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The Basics of Social Security Disability

The following information is from government publications about Social Security Disability. Information in black is taken directly from the text. Any information that may appear in red is the responsibility of myself, Steven D. Hylton, and is taken from years of working with Social Security Disability Determination Services, legal firms representing persons applying for disability benefits (most notably, Geraty, McQueen & Vitt of Charlottesville, VA) and assisting various clients in applying for social security disability benefits. In the years that I did such work, I never had a client who did not ultimately get his benefits except in cases where the client chose not to appeal an early denial. This record includes my own application for disability benefits, in which I represented myself before the final determination, the administrative law judge hearing. And I tried not to but in where the original text is reasonable self-explanatory. Feel free to contact me with any questions; psyche0@digdat.com .

Introduction

The Social Security Administration has national responsibility for the administration of both the Social Security disability insurance program (title II) and the supplementary security income (SSI) program (title XVI). Title II provides coverage for cash benefits for those disabled workers (and their dependents) who have contributed to the Social Security trust fund through the FICA tax on their earnings. Title XVI (SSI) provides a minimum income level for the needy aged, blind, and disabled. A person qualifies under the SSI program because of financial need. Under title XVI, financial need is evidenced by a limitation of income and resources to a level that is equal to or less than the amount specified in the law.

Under both programs the definitions of disability and blindness are essentially the same. The law defines disability as "the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairments which can be expected to end in death or has lasted or can be expected to last for a continuous period of no less than 12 months ...."

You should note that both programs require a person to be disabled, but that Disability payments are only made to people with a history of work and payments to FICA. SSI is only for people who have not made such payments or whose payments only entitle them to a small amount of disability.

The second paragraph defines disability by several criteria:

MEDICAL EVALUATION CRITERIA

The medical evaluation criteria (Listing of Impairments) describe impairments—in terms of specific symptoms, signs, and laboratory findings—that are presumed to be severe enough to prevent an individual from working for a year or longer.

Social Security has a book that lists all valid diagnoses and criteria for each diagnosis that a individual with that diagnosis must meet to be determined eligible for benefits; this information is taken from that book.

MEDICAL EQUIVALENCY

A patient who is not working can meet the Social Security definition of disability if he or she has an impairment with specific clinical findings that are the same as or medically equivalent to any set of findings under the evaluation criteria.

The Criteria as described above are not written in stone -- but be aware that the process will take longer if you claim "medically equivalent" findings as such may have to be determined in the administrative hearing process.

MEDICAL BASIS OF DISABILITY

To qualify for payments under either the title II or the title XVI disability programs, an individual must have a medically determinable impairment. The means an impairment which has medically demonstrable anatomical, physiological, or psychological abnormalities. Such abnormalities are medically determinable if they manifest themselves as signs or laboratory findings apart from symptoms.

Abnormalities which manifest themselves only as symptoms are not medically determinable. Symptoms are the claimant’s own perception of his or her physical or mental impairment. Signs are anatomical, physiological, or psychological abnormalities which can be observed through the use of medically acceptable clinical techniques. In psychiatric impairments, signs are medically demonstrable abnormalities of behavior, affect, thought, memory, orientation, and contact with reality. Laboratory findings are manifestations of anatomical, physiological, or psychological phenomena demonstrable by replacing or extending the perceptiveness of the observer’s senses and include chemical, electrophysiological, roentgenological, or psychological tests. Statements of the applicant, including his or her own description of the impairment, are alone insufficient to establish the presence of a physical or mental impairment.

Under both the title II and the title XVI programs, medical evidence forms the backbone for the determination of disability. The existence of a disabling condition must be supported by medical evidence such as:

1. A report signed by a duly licensed physician or psychologist. Such a report should contain the applicant’s medical history relating to the impairment or impairments which prevent work. The report should contain a description of a physical examination and such supporting laboratory data needed to determine the nature and severity of the impairment. The evaluation criteria are helpful in determining the type of information needed. The medical report should not be limited to those clinical findings which are listed. All symptoms, signs, and laboratory findings which have a bearing on the impairment should be reported. Disability decisions cannot be made on the basis of clinical judgements relating to an applicant’s diagnosis, prognosis or remaining capacity to work unless the supporting signs or laboratory findings are also reported.

2. A copy or summary of the medical records of a hospital, clinic, sanatarium, medical institution, or health care facility. Generally, the copy should be certified as accurate by the custodian, (e.g., the medical records administrator).

You can assist your doctor greatly by maintaining your own records of hospitalizations and office visits, especially when hospitalization or office visits involve another doctor. Such information should already be in your chart, but it never hurts to have such information yourself to remind the doctor you are currently seeing and who will be preparing such reports for disability determination services. For example, I keep a basic medical history with significant dates and hospitalizations; this history includes medications that have been used and any results or reasons for discontinuing the medication, various doctors and I have seen and their addresses, and all the hospitals or clinics that have treated me along with the dates and addresses.

FEES

The Social Security disability programs allow payment of a physician’s fee for reports of medical evidence of record on patients who apply for disability benefits under title II or title XVI, Fees are usually set by the State Disability Determination Service (DDS) on the basis of comparability of cost for reports in other State medical programs.

For both Social Security and SSI disability claims, the Federal Government can specifically request and authorize payment for additional medical evidence when the information of record is insufficient to make a disability determination. The fees for this evidence are also set by the State DDS.

VOCATIONAL FACTORS

If the impairment is severe but not the same as/or medically equivalent to any set of findings in the evaluation criteria (a medical/legal decision), an individual may still be found disabled if—considering the person’s impairment, age, education, and previous work experience—he or she is unable to engage in substantial gainful work (an administrative decision). Substantial gainful work is any work of a nature generally performed for renumeration or profit, involving the performance of significant physical or mental duties, or a combination of both. Work may be considered substantial even if performed part time, and even if it is less demanding or less responsible than the individual’s former work, and it may be considered gainful even if it pays less than his or her former work.

Please note this distinction: If you do not meet the full criteria for disability based on your impairment but are clearly severely impaired, Social Security will compare your ability to do work with the work that you have been doing over the course of your life and with other jobs for which you may be qualified based on your age and education. You can still be considered disabled if your impairment interferes with your ability to perform any of these jobs or if such jobs are not available to you. For example, I had a client who did not meet the criteria based on his impairment, but his impairment was sufficient to prevent him from performing any job available in the area, and thus he was determined to be disabled.

Also note that this paragraph defines "substantial gainful work" which is distinctly different from the phrase "substantial gainful activity" used to define disability.

PHYSICIAN’S ROLE

Physicians and others provide medical evidence upon which impairments can be evaluated. The impact of an impairment on an individual’s ability to work and the decision as to whether the impairment constitutes a disability is determined by specifically trained staff people in your DDS. The treating physician is neither asked nor expected to make a decision as to whether the patient is disabled.

DISABILITY DECISIONS ARE MADE LOCALLY

The determination as to whether an applicant is disabled as defined by the law is made by a special team in your State DDS. A physician participates in making the decision. He or she reviews reports from treating physicians, hospitals, and other medical sources in reaching each decision. When necessary, additional medical findings are requested to resolve the issue of medical severity. These are obtained through special medical examinations at no expense to the applicant.

HOW YOU CAN HELP

You can help your State DDS obtain the necessary medical evidence to make a disability determination for your patients in two ways. For private patients, you can promptly provide the DDS with complete reports of medical evidence or record when requested to do so by the DDS. When the medical evidence of record is insufficient to make a determination, physicians/psychologists may be asked to perform special consultative examinations (CE) for patients or other applicants by appointment, on a fee-for-service basis.

Please note that the "you" referred to in the above paragraph and several of the following sections is addressed to a physician or psychologist.

REPORTS OF MEDICAL EVIDENCE OF RECORD

If you receive a request for a medical report in connection with an individual's claim for benefits, you can help by providing a complete report about his or her condition as promptly as possible. Such a report should contain the person's medical history relating to the impairments) together with the results of a physical examination and any supporting laboratory data you have which would help define the nature and severity of the impairments). Do not limit your report only to those findings shown in the MEDICAL EVALUATION CRITERIA.

The report should be in sufficient detail to permit the evaluating physician—who does not see or examine the applicant—to determine the severity and expected duration of the impairments).

The medical evidence needed to document a claim for disability should cover the period of illness indicated on the request form (unless your records indicate an earlier or later onset) and contain these elements, if available:

1. History—When did present injury or illness occur? When did it first interfere with the applicant's work capacity? Is there a previous history of the impairment?

2. Objective findings—What is the diagnosis? Give dates and results of physical or mental examinations and clinical and laboratory tests (such as EKG's and tracings, blood tests, range of motion tests, etc.) that show the nature and extent of impairment and support your diagnosis. Describe treatment and response to treatment.

3. Limitations and capacities—To what extent does the impairment limit the person's capacity to perform ordinary activities? What activities can the person still perform?

4. Progress and prognosis—What physical and mental changes have occurred during the period under review? What additional deterioration or improvement in the condition can be expected (and by when, if known)?

All reports must be signed by a physician or, if from a hospital or institution, by the custodian of the record. To save time, you may send photocopies of pertinent portions of the person's record. If the original from which the photocopy was made contains the signature, no additional signature is necessary.

In either case, a fee will be paid for reports of medical evidence of record.

CONSULTATIVE EXAMINATIONS

Determinations as to disability are based on evidence supplied by the claimant's own medical sources and, when needed, on independent physical or mental examinations or tests purchased at Federal Government expense. Such examinations, referred to as "consultative examinations," may be needed in order to: (1) obtain more detailed medical Findings about the claimant's impairments; (2) obtain technical or specialized medical information; or (3) resolve conflicts or differences in medical findings in the evidence already in file.

In other words, they may choose to send you to a doctor of their choice for an independent evaluation.

To constitute evidence acceptable for adjudicative purposes, the consultative examinations and tests purchased in connection with the adjudication of title II and title XVI disability claims must be performed by qualified medical sources. The physician or psychologist doing the examination or test must be competent to do so. While the Social Security Administration does not require that the physician be a specialist in the medical field in which the examination or test is requested, the physician's qualifications must indicate that he or she is licensed and, in the judgment of the DDS, has the training and experience to perform the type of examination or test required. The physician's or psychologist's professional conduct and reputation must be such as to avoid an unfavorable reflection upon the government and erosion of public confidence in the administration of the programs. All implications of possible conflicts of interest must be avoided.

For example, the physician or psychologist doing the examination or test must not be a full-time or part-time employee of the State or any component of SSA unless there is no other qualified medical resource available. In such instances, the physician cannot participate in the disability decision making or review process on the claim. Also, the physician or psychologist must not have any familial, financial, or other relationship to the claimant, e.g., as an actual or potential representative payee.

The reported results of the history, examination, pertinent requested laboratory findings, discussions, and conclusions must conform to accepted professional standards and practices in the medical field for a complete and competent examination. SSA recognizes that the detail and format for reporting the results of a purchased examination will vary depending upon the type of examination of testing requested. When a complete examination is involved, the report should include:

The major or chief complaint(s) of the claimant.

Within the area of specialty of the examination, a detailed description of the history of the major complaint(s).

A description and disposition of pertinent "positive," as well as "negative," detailed findings based on the history, examination, and laboratory tests related to the major complaint(s) and any other abnormalities reported or found during examination or laboratory testing.

The results of requested laboratory tests performed according to the requirements stated in the Listing of Impairments (see Regulations Nos. 4 and 16; Appendix 1); and the results of other tests (e.g., x-rays of the most involved arthritic joint) that are found necessary as a result of the physician's examination. (Such tests require DDS physician authorization.)

Diagnosis and prognosis.

A medical assessment (except in statutory blindness claims and disability claims for widows and widowers) which shows the claimant's ability to do work-related activities or to function in a work setting.

In addition to the above, the consultative physician must consider, and provide some explanation or comment on, the major complaint(s) and any other abnormalities found during the history and examination or reported from the laboratory tests.

The physician actually performing the consultative examination or testing must personally review and sign the report. This attests to the fact that the physician doing the examination or testing is solely responsible for the report contents and for the conclusions.

IF YOU HAVE QUESTIONS

If you have questions about how to complete a medical report or how determinations are made, please get in touch with the Chief Medical Consultant of the DDS in your State. The full address and phone number as well as the name of the Chief Medical Consultant can be obtained by contacting your local Social Security office.

Program Information

DEFINITION OF DISABILITY

Under both title II and title XVI, the definitions of disability and blindness are essentially the same. The law defines disability as "the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months. . .."

WHO CAN GET DISABILITY PAYMENTS?

The following information will help you understand how current and future Social Security benefits may affect you and your patients. Under title II (this information applies to Disability only, not SSI), there are three basic categories of individuals who can qualify for benefits on the basis of disability. These are:

Disabled workers under 63 if the worker has been employed or self-employed long enough and recently enough under Social Security. To have disability protection, most workers need Social Security work credits for at least 5 of the 10 years preceding the onset of disability.

Some older workers, however, may need additional credits depending on their age at the time they become disabled. For the worker who becomes disabled before 31, the requirement ranges down with age to as little as 1½ years of work.

To be eligible for disability, you must have paid into FICA at least 5 of the 10 years prior to your disability except as described above and below.

A person continuously disabled since childhood (before 22) if one of the parents who is covered under Social Security retires, becomes disabled, or dies. These "childhood disability" payments can continue for as long as the individual continues to be disabled. The individual need not have worked under Social Security to qualify.

The disabled child must meet the definition of disability as previously stated.

A disabled widow or widower 50-60 if the deceased spouse was covered under Social Security. This also applies to certain disabled surviving divorced wives 50-60. Disabled widows and widowers need not have worked under Social Security. But they can be eligible only if the disability occurs before or within 7 years after the spouse's death or, in the case of a widowed mother or father, before or within 7 years after the end of entitlement to benefits as a parent with an entitled child in care.

Under title XVI, there are four basic categories of disability claims. (This information applies to SSI Only.)

An adult (over the age of 18) who is disabled. The definition of disability for the disabled adult under SSI is essentially the same as for the disabled worker or childhood disability claimant under title II. Both medical and vocational factors are considered in determining disability.

An adult who meets the definition of statutory blindness. Under the SSI law, a person who is statutorily blind does not have to meet the duration requirement. Payment can be made on the basis of temporary blindness.

A child (under the age of 18) who is disabled. The requirements for disability are such that there must be an impairment or impairments of comparable severity to that which is considered disabling for an adult. However, since a child is not normally considered to engage in work activity, vocational factors are not considered. Instead, with children, interference with normal growth and development is a prime consideration.

A blind child who meets the definition of statutory blindness. As with adults, there is no duration requirement for children who meet the definition of statutory blindness.

TERMINATION OF PAYMENTS

TRIAL WORK When a beneficiary with a disabling impairment which has not improved returns to work, he or she may work and continue to be paid benefits for a trial work period of up to 9 months. These work months need not necessarily be consecutive. If, after 9 months, it is decided that the beneficiary has demonstrated that he or she can engage in substantial gainful activity (SGA), benefits will be continued for an adjustment period of an additional 3 months and then terminated.

In this case, the definition of "substantial gainful activity" is defined by an income of more than $499 for a month. Using this definition, then, if you are determined to be disabled and are receiving disability payments (not SSI) you can work without loosing any disability benefits as long as you do not make more than $499 each month. You must be very careful because any month in which you make more than that amount is counted toward your 9 month trial work period. If you make more than that amount in any nine months, you have completed the trial work period and may be considered no longer disabled and lose your disability payments. Please note that the 9 months do not have to be consecutive.

The SSI program also contains a provision for a 9 month trial work period. However, under this program, a person receiving payments because of statutory blindness is not eligible for a trial work period. Also, although the ability of a blind recipient to engage in substantial gainful activity does not affect eligibility to SSI payments, the amount of earnings may affect the payment under the income and resource provisions of the program. Similarly, earnings during a trial work period may affect continued eligibility or payment under the income and resource provisions for a person whose SSI payment is based on a disability other than blindness. In other words, an SSI beneficiary can continue to receive a special SSI cash payment even though earnings exceed the SGA level. As the person's earnings increase, the amount of the special cash payment will decrease until it is gradually phased out.

REINSTATEMENT OF BENEFITS

Under both the Social Security and the SSI disability programs, a person whose benefits were terminated at the end of a trial work period need not file a new application if he or she became unable to work again because of a disabling impairment. A new application is not necessary if (1) benefits are stopped because of a determination that the individual engaged in substantial gainful activity during the trial work period and (2) the person becomes unable to work again within 15 months following the end of the trial work period. In such cases, the person may be automatically reinstated to benefit status.

ADDITIONAL BENEFITS

In addition to monthly checks, disabled or blind individuals under title II and title XVI may also have additional benefits. These include:

VOCATIONAL REHABILITATION

Under the Federal-State vocational rehabilitation program, applicants for disability payments may also receive rehabilitation services to help them return to or enter into gainful employment.

Persons applying for benefits under titles II and XVI based on disability or blindness may be referred to a State vocational rehabilitation (VR) agency for possible rehabilitation services. Public Law 97-35 authorizes the Secretary to pay the VR agency for rehabilitation services which result in the beneficiary's successful work at the level of substantial gainful activity (SGA) for a continuous period of at least 9 months. Such services may be medical or non-medical, including counseling, teaching of new employment skills, training in the use of prostheses, and job placement.

In determining whether rehabilitation services would be beneficial in returning a person to employment, the medical evidence from the treating and/or consulting physician may be most important.

Basically, you may be able to get the government to pay for rehabilitation services to help you return to work or enter into new work.

MEDICARE/MEDICAID

Medicare is an insurance program under which monies from special trust funds pay medical bills for insured people. It is a Federal program which is the same throughout the United States. All Social Security disability beneficiaries are eligible for Medicare protection beginning with the 25th month of entitlement to monthly benefits. This "waiting period" for Medicare protection for disability beneficiaries need not be served in consecutive months. Thus, a beneficiary who again becomes entitled to disability benefits within a specified time can count any months in which he or she was previously entitled to disability benefits towards the 24 month entitlement period for Medicare protection.

After you have been determined to be disabled, you become eligible for Medicare two (2) years from the date of your eligibility for disability payments (generally, that is five months after the date that your disability stopped you from working, not the date the agency determined you to be eligible). For example, I was forced to stop working in September 1997; the agency determined that I was eligible in August 1999; I became eligible for payments in March 1997 and eligible for Medicare April 2000.

For workers, the subsequent period of disability must occur within 60 months of termination of the earlier period; for widows, widowers, or adults disabled since childhood, the subsequent period must occur within 84 months of the earlier period's termination. Individuals previously entitled to Medicare within the specified period will become eligible immediately upon reentitlement to disability benefits.

Medicare protection will continue through the 15 month period during which a beneficiary is eligible for automatic reentitlement following completion of the trial work period, and for an additional 24 months beyond completion of the 15 months. This provision applies to individuals whose benefits stopped because of their work activity.

In addition, people under 65 who need long-term dialysis treatment for chronic kidney disease or require a kidney transplant may be covered by Medicare.

Medicaid is an assistance program under which money from Federal, State, and local taxes pays medical bills for certain eligible needy and low-income people. Medicaid is a Federal-State partnership and varies from State to State. In most States individuals that qualify for SSI payments also qualify for Medicaid.

Medicaid is based on several things. First, you must meet the definition of disabled as determined by Social Security. Second, you must meet the income requirements set by your locality or you must receive SSI. If you do not meet the income requirements in your area and do not receive SSI, you may be eligible for some Medicaid assistance if you have substantial medical expenses. This is known as a "Spend-down" and is based on your medical expenses being greater than your income minus the income limit for a period of six consecutive months. For example, if the income limit is $200 a month, and you earn $500 a month, then your medical expenses must be more than $300 a month for a period of six consecutive months or a total of more than $1800 in six consecutive months; Medicaid will then cover any expenses above the $1800 spend down amount in that six months. Another form of Medicaid (Qualified Medicare Beneficiary or QMB) pays your Medicare premium and will pay hospitalization expenses if your income falls into a certain area. Check out your local Board of Welfare or Department of Social Services for income requirements in your area.

DIFFERENCES IN THE SOCIAL SECURITY AND THE SUPPLEMENTAL SECURITY INCOME PROGRAMS

Waiting Period: Once determined to be blind or disabled under the SSI program, an individual is eligible for payments beginning with the first month in which he or she has filed an application and is disabled. Under the Social Security program, a disabled person usually has to serve a 5 month waiting period.

This means that you cannot receive any disability payments in the five months after you have been disabled. There is no waiting period for SSI. However, this means that you may be eligible for SSI during those five months if you have no other income during that time, so you should probably go ahead and apply for both even if your disability payments exceed the income limit set by Social Security. I receive a state disability check in addition to my Social Security check, both of which exceed the income limit. But, because I did not begin receiving any payments until I had been out of work for 2 months, I was eligible for SSI for those two months and received those payments in addition to my Social Security payments.

Presumptive Disability: The SSI law provides that an applicant for SSI disability payments who is found to be "presumptively disabled" may be paid under certain conditions for as many as 3 months while the formal disability determination is being made. The presumptive disability provision is a mechanism for allowing a needy individual to meet his or her basic living expenses during the time it takes to process the application.

The provision allows an individual whose impairment would, on "prima facie" evidence seem to meet the definition of disability, to receive SSI payments while awaiting medical and other evidence necessary to substantiate the disability determination. If it is finally determined that the individual is not disabled, the presumptive disability payments will not be considered an overpayment and will not have to be refunded.

There is no provision for a finding of presumptive disability under the Social Security disability insurance program.

This is a tricky one, and I've never managed to get it to work!

 

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