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One of the quirky things about disability claims at the initial and reconsideration levels is that Social Security does not send you a letter when you are awarded disability benefits. A denial letter is quickly sent if a claim is denied, but not so with claims that are allowed. A letter is sent when the allowance is only partially favorable, and an onset date later than the one alleged was used. Eventually, a “notice of award” letter is sent for all allowed claims, but usually not until the past-due benefits have been paid.

Since Social Security does not promptly notify successful disability claimants, I am happy to do it. I monitor all my claims at DDS, so I usually know pretty quickly when a determination has been made. Usually I just pick up the phone to give my client the good news. But sometimes the client is away from the phone. Rather than leave a voicemail, I send a quick email that answers the most commonly-asked questions. Here is one I sent today:

Hi Jane,

Social Security has granted your claim for disability benefits at Reconsideration.

Your claim was allowed as of your alleged onset date, 2/25/2022.

Social Security does not pay benefits for the first 5 full calendar months of disability, so your eligibility date (when benefits start) is August 1, 2022. You will be eligible for Medicare insurance 24 months after that, or August 1, 2024.

Your current monthly benefit will be around $1,370 a month.

Currently the claim is being processed in the local field office. They already have your direct deposit information. They will transmit your claim to a payment center, where your benefits will be calculated and paid.

Let me know when the money lands in your account (with luck, perhaps by the end of the month).

You will receive, fairly soon, a “Notice of Award” letter explaining how your benefits were calculated, and specifying the amount of my fee, which they will pay directly to me.

Obviously, this is great news! I am so pleased we were able to obtain benefits at this stage, without having to wait for a hearing. The opinion from your doctor definitely helped.

I am available if you have any questions,

Gordon

It is my favorite e-mail to write.

New evidence for Social Security claims must be submitted 5 business days ahead of the hearing. See 20 CFR 404.935(a) and HALLEX I-2-5-13. With a typical weekend, that’s 7 days ahead of the hearing. Holidays, which are of course not business days, must be accounted for as well. So beware the 3-day holiday weekend, like the upcoming Columbus Day weekend coming up on October 9th this year.

Columbus Day is now celebrated as Indigenous Peoples’ Day in Maine and a dozen or so other states. If you have a hearing during the week of October 9th, you must take the holiday into account when calculating filing deadlines.

New evidence includes updated medical evidence and the Representative’s brief. Everything must be filed 5 business days ahead to be timely for the hearing. While filing earlier is always best, be aware of the deadline.

Social Security published today a proposed rule change to “revise the definition of past relevant work (PRW) by reducing the relevant work period from 15 to 5 years.” Here is a link to the proposed rule.

This would be a significant (and welcome) change to the disability evaluation process. It would be a commonsense change to the rules, and would help many claimants who risk being denied disability benefits (unfairly, in my view) based upon work they did 15 years ago.

For context, Step 4 of the disability sequential evaluation considers a person’s ability to perform their past relevant work, both as actually performed and as generally performed in the national economy. At Step 5, Social Security considers whether a person has acquired job skills from past relevant work that would transfer to a significant range of other jobs. The proposed rule narrows the jobs included in PRW to just the past 5 years. In the world of Social Security disability, that is a huge change.

There are many reasons supporting the change. The first is fairness. Second, it simplifies the process; a claimant doesn’t have to remember and describe in detail 15 years of past work, and Social Security does not need to evaluate 15 years of past work. Third, it recognizes that life moves pretty fast, and job skills acquired 15 years ago are unlikely to be relevant today.

I have clients who need to use a cane when walking or standing. Often the cane is for balance, but sometimes also due to weakness in the legs. Social Security has policy on the vocational impact of the need to use a cane or other handlheld assistive devices (such as a walker).

Social Security Ruling 96-9p discusses the use of a medically-required handheld assistive device when considering a claimant’s ability to transition to other work (step 5 of the sequential evaluation). The Ruling states in part:

To find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed (i.e., whether all the time, periodically, or only in certain situations; distance and terrain; and any other relevant information).

The ruling states that the vocational impact use of the cane depends upon the facts of the case. It may not have that much of an effect on Sedentary work, but at the Light exertional level, which requires more standing and walking, a cane has a much larger impact, in my view. If you are using a cane with one hand, you only have one hand available to lift and to carry. Depending on the job, the need for a cane can really impact a person’s ability to complete required work tasks.

Don’t wait for the hearing to address this issue. You may need to develop medical evidence that the cane is medically necessary, and under what circumstances it is needed.

I attended a seminar session last year in Austin, Texas on the topic of helping those applying for Social Security disability benefits with their initial applications. The lawyer making the presentation said that, like a rancher, a lawyer should “make money on the herd, not on the cattle.” Translation: Don’t look at the potential return for each individual case, but consider you caseload overall. And he is correct.

Sometimes lawyers shy away from helping with initial applications because the person applying for benefits has not been out of work for long, and no disability benefits are paid for the first 5 full months of disability. Since a Representative’s contingency fee is based upon the claimant’s past-due benefits, that often means no fee or a very small fee. Likewise, disability claimants that have just received an initial denial often do not have even a year of past due benefits, given the 5-month waiting period.

I have won claims at Reconsideration at an strong pace this year, by actively managing the claims at the Reconsideration level and writing a short brief for disability examiners. Because these claims get granted so quickly without the need to wait for a hearing, the fees are usually quite low. But so what? You have a happy client, you did not have to prepare for, travel to, and attend a hearing, and the low fees add up over the course of the year. And it is always nice to win your case.

That lawyer in Austin was right. Focus on the herd, not the individual cattle.

An adult disabled before age 22 may be eligible for child’s benefits if a parent is deceased, or receives Social Security retirement or disability benefits. The SSA considers this a “child’s” benefit because it is paid on a parent’s Social Security earnings record. Here is the disability page on the SSA website (scroll down to the section entitled “Adults with a Disability that Began Before Age 22”).

The DAC benefit is almost always higher than the disability benefit based upon the claimant’s own limited work record, and the DAC benefit is more favorable than SSI. The monthly benefit is likely to be higher, and disability comes with Medicare insurance coverage. Further, disability recipients are not penalized if they are able to earn a little money each month to supplement their disability check (keep it under SGA), unlike SSI recipients. 

To qualify, the “adult child” must be:

  • unmarried,
  • age 18 or older, and
  • have a disability that started before age 22.

The parent must be disabled, retired, or deceased.

The SSA makes the disability determination using the usual adult disability process.

Sometimes a change in status of a parent makes the child eligible. Suppose a son has been on SSI since age 20, and is now 25. The parent retires or dies. Now the son is eligible for DAC benefits.

Alternatively, a child on childhood SSI, who ages out from that program after age 18, may be eligible for DAC rather than adult SSI, if there is a parent with a work record who is disabled, retired, or deceased.

Trial work is a program 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 needs to be managed properly to avoid unwanted consequences.

Some disability recipients try working part-time, and may earn less than the SGA amount. They may assume their disability benefits will not be affected by this part-time work. 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 how to handle trial work when you are receiving diability benefits:

  1. be aware of the the trial work issue.
  2. keep track of your earnings, particularly if you are only working part-time. Keep your paystubs.
  3. 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.

The 9th month of trial work is important for another reason. It tolls the beginning of the 36-month reentitlment period.

I have started writing short, one-page letters to the disability examiners at the initial or reconsideration level, setting forth my theory of the case. The letter briefly describes the claimants limitations, and then makes the vocational analysis based upon the claimant’s work history. For many years I have written detailed briefs for judges at the hearing level. Since I have started writing short briefs for disability examiners, I have won many more cases at the DDS level.

There has been a tremendous amount of turnover at the DDS state agencies that make determinations on Social Security disability claims. A whole new group of examiners came in at the beginning of the COVID era, and many of those have already left and been replaced by new disability examiners. As a result, a great number of examiners do not have extensive experience. A letter analyzing the claim can be a big help.

The letter is particularly helpful regarding the vocational evidence, which goes to the heart of what the disability examiner does when making a determination. At Reconsideration, I often find myself pointing out the errors in the vocational analysis that was done at the initial level.

Call and write your disability examiner. I am winning more claims at Reconsideration, and also at the Initial level of review, due to this increased communication.

Social Security assesses your ability to perform your past relevant work at step 4 of the sequential evaluation process.

Social Security will evaluate your ability to do the physical and mental activities that were required to perform your past work. The SSA will not consider whether or not you could actually get a job doing this work.

Additionally, when evaluating your ability to perform your past relevant work, the SSA does not consider:

  • whether you would be hired,
  • whether a job opening exists,
  • whether you would be required to relocate,
  • whether you want to do this work,
  • whether you still have a certificate or license to do the past work.

The last item on the list is one I hear about from clients who are pilots, truck drivers, or commercial bus drivers – people who are required to have an examination from a physician to maintain a license. The fact that you could not pass the physical to get licensed is not considered by Social Security.

Rather, the SSA will simply evaluate whether or not your could perform the necessary work activities of that past job. It may be that the medical condition that would keep you from getting licensed would also prevent you from performing the job. But not always.

A Social Security disability claimant should emphasize the functional limitations that would preclude past relevant work, and skip the argument about not being able to be licensed, and therefore unable to work.