DISABILITY BENEFITS FOR CHRONIC PAIN

 Chronic pain may certainly be disabling.  However, it is not listed in Social Security's Blue Book as a medical condition.

You may get SSDI benefits for chronic pain but there are some definite requirements.

First, let's define what we mean by "chronic pain."

It is pain that lasts longer than the expected discourse of an illness or injury.  Or, it may be pain that has lasted more than about 6 months.

Pain is a symptom of an injury or illness.  Social Security does not award benefits for symptoms alone.  So, your doctor must determine the underlying source or cause of pain.  Here are steps to take before applying for disability benefits for chronic pain.

1.  You must have a definite diagnosis of a medically determinable impairment that causes the pain.  This definition needs to be based on X-rays, imaging, lab tests or other objective, medically accepted investigations.

2.  The pain must be shown to be a reasonable symptom of the type of medical condition that has been diagnosed.

3.  You should do everything possible to mitigate the pain, such as seeing specialists and following medical treatment.

4.  Severity and frequency of the pain should be documented in your medical records, along with location(s) and description of the pain.  Is it aching, throbbing, stabbing?  Does it radiate or move?  Is it constant, frequent or occasional?

5.  If possible, get a treating doctor to provide a treating source statement, opining how the chronic pain will limit the ability to perform work-like activity.  For example, being absent from work, being off task, inability to concentrate or complete tasks, difficulty bending, standing, walking, etc.  The more specific, the better.

So, a claimant with images showing a herniated lumbar disc with nerve root encroachment could reasonably be expected to have severe back pain.  However, a claimant complaining of severe back of unknown etiology needs medical tests to determine the cause of the pain prior to filing a disability claim.

The other thing to consider:  Social Security accepts that certain symptoms renders a person unable to perform certain types of work, not necessarily all work.  An individual who cannot stand and/or walk more than 2 hours per day, and who is limited to lifting no more than 10 pounds occasionally could not perform work at the heavy or medium exertion levels--but might be able to perform sedentary level work.

Claimants below age 55 are usually not considered "disabled" under Social Security's rules unless that are unable to perform any full-time work.  So, age plays a definite part in the evaluation of a disability claim.

SOCIAL SECURITY'S NOVEL, DARING APPROACH TO PAYING DISABILITY CLAIMS

 

"Reconsideration" is the first appeal after Social Security denies your claim for disability benefits. It is a, daring, dubious delaying tactic which adds 79 days to the already long process. It helps Social Security, but not the claimant.

RECONSIDERATION STUDY. The US Government recently did a study on how the "Reconsideration" process effects disability claimants at Social Security. "Reconsideration" is the step required before the case can go to an administrative law judge for appeal.

Of 616,917 claims denied in 2018, 86,400 (14%) took no further action and gave up. Some claimants had died. 530,500 appealed to a judge. Of those 530,500 cases that went before a judge 290,000 (55%) were awarded benefits. In 2018, the study found it took 79 days longer for a claimant to receive an award in states that used the "Reconsideration" process. In total, it took an average of 924 days to get an award in states that used "Reconsideration." (Note: All states now use "Reconsideration; until 2019, 40 states used it).

So, why use a process that makes incorrect decisions 55 percent of the time and takes 79 days longer to resolve a claim? The study gives the answer: It saved Social Security $3.9 billion over 10 years.

It saves money because 14 percent of claimants die or give up after being rejected at "Reconsideration." Social Security drags out the process: slower, more difficult, more overwhelming.14 percent of claimants just give up and Social Security saves billions.

This makes it difficult to believe that the Social Security Administration has the goal of giving disabled individuals a prompt, fair and unbiased way to claim benefits. It rather seems it has the goal of weeding out claimants, stalling the process as long as possible, and paying claims only when it becomes a last resort. It should be changed. Unfortunately, changes are not favoring the claimant. Who could guess?

 

 

CAN DOCTORS APPROVE YOU FOR A SOCIAL SECURITY DISABILITY CHECK?

In short, No, doctors cannot approve anyone for a disability benefit.

Under the federal law, only one individual can find that a person is legally disabled  and that is the Commissioner of Social Security.  This decision is one of a handful of decisions "reserved to the Commissioner."  Thus, a doctor's opinion regarding disability is of no use at all and will be ignored by decision makers. Social Security alone can make that decision.

 However, doctors may offer their opinion about a claimant's restrictions of function.  This opinion must be supported by treatment records and must be consistent with the entire body of medical evidence.  A doctor's opinion may be "conjured out of thin air."

The doctor's opinion must be very specific and must be related to function. The following are examples of opinions that doctors may provide and which will be considered by Social Security.  These are only samples:

 It is my opinion that due to severe degenerative disc disease and chronic back pain, this patient will be limited to sitting no more than 30 minutes at one time and not more than 4 hours out of an 8-hour day.  OR...

This individual could stand or walk in combination for about 15 minutes at one time but not more than about 2 hours per 8-hour day.  OR....

This patient will be able to lift and carry no more than 10 pounds frequently and up to 20 pounds occasionally.  OR.....

Based on Major Depressive Disorder, PTSD and Anxiety Disorder, this individual will need a ten minute break every hour, will need to be refocused about once an hour and he/she will be off task about 15 percent of the workday.

It is my opinion that due to chronic pain syndrome caused by herniated discs and sciatica, Mr. _______ would be absent 2 or 3 days of work per month.

Notice that each opinion provides a very specific limitation that explains the cause of the limitation, which function is limited, and exactly how severe the limitation is.

A doctor's letter that says something like this is useless and will not be considered by Social Security:  "I have treated Ms. ______for fifteen years for chronic back pain and depression.  It is my opinion that she is totally and permanently disabled and is not able to work any job. She should receive disability benefits."  Here, the doctor is making a determination reserved to the Commissioner.

Your attorney-advocate can direct you in what evidence your doctor can and should provide to help your disability claim.  Most attorneys have their own form for the doctor to complete, which will be admissible and potentially effective with Social Security decision makers and judges.

   

HOW WE APPROACH A SOCIAL SECURITY DISABILITY CLAIM

 I want to provide an idea of how we approach a new Social Security disability claim.  This could make you less anxious about trying to get benefits and going through the process.

Your first contact with us will probably be a phone call (256) 799-0297.  We will ask you some questions and check out your basic eligibility requirements.  We will ask whether or not you are working, when you stopped working, and about your medical conditions.

 After determining that you may be a candidate for Social Security disability, we will make an appointment for you to come by our office near Bridge Street and speak with an advocate.  At this meeting, we can actually get more information and file the initial claim.  

We will always take time for your questions.  We are never rushed and take as much time as needed to know your case and how to approach your claim.

After you appoint us as your representative, we will keep your medical file updated for Social Security, handle correspondence with Social Security, file any appeals that become necessary, and prepare your case to go to court, if that is required.  Of course, answering our client's questions and helping them to understand the whole process if a big part of our job.

Having good representation may actually double you odds with Social Security.  A recent survey found......

31 percent of unrepresented claimants were approved for benefits.

60 percent of represented claimants were approved for benefits.

Start with a phone call.  Let's see if you have case.  If so, we will work tirelessly to get you approved.  (256) 799-0297.

 

 

 

 

SOCIAL SECURITY BACK PAY MONEY: GET THE MOST YOU CAN

Social Security often pays "back pay," which is benefits that accrue while they deliberate and investigate your claim.  Some claimants receive thousands of dollars--or tens of thousands of dollars--in back pay when their claim finally settles.

 There are several factors that control how much back pay you will get:

1.  The First factor is disability onset date.  Social Security will determine when your disability began (the onset date) and will pay back to that date (but not more than 12 months prior to the application date).  Also, while the claimant waits on Social Security to slowly grind its way toward a decision, a monthly payment accrues for each month of waiting.  

2.   The Second Factor is the application date.  Social Security can pay "backwards" up to 12 months prior to the date of the application.  For example, if your application was filed on June 1, 2020--benefits can go back as far as June 1, 2019.  

3.  The third factor is medical evidence.  Social Security will require objective medical evidence that establishes the date that disability began.  It's important to have evidence that proves when you became disabled, not just that you are disabled.  

4.  The fourth factor is - the date the claimant last worked.  Social Security will not play a benefit for any month in which the claimant worked at "Substantial Gainful Activity" or "SGA."  That is defined by the amount of gross wages earned in each month.  In 2020, a person is working at SGA level if he/she earns wages (or self employment income) of at least $1,310 per month.  In 2020, that amount was $1,260. So, in 2021, a claimant can't get a benefit for any month in which he earned at least $1,310.

Social Security often disagrees with claimants concerning the onset date of disability. The agency will often move the onset date forward, which reduces the claimant's back pay.

If a claimant disagrees with the onset date, can it be appealed?  Yes.  The issue can be taken to court before an administrative law judge, who will make a final decision on whether the onset date is correct, as supported by the evidence.  One word of caution when appealing onset dates is in order.  When this appeal is filed, the entire case goes back under review by the judge.  The judge may issue one of 3 decisions:

1.  A decision that is more favorable to you than the previous decision.

2.  A decision that is less favorable to you than the previous decision.

3.  A decision that is the same as the previous decision.

Is it possible that a judge looks at your appeal of the onset date and makes a ruling that no benefit is due and take away everything?  Yes, that is possible.  The entire decision is under review.  Is that likely?  Probably not, but certainly we have to admit that it could happen.

Should you appeal an onset date which stripped you of back pay?  The answer to that should come out of a long and careful consultation with your legal counsel.  Your attorney/representative should analyze the strengths and weaknesses of your case and help you decide whether an appeal is wise.  There must be an evaluation of evidence which supports your position for an earlier onset date.  

Finally, does an appeal stop the benefits that Social Security has already approved?  No.  The benefits approved under the original decision are paid pending the outcome of the appeal.  After the judge has rendered a new decision on the appeal, benefits will be paid according to the new decision.

 

DISABILITY HEARING IN YOUR FUTURE? IT'S OUR SPECIALTY.

 Most disability claims with Social Security wind up before a judge.  The judge decides who gets benefits and who doesn't.

You only get one hearing, so make the most of it.  

Our firm specializes in appearing with clients at hearings and explaining why the law allows a benefit to be paid.  Our advocate will thoroughly research your case and understand it's particular in's and out's.  Then, we will approach the judge with you and represent your interests.

How are we paid?  Your fee is based on a contingency.  That means, you never pay a fee unless 2 things happen:

1.  You win your claim and get benefits.

2.  Your benefits include a past due or retroactive lump sum payment.

Our fee is based on a percentage of your back pay and must be approved by Social Security before you pay.

HOW YOU SEE YOUR DISABILITY VS. HOW SOCIAL SECURITY SEES IT

 

"The only thing obvious to Social Security is a denial." 

 

Most of the individuals who come to me for disability benefit assistance have a very clear view of their disability. They have lived with their medical impairment for a long time and they understand it. It is very obvious to them that they are not able to work and that they qualify for disability benefits.

However, Social Security will see the claim very differently. If I could choose one word to describe Social Security's attitude, it would be SKEPTICAL.

Nothing is obvious to decision makers at Social Security. Everything must be investigated, questioned, prodded, documented, verified and proven or refuted. Social Security's greatest fear is "fraud," the idea that someone might get a benefit that they are not entitled to.

The claimant makes allegations. Evidence is required before these allegations become fact.

Here are some major differences between the way Social Security sees a clam, vs. the way a claimant sees the claim:

 

1.    You start the process as a "non-disabled" person. Just like an accused criminal enters his trial "innocent until proven guilty," a disability claimant is "not disabled until proven disabled." So, you start as someone not qualified for a benefit. It's up to you and your attorney to change that and prove that you are eligible. The burden is on you. Social Security does not have to prove that you are not disabled

 

2. Social Security does not give you the benefit of the doubt. If there is any doubt about whether you meet disability rules, the doubt goes in favor of Social Security, not you. So evidence must prove disability beyond a doubt.

3. Social Security will not accept anything you say or anything your representative says unless it is supported by evidence or proof. Nothing is obvious to Social Security.

4. Evidence to prove your case must meet the "Rule of the 3 Cs." It must be CURRENT, CLEAR, and CONVINCING.

This explains why claimants are so shocked when they go before Social Security with a case that they feel is "obvious," and get denied. The fact is, you didn't prove disability by the book.

Since most disability claimants have never read "the book," they have little chance to prove their case "by the book."

 

    If you feel that you are obviously disabled and common sense proves it, you are in for a terrible disappointment when you make contact with Social Security.

Social Security uses no common sense and nothing is obvious to them.

You should find an attorney or advocate who understands evidence, burden of proof, and what proof is required to overcome the skepticism at Social Security.

The only obvious result of a disability claim is denial.

Winning requires a lot more.