Category Archives: Social Security Disability

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.

Are State Short-Term Disability and Social Security Disability Benefits Taxed?

Question: I’ve been collecting state short-term disability benefits and it’s my understanding that my state doesn’t tax these benefits, so I didn’t think federal disability benefits would be taxable either. But someone told me this isn’t true and that I  will get taxed on my Social Security disability benefits. Who’s right?

Answer: The taxation of disability benefits is a complicated area. There are federal, state, and private disability benefits, plus two levels of possible taxation: federal and state. Let’s go through them one by one.

State taxation of state disability benefits. As to state short-term disability insurance (SDI or TDI), some states do tax their residents on these temporary disability benefits, so you got lucky. While California, New Jersey, and Rhode Island do not tax state-paid short-term disability benefits, New York and Hawaii partially tax these benefits, depending on how much your employer contributed to the cost of the insurance and how much you contributed to the cost of insurance. You can find out more in Nolo’s series of articles on state short-term disability.

Federal taxation of state disability benefits. The federal government doesn’t tax short-term disability benefits in California (unless the SDI payments are a substitute for unemployment insurance) nor in Rhode Island. The federal government will partially tax short-term disability benefits in New Jersey, New York, and Hawaii, since employers in those states pay for part of the benefit. So just because your state doesn’t tax your SDI benefits doesn’t mean the federal government won’t.

Federal taxation of federal benefits. Whether you’ll be taxed on Social Security disability insurance (SSDI) benefits depends on whether you have other income. The benefits are definitely subject to tax, but if you (and/or your spouse) have less than a certain amount of income, the federal government won’t tax them at all.

But if you receive between $2,084 and $2,833 per month, counting all income, or between $2,667 and $3,666 if you’re married, then half of your Social Security disability benefits will be taxed. If you earn more than that, most of your SSDI benefits will be taxed. See Nolo’s article on Social Security disability taxation for the monthly income break points to see whether you can expect to pay taxes, and how much.

Of course, if you’ll actually be collecting disability benefits through the SSI program, these benefits won’t be taxed at all.

State taxation of federal benefits. Another wrinkle: Whether or not the federal government will tax you on your Social Security disability benefits, your state may tax your Social Security benefits. Most states don’t tax Social Security disability, but some do. Read our article on state taxation of disability benefits to see which category your state falls into.

Can You Get Financial Help While You Wait for a Disability Decision?

Question: My friend is waiting on disability; meanwhile her life has fallen apart. She has a degenerative birth defect that causes her to not grow collagen. As such her joints and body are slowly falling apart. Since having a spinal fusion operation, she has been unable to work. She no longer has insurance and cannot afford doctor visits or medications to help her cope with the pain. It seems like a hopeless situation, but maybe you can offer some advice. She is living in Las Vegas, Nevada if that info helps at all.

Answer: Unfortunately, your friend is in a common predicament – not being able to work and having to appeal a denial of Social Security disability benefits can create great financial hardship. Fortunately, there are several sources of assistance that may be available to her. First, your friend should contact your department of social services (in Nevada, it’s called the Division of Welfare and Supportive Services, or DWSS) to see what help is available locally. A social worker at DWSS will have information on free medical care, food stamps, and welfare payments. The social worker may also be able to you your friend about may be able to refer your friend to a local charity that might help with rent and utilities.

Your friend should be able to qualify for Medicaid. She should apply right away so that she can resume seeing her doctor and taking her medications. It is very hard to win a disability appeal if you are not seeing a doctor.

Nevada was one of the states that agreed to expand Medicaid to low-income folks even if they aren’t elderly or disabled, so your friend does not have to wait to be found disabled by Social Security to be eligible for Medicaid. Your friend can apply for Medicaid through the DWSS website, where she can also apply for temporary cash assistance (welfare) and food assistance (food stamps).

Your friend may also qualify for what’s called “interim public assistance” while waiting for SSI (Supplemental Security Income). Even though your friend may have applied for Social Security disability (SSDI), which is based on her prior work earnings, she may qualify for SSI disability benefits because she has no income. SSI has a program to encourage states to pay temporary cash payments to disability applicants who are awaiting a decision from Social Security on SSI benefits. (Social Security will reimburse a state that has paid interim assistance (IA) once that applicant is approved for SSI benefits. For more information, see my article on interim public assistance.)

However, your friend will be approved for interim assistance only if DWSS believes if there is a strong likelihood that she will be found disabled by Social Security. Again, the best way for your friend to get disability benefits is to apply for Medicaid and see a doctor right away. Her doctor can properly assess whether she is still unable to work because of the spinal fusion and can prescribe medication that can help her symptoms. Your friend should also ask the doctor she sees to fill out a statement documenting her physical limitations, so that Social Security will see that they are no jobs she can do.

I’m 55 and can’t lift 20 pounds because of a bad back. Why was I denied Social Security disability?

Question: I applied for Social Security disability benefits for back problems (a herniated disk and degenerative disc disease) and was denied. I’m 55 and I’ve been working as a forklift operator for 20 years, but I can no longer do my job because I can’t lift 20 pounds. My friend who is on disability told me that since I’m 55 and my doctor limited me to light work, I’m guaranteed disability benefits.

 Answer: Your friend must be referring to the Social Security’s medical-vocational rules, also known as the “grid rules,” which do say that in some cases you should be found disabled if you are 55 or older and have the capacity for light work only (meaning that you can frequently lift or carry up to ten pounds and occasionally lift up to 20 pounds). However, for Social Security to get to the point in the disability analysis to use the grid rules, the agency first must find that you can’t physically do your old job.

Since you’ve been denied, Social Security may have decided that you can do your old job, in which case you’ll have to appeal the denial and convince a Social Security judge otherwise. Perhaps your claims examiner thought you could do the job because he or she mistakenly believed that a forklift operator doesn’t have to be able to regularly lift 20 pounds. Or, maybe Social Security didn’t agree that your RFC should be for light work even though your doctor thought so. If this is the case – say, Social Security gave you an RFC for medium work — you’ll need to appeal and prove that your RFC should actually be for light work.

First, find out exactly why Social Security denied you so you can decide what arguments you can use. If your denial notice doesn’t include a “technical rationale” (which includes an explanation of your residual functional capacity (RFC) and why you were denied), you should request your file from Social Security so that you can review it. Maybe Social Security agreed you couldn’t do the job of forklift operator but thinks your job skills as a machine operator could be used in other work that doesn’t require lifting. (In that case, the grid rule saying that a 55-year-old restricted to light work should be considered disabled doesn’t apply and you’ll probably need to hire a lawyer to get benefits.)

But let’s assume the explanation in your denial letter or file states you have a light RFC but that you can do your old job. You’ll need to request an appeal and prove that you can’t in fact do your old job. At your appeal hearing, the administrative law judge (ALJ) will ask you what was required of you at your old job and how your impairment limits you from doing it. The ALJ must compare each requirement of your forklift operator job with the limitations in your RFC. If there is a limitation in your RFC (such as not regularly lifting 20 pounds) that conflicts with even one of the demands of your job (such as needing to lift 20 pounds routinely), the ALJ should find that you can’t do the work. 

The judge will probably request that a vocational expert (VE) attend your hearing to testify whether he or she thinks you can still do your old job. If the expert thinks you can do your past work despite your impairment, and the ALJ agrees, your claim will be denied. If this happens, beware: the VE may have used an inaccurate job title or description to decide you didn’t need to routinely lift 20 pounds as a forklift operator. If so, you’ll need to politely inform the ALJ that you were required to lift 20 pounds, and offer proof of this. (For the vocational expert to be able to say you can do your past job, it must have required only light work, meaning regularly lifting only 10 pounds or less, since you have a light RFC.) To learn more about correcting the VE or judge, see this article on correcting the details of your past work.

If you decide to hire legal representation for your hearing, your disability attorney will know to ask you important details about your work at the hearing, such as how many pounds you had to lift frequently, whether you had to stoop or bend, and whether you were able to a rest when necessary. This way the VE and ALJ will understand your job as you did it as opposed to how “forklift operator” or a similar job title may be listed in the Dictionary of Occupational Titles (DOT). Once the ALJ and VE know that your job actually required you to lift 20 pounds throughout the day, they will likely agree that you can no longer do your past work. (For more help on this, see this article on proving you can’t do your past work.) Then, your next step will be to get Social Security to agree that the grid rules for advanced age call for you to be found disabled, as your friend indicated.

Did my state labor department stop my unemployment checks because I filed for disability?

Question: I am collecting California unemployment and have been since March.  I am a disabled vet with bipolar.  I have seen a psychiatrist for years and his recommendation is to stop working now at 50 years old or find something smaller that maybe I can handle.  My wife filled out the SS disability application and about the same time, California missed an unemployment payment.  Can California see I have applied for SSDI and stop my unemployment payments? I have a family of 5 and need to work until I can get disability.  
Answer: You are in a tough but unfortunately common situation. I don’t know whether Social Security reports disability payments to the California Employment Development Department (EDD), but in some circumstances, you can legally collect SSDI and unemployment insurance at the same time. In California, you can receive unemployment benefits even if you are able to do part-time work only, and for SSDI, you can get disability if you aren’t able to do full-time work. So, the program rules aren’t necessarily incompatible. However, if the jobs you’ve been applying for are full-time jobs and you submit them to the EDD, this may cause a problem, since you are telling EDD that you are willing and able to work full time but you’re telling Social Security you are not able to work full time. (For more on this, see my blog post on unemployment and disability.) I would call EDD and ask why a payment was skipped. If the agency did terminate your benefits, you can appeal its decision.
Keep in mind that you will be immediately denied SSDI if you start to work before being approved for benefits and you earn more than $1,070 per month (unemployment benefits are not counted toward this limit) at any time after you apply for disability. (This is different from VA disability compensation, where you can still work and collect benefits. By the way, if it’s possible that the time you served aggravated your bipolar disorder, you could be eligible for VA service-connected compensation.)
There is one exception to the Social Security rule that you can’t work after you apply for benefits — if you attempt to work for a short period of time and fail because of your disability (called an unsuccessful work attempt, or UWA), you can still receive disability benefits for this time period. (For more information on what qualifies as a UWA, see my blog post on unsuccessful work attempts.)
Finally, you should know that it’s not easy to get Social Security disability benefits for bipolar disorder. It’s not unlikely you’ll be denied benefits the first time and you’ll have to appeal Social Security’s decision. So you may need to plan to be without income for longer than three to six months. For help on how to win benefits for your condition, see Nolo’s article on getting disability for bipolar.

My medical condition has gotten worse. Can my monthly disability benefit be increased?

Question: Social Security approved me for disability benefits due to arthritis and spinal stenosis. I receive a meager amount per month, but I have been able to work a few hours a month to supplement the SSDI. Now my back has gotten worse and I can’t work at all. Can I get my monthly benefit amount increased?

Answer: Unlike other benefits programs like veterans disability compensation and workers’ compensation, the amount of Social Security disability you’re paid doesn’t depend on how disabled you are, or how much your illness or injury limits you. Your monthly Social Security disability benefit is based on your earnings record (or your spouse’s earnings record, if you qualify for disability based on your spouse’s work). Your disability amount is the same amount of what your retirement benefit would be if you retire at full retirement age. Nor is your SSDI amount dependent on your income or your assets. You can be wealthy and still receive your full Social Security disability benefit.

If you receive SSI, it’s also not tied to the extent of your disability, but it is affected by the amount of your income. SSI is based on a set federal amount, but it’s reduced by the part of your income that’s countable. (Social Security doesn’t count the first $85 of your wages or one-half of the remaining income that you earn every month.) So if you stop working the few hours you’ve been working, your monthly SSI payment should go up.

Does someone on Social Security disability get free Medicare?

Question: I was approved for SSDI because of multiple sclerosis almost two years ago. I should become eligible for Medicare in early 2014.  Is Medicare free for disability recipients, or will I have to pay premiums? If so, how much?

Answer: You are eligible for Medicare two years after your entitlement date for Social Security Disability Insurance (this is the date your backpay was paid from). Medicare isn’t free for most disability recipients though. There are premiums, deductibles, and copays for most parts of Medicare, and the costs go up every year. Here are the new figures for 2014, and how you can get help paying the costs.

Part A Costs

You will have to pay a premium for Medicare Part A (hospital insurance) if you aren’t fully insured under Social Security. Generally being fully insured means having worked 40 quarters (the equivalent of 10 years) in a job paying FICA taxes. Many disability recipients aren’t fully insured because they became unable to work before getting enough work credits. If you (or your spouse) don’t have enough work credits, you’ll pay a premium of $426 per month, or if you (or your spouse) has between 30 and 39 credits, you’ll pay a premium of $215. (The premiums actually went down in 2014.)

If you need hospital or skilled nursing care, you’ll have to pay the first $1,216 in costs (your deductible) before Medicare will start paying anything. Once you’ve satisfied the deductible, the first 60 days in the hospital (or 20 days in skilled nursing care) are free. If you still need inpatient care after that, you will be responsible for the following copays.

  • Hospital days 61-90: $304 per day
  • Hospital days 91 and beyond: $608 per  day, and
  • Skilled nursing days 21-100: $152 per day.

Medicare can be quite expensive for those on disability who aren’t fully insured, but if you are eligible to be a Qualified Medicare Beneficiary (QMB) because of low-income, a Medicare Savings Program will pay your Part A premium, and possibly other costs as well.

Part B Costs

Most people pay a Part B premium of $104.90 each month. However, if your adjusted gross income is over $85,000 (or $170,000 for a couple), the monthly premium can be over $200. The Part B deductible for 2014 is $147 per year.

Again, if you have low income, there are various programs that can pay your Part B premium and deductible, called Medicare Savings Programs.

Part D Costs

Part D premiums vary depending on the plan you choose. The Part D deductible for 2014 is $310 per year (though some plans waive the deductible).

There are subsidies available to pay for Part D for those with low income (called Extra Help). See Nolo’s article on Extra Help for Part D for when you are eligible.

As for the “donut hole,” when Part D helps you less, in 2014 the donut hole begins after you’ve spent $2,850 on prescription drugs and ends when you’ve spent $4,550. However, in 2014, while you are in the donut hole, brand-name drugs must be sold to you at a 52.5% discount and generic drugs at a 28% discount.

For more details on the 2014 costs of Medicare and Medigap plans, see Nolo’s article on Medicare premiums, deductibles, and copays in 2014.

New Social Security Figures Released for 2014

Yesterday Social Security announced that there would be a 1.5% increase in Social Security and SSI benefits for 2014. This is smaller than most retirees and disabled recipients would have liked, but remember that in 2010 and 2011, there was no increase.

Along with this increase in benefits, many important Social Security limits and Medicare fees will change on January 1, 2014.

The average Social Security retirement and disability benefit is expected to increase to $1,294, the average disability benefit to $1,148, and the average surviving spouse benefit to $1,243. The most Social Security benefits a retiree can collect in 2014 will be $2,642 per month.

If you continue to work while collecting early Social Security retirement benefits, your benefits will be reduced by $1 for every $2 you make over $1,290 per month. But if you will turn 66 during 2014, you can make up to $3,450 per month before your benefits are reduced (there is no limit once you turn 66).

The maximum amount of your income that is subject to the Social Security tax to fund Social Security retirement, survivors, and dependents benefits, as well as Social Security disability insurance, is $117,000 in 2014. There is no limit to the amount of income subject to the Medicare tax.

As to SSI, the new federal SSI benefit rate is $721 per month for an individual and $1,082 per month for a couple. The SSI payment amounts are higher in states that pay a supplementary SSI payment. Although some states have higher limits, in states with=out a supplementary payment, if you have income between $721 and $1,527, your SSI payment will be reduced, and over $1,527, your SSI will be terminated.

As far as determining your initial eligibility for disability purposes, in 2014 you must be making less than $1,070 per month to qualify for benefits, or $1,800 if you are blind. If you receive SSDI and are trying to go back to work, if you make more than $770 per month, it will count as one of your nine trial work months.