Articles Posted in Social Security Disability

The Social Security Administration Office of Inspector General recently found that the Disability Determination Services did not always develop all available medical evidence before making a disability determination. The report found that although DDS generally followed policy, sometimes evidence at the initial and reconsideration levels was absent either because the Claimant did not provide the information or the medical source did not respond to requests for the medical data. It was found that DDS staff did not always follow the regulations and policies to make every reasonable effort to obtain evidence and document the attempts in the disability folder.

The Inspector General estimated that about 214,500 cases contained medical evidence at the hearing level that DDS staff could have obtained at the initial decision level but did not. Additionally, the Inspector General estimated that about 235,000 claimants reported medical sources when requesting a hearing, but that SSA staff did not obtain the medical evidence for them.
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Between 1981 and 1984, the Social Security Administration terminated the benefits of almost 500,000 disabled Americans, including tens of thousand of beneficiaries with severe mental impairments. Congress became involved, in order to standardize the chaotic means by which benefits were being ceased. The legislative outcome adopted in 1984 was entitled the Medical Improvement Review Standard. This standard is best described as follows:

There is “substantial evidence” that an individual has improved medically, enabling the individual to engage in “substantial gainful activity.” Social Security will assess the impairments that the individual had at the time of the last disability decision.

Several exceptions to utilization of the above standard also exist in the law, which do not utilize the Medical Improvement Review Standard:

1. If the initial determination finding disability was “on its face” an error of fact or law.
2. If material evidence demonstrating the disability is missing or absent.
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The Social Security Administration, per the court case of Brock v. Astrue, has issued a ruling requiring a vocational expert to testify in hearings which involve an application for Social Security Disability, based on a “severe” mental impairment. This term “severe” mental impairment can include many diagnoses, such as Post-traumatic stress disorder (PTSD); bi-polar disorder and major depressive disorder.

The reasoning of the Court is that if a claimant seeking Social Security Disability benefits suffers from a severe mental impairment, only a vocational expert can ascertain whether the individual has the functional capacity to perform jobs which may exist in significant numbers in the national economy. Specifically, mental impairment can impact an individual claimant’s capacity to function at work. For example, although such individual may be physically capable to work, a mental disability often impacts the ability to concentrate; focus; follow instructions and properly interact with co-workers or the public, is vital evidence as to whether someone is disabled. This is vital information for a Social Security Judge to understand in making a ruling on a case for Social Security Disability Continue reading

The Social Security Administration has proposed several changes to the “listed” impairments, which can qualify an individual to receive Social Security Disability Income.

The listing for “epilepsy”, under section 11.02 and 11.03. Currently, non-convulsive epilepsy requires a seizure pattern occurring more frequently than once weekly in spite of at least 3 months of prescribed treatment. The proposed listings describe seizure frequency depending on the type of epilepsy, in terms of “occurring at least once a month for at least 3 consecutive months, at least once a week for at least 3 consecutive months or at least once every 2 months for at least 4 consecutive months. This would appear to be more limiting than the current listing, which allows for “averaging” seizures during a 3 month period. The proposed changes seem to require that the seizures occur on a more regular basis.

The proposed changes to listing 11.09 regarding multiple sclerosis would rely on two categories, rather than the current three. Current listing 11.09A deals with “Disorganization of motor function as described in 11.04B,” and Significant and persistent disorganization of motor function in two extremities, resulting in sustained disturbance of gross and dexterous movements or gait and station. In contrast, the proposed listing 11.09 would provide for extreme limitation…in the ability to stand up, balance, walk or perform fine and gross motor movements.

The Social Security Administration has announced that effective March 17, 2014, it will expedited disability claims for veterans receiving VA service-connected compensation benefits and who have a rating of 100% “permanent and total” disability from the Veterans Administration. According to a recent press release, the VA rating can only expedites Social Security disability claims processing and does not guarantee an allowance for Social Security Disability benefits. Veterans must still meet Social Security eligibility and entitlement requirements fora disability allowance Continue reading

The Social Security Administration has announced that it has instituted a new policy aimed at speeding up applications of wounded warriors. The new process applies only to Veterans who were injured after October 1, 2001.

Veterans may still be eligible for Social Security disability, even if they are still actively receiving military salaries. This is particularly true when a Veteran is in active medical rehabilitation or on limited duty.

The website for application by Veterans for Social Security Disability is

It is not well known, but “obesity” can be a disability and form the legal basis for entitlement to Social Security Disability benefits. Claimants may not recognize themselves as “obese” and not realize that it is a medical condition. Several years ago, the formal Listing 9.09 for obesity was deleted from the law. Since that time, assessments of obesity are “hit and miss” and lead to inconsistent findings by Social Security Disability adjudicators and Administrative Law Judges.

There are several ideas brewing to reform and standardize the obesity standard, which include the following:

1. A new medical listing should focus on the Body Mass Index (BMI) and particularly target individuals with a BMI greater than 48.

Beginning September 2013, the Social Security Administration replaced the outdated term “mental retardation” with the term “intellectual disability” in it’s regulations. The change is consistent with the modern adoption of the concept of intellectual impairment as a recognized disability, rather than a stigma or slur. The term has been adopted by the U.S. Congress, many government agencies at the State and Federal level and a myriad of public and private organizations. SSA recognized that the term “mental retardation” has negative connotations and is offensive to many people, not unlike a racial or ethnic slur. The original Congressional change of the term originated with “Rosa’s Law’ in 2010.

The adoption of the term, “intellectual disability” in no way amends the substantive law regarding the administration or granting of Social Security Disability benefits. It is only a change in terminology. Notwithstanding, these basic changes go a long way with the widely expressed desire of people with intellectual disability for usage of respectful language. The change was praised by many national organizations representing professionals practicing in the field, including the American Association on Intellectual and Developmental Disabilities.

Social Security Disability Attorney Randy Zeldin, Esq., of Ft. Lauderdale, Boca Raton, Lake Worth , and West Palm Beach, Florida, also lauds the Social Security Administration for respect of the intellectually impaired.

There are many controversial psychological based tests, utilized allegedly to determine whether an individual seeking Social Security or other government benefits is presenting a valid medical claim. Put another way, these psychological tests, including the Minnesota Multiphasic Personality Inventory or the Test of Memory Malingering, are designed to spot malingering or outright fraud.

Initially, the Social Security Administration frowned on these tests as being a waste of money and time. More recently, there appears to have been a reversal of that policy. The Inspector General for the Social Security Administration has issued a report that generally supports the use of Symptom Validity Tests in determining eligibility for Social Security Disability Benefits. The Inspector General cited that the Veteran’s Administration and the Railroad Retirement Board utilize this type of testing.

Interestingly, the Social Security Administration has not jumped on board with the recommendations of the Inspector General and issued what might be viewed as a rebuttal. SSA implied that the organizations supporting the use of Symptom Validity Tests, also use them professionally and therefore have an economic interest in their usage. These organizations include the American Academy of Clinical Neuropsychology and the National Academy of Neuropsychology. SSA also differed with the substantive findings of the Inspector General, noting that “…the tests cannot prove malingering, as there are no tests that conclusively determine the presence of inaccurate self-reporting.”

After an initial application for Social Security Disability benefits, a claimant is afforded 60 days to file a written appeal, for either a “Reconsideration” of the original claim or a “Request for Hearing before an Administrative Law Judge.” Unfortunately, there are many claimants, largely due to psychiatric or other disabilities, who miss the 60 day deadline and are often forced to re-apply for benefits from “square one.”

A relatively new ruling, Social Security Ruling 91-5P, can extend the deadline to appeal based on a “good cause.” This means that the Social Security Administration will not automatically dismiss the appeal and that proper consideration will be given to a claimant who presents evidence that mental disability, may have prevented the claimant from understanding the 60 day deadline to obtain review.

The Social Security Administration is to consider the following factors, in determining whether “good cause” exists for an untimely appeal beyond the 60 day deadline:

* Inability to read or write * Lack of facility with the English language * Limited education * Any mental or physical condition which limits the claimant’s ability to perform activities of daily living.

According to the rule, all doubts are to be resolved in favor of the claimant. Thus, the rule is to be interpreted and implemented in a liberal and caring manner.
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