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

What can I do if Social Security didn’t give me the correct disability start date?

Question: I applied for SSDI in January of 2014 and, although I have been disabled since a major surgery on 01/20/12, SSDI chose 01/20/13 as my effective disability start date. This decision means I cannot receive Medicare benefits until January 2015.This is not a correct decision by SSDI and I cannot find any info on how to appeal the decision. I am hoping you will be able to assist me.   

Answer: Unfortunately, I don’t think Social Security has made a mistake. You may well have met Social Security’s definition of disability in January 2012, but Social Security will pay retroactive benefits going back only so far. In turn, Social Security will assign a disability start date (called an established onset date) going back only so far.

The rule is that Social Security will pay retroactive benefits going back only 12 months before the date you apply. Since you applied in January 2014, you can only receive benefits dating back to January 2013 (your “entitlement date”).  You become eligible for Medicare 24 months after your entitlement date, which in your case means January 2015.

Just to clear up a little confusion, your disability onset date is not the same as the day you become entitled to disability payments. There is a five-month waiting period in between your disability onset date and when you are entitled to be paid benefits, meaning Social Security will set your disability onset date to be five months before your entitlement date. What this means is that your disability onset date can be no earlier than 17 months before the date you apply for Social Security benefits. In your case, your disability onset date should be in August 2012.

I’m sorry that wasn’t the answer you wanted to hear. You may be able to qualify for Medicaid until January 2015, if your medical expenses are very high and your income and assets aren’t.

Do I Have to Pay Taxes on My Lump-Sum Backpayment of Social Security Disability Benefits?

Question: I was finally approved for disability late last year and received a large lump sum payment from Social Security. But half of this money was for the tax year before last year. It makes it look like I had a high income last year. Am I going to have to give half my disability backpay away because of this? Can I amend the last year’s tax return and claim half the disability income on that return instead?

Answer: Disability backpay can bump up your taxable income in the year you receive the lump sum payment from Social Security, which could cause you to pay more in taxes than you should have to. Technically, part of the backpay should have been paid to you last year or even the year before, so Social Security does allow you to attribute part of the backpayment to prior years, if you know how to do it.

First, know that many people won’t owe taxes on their backpay at all because their income is so low. If you file your taxes individually and you received less than $25,000 in disability backpay and income during the year, you won’t owe any taxes on your Social Security disability income. Likewise, if you file your taxes jointly (with your spouse) and you received less than $32,000 in backpay and income during the year, you won’t owe any taxes on your disability income.

If your backpay and income are over these amounts, the IRS will allow you to allocate your past-due disability benefits to the year you should have received them, and you don’t have to “amend” your prior year tax returns to do it. Social Security should have sent you a form called SSA-1099. It will state in Box 3 how much of your disability backpay was owed to you for each of the previous years you accrued back pay.

You’ll still pay any taxes owed on these amounts with your current year’s tax return, but you’ll be able to figure out whether you owe taxes on each year’s disability backpayments using the amount of backpay attributable to the prior years and your other income in those years. In prior years where your income, including the backpay attributable to that year, was below $25,000 (or $32,000 if you’re married), you won’t owe any taxes on the disability backpay. IRS Publication 915: Social Security and Equivalent Railroad Retirement Benefits describes this method in full and provides worksheets, but it can still be difficult to figure out how to do it. You may want to talk to a tax professional or use tax preparation software to make the calculations for you.

Note also that if you hired a disability attorney to help you win your Social Security benefits, you can deduct the cost of the attorney’s fee so you don’t have to pay taxes on this amount. For more information on this, see our article on the taxation of disability backpay.

Does Social Security Often Send You to a Mental Exam After DDS Finds You Disabled?

Question: Is it often that a claim is accepted by DDS, returned by SSA for medical evaluations, then denied based on the DDS contracted evaluator, instead of the claimants’ doctors records and notes? I am asking because this is what happened to me. The evaluator at the DDS field office had granted me disability based on my doctors’ medical records and notes for my fibromyalgia and degenerative disk disease. My doctors had also listed depression and anxiety disorder since my physician has been treating me for those for years, so SSA’s quality assurance returned my claim, stating I needed a psych eval. Then I received the denial based on the recent examination, so they let a five minute exam over rule years of my doctors’ records. I am wondering if this kind of thing is common.

Answer: I’m sorry to hear about what happened. It’s not common that quality control gets involved, and it’s even less common that quality control overturns an approval. Quality control is done by Social Security’s Disability Quality Branches (DQBs). The DQBs look at a random sample of decided disability claims from each Disability Determination Services (DDS) office (about 1% of cases). Your case was unlucky enough to get chosen. Social Security practices this quality control because the DDS offices are run by each state, with state employees’ making decisions. Because Social Security is a federal program, quality control checks the DDS decisions to make sure they conform to federal law. You can read more about it in our article on the disability program’s Quality Assurance Review Board.
Quality control may have sent you for a mental consultative exam to get a psychiatrist’s opinion on the severity of your depression or anxiety, though this shouldn’t have affected DDS’s opinion that your fibromyalgia and DDD were disabling. If it did, you should be able to win on appeal. Or, quality control may have sent you to a mental evaluation to get an opinion on whether you were exaggerating your symptoms or even malingering (faking). If the mental exam came back saying you were exaggerating or malingering, that could explain why quality control overturned DDS.
Either way, you need to find out what the written report from the consultative exam says. You can do this by requesting your disability file from Social Security. Because DDS found you disabled, you probably have a good chance of winning your claim if you appeal. I recommend you talk to a lawyer about your situation.

Should I hire a Social Security disability advocate or a Social Security disability lawyer?

Question: I’m about to apply for Social Security disability. I’ve seen an ad for disability advocates. What’s the difference between a disability advocate and a disability lawyer? Which should I hire?

Answer: The term Social Security disability advocate is used by both lawyers and nonlawyers who help people with their disability cases. However, many, if not most, individuals who advertise their services as “disability advocates” are not lawyers. Social Security is one of the few areas of law where it’s legal for someone to help and represent you at hearings without a license to practice law (thanks to a law passed in 2004 to reduce the backlog of Social Security disability cases).

Nonlawyer disability advocates must have a college degree or equivalent training, but they don’t need to go to law school or have any legal training. They do need to pass a Social Security exam on disability procedures and pass a criminal background check.

Disability lawyers, on the other hand, have graduated from three years of law school and passed the bar exam. They’ve learned to write legal briefs, question plaintiffs and witnesses at hearings, and properly read prior cases to support your claim.

Another difference: nonlawyer disability advocates aren’t subject to any rules of professional conduct requiring them to return phone calls promptly, charge you a fair amount for expenses, and keep you notified about your case. Disability lawyers, on the other hand, are, and are subject to discipline if they violate these ethical rules.

Also, only a licensed lawyer can appeal your Social Security disability claim to federal court, should you lose your appeal with Social Security.

You’d think that disability lawyers would be able to charge more for their services, but they can’t. Both nonlawyer and lawyer advocates are limited to the same percentage of your disability award (25%) and are paid only if they win. (Read more about how disability lawyers charge you here.)

Either way, if you have a hearing coming up, your chances of getting approved for benefits are higher if you’re represented by a lawyer or nonlawyer advocate. Nolo has a directory of disability advocates who can help you with your case; fill out a case evaluation form to have one of them contact you.

How can my doctor help me get disability benefits for fibromyalgia?

Question: I turned 50 this month of January 2014. I became ill in 2004. I have 10 years of medical records, doctors’ appointments, and tests. I went out on disability once in 2006; the doctor stated CFS/fibromyalgia. I lost my job in 2010…laid off due to low work they said, but it was due to illness. One doctor diagnosed me in 2005 with lime disease from tests….another said, Lyme and CFS/fibro.

I have upcoming appointments with pain management, allergies, and a second neurologist and rheumatologist. The first rheumatologist gave me physical therapy appointments…going to them, but suffer after with pain.

I suffer from weak legs that feel heavy and pins and needles, shakes and tremors, can’t walk more than 10-15 minutes, slowly. Also have tremors in arms and hands, stiff joints, radiating pain, sore painful joints, fatigue and burning shins. Acid reflux that can’t be cured, allergies that clogged my face with pain. Back constantly cracks and gives pain. Forearm and thumb move by themselves when writing or typing to long. Pain too. Constipation and other stomach issues are there as well.
How would I best go about asking my primary care physician (PCP) to help me? He knows my situation and has included notes about it in my records. If I send a letter to each doctor I have seen, are they required to include the letter in my records? This letter would describe my illness and how it affects me daily. Would my doctor charge me to fill out the RFC or write a letter? Would a chiropractor be helpful in my case?

Answer: You are doing the right thing by setting up doctors’ appointments. When you’re at the doctors’ offices, tell them as much as possible about your symptoms. You can follow up with a letter if you wish (whether or not the letter goes into your medical record, you can submit a letter and/or pain diary to Social Security with your disability application). When you apply for Social Security disability, the agency will request your complete medical records from all doctors that you list on your disability application.

Since you are applying for fibromyalgia, Social Security will be most interested in the opinion of the rheumatologist. Ask the rheumatologist to fill out a residual functional capacity report for you. You can use our blank RFC form for fibromyalgia. This form will elicit the exact answers from your doctor that Social Security needs to know; it was developed to correspond closely with Social Security’s criteria for getting disability based on fibromyalgia (see the details in Nolo’s article on Social Security’s requirements for getting disability for fibromyalgia). Here are some of the questions the fibro RFC asks of your doctor:

  • Does the patient meet the 2010 diagnostic criteria for fibromyalgia as defined by the American College of Rheumatology?
  • Which of the patient’s tender points are positive for pain?
  • How long have the patient’s symptoms lasted?
  • How long can the patient walk, how much can the patient lift, etc.
  • Does the patient suffer from fibro symptoms such as fatigue, cognitive and memory problems, irritable bowel syndrome, depression, anxiety, and/or lack of restful sleep?

Some doctors will charge a fee for filling out this type of form (it is quite long), but since it will be critical to your disability case, it’s well worth it to spend a hundred dollars or so on it. If you have trouble getting your rheumatologist to fill out the form, read Nolo’s article on getting your doctor to help with your disability claim.

As to your other doctors, Social Security will not take into account a chiropractor’s opinion on your diagnosis, but may consider his or her opinion on how your activities are limited. Again, since rheumatologists are specialists in fibromyalgia, Social Security will give their opinion the most weight. If cognitive or mental issues add to your inability to work, a neurologist’s opinion may be helpful as well. Your PCP’s opinion can also be helpful, not so much on the diagnosis of fibromyalgia, but to supplement the rheumatologist’s opinion on the details of your claim. Your PCP can bolster your credibility (adding their opinion that you’re not a malingerer, or faker), give a longitudinal (historical) view of your symptoms, and can specify what your limitations are. Your PCP should fill out a second fibromyalgia RFC to record these details and submit it to Social Security as well.

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