Disability Benefits While Working

The first question that the Social Security Administration (the “SSA”) asks when evaluating an application for Social Security Disability (“SSD”) benefits is whether the claimant is working.  The SSA typically relies on information obtained from the IRS.  If you are working, and the amount you earned is substantial, then your SSD application will be denied.

Under certain circumstances, you can work or receive money, yet still have the right to collect SSD benefits.  One way that you can work without it affecting your right to SSD benefits is if the work does not constitute “substantial gainful activity” (“SGA").  Similarly, if your income is not derived from work, then it does not affect your eligibility for SSD benefits either.

I received a fully favorable decision on-the-record today after providing the SSA with information about earnings that my client received after she stopped working.  First, the SSA agreed that a portion of the earnings, which came from a part time job, was too low by itself to constitute SGA.  Second, the remaining portion of the earnings, which amount was large enough that it could have qualified as SGA, was not deemed SGA since it did not come from work, but rather, reflected money that the claimant received as a member of a class action lawsuit. 

There are other situations where you can receive an income, yet still receive SSD benefits. Do not assume that you cannot collect SSD benefits simply because you worked or received money after the date that you claim you became disabled.

Scleroderma

According to the American College of Rheumatology, Scleroderma (also known as systemic sclerosis) is a chronic disease that causes the skin to become thick and hard; a buildup of scar tissue; and damage to internal organs such as the heart and blood vessels, lungs, stomach and kidneys.  The effects of scleroderma vary widely and range from minor to life-threatening, depending on how widespread the disease is and which parts of the body are affected.  The Scleroderma Foundation estimates that 300,000 people in the United States suffer from scleroderma, which is incurable, disabling and, often, fatal.

I represent a banking executive whose application for Social Security Disability (“SSD”) benefits was denied by the State agency on the grounds that the claimant’s condition should not stop her from being able to work.  Social Security agreed that the claimant had scleroderma, it just did not want to accept that the condition was severe enough to render the claimant, who was under 50 years of age, incapable of any type of full time work.

The most concrete way to establish the severity of scleroderma is by showing that it meets the criteria of a “listing” (see 5/3/12 blog) specifically, 14.04.  If the scleroderma meets the listing 14.04, then the claimant is presumptively deemed disabled.  The best way to show that a claimant meets a listing is by getting the treating specialist to provide a medical opinion explaining why the claimant meets each of the listing’s criteria.  Sure enough, today, the ALJ approved the claimant’s SSD application based on her rheumatologist’s opinion that claimant’s scleroderma met listing 4.04. 

Agoraphobia

Agoraphobia is an irrational and often disabling fear of being out in public. According to the Anxiety and Depression Association of America, people with agoraphobia stop going into situations or places in which they've previously had a panic attack in anticipation of it happening again, and avoid places where they feel immediate escape might be difficult. Some agoraphobes cannot travel beyond their safety zones without suffering severe anxiety. 

The Hearings, Appeals and Litigation Law Manual (“HALLEX”) is a compilation of rules from the Social Security Administration's Office of Disability Adjudication and Review. The HALLEX is used by administrative law judges (“ALJs”) when administering hearings and appeals for people seeking reviews of their applications for disability benefits. HALLEX procedures and policy statements govern hearings. 

HALLEX I-2-3-10 concerns scheduling hearings. Among other things, HALLEX I-2-3-10 provides that an ALJ will consider conducting the hearing at the claimant's request by telephone. Specifically, HALLEX I-2-3-10 notes that, “the regulations permit the claimant or any party to the hearing to request to appear at the hearing by telephone. The ALJ will grant the request to appear by telephone if the ALJ determines that extraordinary circumstances prevent the claimant or other party from appearing in person.” 

The ALJ granted my request to have the claimant appear by telephone due to her agoraphobia. I had the claimant’s husband appear in person to testify, and he explained that that his wife did not sound terribly anxious precisely because she was at home, but that her condition would significantly deteriorate if she were outside that safe zone. The ALJ understood, and issued a fully favorable decision today approving her for disability benefits.

Padro Deadline

While the Padro class action was settled last year, notices about the settlement were just sent last month to class members whose applications were denied by the Queens Five. In order to take advantage of the settlement, class members must affirmatively request a new hearing before a non-Queens Five Administrative Law Judge (“ALJ”). 

The requirement to affirmatively request a hearing was an obvious mistake because why would a claimant chose to let a biased denial stand? The settlement requires class members to request a hearing in 60 days. Failure to do so will likely result in being denied the right to a hearing before a new ALJ. The deadline mandates that a hearing be requested in 60 days, which means that about half the time to request a new hearing has expired.

State Agency Reports Misrepresentations

When the State agency makes the initial determination on a Social Security Disability (“SSD”) application, it prepares a Disability Determination Explanation. The hearing office relies on that eCAT report.

I represent a 55 year old internship coordinator with back problems whose SSD application was approved today, despite the fact that “A. Washington,” the State agency examiner, prepared an eCAT report that a treating doctor was not contacted to perform a consultative examination (“CE”) because there was no treating doctor. However, in that very same eCAT report, Washington noted that the claimant had two treating doctors. 

I filed an OTR for the claimant, which was granted today. The OTR pointed out the eCAT discrepancy. If the discrepancy were not pointed out, it is likely that the claim would have sat until a hearing was held. Since the SSA spent a lot of money on eCAT, you would think that it would honestly comply with the SSA’s simple and unambiguous policy of asking treating sources to perform CEs.

Amending Onset To Avoid Hearing

Sometimes Social Security Disability (“SSD”) claims are denied in whole or part because of the date that the claimant selected as the onset of the disability, known as the alleged onset date (“AOD”). Stated differently, the Administrative Law Judge (“ALJ”) may agree that the claimant is disabled, but may disagree as to when the disability began. 

I avoided a hearing today because I amended the onset date forward a few months. Although amending the AOD decreased the size of the disability period, it did not reduce the claimant’s SSD benefits. There is a full five month waiting period for SSD benefits. An applicant can receive SSD benefits for a maximum of 12 months before the month of the application. Thus, if the AOD is amended prior to the 17 month period, then no SSD benefits are lost. 

Amending an AOD to a later date can make it easier for an ALJ to approve SSD benefits without a hearing for numerous reasons. The later date may be consistent with an increase in medical treatment. The later date could coincide with a notable medical record, such as an MRI. The later date may place the claimant into a different age category that facilitates granting SSD benefits, and so on. The major caveat is ensuring that the new AOD does postdate the date last insured.

Carpenter Avoids Disability Hearing

I was able to avoid a hearing for a 52 year old carpenter from New Jersey that was scheduled for Friday by filing an on-the-record ("OTR") brief. Like many claimants, the carpenter had strong support for his back problems from his spine specialist, whose opinion was supported by MRI testing. The claimant avoided the hearing because of the vocational facts. 

The OTR cited the case law holding that carpenters do lack transferable skills, which means that under Social Security’s Medical-Vocational Rules, the claimant had to be found disabled even if capable of sedentary work. Therefore, the only issue was whether the claimant has the capacity to do light work. 

The carpenter’s work history also helped the case. He graduated from high school in 1979, and spent his entire adult life, from 1979 through 2012, working as a carpenter. The OTR showed that the Third Circuit has established that a claimant with a good work record is entitled to substantial credibility when claiming inability to work because of a disability. More specifically, where a claimant has a long work history of continuous work at the same employer, he is entitled to substantial credibility. I contended that the claimant’s strong work history was objective evidence establishing his credibility, and there was no need for a hearing to assess it. The Administrative Law Judge agreed and approved the OTR.