April 2011 Archives

Why do I have to go see a Social Security doctor to get disability benefits? (Part 1)

April 18, 2011

641572_taking_a_bite.jpgAfter an individual files an application for Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI), the Social Security Administration typically sets an appointment for a medical examination to be done by a doctor paid by the Social Security Administration. These appointments are set by state agencies called either Disability Determination Services (DDS) or Disability Adjudication Services (DAS), depending on the state in which you reside (i.e. the state agency in Georgia is DAS). The appointments themselves are referred to as consultative examinations. Many people question the reason for the examination and the need to go to see a Social Security doctor.

For a claim for Social Security Disability or Supplemental Security Income benefits to be successful, the claimant has the burden to prove that he/she is disabled and, in general, is unable to perform substantial gainful activity (work). The Social Security Administration has a duty to develop a claim for benefits by obtaining medical records and other evidence. While it seems that the Administration often falls short in their duty to develop the evidence, the Administration does routinely set up medical evaluations in order to assist in their determination of disability.

When a disability medical exam has been scheduled, it is usually important that the individual attend the exam and do their best during the exam. If an individual fails to go to a scheduled medical exam, Social Security will typically deny the claim for disability benefits. However, there are certain situations where an individual may not need to go to a disability medical exam.

As noted earlier, the person claiming that he/she is disabled has to prove it. Therefore, if the disabled individual receives regular medical treatment and the records of their treating doctors support a finding of disability, there is no need to waist the taxpayers' money for an unnecessary medical exam. Further, there are some instances where the state agency will schedule an appointment with a doctor who does not specialize in the alleged disability or with a doctor known to be biased against the disabled individuals.

We will continue this discussion in Part 2 in order to provide insight into the medical examinations themselves and what can be done to help your claim for disability benefits.

It is important to get advice specific to your disabilities, situation and evidence before you go to a disability medical exam.

The Social Security Disability Claim Evaluation Process

April 12, 2011

Once a claimant files for Social Security Disability Benefits, the disability evaluation process begins. Social Security will use the information that the applicant provides on the application forms to attempt to gather medical evidence of the disability from doctors, hospitals and schools. Social Security may also send the claimant to doctors chosen by Social Security for examinations and/or tests that are called consultative examinations if Social Security has insufficient information to evaluate whether the claimant is disabled.

Once evidence is received by Social Security it is evaluated by examiners at the local state agency which is called the Disability Determination Services [DDS] or Disability Adjudication Services [DAS]. Social Security is looking for more than just a diagnosis by a doctor that a claimant has a medical condition. For adult claims, they are looking for whether the claimant has physical or mental problems that prevent the person from working any job. For children, they are looking for whether the child has physical, mental or growth problems that seriously limit the child from doing things other children in the child's age group is able to do.

In fact, Social Security will deny more claims that it will grant at this initial level. Most of the time Social Security will send a letter called a Notice of Determination or Notice of Disapproved Claim finding that the adult applicant is not disabled because he or she is able to do the work they used to do or able to do some other less stressful or less demanding work. In a child's claim, Social Security often denies the claim finding that the child has no severe or marked limitations on functioning as other children of the same age function.

The key is to not give up if you feel that you are unable to work or that your child is not functioning normally. If you receive an initial denial notice, you must appeal within 60 days of the date on the notice. In most states, including Georgia, Florida, North and South Carolina and Tennessee, the first level of appeal is called "Request for Reconsideration". Once such an appeal is filed with the local Social Security office, the claim will be reconsidered along with any new information that the claimant provides on the appeal forms. In most cases, the Social Security Administration will then again deny the claim, sending a Notice of Reconsideration or Reconsideration Denial Notice. The claimant will then have another 60 days to file a "Request for a Hearing" - the second level of appeal - that will give the claimant an opportunity to be heard by an Administrative Law Judge and the best chance for a favorable decision.

Use of Department of Veterans' Affairs Disability Decisions by the Social Security Administration

April 11, 2011

904093_army.jpgWhen deciding a claim for Social Security Disability Benefits (SSDI) or Supplemental Security Income (SSI) the Social Security Administration is required to take into account a disability decision made by the Department of Veterans' Affairs (VA). Similarly, the VA is required to take into evidence a favorable decision with regard to Social Security benefits. The VA's regulations, however, are not as claimant friendly as the Social Security Administration's.

According to the Social Security Administration's own rules and regulations, a decision by any governmental agency about whether an individual is disabled or blind must be considered evidence. See 20 C.F.R. §404.1512(b)(5); see also Social Security Ruling 06-03p. While such evidence is not binding on the Social Security Administration, various Circuit Courts have helped determine the weight that should be given to favorable/unfavorable disability decisions. See 20 C.F.R. §404.1504. With regard to a veteran's disability rating from the VA, the Circuit Courts that have jurisdiction over 20 states and over Guam and Northern Mariana Islands have said that the Social Security Administration must give them evidentiary weight.

For veterans living in Georgia, Alabama, or Florida, the 11th Circuit Court held that a VA decision rating a veteran's disability is entitled to "great weight". See Brady v. Heckler, 724 F.2d 914, 921 (11th Cir. 1984).

Continue reading "Use of Department of Veterans' Affairs Disability Decisions by the Social Security Administration" »

How Does Workers' Compensation Affect Social Security Disability Benefits?

April 4, 2011

Often times our clients have a workers' compensation case as well as a Social Security disability case. A question that comes up is whether the client can receive a monthly check for Social Security disability as well as a weekly check from workers' compensation. The short answer is: it depends. If you are receiving a weekly workers' compensation check under Georgia law, the amount of that weekly check will not be reduced by any Social Security income benefits you might be getting.

However, the amount of the monthly Social Security disability check may be partially reduced or even completely cut out while you are receiving Georgia workers' compensation weekly checks.

Any reduction in Social Security income benefits is determined by calculating the amount of your average earnings (ACE) before you got disabled. Generally speaking, the total combined amount of your monthly workers' compensation and Social Security disability income benefits cannot exceed 80% of what you were earning on the job when you got hurt. Otherwise, you may very well end up having the amount of your monthly Social Security disability income check reduced or cut out altogether.

One way to keep your Social Security check from being reduced or eliminated by the Georgia workers' compensation checks you are getting is to reach a settlement in your workers' compensation case with your employer and its insurance company. There needs to be special language in your workers' compensation settlement document which takes the total amount of your workers' compensation settlement and breaks it down into a weekly amount based on how long the actuarial tables say you will live given your current age. With this, the Social Security Administration treats you as though you are still getting a weekly workers' comp check even though workers' comp ends after your settlement.

However, the "make believe" workers' comp check that the Social Security Administration says you are getting will be significantly less than the actual workers' comp check you were receiving before the settlement. This will typically cause your monthly Social Security disability income check to go back up after the workers' comp settlement goes through.

Continue reading "How Does Workers' Compensation Affect Social Security Disability Benefits?" »