What if I feel I may be able to return to work post disability entitlement?

I don't mean to discourage hard working people who find themselves disabled who still have the burning desire to work, from trying to re-enter the job market, but why would you take the chance when you have benefits at risk?

You worked hard and in most cases waited a long time to win benefits after being denied on at least two occasions, more if you had your case appealed into the Federal Court system before you were awarded benefits. You now get benefits so you can live. The benefits are stable and you can arrange your life around them. You also get medical benefits, which are very hard to replace in today's job market. Still, you worked your whole life. Work is ingrained into you. You don't feel comfortable living on government benefits. I have seen this in numerous clients.

For those people who want to try to re-enter the job market – For people who have been found disabled under Title II (DIB) there is something called a trial work period (twp). A twp is a limited period of time during which an individual can test his or her ability to work, retain earning in whatever amount and continue to receive full social security benefits.

A twp has limitations. A twp can last up to 9 months. The 9 months do not have to be consecutive. In 2012, 2013 any month in which earnings exceed $720 is considered a month of services for an individual's trial work period. So if work is performed at a level where you earn $750.00 or more per month (or if you work less than 80 hours per month in self-employment irrespective of the amount earned) the month will count as part of a twp. So if a disabled individual can work but at a level that produces only $300.00 or $600.00 per month, the month would not count toward a twp.

Even though the twp appears to be a program to ease people on disability benefits back into the work force, it has one strange hitch; during any twp the individual must continue to be medically disabled. If the individual has medically improved then the twp can be denied and benefits terminated.

What does this mean? Obviously, if you get a doctor's statement indicating medical improvement, that would work. What if you called the local social security office and said “I feel better, I want to try to work.” That could be a sufficient reason to deny benefits and the twp. If you are in this position of feeling like you can return to work, you must be very circumspect in how you describe your health situation to social security.

Maybe -- “I still hurt, but I have worked all my life and would like to try to get back into doing something. I know it will be difficult or impossible, but I would still like to try.”

What if you complete the twp, and you find a job; are you out of assistance to stay employed? There is something called and extended period of eligibility (epe). Epe is an additional period of time after the twp during which an individual can continue to try to work if the disability continues. During the epe, the individual can continue to receive benefits for any months in which he does not earn enough to qualify as performing work at the substantial gainful activity level. In more detail, if your countable gross income is at or below the SGA amount for any month, you are eligible for your full SSDI benefit amount for that month. However, in any month in which your countable gross income exceeds the SGA amount ($1,040 in 2013), you are not entitled to benefits for that month.¹ Substantial gainful activity is express in a dollar amount. The amount has been changed time to time, i.e. 1989 it was $300 per month, 1999 around $700 per month, 2013 around $1040 etc.

There is an end to the epe period. One termination (as with twp) event is no longer being medically impaired; another is the end of the 36^th month after the end of the twp, which ever is shorter.

There is also a tremendous benefit of the possible receipt of 39 months of medicare benefits after the end of the twp. With the cost of medical care, this is a benefit worthy of note.

I end this with a caution to disabled individuals who are interested in re-entering the job market. You worked so hard to be found disabled, in a system that many times disbelieves an applicant. You have been awarded benefits that are hard to replace. If you do try to re-enter the job market, let's say you complete a twp and now start epe. You are out there struggling to work, but doing it – it really looks tempting to a reviewer who sees the paper record of you being out in the market for a year or more, to find you are no longer disabled. This is especially a concern when your disability is not based on a listed disability. If you want more detail, you can look at §§ 404.1592a

Disclaimer: Blogs posted herein are intended neither as legal advice, nor do they create nor attempt to create an attorney-client relationship. The person viewing my blogs is admonished that an attorney-client relationship may only be created with the express consent to the parties to it.

1However, there is a one-time exception to this rule known as the "grace period." You are eligible for benefits for the first month and the following two consecutive months during your EPE in which you work above the SGA amount. 

Treating Physician Rule

 
Disclaimer: Blogs posted herein are intended neither as legal advice, nor do they create nor attempt to create an attorney-client relationship. The person viewing my blogs is admonished that an attorney-client relationship may only be created with the express consent to the parties to it.

Questions that arise after the receipt of a denial many times center on the client wondering why “my treating doctor’s opinion appears to have been disregarded or found to lack credibility?”.

 This becomes a difficult question to answer because of what is known as the 'treating physicians rule'.

This rule under Social Security case law and regulations.” in its most basic sense, provides that the decision-maker is supposed to accept the opinion of the claimant’s treating physicians unless there is a good reason not to, i.e. treating physician rule.

 A treating physician is the claimant’s own physician or psychologist who has provided medical treatment or evaluation and who has or has had an on-going relationship with the claimant.  Generally an on-going relationship exists when the medical evidence shows that the claimant has been seen or sees his physician or psychologist what would be considered consistent with accepted medical practice for the type of treatment and evaluation required for the particular medical condition. 20 CFR § 1527

The Eighth Circuit has stated that the opinion of a treating source is entitled to great weight unless unsupported by medically acceptable clinical and diagnostic data and can be rejected if it is not.

Morse v Shalala, 16 F.3d 865 ( 8^th Cir. 1994) “The treating physician has the best opportunity to observe and evaluate a claimant's condition. This court has on repeated occasions emphasized that the treating physician's evidence must be given great weight, with deference to the physician's findings over an examining physician or consultant. See Thompson v. Sullivan, 957 F 2d 611, 614 (8^th Cir. 1992); Henderson v. Sullivan, 930 F 2d 19,21 (8^th Cir. 1991);Hancock v. Secretary of the Dep't of Health, Educ. And Welfare, 603 F. 2d 739,740 (8^th Cir. 1979)...Unless there is medical evidence that contradicts or refutes the physician's ;medical conclusion, the Secretary is bound to treat the treating physician's diagnosis and conclusion as substantial evidence. Bastien v. Califano, 572 F.2d 908,912 (2n Cir. 1978);...”

“...the ALJ is not a medical expert ad cannot by his legal expertise discount and reject the medical findings and conclusions of the physician. His role is not to make a personal estimate of the claimant's impairment but to base his findings on whether the credible evidence before him sustains or does not sustain the claimant's asserted disability...”

Grant v Bowen, 930 F.2d 633 (8^th Cir. 1991) “The opinion of a treating physician is entitled to great weight “unless it is unsupported by medically acceptable clinical or diagnostic data.” Kirby v. Sullivan, 923 F.2d 1323, 1328 (8^th cir. 1991); see also ward v. Heckler, 786 F.2d 844, 846 (8^th Cir. 1986)”
 
Singh v. Apfel, 222 F.3d 448 (8^th Cir. 2000) “ A treating physician's opinion should not ordinarily be disregarded and is entitled to substantial weight. See Ghant v. Bowen, 930 F.2d 633, 639 (8^th cir. 1991). A treating physician's opinion regarding an applicant's impairment will be granted controlling weight, provided the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record. See Keley v. Callahan, 133 F.3d 583, 589 (8^th Cir. 1998). ...The Commissioner is encouraged to give more weight to the opinion of a specialist about a medical issues related to his or her area of specialty than to the opinion of a source who is not a “always give good reasons” for the particular weight given to a treating physician's evaluation. 20 C.F.R. § 404.1527(d)(2).”

Even if the treating physician's opinion is not entitled to controlling weight, in most cases it is still entitled to significant weight. Cox v. Barnhart, 345 F.3d 606 (8^th Cir. 2003). 

The treating physician rule began to change in the 8^th circuit with President George W. Bush six appointments to the Circuit Court.

In Davidson v. Astrue, 501 F.3d 987(8^th Cir, 2007) is a case in which the Court gave its stamp of approval to an ALJ’s decision to discount the residual functional capacity opinions of a treating doctor, even though the ALJ had never seen the report.warnings to the ALJ not to substitute his opinion for that of the medical professional

We then had Travis v Astrue, 477 F.3d 1037 (8^th Cir. Heino v. Astrue, 578 F.3d 873 (8^th Cir. 2009)

Look at Perkins v. Astrue, 648 F.3d 892 (8^th Cir. 2011).  As I interpret the case dispite prior warning to the ALJ not to substitute his opinion for that of the treating physician, the court says that the ALJ’ s interpretation of the medical evidence is more persuasive then the opinion of the author of the records.

Clearly the law that had directed greater weight to a treating or examining physician's information has been weakened.   

I think the rule is still strong in the proper case with a friendly ALJ.  I have run into problems with certain ALJs who seem to be looking for reasons not to award benefits.

If in the Judge’s opinion the treating physician’s opinion is inconsistent with other evidence or is not well supported, it will not be given controlling weight.  In making this determination the Judge is given a great deal of discretion under the regulation and case law.

There are issues that are reserves for the Judge to decide. Such issues include: Opinions that you are disabled. The determination or decision about whether you meet the statutory definition of disability. Therefore a statement by a medical source that you are “disabled” or “unable to work” does not mean that the judge will be required to adopt that as a finding. (2) Other opinions on issues reserved to the Commissioner. The decision on whether or not your impairment equals or meets the Listing of Impairments; if you have the residual functional capacity to return to competitive employment; and in reality the nature and severity of your impairment.

All of the discussion on controlling weight, breaks down to a subjective decision by the fact finder.  Even if the physician’s opinion is well supported in the medical information if the Judge can articulate facts in the case that are inconsistent with other substantial evidence in the file, the physician’s opinion will no longer be given controlling weight. (Consider Sparks v. Barnhart, 434 F. Supp. 2d 1128 (ND Ala. 2006))
For example, the treating physician put functional limitations upon claimant, i.e. distance can walk, difficulty bend, stoop etc. but scattered through the file, are statements by claimant indicating at that times he has exceeded restrictions.  That could be ruled to be a substantial inconsistency.

In many cases, it is the foregoing type of situation that I have seen occur. A claimant treating long enough with a physician will have good days and bad, will attempt to do things he or she should not try, struggle against limitations. In many cases, the claimant will tell the doctor I did this or that even though I should not have. The fact that on one of several occasions, or on that one occasion the judge focuses on, may in that judge's discretion be sufficient to rule the claimant capable of work. A claimant may have restrictions in place, but tells the judge, I grocery shop once a week, I wash cloths once a week, I watch the grand kids once a week, it a struggle but I do these activities. Again a judge may determine that the physician is not credible, because the claimant is testifying to what the judge believes are activities in excess of the restrictions.

There is also the issue of the client who relied for treatment with a GP who has given an opinion on claimant's disability, back pain, neck pain, etc. what weight is given to the medical expert,  a board certified orthopedic physician who states a contrary opinion?

Sometimes it almost feels that having evidence from a treating physician who has had years of contact with the claimant is almost a determent.  You get the feeling that the Judge has a feeling that the doctor is trying to help his patient with overly broad findings, etc.

Such a feeling is not without notice. In Black & Decker v. Nord, 123 Sup. Ct. 1965 (2003) the U.S. Supreme Court dealt with the issue of extending the treating physician rule to private pension plans. The Court held that the “treating physician rule” is not applicable to such private benefit plans . In dicta, the court recognized the incentives for plan consultants to deny benefits, but countered that treating physicians may be inclined to favor a disability determination in close cases.  Id. at 1971.

The commons sense approach of the treating physician rule to expedite the proceedings and get disability benefits to people who have worked the majority of their life, but now are unemployed by disability has not been so simple in its application. As can be gleaned from the few cases cited above, it is important to have the assistance of an attorney when dealing with these issues.

For more information you can see my web site at sjbeseres.com

1 See 20 C.F.R. §404.1527(d)(2),Farris v. Secretary of Health and Human Services, 773 F.2d 85, 90 (6th Cir. 1985)

2 (SSR 06-03P – chiropractors, physician assistants, nurse practitioners, audiologists, and therapists are not acceptable medical sources and are treated similarly to an acceptable medical source except that in the first instance – the distinction between acceptable medical sources and other health care providers  who are not acceptable medical sources is necessary for three reasons: (1) evidence is needed from acceptable medical source to establish the existence of a medically determinable impairment under the regulations (§404.1513(a)). (2) only an acceptable medical source can give a medical opinion (§ 404.1527(a)(2)) and (3) only acceptable medical sources can be considered treating sources (§ 404.1502) whose opinion may be entitled to controlling weight §404.1527(d))

3Other jurisdictions have similar holdings. Example, Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985);Hurst v. Schewiker, 725 F.2d 53, 55 (6th Cir. 1984);Stamper v. Harris, 650 F.2d 108, 111 (6th Cir. 1981);Branham v. Gardner, 383 F.2d 614, 634 (6th Cir. 1967); Lewis v. Callahan, 125 F.3d 1436 (11^th Cir. 1997)

4Some issues are reserved to the Secretary opinions by medical sources on such issues will not be given special weight.  A treating physician’s opinion that claimant is disabled or unable are issues reserved to the Secretary, issues of whether or not impairments meet or equal a listing and on claimant’s residual functional capacity, the Judge will not accord the treating physician’s opinion with any special significance —the listings issue  opinions upon the listings which are written in medical language, and the issue of ‘meeting’ a listing seem to be issues a medically trained person should have the advantage.

A Short History of Social Security and Commentary

You could argue that the Industrial Revolution was what ultimately lead to social security. The Industrial Revolution sifted population away from farms and into cities, urbanization started to grow and change demographics in the country. In fact in 1890, only 28% of the population lived in cities. By 1930 this percentage had exactly doubled, to 56%.
This change away from an agrarian lifestyle to urban living, changed the face of the American family. Rural families were generally extended, with multiple generations living together. In this extended family situation, when a family member became elderly, ill or disabled, the group was better able to pull together to take care of this person. The shift of population into urban areas, the nuclear family became more of the norm, and the ability to take care of disabled or elderly family members seriously suffered.

The Great Depression brought this problem to the forefront. Social security was a product of the New Deal legislation passed by President Roosevelt in 1935. At that time, there was a tremendous amount of pressure upon the administration to do something to help the country during its financial collapse. At that time the poverty rates for senior citizens exceeded 50 %, there were numerous bank failures and the stock market crash of 1929, had all contributed to wipe out retirement savings/assets of millions of Americans.

The solution was creation of a type of social insurance, i.e. Social Security. It was a program, an insurance program, put in place by the government to carried out or mandated economic assistance to the unemployed, the elderly, or the disabled (disability coverage was added in 1956).

The fact that it was social insurance, was not overlooked by its conservative detractors. When introduced into Congress, there were cries that this was socialism. There were arguments against its adoption calling it government welfare. That it was an invasion of states' rights. Providing to the elderly, or the disabled was a duty that should be left to the states. Nevertheless the act passed and was signed into law.

It was not long after its adoption that the law was challenged in the Courts, as being a piece of unconstitutional legislation. The case that discusses the Court decision that Social Security is a constitutional act of the Congress, is reminiscent of the argument against the Affordable Care Act i. e.

Steward Machine Company v. Davis, 301 U.S, 548 (1937) the U.S. Supreme Court held, in a 5–4 decision, that, given the exigencies of the Great Depression "[It] is too late today for the argument to be heard with tolerance that in a crisis so extreme the use of the moneys of the nation to relieve the unemployed and their dependents is a use for any purpose narrower than the promotion of the general welfare”.

It was a divided court and there were strong opinions against the law. Justices Butler, McReynolds, and Sutherland argued that the social security act went beyond the powers that were granted to the federal government in the Constitution. They argued that, by imposing a tax on employers that could be avoided only by contributing to a state unemployment compensation fund, the federal government was essentially forcing each state to establish an unemployment-compensation fund that would meet its criteria, and that the federal government had no power to enact such a program.

In other words, it was an unconstitutional invasion on state's rights. It is something each state has responsibility, and not the Federal government. Really sounds like the present conservative position on taxes, health care etc. Where would we be today if they had been successful in their arguments in the 30's?

What About the Spouse? Death or Divorce

WHAT ABOUT THE SPOUSE?

Traditionally, the spouse worked at the home, but was not the family wage earner. What happens to the spouse, when the wage earner died?

What if one spouse has traditionally worked for low wages or had minimal earnings during the working career and the major wage earner of the family died?

Is there any protection available for the surviving spouse?

So if you qualify as a spouse under the state law of your residence, you are a spouse for social security purposes?   What about common law marriages?  What  about a marriage entered into in good faith but for one of several reasons determined not to be valid marriage? What about legal same sex marriages?

Common law marriages are not a real problem, if recognized in the state law.

Deemed marriage depends on case by case analysis focusing on the good faith of the parties, i.e. their actual knowledge.  If the marriage was entered in good faith, for example if the parties were without knowledge that the prior marriage was not properly terminated,  the defective marriage might still support an award of benefits.

The U.S. Supreme Court in June found Section 3 of the Defense of Marriage unconstitutional.  Previously, Section 3 had directed the federal government to consider only heterosexual couples for social security benefits for married couples.  As gleaned from the below Bulletin, social security is already acting on the change in the law.  This will still cause problems since not all the states recognize same sex marriage.  Social security uses the claimant's state law (law of the domicile) for assessing who is a spouse for benefits programs.

If the wage earner is entitled to either social security retired or disabled benefits, the spouse may be entitled to husband’s or wife’s benefits, i.e. the spouse of the insured wage earner is entitled to benefits based on the insured’s earnings record if the spouse.

Divorce:

The divorced spouse of an insured wage earner is covered on the wage earner’s account if:

1. The wage earner is insured and is disabled, blind or at least 62 years of age
2. Claimant and the insured were validly married under state law for at least 10 years immediately before the divorce became final (when it says 10 years it means 10 years and not 9 years, 359 days)
3. The claimant files for benefits
4. The claimant is not married
5. The claimant is age 62 or older
6. The claimant is not entitled to a retirement or disability insurance benefit based on a primary insurance amount which equals or exceeds one-half of the wage earner’s primary insurance amount.
7. If the claimant has a waiting period to get benefits depends on when the divorce was received 42 USC 402(b)

What happens if the wage earner is younger then 62 years of age at the time of the divorce?

1. Need no. 2 above.
2. The claimant is not entitled to an old-age benefit that is equal or greater then the insured’s primary insurance account, and
3. The claimant is unmarried after age 60 or claimant remarried after age 50 but before reaching age 60 and was entitled to disabled widow or widow’s benefits or met the disability requirements at the time of remarriage. 20 CFR 404.336a

Survivor/Dependent Benefits Spouse

A widow or surviving divorced spouse of a fully insured deceased wage earner is entitled to survivor benefits on the deceased wage earner’s account if:

1. The widow or surviving spouse is not married

2. Is 60 years of age or older (if disabled, is 50 years of age, but not yet 60)

3. Is not entitled to retirement benefits that are equal to or larger than the insured person’s primary insurance benefit amount.

Friday, August 9, 2013

Mark Hinkle, Acting Press Officer

For Immediate Release

News Release

SOCIAL SECURITY

Statement of Carolyn W. Colvin, Acting Commissioner

of Social Security, on Payments to Same -Sex Couples

“I am pleased to announce that Social Security is now processing some retirement spouse claims

for same-sex couples and paying benefits where they are due. The recent Supreme Court decision

on Section 3 of the Defense of Marriage Act, made just over a month ago, helps to ensure that all Americans are treated fairly

and equally, with the dignity and respect they deserve. We continue to work closely with the Department of Justice.

In the coming weeks and months, we will develop and implement additional policy and processing instructions.

We appreciate the public’s patience as we work through the legal issues to ensure that our policy is legally sound

and clear.  I encourage individuals who believe they may be eligible for Social Security benefits to apply

now, to protect against the loss of any potential benefits. We will process claims as soon as

additional instructions become finalized.” 

To learn more, please visit

www.socialsecurity.gov

.

# # #

Social Security National Press Office

Baltimore,

MD

410-965-8904

press.office@ssa.gov