SSD After Returning To Work

It is possible to receive Social Security Disability (“SSD”) benefits even if you have recovered and returned to work. The SSD process is notoriously slow, and it is not unusual for a claimant to undergo a lengthy disability appeal process that has lasted for years. By the time the case has proceeded to a hearing, the claimant may have recovered from their disabling impairments. 

 A “closed period” of SSD eligibility could result. A closed period of disability can occur when a claimant was unable to work for 12 months, the durational requirement, but their medical condition improved and enabling them to resume working. Thus, even if you never applied for SSD benefits, if you were out of work for medical reasons more than a year you should consider proceeding with an SSD claim, even though you no longer qualify for benefits. SSD benefits will not be available during the five month waiting period.

It may be easier for a claimant to receive closed period disability benefits than it is to receive open period disability benefits. If an ALJ approves an open period disability, it will be costly, because it is likely the claimant will continue to receive SSD benefits for many years to come. Approving a closed period claim involves less of a financial risk for the SSA. 

I just received an on-the-record (“OTR”) decision from an ALJ who rarely grants them. The OTR occurred after I notified the ALJ that the claimant would be seeking a closed period. The ALJ approved either because of the lower financial risk, or because the claim seemed more credible because of the additional evidence of a good work ethic.

Unum Avoids Trial

I filed a lawsuit in federal court against Unum for wrongful termination of long term disability (“LTD”) benefits in October 2016. Unum was never able to identify a single medical test, exam finding, or symptom that had changed, let alone improved, since it approved the claimant’s LTD benefits, as well as her short term disability benefits and her individual disability policy benefits. 

Unum filed a motion to dismiss the action, and lost. Then Unum filed a motion for summary judgment, asking the court to remand the case, and they lost again. Since Unum always asks courts to uphold their decision, asking for a remand was an admission that they knew their decision was wrong. Now, just days before pretrial submissions were due for the trial, which is scheduled to begin next month, Unum asked the court to cancel the trial because they are reinstating the claimant’s benefits. 

Unum knew all along that it lacked any legitimate defense for its decision to terminate LTD benefits. When it became obvious that my client would reject their low ball settlement offers, and would proceed to trial, Unum asked to cancel the trial at the eleventh hour. My client refused to waive her right to statutory attorney fees as the prevailing party, interest, and costs.

State Agency Fraud

The Social Security Administration (the “SSA”) is reinstituting the reconsideration stage in New York come January 1, 2019. Close to 90% of claims are denied on reconsideration, so why is it being restored? Given that the SSA has been passing rules to make it more difficult to obtain benefits, such as eliminating the treating physician rule, logic dictates that reinstituting reconsideration is intended to do the same. 

Here is a recent example of what can be expected from an extra round of State agency review. I represent a 58 year old claimant who had worked as a school nurse for 27 years. A pain management specialist, internist, and pulmonologist each concluded the claimant had a less than sedentary work capacity. The claimant’s pulmonary function tests each show she met a listing. 

On January 9, 2018, “L. Samuel,” (the State agency doctors are afraid to disclose their first names) a State agency internist, concluded that the claimant was limited to lifting 10 pounds, and was credible. Based on that opinion, the State agency analyst advised approving the claim. However, it was decided that there was a vocational “error” in applying the medical-vocational rules. The State agency then had Samuel redo his report two weeks later. 

During the two week interim period, there was absolutely nothing added to the claim file – no medical evidence, no financial evidence, no vocational evidence. Nonetheless, based on the identical information, without any explanation whatsoever, Samuel now concluded that the claimant could lift twice as much, 20 pounds, and for some reason, was no longer credible. 

Subsequently, an internist from the SSA reviewed the medical records, and rejected Samuel’s attempt to “redo” his conclusions. When brought to the attention of the ALJ assigned to case, the claim was approved without a hearing. I suggested that L. Samuel be referred to the Office of the Inspector General to account for his fraud, but I am confidant that nothing will be done. 

The above illustrates what happens when the State agency effectively reconsiders a claim. Although I would not anticipate that each reconsideration will result in fraud, this serves as evidence that State agency doctors are partial, which serves the interest in the SSA reducing the number of approvals, and increasing delays for those who eventually do get approved.

Ulcerative Colitis

According to the Crohn’s & Colitis Foundation, ulcerative colitis is a chronic disease of the large intestine, also known as the colon, in which the lining of the colon becomes inflamed and develops tiny open sores, or ulcers, that produce pus and mucous. The Mayo Clinic lists diarrhea, abdominal pain and cramping, weight loss, fatigue and urgency to defecate as symptoms. 

Many occupations cannot be accommodated for instantaneous and at will bathroom access, which is what ulcerative colitis frequently requires. That is one basis for a finding of disability. Another was discussed in my previous posting – absenteeism. 

I represent a 57 year old medical technician with ulcerative colitis, whose disability benefits were approved yesterday. The claimant was found to be able to perform sedentary work. However, because it was also found that the claimant would miss two days of work a month, the claimant was found disabled.

How Absenteeism Affects Disability

There are two parts to disability benefit cases - the vocational issues and the medical issues – with the former frequently being overlooked. The task of the person deciding if a claimant is disabled is to ascertain the claimant’s physical and mental restrictions and limitations (R&Ls), and then to compare them with the relevant occupational demands. 

Regardless of whether the claim is being considered by an insurance company, governmental agency, or some other entity, it is usually the claimant’s responsibility to provide the reviewer with support for the claim, which should include R&Ls from the treating sources. The R&Ls should include opinions regarding both exertional and nonexertional abilities, which can be determinative sometimes. 

I represent a 44 year old former hospital admissions clerk with mental impairments, whose Social Security Disability (“SSD”) benefits were approved today. The treating psychiatrist provided supporting narrative reports, progress notes, and impairment assessments. Ultimately, the ALJ rested his decision approving the SSD application on the psychiatrist’s opinion that the claimant’s medical condition would cause him to miss work at least three days a month. It is generally accepted that an employee cannot miss three days of work a month, and still maintain employment, which the vocational expert at the hearing confirmed. 

When pursuing a claim for any type of disability benefits, it is important to have the treating sources opine about any R&L that could potentially adversely impact the claimant’s ability to work.

Do You Need A Lawyer To Get SSD?

The answer to the question is….maybe. The medical and vocational facts are different in every case so there is no definitive answer. I have heard countless times that representatives at the district Social Security offices discourage claimants from using attorneys, even though the Social Security Administration’s (“SSA”) statistics always show that claimants who are represented by attorneys have higher approval rates. 

I represent a 48 year old former cable television technician, which was strenuous work, with severe neck and back problems. She retained us after her SSD application was denied. After reviewing her file, we secured a great deal of medical records and disability reports from her pain management specialist, chiropractor, internist, and neurosurgeon. It was obvious at the hearing that the judge would find that the claimant was entitled to SSD benefits. 

Did the claimant have to have an attorney? No. Did it help the claimant to have an attorney at the hearing? Obviously. Would the judge have approved the claimant’s SSD benefits without a benefit? Possibly, but the SSA’s statistics say her chances of winning were better with an attorney. Would the claimant’s SSD application have been approved initially had an attorney represented her? Possibly. There certainly is nothing to lose by consulting with disability attorney before filing an SSD application.

Advanced Practice Registered Nurses

As of March 27, 2017, the Social Security Administration (“SSA”) considers an Advanced Practice Registered Nurse (“APRN”) to be an acceptable medical source (“AMS”). That means when you apply for Social Security Disability (“SSD”) benefits, information from an APRN can establish that you have a medically determinable impairment, and even meet a listing. 

I represent a 37 year old claimant from Texas with mental impairments whose SSD application was approved in three months. A psychiatrist, APRN, and Social Worker all treat the claimant. What makes the relatively rapid approval significant is that the opinion regarding the claimant’s mental restrictions and limitations was provided by an ANPR. If this claimant had submitted her SSD application before March 27, 2017, then it would not have been approved. 

Notably, the rule seems to have been overlooked at some SSA District Offices. Applicants have retained us after they were denied, who advised that representatives from their District Office said that the medical evidence and opinions should come from medical doctors. Anyone seeking SSD benefits should treat APRNs just as they would treat a medical doctor or doctor of osteopathy.