The Unsuccessful Work Attempt – Information for Claimants

Social Security Rulings should not only be quoted and utilized by representatives when navigating disability cases, they should be employed by Claimants who choose to self represent. Though one can debate the advisability of self-representation, it is clear that if one is to succeed in procuring disability benefits, then one must speak the language. Including citations and explanations of Social Security Rulings (SSRs) can help Claimant’s navigate challenging aspects of their cases, and hold Social Security accountable when analyzing the Claimant’s particular circumstances. This piece below is the first in a series of discussions discussing Social Security Rulings. Today’s discussion centers upon SSR 05-02, which applies to both Titles 2 and 16, and explains the Unsuccessful Work Attempt (UWA).

The very first step in the sequential evaluation of a Social Security case is to determine whether or not the Claimant is performing “Substantial Gainful Activity (SGA)”. In 2010 and now 2011, a non-blind Claimant must earn below $1000 in order for their work to be considered less than SGA (this is desirable in disability cases). As they develop, however, in part due to the lengthy adjudication process, many disability cases are punctuated by work attempts. Such work attempts might affect the ability of the Claimant to be considered disabled during this time period, and might even cause a Claimant to adjust his or her Alleged Onset Date (AOD) to a time after the work attempt. This can be dangerous, especially if a Title 2 Claimant is near the end of their insured status.

SSR 05-02 attempts to build some clarity around what length of work should be considered SGA. Their policy statement is as follows: “For SGA determination purposes, your substantial work may, under certain conditions, be disregarded if it is discontinued or reduced to the non-SGA level after a short time because of your impairment, or the removal of special conditions related to your impairment that were essential to your further performance of the work. The UWA criteria differ depending on whether your work effort was for “3 months or less” or for “between 3 and 6 months.” If your work attempt was “unsuccessful,” Social Security will not be precluded from finding a Claimant to be disabled during the time that they performed that work.

There are a specific set of conditions that must apply when arguing in favor of a UWA. Before the UWA begins, there must have been a “significant” break in the continuity of the Claimant’s work. A Claimant’s work is “discontinued” if (1) there is a 30 day continuous gap in employment, or (2) the Claimant was forced to another type of work or employer. To anyone who has become ill while on the job, this may sound familiar. It is interesting to note that after such a break, future work attempts may also be considered UWAs if they are preceded by the same breaks in continuity.

At this step in the analysis, it must be determined into which category the Claimant’s work falls. I drew up the following chart for easy reference.



One item that bears extra explanation is an exploration of what constitutes a Special Condition which could be considered essential to work performance.

Social Security explains them as being one of the following:

*May have required and received special assistance from other employees in performing the job; or
*Were allowed to work irregular hours or take frequent rest periods; or
*Were provided special equipment or were assigned work especially suited to your impairment; or
*Were able to work only within a framework of especially arranged circumstances, such as where other persons helped you prepare for or get to and from work; or
*Were permitted to perform at a lower standard of productivity or efficiency than other employees; or
*Were granted the opportunity to work, despite your medical condition, because of family relationship, past association with the firm, or other altruistic reason.

With this in mind, when navigating the issue of how to classify a Claimant’s work when making Application for Social Security Disability or SSI, or analyzing work that was done while under disability, it is important to address this issue using the framework set forth in this ruling. Judges will analyze a case as such, and if the Claimant or their representative can produce such an analysis, they can work to not only explain the attempt to work, but they can even strengthen their arguments.

The full text of SSR 05-02 can be found here.

For information about your Georgia Disability Case, contact Thomas O’Brien.

Threats to Soc Sec Judges on the Rise...

(...but threats are rising more slowly than percentage increases in applicants.)

In an article released yesterday by Sam Hananel, it is reported that there has been an 18% increase in threats to harm or kill Administrative Law Judges (ALJs) or their staff over the past year. This is a disturbing trend, but not altogether surprising since many individuals view these benefits are their last and final hope of securing monthly help and health benefits. For those Claimants, this is the fight of their lives that sometimes results in a denial of benefits to which they may feel entitled.

Violence is never a solution and is despicable in any form. For those folks feeling that a hearing denial represents the door being slammed shut forever, it is important to recognize that these ALJ decisions are not the end of the line for a Claimant seeking benefits. There are additional steps beyond the hearing, whose purpose is to review decisions that have been issued.

The Appeals Council is the next level of review following the hearing, and it allows for an independent review of a judge's decision. The process occurs at an arms length, so writing an effective Appeals Council Brief is crucial to success at this level, and will be the topic of a future note at this blog. After the Appeals Council, Federal Court is the next step, and so begins the more traditional form of judiciary progress. Though each sequential step of the benefits seeking process represents new and probably unfamiliar territory for Claimants, it is important to note that there are advocates available who specialize in this type of work.

One final note regarding the increased number of threats to ALJs. Between 2008 and 2009, the number of Social Security Disability applicants rose by 21%. I do not yet know what the increase has been YTD 2010 when compared with 2009, but I have to imagine that the increase in applicants continues. Also, due to the length of time it takes to get a case to hearing, I imagine that the cases being heard are largely cases begun in 2009 during the 21% increase. One case of violence threatened or actually perpetrated is too much, but I think that it is important to note that incidents of violence have actually risen at a LOWER rate than applications themselves. As such, violence is increasing more slowly than growth, which is a better message than the article originally indicates, though certainly is no consolation to Judges, their staffs, and their families.

For question about your Georgia Social Security Disability case, contact Thomas O'Brien at Feiler & Associates.

Medical Records Free for Disability Applicants in Georgia

A common complaint from applicants for Social Security is the sometimes large charges imposed upon them by hospital and physicians in exchange for providing copies of their records. This condition has gradually worsened as more and more hospitals outsource their records departments to companies whose sole purpose is to copy and supply records. Their very existence depends on charging for records up to statutory limits. When a person spends an appreciable amount of time in the hospital they create an enormous amount of paper that must then be supplied to Social Security. Without this paper evidence, a case may be incapable of succeeding, but without money, medical records are frequently withheld.

Though every state is different in the way they treat requests for medical records, Georgia is pretty clear. In O.C.G.A. §31-33-3, a fee schedule for medical records copies is laid out succinctly such that provider and document services are limited in what they can charge for duplication. The last sentence of Section (a) if this statute is most relevant, and reads,

“This subsection shall not apply to records requested in order to make or complete an application for a disability benefits program.”

This sentence is read in a variety of ways, but in no other portion of the law are fees discussed for copies made in support of a disability benefits program (Workers Compensation DOES have its own fee schedule). I read this sentence to the benefit of my clients, and it appears that courts seem to agree. In the 2008 Georgia Court of Appeals Case, Smart Document Solutions, LLC v. Hall, 290 Ga.App. 483, 659 S.E.2d 838 (Ga.App. 2008), the Court noted at page 485 that “The fee exemption, therefore, includes requests for disability benefits…”.

This seems to be a clear intent by the Georgia judiciary (and legislature) to ensure that people who are unable to work (and thus are unable to pony up for hundreds of dollars of records) have access to the medical records which may for them unlock health insurance and monthly assistance. Unfortunately, there are overly aggressive or uninformed copy companies that are now attempting to require advance payments before pulling documents. Some examples of these charges include estimates of total pages, and well as “convenience” charges that are levied. In most cases a stern phone call or letter will remove barriers such as this, but it is important to remember that as a Claimant or Practitioner, we have the ability to request that the judge issue a subpoena of the records. Certainly this is a less desirable outcome than simply getting the records, and I have heard anecdotally that some folks are paying the $10 (which comes out of the client’s pocket), but it is important to remember that when companies erect monetary barriers to securing medical records for a Georgia disability applicant, they are breaking the law and violating public policy, plain and simple.

For questions about your disability case, contact Thomas O’Brien at Feiler & Associates.

Drafting Pre-Hearing Briefs - Advice for Claimants

If I could offer Claimants once piece of advice as they advance to the hearing stage, it would be to understand their case as thoroughly as possible as it fits into the Social Security Five-Step construct. Effective arguments extend well beyond simply having a command of a medical situation, and includes understanding the provable impact of age, education, resources, work history, and residual functional capacity on a case before Social Security. One of the best exercises that one can undertake in pursuit of such an understanding is building a Pre-Hearing Memorandum. This document is prepared by the Claimant (or their Counsel) and really sets the table for the issues to be discussed at hearing. This is a great opportunity to get to the Judge early and not only present strengths, but address potential weaknesses with one's case. Preparing such a document not only forces one to gain familiarity with the medical and procedural records, but it forces a level of organization that will telegraph well to the hearing room, when the Judge will walk down a similar path of analysis when evaluating the case.

For Claimants who are seeking specific advice on drafting their brief, I am linking to a fantastic article on this subject by Disability Attorney Gordon Gates, who practices in Maine and New Hampshire. The article is titled "Ten Tips for Writing Effective Hearing Briefs", and it really distills what is important when drafting a Pre-Hearing Brief.

For questions about your Georgia Disability Case, contact Thomas O'Brien at Feiler & Associates.

There are overpayments, and then there's this...

A man in Fresno California was recently arrested for collecting more than $200,000 in Social Security benefits that were being paid to a woman who passed away in 1988. The man apparently was a friend of the deceased and shared a checking account with her, which facilitated the fraud. He has plead not guilty to the charges.

Incidents such as this are covered by the popular media every so often, and never once has the story ended with Social Security getting their money back. I imagine that this story will end the same way.

The question then becomes, what can be done about this, and it this an isolated case or are there numerous cases like this being perpetrated around the country? It would seem that there are some simple solutions that could at least manage the fraud to a level lower than 22 years of deceit. Though Social Security is notoriously overworked, requiring Claimants to check in every 3-5 years would be reasonable, and such a practice could even be automated with biometrics (though privacy advocates would have a field day with this one). Even if not automated, making benefits contingent on a visit to the local Social Security office every 3-5 years with a picture ID would help prevent fraud cases such as these from occurring at relatively small cost to the government.

For questions about Social Security, contact Thomas O'Brien at Feiler & Associates.

Compassionate Allowances - More to come?

In today's Federal Register, the Social Security Administration served notice of an upcoming hearing regarding the identification of Compassionate Allowances for Cardiovascular Disease and Multiple Organ Transplants. For those that may not be familiar with the term, Compassionate Allowances are a way for Social Security to issue favorable decisions on "easy" cases by identifying diseases and other medical conditions that invariably qualify under the Listing of Impairments based on minimal objective medical information. Compassionate Allowances allow Social Security to quickly target the most obviously disabled individuals for benefits based on objective medical information that can be obtained quickly.

Currently there are 88 such allowances ranging from Acute Leukemia to Early Onset Alzheimer's and a variety of cancers. Originally the list of allowances was 50, and the list has extended now to 88. Cardiovascular Disease and Multiple Organ Transplants will be the subject of these latest hearings.

This is significant on a couple of fronts. Compassionate Allowances are made for the purpose of eliminating the time and resources spent on evaluating certain conditions that are "slam dunks". However, this latest set of maladies has it's own features that will definitely affect their suitability for inclusion on this list. For example, many Organ Transplants will almost certainly require at minimum a closed period of disability while recovery occurs. Transplants are typically not offered where there is to be no lifestyle improvement for the patient. As such, it would seem that Social Security will be forced to review each of these cases closely at some point in the case's progression. By swapping "sooner" for "later", is there any additional benefit?

Also, cardiac cases are a difficult category to evaluate. For example, Blue Book Listing 4.02A(1) contains what appears to be a very objective standard (<30%) regarding a left ventricular ejection fraction. I have had numerous clients demonstrably meet this standard over time, and meet the requirements in 4.02B, yet still be forced to qualify by gridding out, or by demonstrating that their symptoms erode their vocational base to zero. The essence here is that cardiovascular cases historically appear to have objective standards, but do not seem to be consistently evaluated as such. With this in mind, it is this practitioner's hope that any cardiac Compassionate Allowances made will be straightforward in their requirements and granted as such.

For questions about Social Security Disability contact Thomas O'Brien at Feiler & Associates.

The Freeze is Official

It appears that the guidance given a few weeks ago has become official. For the second year in a row, there is to be no increase in the monthly sums paid to recipients of Social Security. The reason that there is no increase is because the Consumer Price Index (CPI) tracks with overall inflation. For the past two years, inflation has been negative, in part due to machinations by the Federal Reserve to prevent stagflation. As a consequence, the monthly payments to seniors remain at the current average rate of $1072.

Unfortunately for seniors, the prices of everything else have not stayed static. Even ignoring luxury items, essentials such as utility payments, food costs, transportation costs and insurance premiums have continued to rise. In effect, when costs increase at a rate that is higher than income, what results is a salary decrease, and this effect could imperil the already tenuous existence of many elderly Americans. Seniors are not the only ones experiencing this effect as salaries are frozen for those lucky enough to have jobs, while the cost of health insurance (and everything else) rises.

The timing of this "decrease" is significant as well. With midterm elections occurring in less than one month, and discontent on the rise, it would not be surprising to see senior citizens turning out in greater than average numbers to express their displeasure at the ballot box. Whether either party can solve the problem of an eroding tax base (due to unemployment and a lack of available funds for lending), and an endangerment of government programs remains to be seen.

For assistance with your Social Security Disability claim, contact attorney Thomas O'Brien at Feiler & Associates.