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I like to write the client a letter at the end of the case saying that the case is over and that I am closing my file. Such a final letter marks the end of the attorney-client relationship.

I have added a few paragraphs to that final letter, to give the Title II disability client a heads up on the issue to trial work. Here is what I say:

If your condition improves, you may eventually return to work. However, you need to be careful about the amount you earn as you return to work, to maximize your benefits. Social Security wants you to be able to test your ability to work while still being considered disabled. You can earn up to $669 per month without affecting your Title II disability benefits.

However, if you earn $670 or more per month, that triggers a “trial work period.” You receive benefits during the trial work period, but after 9 months of trial work, Social Security can terminate your disability benefits if your income ever reaches the level of substantial gainful activity, which is $940 per month. The 9 months of trial work are not consecutive, so a month here and there with earnings over $669 may eventually add up to the 9 months. Be aware of this, and be careful with your earnings if you work part-time.

To avoid problems, let the local Social Security office know if you start to work. Keep track of the days worked, and keep your pay stubs. You should actually submit copies of the pay stubs to the local Social Security office, so there is no question about the amount of your earnings. Please plan your return to work with all this in mind.

This way, the client is not surprised down the road with a termination notice (or worse, an overpayment notice) when Social Security catches up with the earnings.

"Trial work" is a concept that applies to people already receiving 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 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.

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 five-year period for trial work, so that 9th month of trial work can sneak up on you. So what should you do?

Continue Reading Trial Work

This Google search query landed a visitor on my blog: What should I do after being denied by the social security appeals council?

I am going to answer that question right now.

The Appeals Council is the last word on your claim from the Social Security Administration. Your next step is U.S. District Court. You have just 60 days from the date of the Appeals Council decision to file this action. If you want the help of an attorney, find one right now – don't wait till the end of the 60 day period.

You can also file a new claim with Social Security, and start the process all over again. If your claim was a Title II disability claim, your onset date would be the day after the ALJ decision on your previous claim. Check to ensure that your date last insured is not prior to date of the the ALJ's decision. If your claim was for SSI, you can file a new claim anytime. Your onset date will be the filing date of the new claim. 

The Medical-Vocational Guidelines are used by Social Security to determine disability due to exertional impairments at step 5 of the sequential evaluation process. The guidelines, or the "grids," consider a claimant's exertional level (that's the medical part) and the claimant's age, education and work history (the vocational factors). Depending upon these medical-vocational factors, the SSA determines that a person is either disabled or not disabled.

In general, the grids are not where you want to be as a claimant, because the grids direct a finding of "not disabled" in most situations. In fact, every claimant loses under the grids until age 50 (or age 45 if unable to communicate in English).

However, the grids are a two-edged sword. Once you reach the age of 50 (and have no transferable skills or education that allows direct entry to skilled work), the grids direct a finding of "disabled" at the sedentary exertional level. The SSA presumes that the transition to unskilled sedentary work is too difficult for these claimants. At age 55, that same claimant grids "disabled" at the light exertional level.

Let's look at an example to see how the grids operate.

Continue Reading The Medical-Vocational Guidelines

If you have monthly earnings above the level of substantial gainful activity, it is problematic for your disability or SSI benefits.

For 2008, the SGA amount is $940. Earnings over that monthly amount can present real challeges to receiving benefits. Depending upon the circumstances, you can be denied benefits (or the benefits you receive can be terminated) if your earnings are too high.

However, if your earnings are not way over SGA, there are ways to reduce the earnings counted by Social Security when determining whether or not you are working at the SGA level. These are called Impairment Related Work Expenses (IRWE).

Impairment Related Work Expenses are unreimbursed expenses that are 1) related to your impairment and 2) help you to work. Many different expenses qualify, but the most prevalent expenses are medical and medication costs. So if you are paying for medical visits, medication or for insurance copays, these are likely to be expenses that can reduce the earnings counted for SGA income. There are many more qualifying expenses. For more information, read Social Security Ruling 84-26.

I recently filed a critical case/dire need request for a client’s claim. A critical case request asks Social Security to expedite a claim at the hearing level. Critical cases are governed by HALLEX I-2-1-40.

Critical cases get priority because they are the most serious claims. There are three situations that constitute critical cases: 1) the claimant’s illness is terminal, 2) there is an indication that the claimant is suicidal or homicidal, and 3) dire need.

Dire need is the most frequent basis for a critical claim request. Dire need is when the claimant is without – and is unable to obtain – food, medicine or shelter. Mere hardship is not enough. The situation must be dire. An imminent eviction, with no financial resources to find new shelter, would certainly qualify.

As shown by critical case request evaluation sheet used by ODAR, documentation of the critical situation is important. I included the claimant’s eviction notice with my recent dire need request.

When I meet a new client, I often learn that the client had filed a previous Social Security disability or SSI claim that was denied, but not ever appealed. It happens quite a bit. Depending of the timing, that previous claim can often be reopened. When a claim is reopened, it is like it was appealed in the first place and remains pending.

Reopening is governed by 20 C.F.R. 404.988.

A denied claim may be reopened within 12 months for any reason. The 12 month period runs from the date of the initial denial of the prior claim.

If there is good cause, a prior disability claim can be reopened within 4 years. An SSI claim can be reopened within 2 years for good cause. In most cases, "new and material" evidence is the basis for a finding of good cause.

Let's look at an example of reopening.

Continue Reading Reopening a Prior Claim

I talked recently with two Social Security disability claimants with chronic fatigue syndrome. One claimant had Lyme disease, the other was a cancer survivor. Both are disabled due to chronic fatigue.

Chronic fatigue syndrome does not fit neatly into the Social Security disability evaluation process. Nevertheless, chronic fatigue can certainly provide the basis for a successful disability claim, and Social Security Ruling 99-2p discusses the SSA's policy regarding chronic fatigue syndrome.

If you suffer from chronic fatigue syndrome, there are some things you can do to improve your Social Secuirty disability claim. First, keep a journal, so that you have a record of your conditon day to day, week to week, month to month. Second, tell your doctor how your fatigue is affecting your daily life. Be specific.

Because chronic fatigue is so inherently subjective, the support of your doctor is very important in these cases.

Your onset date is the date your disability began. The date represents a confluence of when you were not working at SGA and when you had a medically determinable impairment that is expected to last a year or more.

The “alleged” onset date is selected at the time of filing a disability claim. Once you receive a favorable decision, it just becomes your onset date. The onset date is important for Title II disability benefits, because it establishes the beginning point of your disability. Benefits are calculated with that date in mind.

The onset date that would maximize benefits for a disability claim is at least 17 months prior to your filing date. That allows for the 5-month waiting period and the 12 months of retroactive benefits available for disability claimants.

In an SSI claim, the filing date is treated as the onset date, since there are no SSI benefits payable prior to the date you file for benefits.

This is a blog about my practice as a Social Security disability lawyer. The information and advice on this site is general in nature, and may not be suitable for your particular circumstances.

The material on this site is intended to be informational. It is not legal advice.

Reading this website does not create an attorney-client relationship. The information contained on this website is not a substitute for obtaining legal advice from an attorney. Each person’s situation is unique, and the information and materials on this website may or may not be applicable to your legal situation. You should not act or rely on any information on this website without seeking the advice of an attorney.

If you are seeking an attorney for a Social Security disability claim, I would be happy to talk with you. However, unless we sign a fee agreement, I am not your attorney.