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Recent Blog Posts
In Its Final Weeks, the Trump Administration Makes It Harder Than Ever for Disabled Americans to Get and Keep Their Social Security Disability Benefits
With only a few weeks left, the Trump Administration has upended a number of rules to make it harder to receive (and even keep) Social Security disability benefits. The White House announced a number of sweeping changes to reduce the number of people on Social Security and to save about $2.5 billion a year.
Some of the biggest new changes to Social Security are:
- Stricter requirements for back impairments: One of the most prevalent disabilities we see are disabling back impairments, particularly those involving the lower ('lumbar') spine. But under new rules effective starting April 21, 2021, the government will no longer grant benefits to people who are unable to walk effectively due to low back impairments. Now, you have to prove you have to use some prosthetic device that prohibits you from using either arm. So a one-handed walker or cane apparently isn't enough. What's more, the rules say that all of the necessary medical findings have to be documented within a 4-month time period-despite a court of appeals ruling that rejected that position! See Radford v. Colvin, 734 F.3d 288 (4th Cir. 2013). Although the Administration used to abide by that appeals court ruling, they've changed their mind. Understandably, several people have objected to these changes. However, the Administration responded that, 'even if in some cases (although not all) the revised rule results in more [denials], we still have a statutory obligation to ensure the listings are up to date... ' Despite the White House's focus on achieving 'progress,' we suspect this will have a devastating effect on millions of Americans for decades to come.
Fibromyalgia & Social Security Disability Filings
Fibromyalgia is a fairly common incurable health condition that is still being researched by medical sciences. What causes fibromyalgia is not completely understood, but it is believed to be rooted in complications of an overactive nervous system, an overabundant amount of blood vessels near the skin, and possibly immune system deficiencies. A study in 2013 shed some light on the theory of nerve and blood vessel complications, but more work needs to be done.
What is understood is that the symptoms of fibromyalgia can be persistent and troubling, most often manifesting as chronic pain that cannot be remedied with painkillers and full-body fatigue that does not go away after a good night's sleep. It is also common for fibromyalgia patients to experience hypersensitivity to touch, numbness in extremities, and joint stiffness.
For many fibromyalgia patients, the symptoms are so consistent and problematic that continuing to work is difficult or seemingly impossible. If you have found yourself in the same situation, then you should know that you might qualify for Social Security Disability Insurance benefits because of your fibromyalgia diagnosis. Every case is different, though, so getting benefits is not guaranteed.
Working and Disability
Can you work and collect disability? That's a question we often get, and the answer isn't as easy as you might think. This topic gets complicated quickly and it's impossible to provide a comprehensive answer in a single blog post. However, this should help to provide a basic overview of how working can affect your disability application.
It's not about 'work'; it's about 'substantial gainful activity.'
To keep this as simple as possible, the government will not award disability benefits to those who are gainfully working. In fact, that's the very first question Social Security asks itself when it receives a disability application. Except instead of referring to 'work,' it refers to 'substantial gainful activity,' or SGA. This SGA concept is so significant, in fact, that Congress specifically defined disability as the 'inability to engage in any substantial gainful activity. . . .'
So what is SGA? Social Security defines SGA as any work that both 1) entails significant physical or mental activities and 2) is done for pay or profit. In fact, SSA has specific monthly dollar amounts for blind and non-blind individuals for each year, and earnings that exceed those levels are generally found to be SGA. For 2020, the monthly threshold is $2,110 for the blind and $1260/month for non-blind individuals. So if you earn more than that amount on a monthly basis, you are very likely performing SGA and cannot be found disabled. But the converse is not necessarily true--even if you make less than the SGA threshold, that does not rule out the possibility of SGA; it just raises a presumption that your work isn't SGA.
SSDI and SSI, What’s the Difference?
A lot of people get confused about the difference between SSI and SSDI, and some of our clients have spent years applying for disability without any grasp of the two programs. If you're wondering about the difference, then this is for you.
Let's start with how the programs are similar. SSDI and SSI both provide monthly benefits for those who are disabled, and the standards for what is a 'disability' are virtually identical. Both apply a five-step analysis that grants disability if you are not working, so long as you have a severe impairment that either:
a) meets/equals the medical criteria the government set in its Listing of Impairments, or else:
b) prevents you from performing your past work and any other work in the economy.
And both programs are subject to the lengthy appeal process (initial determination, followed by a reconsideration determination, then a hearing, and finally Appeals Council review). So, if you apply for SSI and SSDI, chances are good that both applications will be jointly decided by the same Stage agency and the same judge.
Good News from the Fifth Circuit for Disability Applicants
The Fifth Circuit Court of Appeals recently issued a stunning rebuke of the Social Security Administration in a decision that is likely to be cited for years to come. This is a welcome relief to disability applicants in Texas, Louisiana, and Mississippi, all of which reside in the Fifth Circuit.
The opinion is Schofield v. Saul, and the question was whether the Administration was required to explain why it denied Ms. Schofield's disability application without considering her borderline age. By way of background, age has a significant impact on whether a disability applicant is found disabled, particularly if the applicant is 55 or older. At 55, the claimant need only prove that she cannot perform her past work and is limited to light work activity or less without transferable job skills. A similar outcome is directed for unskilled workers who are 50-54 and limited to sedentary work. In short, for a lot of disability applicants, age is everything.
That was particularly true for Schofield, who was only four months shy of her 55th birthday. Had the ALJ applied the higher age category, he would have had to find her disabled. The Fifth Circuit Court of Appeals remanded the case back to the ALJ, who never explained why he declined to consider the higher age category, which the federal regulations envision in such borderline situations.
How to Get Disability for Back Pain
Back pain is an incredibly common condition, with as many as 80% of all people expected to experience back pain at some point in their lifetimes, according to the American Chiropractic Association (ACA). Additionally, the ACA notes that back pain accounts for over 265 million lost hours of work every year. It is one of the top reasons people miss work, and it is the single leading cause of disability. All this to say, if you're currently experiencing debilitating back pain or have been unable to work in the past due to back pain, you're not alone!
But, do you qualify for disability for your back pain? And, if you do, how do you actually get your Social Security disability benefits?
What Is 'Medically Determinable' Back Pain?
The first thing you need to know about qualifying for disability based on back pain is that the Social Security Administration (SSA) does not typically grant benefits to those with mild, moderate, or intermittent back pain. Despite the fact that the SSA receives millions of applications for back pain-more applications for any other type of illness or injury, in fact-it only grants benefits to individuals with 'medically determinable' back impairments. This means that, in order to qualify for Social Security disability benefits, you'll need to show that you have an impairment that can be detected and affirmed by a medical professional.
Biestek v. Berryhill: A Missed Opportunity for Disability Claimants
Earlier this week, the Supreme Court decided Biestek v. Berryhill, a case we hoped would balance in favor of all disability claimants. Unfortunately, the Court did not reach the outcome we had expected.
Understanding the Disability Process
Before delving into the merits of this case, some overview of the disability process is necessary. For most disability applicants, their best hope of success is a hearing before an administrative law judge. The hearing is usually attended by the claimant, his or her attorney, and various expert witnesses, including a vocational expert (and, occasionally, a medical expert). These experts exert tremendous influence on the outcome of a hearing, particularly the vocational expert, or 'VE,' who is responsible for classifying the applicant's job history and testifying as to whether or not there are other duties the applicant can perform.
The Vocational Expert
Enter Biestek. In this case, the vocational expert testified that Biestek could perform 120,000 'sorter' jobs and 240,000 'bench assembler' jobs – the implication being that he was not disabled. When Biestek's attorney asked how the vocational expert arrived at these numbers, she replied that they were from her own private labor market surveys. When the attorney asked to see these surveys, the vocational expert refused, and the Judge concluded that it was unnecessary. After the hearing, the Judge issued a partially favorable decision, denying some of Biestek's benefits based on the vocational expert's testimony. Now, the question was whether the vocational expert's testimony could be considered 'substantial evidence' to deny the claim.
Election Season Myths About Social Security
It's an election year, which means that Social Security has become another contentious topic among political candidates, pundits, and the media. Unfortunately, not all information out there is accurate and the GOP-which infamously tried to keep our Social Security disability fund depleted last year-is counting on the public to take some of these assertions as fact. Below, let's debunk some of the myths that have been circulating.
Illegal Immigrants Are Benefiting from Social Security
Perhaps this myth is prevalent due to a lack of knowledge of how Social Security works, but Social Security benefits are dependent on a claimant's work history in Social Security-covered employment. If you begin a job as an undocumented resident without a Social Security number, there's no way to actually collect future benefits. Fake credentials may fool an employer-but not the Social Security Administration if a claim for benefits is made.
Illegal Immigrants and Fraudsters Are "Skipping the Line"
A Donald Trump ad aired earlier this month implied that illegal immigrants were not only preying on Social Security benefits, they were also "skipping the line" ahead of citizens that had filed legitimate claims. As the Los Angeles Times reports, this is categorically untrue: there is no way to skip the line. In cases where claimants are suffering from life-threatening conditions, there are ways to expedite their claim but, again, the claim must be verified as legitimate first.
Can Drugs and Alcohol Keep You From Getting Disability Benefits?
There is a public perception that those who suffer from drug abuse or alcoholism (DAA) will never be granted approval for disability benefits. That isn't to say, however, that benefits are granted purely on the basis of an alcoholism or drug addiction diagnosis. In the middle of these two myths is the truth – while drugs and alcohol don't always impact your chances of eligibility for benefits, that doesn't mean it never will.
A disability claim can be denied by Social Security if it is determined that the individual's drug and alcohol addiction is a major factor that contributes to his or her disability. If the individual, however, would still meet the requirements without the drug and alcohol abuse, Social Security will consider their case.
To determine if drug or alcohol addiction is material to the determination of disability, Social Security will ask the following questions:
- Is there a history of DAA?
- Is the addiction the only impairment?
New SSD Appeals Change Makes Advocates Wary
It's no secret that the Social Security Administration faces a tremendous backlog of disability claims to evaluate and process. SSA spokesman Mark Hinkle told Huffington Post that the agency is "in the midst of a public service crisis."
Perhaps even more worrisome, however, is what reporters learned the agency is doing to improve efficiency. Up until recently, appealed claims that are remanded for reconsideration were handed back down to an administrative law judge. Now, the SSA is having some of those same cases handed to administrative appeals judges. The change may look minute, but could have negative ramifications for claimants.
That's because administrative appeals judges are not hired or overseen by the same standards as administrative law judges. Administrative law judges are shielded from institutional pressures, performance reviews, and bonus evaluations. Administrative appeals judges are not, calling their impartiality into question.
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