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

I have CHF, bradycardia, hypertension, diabetes, high cholesterol, acid reflux, and sleep apnea; can I get disability?

Question: I had a heart attack in November 2012 and I went back to work after being told I needed a pacemaker. In March of 2013, my heart rate went to 40 and I was hospitalized for a few days and then sent home. It did it again in June and […] they took me to surgery and gave me a pacemaker. The cardiologist says my bottom chamber was blocked. I was diagnosed with CHF, bradycardia, hypertension, diabetes, high cholesterol, acid reflux, and sleep apnea. My blood pressure will not stay stable – it’s been like that for years — my doctor says my blood pressure was controlling my heart. I am taking Carvedilol 2×day, Lisinopril-Hctz, Potassium, Norvas, and Nexium. I can’t work anymore; can I file for disability?

Answer: If your pacemaker implant was successful, it may not help you much in getting disability. (See my earlier blog post on pacemakers and disability for more information.) In general, Social Security is less interested in diagnoses and more interested in how and your day-to-day functioning is limited. You didn’t mention how you are actually limited in functioning, and the only way to get disability for heart failure without proving that your limitations prevent you from doing any job is to meet Social Security’s disability listing for CHF. If you’ve had three (or more) episodes of acute congestive heart failure over the past year that required extended emergency room treatment or hospitalization, Social Security should grant you disability benefits for meeting the CHF listing without even needing to look at whether your daily functioning is limited. Having failed an exercise stress test can help you meet this listing as well.

But, assuming you haven’t been hospitalized for CHF since your pacemaker implant, you’re more likely to get disability benefits by proving to Social Security that your activities are so limited that there isn’t any work you can do. Ask your doctor what New York Heart Association (NYHA) Functional Classification you fall under: Class I, II, III, or IV. (Class I patients have few symptoms and no limitation in ordinary physical activity while Class IV patients have severe limitations and experience symptoms even while resting). This will give you an idea where you stand, as far as the severity of your limitations. Social Security is more likely to find Class III and IV patients as unable to work due to the severity of their symptoms.

But the way to prove to Social Security that your limitations are too severe for you to work a full-time job is not with your NYHA class but by getting your cardiologist to fill out a functional capacity form saying what you are not able or allowed to do (such as not being able to walk for more than one hour per day or not being able to lift more than 25 pounds) as well as what you are capable of doing (such as being able to sit upright for six hours to eight hours per day).

If your doctor’s form or medical records do prove that you have severe limitations or restrictions, this limits the number of jobs Social Security can say you are able to do, making it harder for Social Security to find you “not disabled.” But if Social Security finds you can do sedentary work (a desk job), you won’t be found disabled unless you don’t have the skills to do sedentary work and you’re over 50 (and you can’t return to your previous work because of your limitations or doctor’s restrictions). Social Security also has to consider how the combined effect of all of your conditions limit your abilities, so make sure you have documentation of all of your conditions when you apply.

Social Security has rejected plenty of applicants who have pacemakers, CHF, high blood pressure, diabetes, and other conditions, so you may want to consult a Social Security disability attorney for help in getting disability benefits.

Can I get disabled widow’s benefits?

Question: My husband of thirty five years died at age 65. He was collecting Social Security. I’m 58, so I’m not eligible for retirement yet, but I can no longer work due to a bad hip and back problems. Someone told me I could get disabled widow’s benefits?

Answer: As long as you became disabled within seven years of your husband’s death and you fit Social Security’s definition of disabled, you should be able to get disabled widow’s benefits (DWB). Disabled widowers receive 71.5% of their spouses’ primary insurance amount, but you may receive less since it sounds like your husband was collecting early retirement benefits.

To get benefits before age 60, you have to apply for disabled widow’s benefits and prove to Social Security that you have a disability that prevents you from working any full-time job, for at least a year. You may want to read Nolo’s articles on disability for back problems and disability for hip problems to see if you would qualify as disabled.

Once you turn 60, your benefits would convert to “aged widow’s benefits,” which are like widow’s retirement benefits. These benefits are also sometimes referred to as surviving spouse benefits or spousal survivor benefits.

Can SSI force someone to apply for early retirement benefits?

Question: My brother just turned 62 and has been on SSI disability for 19 years. He receives $650 a month. Social Security says he has to apply for “early retirement” benefits now and cannot wait until he reaches “full retirement” at age 66. His early retirement benefits will only be $500 a month. Is this accurate? They did not cite any statute.

Answer: It sounds like your brother didn’t qualify for Social Security disability benefits but does qualify for retirement benefits. This can happen when someone didn’t work recently enough in relation to when they filed for disability, but they did work enough years in the past to qualify for a small retirement benefit. In this case, the applicant is stuck with collecting only SSI disability until they turn 62. After they turn 62, they becomes eligible for Social Security retirement.

I’m afraid Social Security is right. One requirement of continuing to receive SSI benefits is that the SSI recipient apply for any other cash benefits that are available, and this includes Social Security retirement benefits. So your brother will have to start collecting his early retirement benefit, even though his retirement benefit would be larger if he were able to wait until full retirement age.

The good news is that he’ll be able to receive both Social Security retirement and SSI at the same time, so his overall monthly benefit won’t decrease. He should receive $500 as the retirement benefit and $150 as the SSI benefit.

A note for those who are receiving both SSI and Social Security disability insurance (SSDI): When these “dual beneficiaries” turn 62, they will continue to receive SSDI until full retirement age, at which time the SSDI will convert to Social Security retirement. (The SSDI and retirement benefit should be the same amount.) In other words, SSDI recipients aren’t forced to apply for early retirement benefits, so their lifetime retirement benefit is not decreased.

If I move to a state that doesn’t recognize same-sex marriage, will I lose my Social Security benefits?

Question: I heard Social Security finally changed the rules regarding benefits for same-sex couples. If I was married in a recognition state in the Northeast and then I retire to Florida, a non-recognition state, will my Social Security spousal benefits be cut off?

Answer: It depends. If you were already receiving benefits before you moved, you should be okay. The Justice Department has clarified this week what happens if a married couple moves to a state that doesn’t recognize gay marriage. From now on, when a claimant applies for spousal benefits, the Social Security Administration will evaluate his or her eligibility based on the state in which she lives during the application process, and will not later reassess eligibility if the person moves. Here’s some background on how Social Security decides eligibility.

Whether a spouse is eligible for Social Security benefits on her spouse’s earnings record depends on whether the state in which the couple lives recognizes the couple’s marriage as valid. Despite a 2013 Supreme Court ruling that overturned part of the Defense of Marriage Act (DOMA), a federal Social Security statute still says spouses are considered married when the state in which they live considers them married.

The states that now recognize same-sex spouses as legally married and eligible for Social Security dependent and survivors benefits are California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and D.C.

So, for example, if you and your spouse are legally married in New York and you apply for Social Security benefits while living there, and then you move to Florida, a state that doesn’t recognize same-sex marriage, you will continue to receive benefits because you lived in New York when you applied for benefits. This is a bit quirky, because it also means that, if you marry in New York, live there for a while, then move to Florida, and then apply for Social Security benefits, you will be ineligible, because at the time of application you lived in a non-recognition state. Confusing, but that’s the way current law stands.

For more information on the benefits available, see Nolo’s articles on Social Security dependents benefits and Social Security survivors benefits.

How come Social Security didn’t find me disabled under a grid rule?

Question: I recently applied for SSDI and was denied. I sent in over 700 pages of medical records. Social Security did agree that I could no longer return to my past laborious jobs of shipper, receiver, stockroom, etc., but I think they failed to use the grid rules. I am 50 years old. I quit school in 11th grade and later got my GED. I have no skill sets and no formal training for sedentary work, which they said is all I can do now. I told them in records and adult function form that I can only lift 5 pounds and have trouble sitting too long; they ignored that. When I searched the Social Security site and read their grid rules, I found out I should have been found disabled!

Answer:

You may be right about the grid rule, but my guess is that Social Security considered the grid rules and decided that you did not fall into the disabled category. Look at our article on Social Security’s disability grid rules and find the chart for RFCs for sedentary work for 50 year olds. Since you got your GED, you fall under ” High school graduate or more, but no training for direct entry into skilled work.” You will see that, if Social Security agreed you have no skills or no transferable skills, you will be found disabled. BUT, if Social Security found you have skills that could be transferred to another job, you will not be found disabled.

Social Security defines shipping or receiving clerk as a skilled job, because it usually involves clerical work, such as “counting, weighing, or measuring items of incoming and outgoing shipments.” So Social Security probably believes that you have skills that you could use at another type of clerical job where you don’t need to lift anything heavier than a few pounds.

To see if this is the case, you should read the personalized explanation rationale you were sent with your denial notice. It may address the grid rules and why you didn’t fit under a rule(they will probably be called medical-vocational rules).

If the personalized explanation rationale doesn’t cover the medical-vocational rules, you should request your disability file from Social Security, which should include Form SSA-4268: Explanation of Determination, which includes the “technical rationale” that the claims examiner used in making your disability determination. The technical rationale contains more information than the personalized explanation rationale. It should address why Social Security didn’t feel that particular grid rules didn’t apply. Then it will be up to you to argue at your appeal hearing why a certain rule does in fact apply.

For instance, if your actual job didn’t involve any clerical work (in other words, you performed the job of shipping/receiving clerk differently than it is generally performed), then you didn’t gain any job skills, and they can’t be considered transferable. In short, you need to prove that your past work was unskilled to fit into this grid rule (or that the skills you did gain are not transferable). Chances are, you would need the help of a disability lawyer to prove this at your appeal hearing, but you can read our article on proving you don’t have transferable job skills to Social Security to see if you think you could handle it yourself.

Your personalized explanation rationale or technical rationale may also include examples of the sedentary jobs that Social Security says you can do. If so, you can try to prove that your medical limitations prevent you from doing these jobs. For instance, at your hearing you should bring up the fact that your records say you can’t sit for too long. (Try to get an updated medical opinion to support this.) In this case, if your records prove that you can’t even do sedentary work, you must be found disabled. For more information on this argument, see our article on how to get disability benefits if you can’t do sedentary work.

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