social security disability / ssi : application, …...ssd / ssi : application, cessation, and...

Social Security Disability / SSI :Application, Cessation, and

Re-evaluation

© 2020 O'Brien & Feiler all rights reserved.

Prepared for Gwinnett Pro Bono ProjectJuly 22, 2020

Download this presentation at:https://www.OBFlegal.com/files

Presented Remotely by: Thomas C. O’Brien, Esq.

https://www.obflegal.com/files

SSD / SSI : Application, Cessation, and Re-evaluationSo many acronyms…

• Does the Title II Claimant’s AOD precede their DLI?

• Does the CE support this claim, and are there any allegations of

DAA?

• Will a MINE case experience a CDR?

• Does the Claimant’s RFC allow them

to perform PRW or other SGA?

• Did the VE’s testimony adhere to the

DOT and the SCO?


SSD / SSI : Application, Cessation, and Re-evaluationToday’s Topics

• The Essentials

• Definitions

• Common Programs

• SSI v. SSDI

• Timeframes & Success Rates

• The Five-Step Process

• Qualifying for Disability / SSI (Adult / Child)

• Continuing Disability Reviews (CDR)

• Age-18 Redeterminations

• General Advice & Appendix


Title II – 20 CFR 404.1520 - https://www.ssa.gov/OP_Home/cfr20/404/404-1520.htm#cTitle XVI - 20 CFR 416.0920 - https://www.ssa.gov/OP_Home/cfr20/416/416-0920.htm#c

SSD / SSI : Application, Cessation, and Re-evaluationThe Essentials - Definitions

• Sources of Law: CFRs, POMS (Program Operations Manual System), HALLEX (Hearings Appeals and Litigation Law Manual), SSRs (Social Security Rulings), Case Law, The Blue Book (Listing of Impairments), and Vocational Grids

• Disability is “all or none” in Social Security Programs. No partial or temporary disability benefits, but closed periods can exist.

• Defining Disability for Adults - “the inability to engage in any substantial gainful activity (SGA) by reason of any medically determinable physical or mental impairment(s) which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”1

• Defining Disability for Children – “if you have a medically determinable physical or mental impairment or combination of impairments that causes marked and severe functional limitations, and that can be expected to cause death or that has lasted or can be expected to last for a continuous period of not less than 12 months.”2

• Note the primary difference between adult and child cases highlighted in yellow above.


Title II – 20 CFR 404.1520 - https://www.ssa.gov/OP_Home/cfr20/404/404-1520.htm#cTitle XVI - 20 CFR 416.0920 - https://www.ssa.gov/OP_Home/cfr20/416/416-0920.htm#c

SSD / SSI : Application, Cessation, and Re-evaluationThe Essentials - Common Programs

• Title II Program

• DI (Disability) Benefits are funded through OASDI payroll deductions. It comes with delayed Medicare (ask about spend-down Medicaid!), and benefits are based on earnings history.

• Title II Derivative Programs (paid using the record of another)

• DAC (Disabled Adult Child) Benefits are based on a parent’s earnings and are for disabled individuals who are over 18 with disabilities that started before age 22, and whose parent is deceased or receiving retirement or disability benefits.

• Survivors Disability Benefits are Payable at age 50 and beyond to individuals who became disabled within 7 years of spouse’s passing and are even payable to divorced spouses if marriage lasted more than 10 years.

• Title XVI Program

• Supplemental Security Income (SSI) is a program for citizens (adults and children) with limited financial means (income and resource tested). SSI comes with Medicaid but pays a lower monthly benefit ($783 in 2020).


SSD / SSI : Application, Cessation, and Re-evaluationThe Essentials – SSI vs. SSDI


Supplemental Security Income (SSI) Disability (DIB / SSDI)

Aged 65 Blind (20/200 or <20% field of vision)

OR OR

Blind (20/200 or <20% field of vision) Disabled • medically determinable physical or

mental impairment

OR

Disabled • medically determinable physical or

mental impairment

• resulting in inability to perform

work

• If Age <18 - resulting in marked and

severe functional limitations • expected to result in death OR

• If Age >=18 - resulting in inability to

work

•lasting (or expected to last) more

than 12 months

AND

• expected to result in death OR Working income <$1,180 per month ($1,970

for blind, no limit on unearned income)

• lasting (or expected to last) more than

12 months

AND

AND Meets work requirements

Very little or no Income • If <31, work 50% of years between

age 21 and current age

AND

• If >=31, work 5 out of 10 years prior

to becoming too sick to work

Very little or no resources (Savings / 401k, etc.)

• Individual/Child = $2,000

• Couple = $3,000

AND

U.S. Citizen or Qualified Alien

SSD / SSI : Application, Cessation, and Re-evaluation The Essentials – SSI vs. SSDI

• What back benefits and health benefits may be claimed?

• Title II - Disability (DIB)

• Can get paid for up to one year prior to initial filing no matter how

long ago the disabling condition began.

• Five-month waiting period for benefits.

• Establish disability 17 months prior to filing for maximum back

benefits.

• Medicare becomes available 29 months from AOD.

• Title XVI - SSI

• Back benefits start the first full month after filing.

• Retroactive Medicaid may be available.


SSD / SSI : Application, Cessation, and Re-evaluation The Essentials – Timeframes of Appeals

• There are five levels of application and appeal in most claims (not to

be confused with the five step disability evaluation that occurs).

• Initial Application (5 months) = Administrative

• Reconsideration of Application (5 months) = Administrative

• Hearing before an ALJ (400 days) = Administrative & Legal

• Consideration before Appeals Council (1 year) = Legal

• Consideration before Federal Circuit Court and beyond = Legal

• There is plenty of time to either get discouraged, or to enhance the

quality of a claim. Regardless, hanging on until the ALJ hearing is

advised…


SSD / SSI : Application, Cessation, and Re-evaluation 2019 Success Rates by Level of Appeal


Data sourced from: https://www.ssa.gov/budget/FY21Files/2021LAE.pdf (page 67)

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Initial Reconsideration Hearing

37%

13%

45%

63%

87% 19%

36%

Allow Deny Dismiss

https://www.ssa.gov/budget/FY21Files/2021LAE.pdf

SSD / SSI : Application, Cessation, and Re-evaluationThe Essentials – The Five-Step Process 20 CFR §404.1520

1. Is the Claimant working above Substantial Gainful Activity (SGA)

limits? ($1,260 for non blind in 2020)

2. Does Claimant have severe impairment?

• Significantly limits your physical or mental ability to do basic work activities.

3. Does the impairment meet or equal a blue book listing?

• https://www.ssa.gov/disability/professionals/bluebook/AdultListings.htm

4. Can the Claimant perform Past Relevant Work (PRW)?

• Work from past 15 years that was SGA and performed long enough to learn.

5. Can the Claimant perform other work?


SSD / SSI : Application, Cessation, and Re-evaluationQualifying for Disability & SSI

• Follow the Five-Step Process

• Disability (Title II)

• Prove that a disability exists

• Adult claims examine ability to engage in SGA

• Be insured for disability (OASDI)

• Prove Alleged Onset Date (AOD) predates Date Last Insured (DLI)

• Receive Medicare after 2 years, 5 months

• SSI (Title XVI)

• Prove that a disability exists

• Child claims examine marked and severe functional limitations

• Adult claims examine ability to engage in SGA

• Meet income ($65 + 1/2 exempt) and resource ($2,000) requirements

• Receive Medicaid as of EOD


SSD / SSI : Application, Cessation, and Re-evaluationContinuing Disability Reviews (CDR)

• CDRs are the SSA’s way of reviewing claims and deciding ongoing entitlement. SSA-455 starts the procedure, SSA-454 is a deep dive.

• CDRs use the Medical Improvement Review Standard (MIRS) POMS DI 28005.001

• Adults – Does evidence show medical improvement regarding an adult’s ability to work at SGA levels?

• Children – Does the child’s impairment still result in marked and severe functional limitations?

• CDRs are performed on a schedule based on severity (POMS DI 28001.020).

• CDRs consider a 12-month medical history and look at work activity (POMS DI 28001.001).

• CDRs often end with benefits cessation.



• Adult CDR (POMS DI 28001.001) follows an Eight Step Process

1. Is the Claimant performing SGA? (Title XVI exempt from this step)

2. Does the Claimant meet or equal a listing? (Y=continue benefits, N=3)

3. Is there medical improvement (MI)? (Y=4, N=5)

4. Does MI relate to work ability? (Y=6, N=5)

5. Does an exception apply? (Y=6, N=continue benefits)

6. Does Claimant have any severe impairment? (Y=7, N=stop benefits)

7. Can Claimant perform Past Relevant Work? (Y=stop benefits, N=8)

8. Can Claimant perform other work? (Y=stop benefits, N=continue

benefits)



• Child CDR (POMS DI 28005.020)

1. Has there been a medical improvement (DI 28010.015)?

2. Does the impairment still meet or equal previous listing?

3. Does the Claimant meet or equal another listing?



• CDRs are conducted on a diary relating to Claimant’s condition

1. Medical Improvement Not Expected (at least every 7

years)

2. Medical Improvement Possible (at least once every 3

years)

3. Medical Improvement Expected (between 6-18 months)

4. and proposed…Medical Improvement Likely (2 years),

which shall be diagnosis driven

(https://www.federalregister.gov/documents/2019/11/18

/2019-24700/rules-regarding-the-frequency-and-notice-

of-continuing-disability-reviews)



• Cessations from CDRs are driven by insufficient data, but there is a

path to appeal these decisions while continuing benefits.

• Any new impairments should be considered prior to cessation, if they were not,

proceed to reconsideration (POMS DI 28005.210).

• This reconsideration step includes a hearing (POMS DI 29001.001) by a trained

disability adjudicator (POMS DI 33001.001). An ALJ hearing is the next appeal level.

• Statutory Benefit Continuation (SBC) offers a way to keep benefits during CDR

process (POMS DI 12027.001).

• Can only continue benefits when benefits cease due to medical determinations as

opposed to SGA or failure to follow treatment (POMS DI 12027.015).

• There is a risk of creating an overpayment by continuing benefits, but waivers are

possible if appeal is pursued in good faith with cooperation (POMS SI 02260.007).

• These debts are dischargeable in bankruptcy.


SSD / SSI : Application, Cessation, and Re-evaluationAge 18 Redeterminations

• At age or within one year of becoming 18, the SSA will review

eligibility for SSI based on adult Steps 2-5 (POMS DI 33025.075).

• After an initial denial, the reconsideration step is a hearing in front

of a Disability Hearing Officer (DHO) whose decision may still be

appealed to an ALJ and beyond. Benefits may continue while

appeal is underway, buy may result in an overpayment.

• Even if Claimant is ruled medically ineligible, benefits may continue

under Section 301 (POMS DI 14505.010).

• Requires participation in a Vocational Rehabilitation program, before

the month payments ceased and through the two-month grace

period, AND where program participation will increase likelihood of

not needing benefits.© 2020 O'Brien & Feiler all rights reserved.

SSD / SSI : Application, Cessation, and Re-evaluationGood advice for Claimants and Counsel

• Get the treatment that physician recommends, especially when insured.

• Retrieve and submit ALL medical records1 diligently (even unfavorable ones).

• Supportive physician letters citing functional limitations are worth their

weight in gold.

• Do not engage in PRW “puffery”.

• Know that closed periods of disability are an option.

• Beware of remote onset dates!

• Be ready to discuss work during the claimed period.

• Alcohol and drug use (even marijuana) can seriously impact the ability to

claim benefits.


Medical records provided in support of disability filings are free in Georgia. O.C.G.A. §31-33-3 -https://medicalboard.georgia.gov/sites/medicalboard.georgia.gov/files/imported/GCMB/Files/Patient%20right%20to%20medical%20records.pdf

SSD / SSI : Application, Cessation, and Re-evaluationQuestions & Answers

Thomas O’BrienAttorney-at-Law

Download this presentation at:https://www.OBFlegal.com/files

The Law Firm of O’Brien & Feiler1.844.623.9467 x108

[email protected]

This presentation was intended to be purely informational in nature. No attorney-client relationship was

created herein, and in no way constitutes legal advice or the legal opinion of the attorneys of O’Brien & Feiler.

Claimants should contact legal counsel to obtain specific legal advice applicable to their circumstances.


https://www.obflegal.com/files

SSD / SSI : Application, Cessation, and Re-evaluation Appendix - Administrative Law Judge Hearings

• Takes place in a private courtroom, video at an SSA location and for now over the phone.

• Lasts about 45 minutes to an hour.

• Likely no decision on the spot.

• In the room will be the Judge (at a bench in black robes), Judge’s Assistant, Vocational Expert, Claimant, Claimant’s Attorney.

• In adult cases, witnesses are MOST EFFECTIVE where there are communication or reliability issues.

• Testimony may occur via video or phone and only an audio record is made.

• Not a job interview.

• Claimant is not required to be a medical expert. Simply be an expert on how their health affects them. What are the health problems that prevent work? What are negative symptoms from treatment? From medication?



• Submit all evidence at least five days before the hearing.1 If evidence has not been

obtained, a “good-cause” note is required or the evidence may be excluded.

• Housekeeping (Procedural items, witness swearing, evidence admission) – 5 minutes

• Direct Testimony – 25 minutes

• Taken by Judge and Claimant’s counsel

• Focus on functional limitations and insight (walking, standing, sitting, reaching, need for

breaks, etc.)

• Vocational Testimony - 10 minutes

• Classifying PRW by DOT

• Identifying transferable skills (where appropriate)

• Responding to proposed hypotheticals and cross examination

• Closing – 1 minute


1. 20 CFR 405.331 - https://www.ssa.gov/OP_Home/cfr20/405/405-0331.htm


• Court proceeding – “Given Claimant’s age, education, work experience, and medical condition is there any work in the national economy that they can do full-time?

• Prove severe condition and erode capacity to work!

• Evidence is key to this process

• Medical records (review records prior to hearing!)

• Journals (migraines, seizures, panic attacks)

• Rx Records

• Not all evidence is created equal (school, EHR, etc.)

• Not meeting a listing is alright, and medical issues are additive (for example weight is a multiplying factor SSR 02-1p)!

• Skill level of prior work is very important, as are transferable skills.

• < Age 50 vs. > Age 50


SSD / SSI : Application, Cessation, and Re-evaluationAppendix: The Grid Rules (Step 5)

• The grid rules1 are organized by exertional level and look like this:

Age Education Past Work Ruling

• Decisions directed by grid rules often require the insight of a Vocational Expert (VE) who

will testify at hearing and will use the Dictionary of Occupational Titles (DOT) and Selected

Characteristics of Occupations (SCO) to assess the nature of past work and the preparation

needed to perform said work as well as the skills obtained while doing past skilled work.


1. The grid rules are codified at Appendix 2 of Subpart P of 20 CFR 404 and may be found here: https://www.ssa.gov/OP_Home/cfr20/404/404-app-p02.htm

SSD / SSI : Application, Cessation, and Re-evaluation Appendix: The DOT and SCO (Steps 4-5)

• An example of a DOT Listing

002.061-018 AERONAUTICAL TEST ENGINEER (AIRCRAFT MFG.)

CONDUCTS TESTING ACTIVITIES ON AEROSPACE AND AIRCRAFT PRODUCTS,

PERFORMING DUTIES AS DESCRIBED UNDER TEST ENGINEER (PROFESS. & KIN.)

MASTER TITLE.

GOE: 05.01.04 STRENGTH: L GED: R5 M5 L5 SVP: 8 DLU: 88

• An example of a Selected Characteristics of Occupations (SCO)1

listing. Very important at hearings!


Selected Characteristics of Occupations - https://www.nosscr.org/sco/sco-ocr.pdf

SSD / SSI : Application, Cessation, and Re-evaluation Appendix: DOT & SCO Cheat Sheet

DOT Appendix C: https://occupationalinfo.org/appendxc_1.html

Functional Capacity Frequency

Sedentary Never

Mostly sitting, lift 10 lbs occasionally Never occurs during workday

Light Occasional

Walking frequently, 20 lbs occ, 10 lbs frequently Up to 1/3 of the workday

Medium Frequently

20-50 lbs occasionally, 10-25 lbs frequently Between 1/3 & 2/3 of workday

Heavy Constantly

50-100 lbs occasionally, 25-50 lbs frequently, 10 constantly >2/3 of the workday

Very Heavy

>100 lbs occasionally, 25-50 lbs frequently, >20 constantly

Specific Vocational Preparation (SVP) Skill Level

1. Short demonstration only Unskilled

2. Anything beyond short demo up to and incl 1 mon Unskilled

3. Over 1 month up to and including 3 months Semi-Skilled

4. Over 3 months up to and including 6 months Semi-Skilled

5. Over 6 months up to and including 1 year Skilled

6. Over 1 year up to and including 2 years Skilled

7. Over 2 years up to and including 4 years Skilled

8. Over 4 years up to and including 10 years Skilled

9. Over 10 years Skilled


Physical Environmental

Climbing WeatherExp

Balancing ColdExp

Stooping HeatExp

Kneeling Wet/Humid

Crouching Noise

Crawling Vibr

Reaching Atmosp

Handling MoveParts

Fingering Shock

Feeling HighPlace

Talking Radiation

Hearing Explosives

Taste/Smell ToxicChem

NearAcu OtherEnv

Far Acuity

DepthPer

Accomodation

ColorVision

Field of Vis

SCO Code Definitions

social security disability / ssi : application, …...ssd / ssi : application, cessation, and...

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