About: Beth Laurence

Beth Laurence is a long-time Nolo editor and author. Beth is editor of Nolo's Guide to Social Security Disability and Social Security, Medicare & Goverment Pensions and the website popular website disabilitysecrets.com. Beth holds a law degree from University of California, Hastings College of the Law, a B.A. degree from Boston University (Phi Beta Kappa, magna cum laude), and is a member of the California State Bar. While at Hastings, she helped persons with disabilities in the Tenderloin district of San Francisco apply for and win Social Security and SSI disability benefits from the SSA. Over the last decade, she has been active on the board of directors of several local environmental and educational nonprofit organizations.

Recent Posts by Beth Laurence

We’ve moved!

Nolo’s Disability Blog has moved and now resides on our partner site, disabilitysecrets.com. I will still be answering readers’ disability questions, occasionally joined by guest blogging disability attorneys from around the country. Please visit us on the “Ask Your Disability Question” page on disability secrets.com, where you can find our entire archive of past questions and answers.

Why Is There a Two-Year Waiting Period for Medicare for the Disabled?

Question: Because of incompetent social workers in the local office, things were not handled right for my husband. So we are now waiting for his Medicare insurance. Thank God we did finally find the right advocate to help us with his disability. In March 2012 he went through lung cancer surgery and then November the same year brain cancer. He was approved for disability December 2013, EOD.  Now we wait for Medicare. Who ever decided that in our government has no compassion for people. I do not expect an answer. But for sick people to wait 24 to 29 months for Medicare when they can no longer make a income is ridiculous.

Answer: I’m sorry to hear of your husband’s medical problems. I’m surprised your husband didn’t get an earlier disability onset date, with two cancers in the same year (I think you’re saying that your husband’s established onset date of disability was in December 2013). Unfortunately, you’re right, your husband will have to wait at least another year for Medicare coverage. There are two exceptions to this rule: those with permanent kidney failure (known as end-stage renal disease, or ESRD) and amyotrophic lateral sclerosis (ALS) aren’t subject to the two-year waiting period. You would think that metastatic brain cancer and other life-threatening illnesses would also be on that short list, but unfortunately they are not.

Medicare was originally intended for those over 65, and when Medicare was expanded to include persons with disabilities, a very expensive expansion,  the two-year waiting period was added as a cost-saving measure. When Congress expanded Medicare to those with disabilities, it was their hope that, during the two years of the waiting period, disability recipients could either continue under their former employers’ plans under COBRA or qualify for Medicaid. If you’ve ever used COBRA, however, you know that the premiums are very high, especially for someone who no longer has earnings from work. Things may be a little more hopeful on the Medicaid front for some people. About a third of disability recipients receive Medicaid coverage during the waiting period.

In three-quarters of the states, Medicaid has a “medically needy” program, so that individuals with high medical expenses but too much income to qualify for the regular program can still qualify for Medicaid. In these states, Medicaid applicants can subtract their medical expenses from their income in order to meet that state’s Medically Needy Income Limit (MNIL). (Read more about this in Nolo’s article on Medicaid’s medically needy program.)

Unfortunately, over a third of disability recipients don’t have health insurance coverage at some point during the Medicare waiting period. And it can be argued that this is the population that needs medical care the most. Indeed, about 4% of disability recipients die while waiting for Medicare coverage.
Over the last several years, there have been legislative attempts to phase out the waiting period and/or to eliminate it immediately for those with life-threatening illnesses (in addition to ESRD and ALS). Unfortunately, these attempts haven’t been successful, due to the high cost of phasing out and eliminating the waiting period, estimated by some to be about $10 billion per year.

How Can the VA Reduce a 100%, Stabilized Rating?

This week’s blog post is answered by guest blogger Margaret Wadsworth, a regular contributor to Nolo and an attorney accredited by the VA to represent veterans.

Question: The VA has reduced my benefits. I am more than confident that this action is retaliation. Their reason for the reduction is ridiculous. The one examination I went to does not even come close to showing any change in my hand disability.

It appears the VA has bypassed the federal regulations that explain the rules for reducing a veteran’s disability compensation benefit. The exam letter I received advised me that the comp and pension exam I would need to go to was just at the beginning of the very next week. And less than two months after the exam that they claimed was ordered as a mistake, I received a decision that my benefits would be lowered substantially.

The rating they reduced from 100% to 0% was a protected rating. It was protected as a stabilized rating, which has been at the same level for five years. It is also protected as a 100% rating, which can be reduced only after a re-examination has found there is a material improvement in the disability, and a material improvement in ability to function in life and work.

Furthermore, under 38 CFR 3.327(b)(2), the VA can’t send you to a re-examination if the disability has been as established as static or is of a permanent nature with no likelihood of improvement when the veteran’s symptoms haven’t shown improvement for five years or more.

I believe that this action is retaliation for my self-advocating while attempting to attain a customized VA letter. I made an accommodation request for the letter, due to fact that the letter they wanted to provide me would not be equally beneficial to me as they are to other parties requesting special letters from the VA. Under laws I can make a section 504 request verbally, as I did. This accommodation request is a protected action under ADA law.

Also, I have had a request in for a new power wheelchair for over a year now. I have gotten nothing. I have been forced to use my one manual chair, because it’s all I have. The chronic soreness I feel throughout my body has risen dramatically since using a manual chair. It seems ironic that the evidence the VA is utilizing to reduce my benefits relies heavily on my use of a manual wheelchair, when I have been requesting a power chair from them for over a year now.

Answer: Thank you for your service, and I am sorry to hear of the ordeal you are going through.

If your disability is “static”, meaning there is no medical possibility whatsoever of any improvement, or if your disability has not improved at all in five years or longer, then the VA made an error in ordering a reexamination. However, although you have had your rating for five years, it receives only limited protection. For example, if your symptoms have shown medical improvement during those five years, and that medical improvement was more than temporary and lasted for a sustained period of time, the VA had the right to request the reexamination. But in such a situation, benefits can be reduced only if the reexamination report and your full medical history support the finding that the improvement is more than temporary.

Since the VA ordered a reexamination, the VA may have believed your condition had medically improved such that a reexamination was necessary to determine whether a decrease in your service-connected disability compensation was warranted. Since you were sent notice of this exam, even though the notice was very short, you were required to either reschedule or attend the exam in order to protect your benefit rate.

If for any reason you couldn’t attend the reexamination, the VA would have had the legal right to reduce and/or terminate your benefits, regardless of your disability rating or the fact that you had this rating for five years. Although generally a rating of 100% cannot be reduced unless the VA finds that your disability has materially improved and your ability to function in your life and work has increased, any rating can be reduced for failure to appear at, or reschedule, a reexamination.

If you attended the required reexamination, then your benefits were likely reduced based on the VA doctor’s finding that your condition had materially improved, as discussed above. You may want to contact a VA-certified attorney to evaluate the doctor’s report to determine if it is sufficient. Sometimes VA doctors do not have access to your full medical history when conducting a reexamination, in which case you can challenge the report. You can also challenge the report if it’s not thorough.

I would advise you to consult with a veterans disability attorney in order to have your case file reviewed for errors and to consider an appeal.

Regarding your request for a power wheelchair, I recommend you seek that assistance of a local Veterans Service Officer. See the VA Directory of VSO’s to find assistance in your area by visiting www. va.gov/vso/.

Regarding your Americans with Disabilities Act Section 504 request, I also recommend that you consult with a disability attorney to determine what your rights are and how to protect your interests. Good luck.

Margaret Wadsworth

Should I be worried about my upcoming disability review?

Question:

I have been receiving disability for seven years and have received a letter saying Social Security does routine audits every three to seven years. Should I be concerned? Also, hearing in the news about the recent “billions of dollars paid to public who should have not qualified,” will this make it more difficult to be re-approved or have my case looked at more closely than normal?

Answer:

Social Security periodically reviews the condition of all Social Security disability recipients to confirm they still fit the definition of disabled – that is, that they are still unable to work. These reviews are called continuing disability reviews. So the letter you received is just routine.

Social Security should have sent you a disability award letter when you were approved for benefits, and that letter should have stated when you could expect your first review. If Social Security found that it was possible, though not necessarily likely, that your medical condition could improve, then your file would have been set for a three-year review. If Social Security didn’t expect your condition to improve, your file would have been set for a seven-year review. Generally, the files of disability recipients over 55 receive reviews less frequently than the above timeline. And in recent years, Social Security’s lack of funding has allowed the agency to do far fewer reviews than technically required.

But unless your condition has improved enough for you to work, a continuing disability review is not much to worry about. You won’t have to prove your disability over again. Instead, to terminate your benefits, Social Security would have to prove that there has been medical improvement in your condition – that is, that the severity of your impairment has become less severe. Also, the medical improvement in your condition must relate to your ability to work. In practical terms, this requirement means that you must have more residual functional capacity (RFC) than you had when your disability benefits were approved. If your RFC hasn’t changed (say you still can’t sit or stand for more than six hours), your benefits can’t be terminated. Social Security must also find that there is some kind of substantial gainful activity (full-time work) that you could do.

There are exceptions to these rules – such as Social Security finding there was a clear error or fraud in the original decision –  but in actuality, only about 5% of disability recipients lose benefits after a review. And no, while there may be more scrutiny on initial disability decision in the near future, unless policy and regulations are changed regarding disability reviews, it won’t be more difficult to pass a review because of the political climate.

To read further, see our article on how likely it is your benefits will be terminated after a review and the frequency of disability reviews.

Would waiting until age 62 help me get Social Security disability benefits?

Question: I applied for SSDI at age 60, shortly before my 61st birthday. My appeal hearing before the ALJ is apt to take place in early 2015, a few months before my 62nd birthday, in May 2015. I’m confused about how my benefits might be calculated — and whether it’s better to have waited age 62 (or not). So far, I’m handling my application pro se. Any information or guidance you give me about this would be much appreciated.

Answer: Age 62 is important for the purpose of Social Security retirement, since it’s the age of eligibility for early retirement benefits, but it’s not so important for Social Security disability insurance (SSDI) benefits. In fact, depending on the severity of your medical condition, Social Security may or may not take your age into account when deciding whether you are disabled.

If you meet the requirements of one of Social Security’s official disability listings, Social Security won’t look at your age at all. Likewise, if you have a physical impairment that doesn’t allow you to do even sit-down work, of any kind, Social Security won’t consider your age. Similarly, if you have a mental impairment that limits you so much that you can’t do even simple, routine work, Social Security won’t care what age you are.

However, if you have a physical impairment that limits you to doing medium, light or sedentary work, then you are much more likely to be found disabled if you are 60 or older. Social Security considers disability applicants 60 or older to be “closely approaching retirement age,” and for those over 60 who don’t have any job skills that they could transfer to less strenuous work, they are eligible to be found disabled under the “medical-vocational grid rules.” These grid rules take into account an applicant’s age, education, job history, and physical capacity to determine whether he or she is disabled.

For instance, if you are over age 60 and your doctor has limited you to light work (lifting no more than 10 pounds frequently and standing and walking no more than 6 hours per day), you’ll be found disabled – as long as Social Security finds you can’t do your previous job and you don’t have job skills or recent job training that you can use at another type of job. The same is true for those over 60 with a limitation to sedentary work. See Nolo’s article on getting SSDI after age 60 for more examples.

But the grid rules for closely approaching retirement age apply equally to everyone between the ages of 60 and 66. So while being 59 and on the cusp of turning 60 can be important to a disability decision, the difference in applying for disability between the ages of age 61 and 62 is not.

And it’s almost always in your favor to apply for disability benefits sooner than later, because you can only get retroactive benefits going back a year before you apply (if you were disabled before that).

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