This is the premiere episode of my new podcast focusing on Social Security Disability issues. I plan on posting new episodes on a weekly basis. The purpose of this podcast is to allow me to talk in more detail about issues in Social Security Disability Insurance and Supplemental Security Income claims. This episode focuses on: introducing myself to my listeners; discussing contradiction between unemployment and Social Security Disability; discussion of privacy concerns when filing a District Court disability appeal; importance of treating physician opinion in Social Security Disability claims; why Social Security uses Consultative Examinations; and importance of being able to perform 40 hours of work per week on a sustained basis in order to be found not disabled.

Show Notes:

Show Intro

• About Me (DelawareDisability.com Profile)
  • Limit Practice to Social Security
  • Write about Social Security on Delaware Social Security Disability Law Blog
  • Represent individuals in Delaware Maryland, New Jersey Pennsylvania
  • Licensed in PA and DE, but can practice administrative Social Security Disability Law in any State
• What I hope to do with podcast
  • Talk in more detail about Social Security Law
  • Review News about Social Security
  • Answer Questions

This Week’s Topics

-  Issues during my week in practice

• Unemployment
  • Explain that unemployment and Social Security Disability can be contradictory
  • Discuss criteria that must be met to qualify for unemployment in Delaware
  • Delaware Unemployment Handbook
• District Court
  • Potential privacy issues when filing a District Court Complaint

-  Social Security News (Discussion of Topics Reported in the News and Blogs this week)

• Treating Physician Opinions
  • Bob Kraft: What is a Medical Source Opinion in a Social Security Disability Claim
  • Gordon Gates: Get Your Doctor’s Opinion Regarding Your Functional Limitations
• Consultative Exams
  • Jonathon Ginsberg: Consultative Exam (CE), Part 1, Part 2, and Part 3
• 40 hours a week
  • Charles Hall: Gotta Be Able to do it 40 Hours a Week
  • POMS DI 24510.057: Sustainability and the Residual Functional Capacity (RFC) Assessment
  • After the podcast Gordon Gates also wrote about this topic: Sustainability and RFC Assessment (Great Read)

-  Closing Credits

• Contacting me
  • DelawareDisability.com Contact Form
  • Email: Steve@SSAlaw.us
  • Twitter: @DisabilityGuy

I hope you enjoy the first episode, and please feel free to give me any feedback for improving future episodes. Simply press the play button below to listen in browser, or click the download link to download. (You can also subscribe in iTunes.)

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President Barack Obama called for Congress to quickly pass an Economic Recovery Provision for 2010 that would extend a onetime payment of $250 to all individuals receiving Social Security Retirement, Disability and Supplemental Security Income Payments. Social Security Administration Commissioner Michael Astrue echoed support for this provision.

Although there will be no COLA for 2009, increases were announced for Substantial Gainful Activity and Quarters of Coverage. Substantial Gainful Activity (SGA) for 2010 will be defined as earned income of $1,000 per month or more. Individuals that earn less than $1,000 per month can still potentially qualify for Disability Benefits despite working. Individuals that are already receiving Social Security Disability Insurance are able to work on a part-time basis as long as earned income does not exceed SGA.

In 2010, individuals must earn at least $1,120 to earn one Quarter of Coverage for Social Security purposes. To earn the maximum of 4 Quarters of Coverage for the year, an individual would need to make at least $4,480 of earned income in 2010. (Individuals must establish that they have at least 20 Quarters of Coverage in the last 10 years before becoming disabled to potentially qualify for Social Security Disability Insurance).

The Center for Medicare and Medicaid Services announced on October 16, 2009 that Medicare Part B monthly premiums will also increase in 2010.

For individuals that are enrolled in Medicare in November 2009 and December 2009, Federal Law has a “hold harmless provision” that prevents an increase to Medicare Premiums if COLA is not large enough to cover increase of Part B Premium. This means that for most individuals currently receiving Social Security Disability Insurance benefits there will be no increase in Medicare premiums as long as Medicare eligibility and enrollment began no later than November 2009. Additional information about the “hold harmless provision” of the Social Security Act can be found at the Center for Medicare Advocacy Website. (For a detailed description of the 2010 Medicare Premium and Deductible increases, please see “CMS Announces 2010 Medicare Fact Sheet and Part B Premium Increase.”)

What you can do.

If you are currently receiving Social Security benefits, it is important that you contact your United States Senators and United States Representative to encourage them to support President Obama’s Economic Recovery Payment for 2010 so that you can qualify for a onetime payment of $250 in 2010. Delaware Residents should contact Senator Thomas Carper, Senator Edward Kaufman, and Representative Michael Castle and encourage each Congressman to support the Economic Recovery Payment for 2010.

If you are currently a client of Linarducci & Butler, PA, please contact our office with additional questions.

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.

Relevant Links:

• Social Security October 15, 2009 Press Release
• Social Security 2010 Fact Sheet
• President Barack Obama’s Statement in Support of Extending Economic Recovery Payment to Social Security Recipients
• Center for Medicare Advocacy Description of Hold Harmless Clause of US Code
• CMS Announces 2010 Medicare Fact Sheet and Part B Premium Increase
• Contact Senator Tom Carper
• Contact Senator Edward Kaufman
• Contact Representative Michael Castle

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1. You must qualify non-medically – Social Security has two main disability benefit programs. When you apply, SSA determines your eligibility for both programs. If you qualify for both, you usually only receive payments from the program that would compensate you at the highest rate.
   1. Social Security Disability Insurance – This is an entitlement-based disability program. To qualify non-medically:
      1. You must have worked, paid Social Security taxes, and earned at least 20 quarters of coverage in the last 10 years before you became unable to work. (You can earn a maximum of 4 quarters of coverage per year. In 2009 you must have earned $4,360 to earn 4 quarters of coverage); and
      2. If you are working, your work must be at a level below Substantial Gainful Activity. (In 2009, your earnings must be less than $980 per month to be working at a level below Substantial Gainful Activity).
   2. Supplemental Security Income – This is a poverty-based disability program. To qualify non-medically:
      1. If you are single -
         1. You must have little or no income from any source. In 2009, you must have less than $694 per month in unearned income ( i.e. workers compensation, VA benefits, disability benefits, unemployment, etc.), or less than $980 per month in income from active employment; and
         2. The value of your assets (excluding primary home and primary vehicle) must be less than $2,000 (this includes money in the bank, investments, retirement accounts, or anything else that can easily be converted to cash)
      2. If you are married (or if you live with a significant other of the opposite sex)
         1. You and your spouse must have little or no income from any source. In 2009, you must have less than $1,031 in unearned income (i.e. workers compensation, VA benefits, disability benefits, unemployment, Social Security benefits), or less than $2,107 per month in combined income from active employment, and
         2. The value of your combined assets (excluding primary home and primary vehicle) must be less than $3,000 (this includes money in the bank, investments, retirement accounts, or anything else that can easily be converted to cash).
2. You must qualify medically – The medical qualifications are identical for each program. If you are under 50 years old, you must prove that you have a medical condition (or a combination of medical conditions) that will prevent you from performing any full-time work on a continuous basis or that meets a medical listing.
   1. There is no partial disability available from SSA. In order to qualify you must be unable to do all full-time work.
   2. You must have medical documentation. You must be seeing a doctor on a regular basis, and your doctor must believe that you are disabled.
   3. You must have either already been out of work (or making less than $980 per month in 2009), or plan on being out of work for 12 months.
   4. You will not qualify because you can only obtain unskilled work at minimum wage. SSA only cares about your ability to work, and not how much you can make at full-time work, or whether an employer would actually hire you.
3. Most people get approved on their initial application. It is a general misconception that SSA denies the majority of people that apply at least two times before they are approved. In reality, SSA approves about 50% of people in Delaware on the initial application. (It becomes much harder to be approved after the initial decision has been made).
   1. If you are denied at the initial application, you most likely you will have to attend an Administrative Law Judge hearing. It usually takes between 2-3 years after the initial application before an individual will reach the Administrative Law Judge level and receive a decision.
   2. Most people that are approved based on an appeal of an SSA decision could have been approved at an earlier level. Most people that are denied at the initial application level either do not qualify for benefits (do not have a severe enough condition), or else previously had not provided enough information to SSA that would result in a favorable decision.
4. Attorneys cannot speed up a decision.
   1. SSA processes cases based on the order that individuals file for benefits.
   2. There is no requirement that a decision be made in a certain amount of time. (SSA can take 2 months or they can take 18 months or more).
   3. Most delays in processing cases occur because SSA is waiting for responses from your doctors, or because they are waiting on information from the person applying.
5. Attorneys can increase your chance of success.
   1. An attorney that handles mostly SSA claims is familiar with the type of evidence that SSA needs to approve a claim. Although they cannot make SSA make a decision faster, they can obtain information from your doctors to increase your chance of being approved at an earlier level.
   2. Attorneys can advise clients of SSA rules and explain if a case will be difficult to win. Attorneys can also help with the application process and make sure that an individual understands questionnaires that they are asked to complete.
6. Doctors usually do not provide SSA with opinions. In every denial notice, SSA lists doctors that have provided reports. Individuals usually assume that this means that their doctor provided SSA with a detailed description of their condition, or stated that they could work. Normally, this only means that your doctor’s office provided a copy of your medical records. The majority of the time your doctor will not even know that SSA received information from them.
7. Social Security only obtains information from doctors you tell them about. If you do not provide SSA with information about all of your doctors, they will not obtain records from all of your doctors. It is important that when you apply for benefits you provide SSA with all details about every doctor that you have seen. This includes phone numbers, addresses and dates of visits. If you do not tell SSA about a doctor, they will not obtain information from him/her.
8. Medical Examinations from SSA doctors are not usually necessary – SSA only schedules a consultative medical examination with one of their doctors if your own doctors have not provided sufficient information or if you do not have your own treating doctors or specialists. If an examination is not scheduled, that means that your doctor has provided enough information about you and your condition for SSA to make a decision.
9. Social Security considers all of your impairments.
   1. Unlike Workers’ Compensation or Personal Injury claims, SSA needs information about every medical condition that you have been diagnosed with and that you have received treatment for. Both physical and mental disorders are considered by SSA. When applying for benefits it is important that SSA be advised of any medical impairment that may limit your ability to work. (This even includes conditions that you were diagnosed with while you were still able to work).
   2. Most often individuals fail to provide SSA with information about depression or anxiety. These conditions can be severe enough that you could be found disabled even without a physical impairment. That is why SSA must know about every problem you have.
10. You do not have to wait to be denied to obtain an attorney.
    1. Our office can help you with a SSA claim even if you have not yet applied. Attorneys that handle a large number of SSA cases are usually willing to represent individuals at any level in the process. Since attorneys know what information SSA is looking for, having an attorney at the beginning of the process can increase the chance of an approval.
    2. Most Social Security attorneys have a free initial consultation by telephone or in person.
    3. Usually attorneys only charge a fee in Social Security cases if an individual is approved for benefits.

There are exceptions for all the areas that are covered. To determine if you qualify for Social Security Disability Insurance or Supplemental Security Income, please contact Steven Butler for a free consultation. Steven is a partner Linarducci & Butler, PA and limits his practice to Social Security Disability/SSI claims. Steven is happy to provide you with a free consultation to determine if he can assist you with your claim. Please use our contact form or call 302-613-0707 to schedule a free consultation appointment.

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The majority of individuals that seek the assistance of an attorney do not qualify under medical listings. Instead they must be able to prove that their medical diagnosis causes limitations that will make it impossible to perform full-time work. If you are under the age of 50, it is not important whether you can perform your past work, just whether you are capable of performing any full-time work based on your limitations.

Generally, you are found to able to perform full-time work if you can stand for a total of at least 15 minutes of every hour during an eight hour work day (for a total of two hours in an eight hour workday), remain seated for a total of 45 minutes out of each hour for an eight hour workday, and have the ability to lift more than 3 pounds of weight on an occasional basis throughout the workday. If your impairment limits your ability to stand for less than a total of two hours during an eight hour workday, it is normally difficult to perform even sedentary work. Additionally, if your impairment causes frequent unscheduled breaks during an eight hour workday, or frequent absences on a weekly or monthly basis, most employers will not tolerate your loss of productivity. Vocational experts generally indicate that if an individual is unproductive for 15% or more of a workday, they are not employable.

For individuals age 50 or older, the disability standard is somewhat more lenient. You must still have a medical diagnosis that will result in limitations in the ability to perform work, but it is possible to be approved for benefits even if there are still jobs that you could perform on a full-time basis. If you are between the age of 50 and 54, and limited to a sit-down job that requires very little skills, generally you are found disabled unless you have performed similar jobs in the past. If you are age 55 or older, it is possible to be approved for benefits even if you can still perform jobs that require standing up six hours or more during an eight hour workday, and lifting up to 20 pounds on an occasional basis. The main question for individuals between the ages of 50 and 64 will be the type of work that they performed in the past, and whether the skills that you have learned from the past work will transfer to easier work. If an individual age 55 and older is only able to perform work with lifting restrictions of less than 20 pounds, and has no transferable skills to work that is consistent with their remaining abilities, generally they will be found disabled.

Before applying for benefits it is a was important that all individuals have treatment for their condition. If you are suffering from an impairment, it is important that it is diagnosed. Simply having aches and pains without a medical diagnosis is generally not sufficient. Social Security considers all physical and mental conditions when determining your disability. If you are experiencing any medical problems, it is in your best interest to discuss those with a doctor and to follow your doctor’s treatment suggestions. Even if you did not stop working as a result of medical condition that you are suffering from, it is important that you have treatment for these conditions and that you disclose your condition to the Social Security Administration.

While pursuing treatment for your condition, it is important that you see specialists for confirmation of your diagnosis, and to obtain suggestions for improvement of your condition. Often, I am unable to offer my assistance to individuals because they have not received sufficient care for their condition. If you are suffering from back pain, arthritis, depression, or any other condition that is preventing you from performing work, it is normally important that you see a specialist for your condition. If there are objective tests to determine if your condition exists, Social Security will normally expect that those tests be performed prior to your application. If your doctor prescribes medications, it is important that you take your medications as prescribed. Failure to follow or comply with your doctor’s instructions can result in a denial for benefits. If you have difficulty following your doctor’s instructions, it is important that you speak with your doctor concerning the difficulties.

For individuals that do not have medical insurance, it is possible to receive treatment through clinics. In Delaware, there are several different low cost physical and mental health clinics that are available. These clinics usually see patients on a sliding scale basis. Information will be asked about your resources and income and the clinics will determine the most that you can pay for the services that are available. Often these clinics are able to provide services to low income individuals free of charge. If you have limited income and resources it is also important that you apply for medical assistance through the state that you live in. If you are below the poverty level, you often will qualify for free medical care through the state you live in. The Medicaid program in the State of Delaware provides better coverage than the majority of health care plans that individuals can purchase on their own. Generally, with Medicaid in Delaware, all doctor and hospital visits are free of charge. Transportation is available at a low cost, and prescriptions are normally less than five dollars.

When you apply for disability benefits, Social Security considers your medical condition and also information that you provide them. It is important that Social Security finds you to be a credible person when you apply for benefits. Social Security looks for inconsistencies in the statements that you provide, and inconsistencies between your statements and statements in your physician’s reports. The use of illegal substances, or the abuse of alcohol can cause problems for you during your application. If your use of illegal substances or alcohol is material to your condition, even if you are disabled, Social Security will deny you benefits. Even if your use of illegal substances or abuse of alcohol does not contribute to your condition, it can still be used as a factor in determining your credibility. If you are using illegal substances, you are breaking the law, and this is a relevant factor when determining if you are believable. Even if you do not disclose information about your use of alcohol or illegal substances, normally this information is found through your medical records.

You cannot begin your application for disability benefits until you are out of work, or your earnings from work have been reduced to a point that you are making less than $980 per month (this is the maximum you can make and still apply for benefits in 2009). Although you can apply for benefits the first day after your employment ends (or your earnings are reduced below the allowable limit), I normally recommend that individuals wait to apply until sufficient proof of their disability is available. Since Social Security must be convinced that your condition will prevent you from returning to work for at least 12 months, or result in death, it is often hard for individuals to be approved if they apply for benefits shortly after employment has ended.

The exception is if you have been diagnosed with a terminal illness. When you have been diagnosed with a terminal illness, it is important to apply as soon as possible. When you apply for a condition that may improve, commonly the Social Security Administration will deny your application even if you are currently disabled. It may be determined that even though you are currently unable to work, your condition is expected to improve within 12 months. Before applying for benefits, I suggest that my clients discuss their options with their treating physicians, make sure that their treating physicians are supportive of their application, and also discuss the expected duration that their condition will prevent them from working. If it is unknown if the condition will result in the inability to work for at least 12 months, I normally suggest waiting to apply until closer to the 12 month mark.

It is always important that you communicate with your physicians throughout this process. You should find out if your doctors are going to support your application for disability, and whether they will be willing to provide information that is necessary to help you be approved. I also commonly ask that my clients have forms completed by their doctors before filing an application for benefits. This gives me a better idea of what your doctor thinks, and allows me to better determine if you have a condition that meets the disability requirements. It is important to communicate with your physicians that you would prefer to work, and that you are only pursuing disability benefits because that is your only option based on your limitations. I always encourage my clients to remind their doctors that they are willing to take any steps necessary to allow them to return to productive work in the future.

Even when everything is done properly for an application for disability benefits, it is a time-consuming process. The average time for a decision in Delaware is between 4 to 7 months on the initial application. Failure to provide all of the needed information to the Social Security Administration can result in delays, and failure to seek necessary treatment can result in a denial. If you are considering applying for disability benefits, I recommend that you contact my office for assistance at the earliest possible time. Although it is possible to pursue disability benefits without the help of an attorney, it is helpful to have an experienced person help navigate you through the process. Please contact my office if you would like a free initial consultation.

Relevant links:

• Social Security Listing of Impairments
• Delaware Medicaid Frequently Asked Questions
• Delaware Low Costs Healthcare Clinics
• Delaware Online Public Assistance/Medical Assistance Application

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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When applying for Social Security Disability, the Social Security Administration must determine the limitations that an individual experiences because of their medical impairments, and how those limitations impact their ability to work. The majority of individuals that apply for Disability Benefits are ultimately denied benefits. In 2008, nearly 2 1/2 million initial applications for Social Security Disability Benefits/SSI were filed. If you add up the individuals that were approved at all levels of the disability determination process in 2008, only about 1.3 million people were actually approved for benefits. This means that only about 35% of people that applied for benefits were ultimately approved.

Based on the difficulty of being approved for benefits, I always encourage my clients to return to work if that it is a possibility. However, it is important to know your limitations before you attempt to work. Although I recommend returning to work, I always remind my clients to discuss their limitations with their physicians before even applying for any work. If the physician strongly opposes any return to even simple unskilled jobs, I recommend that my clients develop a plan with their physicians to obtain treatment that will ultimately allow them to return to work.

The problem that occurs when individuals limit their income so that they can still potentially qualify for Social Security Disability Benefits/SSI, is that the individual adjudicating the claim normally realizes that the individual is doing this. In 2009, it is possible to earn as much as $980 per month and still possibly qualify for benefits. If an individual works on a part-time basis and comes close to the earnings limit on a continual basis, it raises the concern that individual is deliberately limiting income so that they can potentially still qualify for benefits. Since the majority of individuals that begin this process are ultimately going to be denied benefits, this is not a recommended course of action.

My suggestion to my clients is to find work that is consistent with the limitations described by their physician. I normally recommend beginning with part-time employment, unless they are positive that they have the ability to maintain full-time employment. Rather than limiting employment based on earnings allowed, I suggest that my clients limit their employment based on their abilities. If after completing an eight hour shift, the individual would be unable to work for the next 2 to 3 days, it is normally evidence that they are over-exerting themselves. I would recommend that this individual limit their employment to 4 to 6 hours per day and determine if they can perform this work five days a week. If my clients are able to make more than $980 per month, it is normally in their best interest. The amount that they are potentially eligible for from Social Security is not usually substantial enough to maintain a lifestyle that they had been used to, and they often are able to make more money by working. Instead of dwelling on the amount of income that they had earned in the past, the individual’s focus should be placed on making as much money as possible with the physical and mental limitations that they now face.

Often the only way to really know if you have the capability of performing simple work is by actually trying. When my clients fail at their attempts to work, I remind them to discuss this with their physician and to explain why they had difficulty. This can be helpful in adjusting their treatment, and for the physician to understand how limited an individual actually is. I also find that physicians are more willing to support claims for disability, if they know their patients have taken every possible step to return to work. If the attempt at employment lasted for less than six months, and employment ended as a result of the medical impairment, normally it will be considered an unsuccessful work attempt, even if the earnings exceeded the allowable amount. If the work lasts for six months or longer, and the individual earned $980 or more per month for the entire period, it is normally evidence that an individual can perform work at a substantial level.

When determining if a return to work is in your best interest, it is also important to remember that in order to qualify for Social Security Disability, your medical condition must prevent you from performing full-time (or substantial) work for at least 12 months. This means that if an individual is successful at returning to work and earning at the substantial activity level within 12 months of the date that their disability began, normally there will be no eligibility for Social Security disability benefits. If an individual’s return to work does not occur until after they have been out of work because of their medical impairments for 12 months or more, it is possible that they can qualify for a closed period of disability. In my experience, clients that return to work after 12 months or more of a medically related absence are approved at a rate of 75% or more. Normally the disability evaluator finds that individuals that are able to return to work after a period of disability are more credible.

My advice does vary based on the specifics of any individual’s case, and it is always important to consult with an attorney or the Social Security Administration before considering a return to work. As noted above, I also recommend working closely with your physicians to determine your limitations before attempting any return to work.

Below are links with more information on the Social Security Administration website.

• How much can I earn and still receive Disability Benefits?
• SSR 83-33: TITLES II AND XVI: DETERMINING WHETHER WORK IS SUBSTANTIAL GAINFUL ACTIVITY — EMPLOYEES
• SSR 05-02: Titles II and XVI: Determination of Substantial Gainful Activity if Substantial Work Activity is Discontinued or Reduced�Unsuccessful Work Attempt

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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