Category: Social Security Disability

Preparing for your Social Security Disability Hearing

Preparing for your Social Security Disability Hearing

The first and most important rule of any testimony at your Social Security Disability Hearing: TELL THE TRUTH. A claim for disability at its foundation is; an individual’s condition(s) limit his or her work activities to the point where they cannot do their past work or any other work. It does not mean you are bedridden or are in excruciating pain 24 hours a day. For example, if you say that your pain is a 10/10 all day every day, and nothing can be done to alleviate it in any way, the judge will likely find that is not a credible statement. Similarly, if you describe your work history and make it seem as if you performed jobs/functions that you did not, a vocational expert may find you have transferrable skills based on that incorrect information. Therefore, try to refrain from embellishing severity of conditions, restrictions, or past work. It all has indirect ways of potentially damaging your case.

Disability Hearing - Tampa Social Security LawyersSocial Security has published some information on what happens at the hearing:

  • The Administrative Law Judge explains the issues in your case and may question you and any witnesses you bring to the hearing.
  • The Administrative Law Judge may ask other witnesses, such as a doctor or vocational expert, to come to the hearing.
  • You and the witnesses answer questions under oath. The hearing is informal but is recorded.
  • You and your representative, if you have one, may question any witnesses and submit evidence.

This can be viewed on their website here.

One extremely important component of your testimony is that the judge finds you a credible witness. That means that your testimony is consistent with all the other evidence in your case (the medical records, questionnaires completed in the past, work history, etc).

A person preparing for a Social Security disability hearing should discuss the strategy for the hearing with his or her attorney in advance of the hearing. However, there are essentially four main areas that should be discussed, either through testimony or documentary evidence submitted in advance of the hearing:

  • Your work history and the jobs performed
  • Your education background
  • Your conditions/medical treatment
  • Your daily activities/how your conditions limit those activities

The relevant legal questions in a disability hearing can be answered based on the responses to the above four categories. For a more in depth review of the legal process, i.e. the Five Step Sequential Evaluation process, please do so here.

Ideally, the record should contain most of this information prior to the hearing. Social Security disability hearings are largely won based on the quality of record evidence in the file-which is in there prior to the hearing. As most of the relevant information is (or should be) in the record, the judge may not want to cover everything in detail. Some judges prefer to start asking the claimant questions immediately, whereas others let the claimant’s disability attorney do the bulk of the questioning from the outset. Some hearings can be relatively quick—15 minutes, and some can go on for an hour or so. Every hearing and case is different, so that is where discussion with your Social Security disability attorney will become crucial to your understanding of this process before the hearing.

Our firm of Inverness disability attorneys represent individuals at all stages of Social Security disability claims. We also have office in Tampa, Brooksville, and Inverness. Whether you are looking for a Social Security attorney in Tampa, or a Brooksville Social Security Attorney, we have you covered. Contact our office for a free consultation.

No Social Security Cost of Living Adjustment for 2016

The Social Security Administration announced there will be no cost of living adjustment (COLA) for benefits for the calendar year 2016. There are almost 13 million persons receiving Social Security Disability payments and/or SSI that will be impacted by this decision not to give a COLA.

History of the Cost of Living Adjustment.

The purpose of the yearly adjustment is to ensure that the purchasing power of Social Security and Supplemental Security Income (SSI) benefits are not eroded by inflation.

How does Social Security calculate the Cost of Living Adjustment?

It is based on the percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) from the third quarter of the last year a COLA was determined to the third quarter of the current year. If there is no increase, there can be no COLA. [1]

Automatic COLA adjustments began in 1975, and the only years in which there has been no COLA are 2010, 2011, and now, 2016.

 

Interestingly, the Social Security Trust Fund took in 855 Billion dollars in 2014. Of that 855 Billion, only 96.2% was paid out to beneficiaries and to cover administrative expenses.[2] That means that the Social Security Taxes collected over what was paid resulted in a net surplus of 3.8%.

Our firm has been practicing Social Security Disability Law since 1994. If your claim for Social Security Disability benefits has been denied, it is crucial you appeal the Social Security disability denial within 60 days. As a Tampa Social Security Law Firm, we will do everything in our power to keep you from losing out on disability benefits you deserve. Our Tampa Disability Lawyers are available for free consultations.

[1] http://www.ssa.gov/news/cola/

[2] http://www.ssa.gov/policy/docs/chartbooks/fast_facts/2014/fast_facts14.pdf

Trial Work Period; Social Security Disability

This article is intended to provide information regarding a trial work period in general, and how the Social Security Administration determines what actions trigger the beginning of the trial work period.

Social Security recognizes the concept of a trial work period, during which a person eligible for Social Security disability benefits is permitted to attempt to engage in work and still collect disability benefits. A trial work period begins when the person engages in services in any given month. In this context, services are defined as greater than $780 per month (in 2015). In 2014, the services threshold was $770 per month. In 2013, the amount was $750 per month. In 2010-2012, the services threshold was $720 per month.  For self-employed persons, services can mean any month in which the person works 80 or more hours.

Social Security will not consider the services performed during the trial work period as showing that the person’s disability has ended until such time as the individual engages in services for at least nine months in a 60-month period. The months do not have to be consecutive, but any month in which the individual engages in services as defined above. When an individual engages is services  for nine months in the 60-month period, the individual will go into what is called an Extended Period of Eligibility where an individual’s earnings and medical conditions are assessed by the Social Security Administration.

If an individual eligible for Social Security disability benefits does perform work for money, or puts in hours in self-employment, it is important to keep meticulous records of wages earned and hours worked.  This is not only because an individual needs to the ability to definitively state whether his/her earnings or hours are considered services, but to have that information in the event there is ever a contention by the Social Security Administration that the individual has engaged in services, when in fact they had not.

If you have questions regarding a trial work period and how it applies to your specific situation, please contact our office. The Social Security Administration has a very informative FAQ section on a trial work period, which can be viewed here and here.

Our firm has been practicing Social Security Disability Law since 1994. If your claim for Social Security Disability benefits has been denied, it is crucial you appeal the Social Security disability denial within 60 days. As a Tampa Social Security Law Firm, we will do everything in our power to keep you from losing out on disability benefits you deserve. Our firm assists clients with applications, request for reconsiderations, request for hearings, and administrative hearings. If you have questions for a Social Security Disability attorney in Tampa, call our office for a free consultation.

Social Security Benefits; Withdrawing an Application

Social Security Benefits; Withdrawing an Application

While withdrawing an application for either Social Security disability benefits or Social Security Retirement benefits is rare, certain circumstances can present where withdrawal of an application is the better course of action for an individual.

For example, John turns 62 and files an application for Old Age Benefits (Retirement Insurance Benefits), commonly referred to as “Early Retirement”. He is working at the time he elects to file for retirement benefits. Three months later, he has an accident where he sustains injury to his back and neck. His injuries from his back and neck will prevent him from working for the rest of his life. In this situation, John has the option to withdraw his application for retirement benefits and file for Social Security disability benefits, which will likely result in a higher monthly benefit than the reduced early retirement benefit. This option is made possible through the rule allowing withdrawal of an application.

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The Rule: Withdrawal of an Application, C.F.R. § 404.640

(a) Request for withdrawal filed before a determination is made. An application may be withdrawn before we make a determination on it if—

(1) A written request for withdrawal is filed at a place described in § 404.614 by the claimant or a person who may sign an application for the claimant under § 404.612; and

(2) The claimant is alive at the time the request is filed.

(b) Request for withdrawal filed after a determination is made. An application may be withdrawn after we make a determination on it if—

(1) The conditions in paragraph (a) of this section are met;

(2) Any other person whose entitlement would be rendered erroneous because of the withdrawal consents in writing to it. Written consent for the person may be given by someone who could sign an application for him or her under § 404.612; and

(3) All benefits already paid based on the application being withdrawn are repaid or we are satisfied that they will be repaid.

(4) Old age benefits. An old age benefit application may be withdrawn if, in addition to the requirements of this section—

(i) The request for withdrawal is filed within 12 months of the first month of entitlement; and

(ii) The claimant has not previously withdrawn an application for old age benefits.

(c) Request for withdrawal filed after the claimant’s death. An application may be withdrawn after the claimant’s death, regardless of whether we have made a determination on it, if—

(1) The claimant’s application was for old-age benefits that would be reduced because of his or her age;

(2) The claimant died before we certified his or her benefit entitlement to the Treasury Department for payment;

(3) A written request for withdrawal is filed at a place described in § 404.614 by or for the person eligible for widow’s or widower’s benefits based on the claimant’s earnings; and

(4) The conditions in paragraphs (b) (2) and (3) of this section are met.

(d) Effect of withdrawal. If we approve a request to withdraw an application, the application will be considered as though it was never filed. If we disapprove a request for withdrawal, the application is treated as though the request was never filed.

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Our firm has been practicing Social Security Disability Law since 1994. If your claim for Social Security Disability benefits has been denied, it is crucial you appeal the Social Security disability denial within 60 days. As a Tampa Social Security Law Firm, we will do everything in our power to keep you from losing out on disability benefits you deserve. For more information on the Social Security Disability process, please browse our pages:

1. The Social Security Disability application
2. Filing a Request for Reconsideration
3. Filing a Request for Hearing
4. The Five Step Sequential Evaluation Process
5. The difference between Social Security Disability vs. Supplemental Security Income
6. How Social Security has changed the claims handling process.

We would be happy to answer questions regarding you Social Security disability claim. Call for a free consultation.

 

Substantial Work in Disability Cases; Self Employment

Substantial Work in Disability Cases; Self Employment

The first question addressed in the five-step sequential evaluation process used to evaluate disability claims is whether the claimant is engaged in substantial gainful activity.

Generally, substantial work is physical or mental work a person is paid to do. Work can be substantial even if it is part-time. To decide if your work is substantial, the Social Security Administration considers the nature of the job duties, the skills and experience needed to do the job, and how much the individual earns.

Generally, the Social Security Administration will find work is substantial if the gross earnings average over $1090 per month. If an individual is blind, the amount is substantially higher.

Even if an individual has to take a job that pays less, it may still be substantial under the Social Security rules.

If a person is self-employed, the Social Security Administration will consider the kind and value of the work, including the individual’s role in the management of the business, as well as your income, to decide if your work is substantial.

It is not always easy to calculate how much a self-employed person is actually making in profit, let along evaluating that work activity to determine whether it is “substantial” under Social Security rules. There are several rules for self employed persons in the Code of Federal Regulations. The applicable rules are as follows:

(2General rules for evaluating your work activity if you are self-employed. We will consider your activities and their value to your business to decide whether you have engaged in substantial gainful activity if you are self-employed. We will not consider your income alone because the amount of income you actually receive may depend on a number of different factors. . .  We will evaluate your work activity based on the value of your services to the business regardless of whether you receive an immediate income for your services. We determine whether you have engaged in substantial gainful activity by applying three tests. If you have not engaged in substantial gainful activity under test one, then we will consider tests two and three. The tests are as follows:

(i) Test one: You have engaged in substantial gainful activity if you render services that are significant to the operation of the business and receive a substantial income from the business.

(b) What we mean by significant services. (1) …we will consider you to be rendering significant services if you contribute more than half the total time required for the management of the business, or you render management services for more than 45 hours a month regardless of the total management time required by the business.

c)What we mean by substantial income—(1)Determining countable income. We deduct your normal business expenses from your gross income to determine net income. Once we determine your net income, we deduct the reasonable value of any significant amount of unpaid help furnished by your spouse, children, or others. Miscellaneous duties that ordinarily would not have commercial value would not be considered significant. … That part of your income remaining after we have made all applicable deductions represents the actual value of work performed. The resulting amount is the amount we use to determine if you have done substantial gainful activity. For purposes of this section, we refer to this amount as your countable income.

(ii) Test Two: You have engaged in substantial gainful activity if your work activity, in terms of factors such as hours, skills, energy output, efficiency, duties, and responsibilities, is comparable to that of unimpaired individuals in your community who are in the same or similar businesses as their means of livelihood.

(iii) Test Three: You have engaged in substantial gainful activity if your work activity, although not comparable to that of unimpaired individuals, is clearly worth the amount shown in § 404.1574(b)(2) when considered in terms of its value to the business, or when compared to the salary that an owner would pay to an employee to do the work you are doing.

The CFR regulations noted above can be found here.

If you have questions about a claim for Social Security disability benefits, or with you speak with a Tampa Social Security disability lawyer, contact our office for a free consultation.

Sickle Cell Disease and Social Security Disability

Sickle Cell Disease is the most common form of inherited blood disease and affects about 90,000 – 100,000 Americans[1].  Sickle Cell Disease causes the red blood cells to become hard and sticky, and look like a C-shaped farm tool called a “sickle.” People with Sickle Cell Disease can live full lives and enjoy most of the activities that other people do. However, the symptoms can progress and impair an individual’s ability to work. This Blog article will address the physical symptoms presented by Sickle Cell Disease that may impair an individual’s ability to work. An inability to work will typically prompt an application for Social Security disability benefits.

sickle-cell-disability-lawyerTreatment for Sickle Cell Disease includes antibiotics, pain management and blood transfusions. About half of people with sickle cell anemia survive to age 50. Generally, Sickle Cell Disease is not curable, except in rare instances by bone marrow transplantation.

The ultimate question in a disability case where the person was working, then has to stop working because of the symptoms of their disease would be: Can the person, given their residual functional capacity perform either their past work or any other work in the national economy? Of course, to answer this, you would need the person’s residual functional capacity, or in other words, what an individual is able to do, despite functional limitations resulting from Sickle Cell Disease (or a medically determinable complication) and condition-related symptoms.

Clinical Problems Caused by Sickle Cell Disease

  • Anemia
  • Acute Splenic Sequestration
  • Acute Splenic infarction
  • Transient Aplastic Crisis
  • Hepatic Sequestration
  • Jaundice
  • Visual impairment
  • Hand-foot syndrome
  • Growth impairment
  • Cardiomyopathy
  • Strokes
  • Acute chest syndrome
  • Infections
  • Pain ( thrombotic, vaso-occlusive ) crises
  • Leg Ulcers
  • Damage to Major Organs
  • Pulmonary hypertension

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The RFC assessment from POMS DI 24510.001:

  • is based primarily on medical evidence but may also include observation or description of limitations (e.g., lay evidence, including the claimant’s statement);
  • describes what an individual is able to do, despite functional limitations resulting from a medically determinable impairment(s) and impairment-related symptoms; and
  • is an administrative determination of an individual’s capacity to perform work-related physical and mental activities.

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Residual Functional Capacity

Although the sickle cell trait is not serve in and of itself, the condition can cause significant limitations in some individuals.  Even if a claimant with Sickle Cell Disease appears physically strong, possibly lethal or crippling consequences ( Stroke, heart attack ) can occur if the red blood cells are stressed enough to deform. There are also hot and cold stressors for persons with Sickle Cell Disease. Therefore, it is common to have environmental limitations.

Additionally, physical activities may result in limiting fatigue or have resulted in previous serious medical complications. In addition, If there are additional complications, such as visual, neurological, cardiac, etc., these impairments will also be carefully evaluated and weighed.

As is the case with most medical conditions and Social Security disability, it is not the severity of the diagnosis, but how that condition limits the individual’s ability to work. If you have questions regarding Sickle Cell Disease and Social Security disability, or have other questions for a Tampa Social Security Disability Lawyer, call our office for a free consultation.

[1] http://www.cdc.gov/ncbddd/sicklecell/data.html