Welcome! This site is written for Social Security disability claimants, for their legal representatives, and for the network of people involved in the Social Security disability claim process. I hope you find it helpful.
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It is tax time, and each year I hear from clients who won their cases the previous year and are wondering about the tax consequences of their disability benefits. This topic is particularly important for those who received a significant payment of past-due benefits.

The answer is part of your disability benefits may be taxable. Here is a link to IRS Publication 915 on the topic of taxation of Social Security benefits.

As you can see from the publication, it’s complicated. If you received a large lump sum payment of past due disability benefits last year, this is the time to get in touch with a tax accountant.

I get calls and emails from people who are still working, but are struggling, and are considering Social Security disability.

Depending upon a person’s individual circumstances, this is typically what I say to those who are currently working, but are exploring the disability process:

It is hard to plan for disability. First, there is no disability from Social Security if you are working, and earning more than  the level of substantial gainful activity. So you must have stopped working to apply. I typically suggest that people who are still working should keep working as long as possible.

Second, Social Security does not pay for the first 5 full calendar months of disability. So you need to be prepared financially for 6 months, at a minimum, of little or no income after you stop working.

Third, not being able to perform your past work is not enough to qualify for disability benefits. Depending upon your age, Social Security will look at your ability to perform other work, including work that is sedentary, unskilled, and not demanding mentally. This work includes jobs that many people would never consider.

Lastly, you need to be able to back up the functional limitations that prevent you from working with significant medical evidence, preferably including opinions from your treating doctor(s).

That is a blunt assessment. But it reflects the reality of the disability process today. Disability is a last resort.

Although medical evidence is the centerpiece of a Social Security disability claim, non-medical evidence can play an important role, and help to persuade an administrative law judge that your are disabled from competitive employment.

Atlanta, Georgia Social Security disability attorney Jonathan Ginsburg wrote a good article on this subject, entitled "Unconventional, Non-Medical Evidence That Can Help You Win." You should read it.

Attorney Ginsberg correctly notes that the medical record alone often does not contain a complete picture of a person's capacity to work. Ideally, an opinion from your doctor will specify the functional limitations that prevent you from working. But you should not stop there. Non-medical evidence can contribute to your case.

Work records can be helpful. Those records may show a pattern of absences due to your medical condition. Or they may show that a person, before stopping work altogether, tried to stay employed with a series of jobs that were progressively less demanding. Written statements from co-workers or supervisors can also help to shed light on the difficulties experienced in the workplace. These statement can enhance a disability claimant's credibility. 

Attorney Ginsberg phrases the overall issue very well. The goal is "to paint a picture of a person who is applying for disability as a last resort and only because you cannot – not will not – work anymore."

In addition to work records, I also will seek out statements from a spouse, family, or a friend. These also can help to paint that picture.

Social Security has issued a new rule regarding the production of medical evidence for Social Security disability cases. Entitled Submission of Evidence in Disability Claims, the rule makes several changes in the regulations effective April 20, 2015.

If you are practicing in this area of law, you have to read the new rule. It is likely to affect your practice and your procedures.

One notable change is that any and all medical source statements and opinions from treating doctors must be submitted. The rule is explicit that medical source statements do not fall within the attorney work product exception. That should give you pause before you ask all treating providers for opinions.

The reentitlement period is a safety net for Title II disability recipients who return to work. The reentitlement period begins at the end of the 9-month trial work period, and lasts for 36 months.

If you cannot continue working at the SGA level due to your disabling impairments during the 36-month rentitlement period, you do not have to go through the disability application process all over again. Rather, you just notify Social Security that you are unable to work, and they will restart your disability benefits right away. This safety net is intended to encourage you to test your ability to work.

You only get one 9-month trial work period, and only one reentitlement period.

Trial work and reentitlement are for Title II disability beneficiaries. There is no trial work period or reentitlement period for SSI beneficiaries.

Remember also, when you ask the ALJ for a closed period because you have returned to work, there is no reentitlement period.

Trial work is a concept that applies to people already entitled to Title II disability benefits. Sometimes Title II recipients will attempt to return to work to see how it goes. Social Security encourages this, and allows a 9-month period for a person to still receive disability benefits while testing his or her ability to work. However, this trial work can be a trap for the unwary.

Some recipients try working part-time, and may earn less than the SGA amount. They assume their disability benefits will not be affected by this part-time work. After all, they were allowed earn that much when they applied for disability benefits. But the trial work amount is quite a bit less than SGA, and this can cause problems for people who earn more than the trial work amount, and do not keep track of their months of trial work.

After 9 months of trial work, Social Security can terminate your benefits if you reach the level of SGA. The 9 months of trial are not necessarily consecutive, so a few months here and there of part-time employment can consume the trial work period. The SSA looks at a rolling five-year period for trial work, so that 9th month of trial work can sneak up on you.

Here is what to do to about trial work:

First, be aware of the the trial work issue.

Second, keep track of your earnings, particularly if you are only working part-time. Keep your paystubs.

Third, let your local Social Security office know that you are working, and give them copies of your paystubs.

The goal is for both you and Social Security to know when you have reached the 9th month of trial work, so there are no surprises. You want to avoid an overpayment, where Social Security realizes after the fact that they have continued to pay benefits after 9 months of trial work, and seeks to get the overpayment back.

Each year, the Social Security Administration releases statistics about the disability and SSI programs in an easy-to-understand format, the “waterfall” chart. The chart shows what claimants can expect, statistically, for their claim for Social Security disability benefits.

The latest chart, for FY 2014, shows an ALJ allowance rate of 45% for claims at the hearing level.

Since 2010, ALJ allowance rates have fallen significantly each year (62% in FY 2010, 58% in 2011, 53% in 2012, 48% in 2013, and now 45% for 2014). That is a dramatic change over the course of just 4 years.

Sometimes a prior job is actually more than one job at the same time. You were both a nurse supervisor and performed the duties of an RN. You were both a carpenter and a construction supervisor. These are called composite jobs.

In every disability claim, the SSA must determine (at step 4 of the 5-step sequential evaluation process) whether you have the residual functional capacity to perform your past relevant work. This is where the composite job can cause problems with a claim.

I had a hearing where this issue came up. The work history report listed past relevant work at a homeless shelter as a social services aide, a light exertional job beyond the claimant’s residual functional capacity. At the hearing, the VE had questions about this job, and found that for half of the time (or more) the claimant was simply working in the shelter’s office, doing routine office work. As a result, the VE used two classifications to characterize this job: social services aide and general office clerk.

When the judge gave a hypothetical question to the VE about the claimant’s ability to perform her past relevant work, the VE testified that all of the claimant’s past relevant work would be precluded by the hypothetical, except for the past work as a general office clerk.

I pointed out to the judge that the general office duties were part of a composite job, and not a stand-alone job. All of the duties of that composite job must be considered at step 4, including the more strenuous parts that were not part of the general office clerk duties. The judge asked for authority for my argument, which I provided with a post-hearing brief.

Social Security Ruling 82-61 states “composite jobs have significant elements of two or more occupations and, as such, have no counterpart in the DOT. Such situations will be evaluated according to the particular facts of each individual case.” Social Security must consider all the exertional and nonexertional requirements of a composite job.

There is some good case law on this issue from the Ninth Circuit:

Every occupation consists of a myriad of tasks, each involving different degrees of physical exertion. To classify an applicant’s “past relevant work” according to the least demanding function of the claimant’s past occupations is contrary to the letter and spirit of the Social Security Act. Valencia v. Heckler, 751 F.2d 1082, 1086 (9th Cir. 1985).

See also Carmickle v. Commissioner, 533 F.3d 1155, 1166 (9th Cir. 2008).

This issue can make the difference between losing a case at step 4 or not. It probably only makes a pivotal difference 1 time in 50 or 100 claims. But as a disability lawyer, you have to know this. Awareness of the composite job issue can make the difference between a client receiving disability benefits and having those benefits denied.

Working on initial disability claims, from the application itself through the DDS review process, is one of the most enjoyable parts of my job as a Social Security disability lawyer.

Most of my practice involves preparing disability claims for hearings before administrative law judges, but a certain percentage of my cases are initial claims or claims at the Reconsideration level.

Often we can gather the evidence necessary to get disability benefits paid after the initial review, without having to go through an appeal process. This saves a great deal of time and worry for the client, and often results in a lower fee paid to the lawyer as well.

Some claims are not going to be granted upon initial application. Often more medical evidence is needed. But some claims already have a significant medical record. If it is possible to obtain medical source statements from the treating doctor(s), these cases can be ready to go on a fast track.

As a lawyer, I enjoy initial claims for several reasons. First, I work closely with the local Social Security office and the disability examiner, which is a change of pace from those disability claims that are already at the hearing level. Second, there is no greater result for a client than getting a claim granted right away. I like doing the work to make that happen.

One group of disability claimants that benefits greatly from the involvement of a lawyer at the application stage is those age 55 and over. The lawyer can plays an outsized role in these claims, because much of the disability determination rests on the past relevant work of the claimant. Making sure that the vocational evidence for these claims is properly presented is very important.

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Get help from a lawyer with your disability claim 

If you are considering an application for Social Security disability benefits, or have already applied and want assistance with your claim, please contact Gordon Gates for a free consultation.

 

Multiple Myeloma is a blood cancer that used to be a terminal diagnosis. However in the past 10 years or so, truly amazing advancements have been made in the treatment of this disease. There are new drugs, like Revlimid and Valcade, and autologous stem cell transplants are a treatment option that offers lengthy remissions. I am happy to say that for many patients, multiple myeloma has become more of a chronic condition than a terminal cancer.

I never used to have clients with multiple myeloma, because disability applications based upon the disease were routinely granted. However, the advances in treatment have made it more difficult to obtain Social Security disability.

Mulitiple myeloma is evaluated under Social Security listing 13.07. However, the listing is not that much help for those who respond to treatment. Most cases will be evaluated on a medical-vocational basis. That means claims will be decided by evaluating your residual functional capacity and determining your ability to work (see steps 4 & 5 of the sequential evaluation process).

When evaluating a disability claimant’s ability to work, my experience is that Social Security does not give sufficient consideration to the side effects of the chemotherapy that these patients receive. The chemo has severe side effects that can last for months or years after the chemo stops. Fatigue is typically the greatest side effect, and cognitive issues can be secondary to that fatigue. Peripheral neuropathy, particularly in the feet, is also a common side effect of the chemo. Lastly, an impaired immune system is a byproduct of the chemo, and that can preclude some types of employment.

A person under medical management for multiple myeloma is going to able to function, and some days are better than others. But it is unlikely that this person will be able to sustain employment on a “regular and continuing basis,” as required by Social Security ruling 96-8p, due to the fatigue alone.

To prevail with your claim for Social Security disability benefits, you must make the SSA understand the functional limitations you experience. A lawyer who understands the limitations that come with chemotherapy can be a real help for those with multiple myeloma.