDI, normally the Social Security Administration only reviews your SSDI eligibility every 3-5 years (sometimes longer). Depending on your condition, it is common for LTD companies to review your eligibility as frequently as every few months. I have represented many individuals that have lost their eligibility for LTD benefits while a SSDI claim was still being decided. Since the Social Security Administration reviews claims so infrequently, it is likely that you will remain eligible for SSDI longer than LTD.
• To remain eligible for SSDI coverage. SSDI has a recent work requirement in order to qualify for benefits. You have to have worked in 5 out of the last 10 years prior to becoming disabled in order to qualify for SSDI. If you wait to apply for SSDI for an extended period after you stop working, not only are you potentially losing past-due benefits from SSDI ( you can only receive past-due SSDI payments for a maximum of 12 months prior to your application date), but you also risk losing your SSDI insured status. That means that you may not ever be able to submit a new application for SSDI if you are denied on the first claim you file.
• You protect your Social Security earnings record. If you fail to apply for SSDI and you are unable to work for several years, each of those years will show up with no earnings in your Social Security Statement. This can cause your retirement benefits to be reduced. However if you are approved for SSDI, any year that you are disabled, a “disability freeze” is placed on your Social Security record. In other words, the Social Security Administration will remove any years that you disabled from your earnings statement, and your Social Security Retirement benefit amount will not continue to be reduced for every year that you are not working.

Keep your SSDI attorney advised of any changes in your LTD Benefits

If you are pursuing both LTD and SSDI, it is important to notify your attorney if you are also applying for LTD and if you approved for LTD. It is important to remember that even if you are awarded SSDI, the majority of money that you are awarded in past-due benefits will have to be paid back your LTD company. Your should provide copies of any forms that your doctors complete for your LTD company, to your SSDI attorney. A knowledgeable SSDI Attorney can help advise you of any other issues that you may encounter as you pursue both SSDI and LTD payments, and can provide you with instructions on what to do if you are approved for SSDI and you also received LTD payments.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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Electronic medical records are important because they allow essential information to be communicated in a legible fashion. During an Administrative Law Judge Hearing earlier this week, I had a Judge remark to my client that his mental healthcare provider “needs to learn to write”. Because of the poor quality of these medical records, my client had been denied benefits multiple times. It was impossible for other medical professionals to review these records and understand the degree of my client’s impairment.

Why you should want Electronic Medical Records

• Legibility – records that are typed are easy to read. If your records are not legible, it is impossible to determine the treatment you have received, the complaints that you have experienced, and the objective physical examination results that support your disability. Beyond Social Security, legible records are important if you switch healthcare providers, or if you require emergency care. It would be easy for a wrong diagnosis to be made or to be provided a medication that you have had a bad reaction to if a new physician cannot understand your previous records.
• Redundancy – electronic medical records should be backed-up. Any physician that stores your records electronically should also have a system to archive your records offsite. This is important because if the originals are destroyed, your physician should be able to restore them. If original paper documents are destroyed, the are likely gone forever.
• Access – it should be easier and cheaper to obtain electronic records. Traditional records had to be copied by an individual. Normally the records were bound in a folder and commonly they were hard to feed through a copier. Copying traditional medical records was a time consuming effort. Electronic medical records can usually be printed out with a few clicks of the mouse. Some systems even allow electronic transmission to other doctors, insurance companies, hospitals, and government agencies. This saves your healthcare providers time and should also minimize the cost of record production.
• Quicker Social Security Decisions – if your records are easier to obtain and read, the Social Security Administration is able to issue decisions quicker. In pilot projects where Social Security has been able to obtain medical records electronically, claims have been processed almost 50% quicker (Commissioner Michael Astrue Testimony Before Congress, November 19, 2009). Even your records are not transmitted electronically, your file can be reviewed quicker when the information is provided legibly.

Problems with Electronic Medical Records

I agree that there are currently major problems with the way that electronic medical records are used. It appears that systems that are used and sold to the majority of physicians were not designed with the practice of medicine in mind.

The number one problem that I encounter with electronic medical records is every visit is treated as a full physical examination. Even routine visits for blood pressure checks, common colds, test result reviews, or medication checks, still result in 4 to 8 pages of medical records. Electronic medical records commonly include sections for your complaint, your history, review of your systems, objective examination findings, your diagnosis and your doctor’s plan of care. All of these fields are included on each visit regardless of whether each section was updated (normally only the complaint section and the plan of care is updated).

This method of recording information results in unreliable information. I routinely find that my client’s medical conditions are not described in the review of systems or examination sections when they see a doctor for a routine visit. I have had several clients with spinal fusions where the electronic medical records indicated that a physical examination revealed full range of motion and normal musculoskeletal findings. In the history section, I have seen records that indicated on each of 18 visits over a 2 year period, that my client had started to have leg pain the previous week. Clients have been denied Social Security disability benefits because their treating physician indicated that there were no complaints in areas where an exam was not actually performed.

Improvements Needed for Electronic Medical Records

What is necessary in order to improve electronic medical records, is to only record details that are actually obtained during the visit. The complaint section and the plan should be updated with new information on each visit, the history section and diagnosis sections should be updated, and the review of systems and objective examination information should only be entered if the information was actually obtained during the visit. If an individual’s history or diagnosis changes, the change should be noted with the date of the change and with emphasis added to the new details so that the change is easy to identify. Review of systems and objective examination details should only be included when those details are obtained from a patient, and only the details obtained on that visit should be included.

These changes would help reduce the number of pages of medical records and make the information more reliable. Cutting and pasting should be frowned upon, and prompts should be provided to ask a healthcare provider if the items were reviewed or if exams were completed before the information is inserted into the record. A physician should not be willing for sections to be included in a medical record if the information was not actually obtained on that visit.

What you Should Do

The problems with electronic medical records are important to you because you can be denied disability benefits because of poor documentation. If your physicians do not accurately record your subjective complaints, or indicate that examinations are performed that have not actually occurred, you need to consider switching physicians.

The Social Security Administration requires objective evidence to support your disability, and can deny you if the objective evidence reveals that there is no impairment. Even if one specialist properly documents your condition, if another physician’s records indicate a normal exam, a conflict about the severity of your condition has been created. The Social Security Administration will be required to resolve the conflict and find that one physician is reliable and that the other is not.

I encourage all my clients to be proactive about their treatment. It is important that you know if your physicians are correctly documenting your condition. Ask to review your medical records, and if you cannot read them, it is unlikely anyone else can. If your complaints are not included in your records, it is important to realize that Social Security will be unable to consider them. If there are indications that exams were performed that were not, or normal findings or no complaints are recorded in areas that you experience problems with, it is important to obtain clarification or explanation from your healthcare provider about the conflict. If your condition is not documented well by your treating physician, it is more likely that Social Security will determine that your impairment is not severe, and that your Social Security Disability Claim will be denied.

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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