Are Social Security Benefits Available to An Alien?

A potential client comes into the office and inquires about obtaining disability benefits under the social security system. He tells you he is an alien. Does he have the ability to obtains benefits?
The Social Security Administration (SSA) provides 2 types of benefits for disabled individuals. To determine whether you qualify for Title II benefits (SSDI) rather than Title XVI of benefits (SSI) depends upon your employment history. The test to see if you qualify based upon your disability is the same for both type of benefits.

The first issue to determine is the workers status. If he is neither a citizen nor a permanent resident, the worker may be entitled to receive SSDI if he can show that he is lawfully present in the United States and meets certain other criteria. (8 U.S.C. § 1611(b)(2)).¹

Most foreign workers in the United States who work and pay taxes on their wages are covered under the U.S. Social Security program and therefore potentially qualify for disability benefits. This is true even if they are not citizens or permanent residents..

The next consideration is the worker's earnings or lack of earnings. In order to be eligible for SSDI there is a basic concept – you must have worked and paid Social Security taxes. Payment of such taxes earns the worker social security “credits”. A worker can earn a maximum of up to 4 “credits” in a year. As a thumbnail, a worker needs to have worked 5 of the past 10 years to obtain the right to apply for SSDI benefits, in other words having worked and earned sufficient credits within the requisite number of years, the worker has earned an “insured status”. ( 20 CFR § 404 contains the regulations for SSDI benefits.)

What if the worker has not achieved an insured status? Then consideration turns to SSI benefits. The first issue is the worker's status. To be eligible for SSI benefits a worker needs to be a resident of the United States (§ 416.1603), and—

(1) A citizen or a national of the United States (§ 416.1610);
(2) An alien lawfully admitted for permanent residence in the United States (§ 416.1615);
(3) An alien permanently residing in the United States under color of law (§ 416.1618)²; or
(4) A child of armed forces personnel living overseas as described in § 416.216.

In addition the worker must qualify under 20 CFR § 404.202 , i.e. he is (1) Aged 65 or older;
(2) Blind; or (3) Disabled.

Lastly, since SSI is a safety net program there be income and property limitations that need be considered because they may reduce or eliminate the right to receive a full payment or any payment.

This is a complicated area of the law, especially when SSI benefits are involved.  It is a necessity to have the assistance of an attorney.

1 8 U.S. Code § 1611 - Aliens who are not qualified aliens ineligible for Federal public benefits

(a) In general

Notwithstanding any other provision of law and except as provided in subsection (b) of this section, an alien who is not a qualified alien (as defined in section 1641 of this title) is not eligible for any Federal public benefit (as defined in subsection (c) of this section)....

(b) Exceptions

(1) Subsection (a) of this section shall not apply with respect to the following Federal public benefits:

(A) Medical assistance under title XIX of the Social Security Act [42 U.S.C. 1396 et seq.] (or any successor program to such title) for care and services that are necessary for the treatment of an emergency medical condition (as defined in section 1903(v)(3) of such Act [42 U.S.C. 1396b (v)(3)]) of the alien involved and are not related to an organ transplant procedure, if the alien involved otherwise meets the eligibility requirements for medical assistance under the State plan approved under such title (other than the requirement of the receipt of aid or assistance under title IV of such Act [42 U.S.C. 601 et seq.], supplemental security income benefits under title XVI of such Act [42 U.S.C. 1381 et seq.], or a State supplementary payment). …...

(2) Subsection (a) of this section shall not apply to any benefit payable under title II of the Social Security Act [42 U.S.C. 401 et seq.] to an alien who is lawfully present in the United States as determined by the Attorney General, to any benefit if nonpayment of such benefit would contravene an international agreement described in section 233 of the Social Security Act [42 U.S.C. 433], to any benefit if nonpayment would be contrary to section 202(t) of the Social Security Act [42 U.S.C. 402 (t)], or to any benefit payable under title II of the Social Security Act to which entitlement is based on an application filed in or before August 1996.

(3) Subsection (a) of this section shall not apply to any benefit payable under title XVIII of the Social Security Act [42 U.S.C. 1395 et seq.] (relating to the medicare program) to an alien who is lawfully present in the United States as determined by the Attorney General and, with respect to benefits payable under part A of such title [42 U.S.C. 1395c et seq.], who was authorized to be employed with respect to any wages attributable to employment which are counted for purposes of eligibility for such benefits....

2  § 416.1618. When you are considered permanently residing in the United States under color of law.

(a) General. We will consider you to be permanently residing in the United States under color of law and you may be eligible for SSI benefits if you are an alien residing in the United States with the knowledge and permission of the Immigration and Naturalization Service and that agency does not contemplate enforcing your departure. The Immigration and Naturalization Service does not contemplate enforcing your departure if it is the policy or practice of that agency not to enforce the departure of aliens in the same category or if from all the facts and circumstances in your case it appears that the Immigration and Naturalization Service is otherwise permitting you to reside in the United States indefinitely. We make these decisions by verifying your status with the Immigration and Naturalization Service following the rules contained in paragraphs (b) through (e) of this section....

Migraine Headache—It Isn’t Easy But You Can Get Benefits

A migraine is a neurological condition associated with intense headaches sometimes accompanied by nausea, vomiting, and perceptual disturbances known as aura¹. 
 
The Listing of Impairments contains hundreds of medical conditions that will automatically qualify a person for disability benefits, if his/her condition meets all the requirements of a listed impairment. There is no specific listing for migraines in the Listing of Impairments, so a person who suffers only from migraines will not meet a listing. However, migraine headache sufferers may "equal" a listing if it can be shown that their symptoms are of equal severity to a listing for a similar condition.
There is medical research that would arguably place migraines on the seizure spectrum; as such it's possible that someone with chronic migraines could equal the listings for epilepsy.  Merely having occasional migraines won't equal the listing. To equal a listing, migraines must occur at least twice a week, despite treatment, and impair mental functioning for several hours at a time. Equaling a listing is difficult in any case. You will need support in the medical records and from witnesses.
Usually a migraine diagnosis is primarily based upon reported symptoms and medical history. Migraines do not appear on x-rays or MRIs but objective testing may be done to rule out other possible causes of headache. 
 
What the Administrative Law Judge will be searching in the record and questioning the claimant about is a credible medical history, treatment etc. to support the claimant’s allegations of disability.
Consider Kirby v. Callahan, 975 F.Supp. 1290 (D.Kan.1997) – Complaints of disabling migraine headaches were discounted where the claimant failed to seek any treatment for headaches.  Many times I have had people in this situation because they lacked medical insurance.  Emergency room records may show incidents, but are lacking on treatment records.
VERSUS- Orr v. Chater, 956 F.Supp 861 (N.D. Iowa 1997) Here the claimant submitted evidence relating to duration, frequency and intensity of pain to support her allegations of subjective pain from recurring headaches and seizures and tended to make her subjective complaints that pain was disabling more credible then less.

It is important to a case in which migraine headaches are alleged to be the impairment that the claimant keeps a headache diary and recording detailed information about headaches, including the following:

• date of migraine
• length of migraine
• intensity of pain
• description of aura, if any
• preceding symptoms
• possible triggers
• medication and dosage, and level of relief.
  

It is important that the claimant be consistent in attending treatment, consistent in his/her complaints to the doctor, and shares his diary with the doctor (for purposes of treatment, not “because my attorney told me to tell you these things”). Such a diary will assist the doctor in making an accurate diagnosis. It will also improve the Social Security disability case by documenting the frequency and intensity of the migraine headaches.

If a claimant’s condition does not meet or equal the Listing of Impairments (probably the Neurological schedule 11.00, 11.02, 11.03) the determination moves to steps 4 and 5 of the sequential evaluation.

At steps 4 and 5, Social Security is to take into account claimant’s age, educational level, employment history, and Residual Functional Capacity (RFC) to decide whether there are jobs in the U.S. that claimant can perform.  One or more of the following limitations might be found in the RFC of a claimant with persistent migraines.

• Missing more than two days of work per month due to pain.
• Require unscheduled breaks throughout the day because of nausea, pain, or the  
• Be off-task for at least 15% of the workday due to pain.
• Would be unable to maintain focus and concentration throughout the workday.
  

An impairment of this type presents unique difficulty because it is an impairment based upon a subjective evaluation to identify the impairment and establish its severity.  With this impairment, the more documentation you can put before the Administrative Law Judge (ALJ) the better.
Difficult or not, if sufficient evidence is presented the ALJ cannot ignore it. Consider: Baker v. Apfel, 159 F.3d 1140 (8^th Cir. 1998) The hypothetical question posed by the ALJ to the vocational expert was inadequate and did not fairly reflect impairments and capabilities of claimant, and therefore did not establish claimant was qualified for any jobs existing in the national economy where the questions did not consider limited time claimant was able to work, absences from the workplace, treatment etc.

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. This blog is only the opinion of the author and are not expressed authority on any of the subjects discussed

1An aura is a perceptual disturbance experienced by some with migraine or seizures before either the headache or seizure begins. It often manifests as the perception of a strange light, an unpleasant smell or confusing thoughts or experiences. Some people experience aura without a subsequent migraine or seizure. From Wikipedia, the free encyclopedia

Questions on Reasonable Accommodations under the ADA have no place in the proof of a Social Security Disability Case.

Your at your social security hearing before an ALJ and he poses a hypothetical question to the vocational expert asking the expert to consider the claimant's limitations and determine if there are jobs that the claimant could do. The expert answers that with accommodations, the claimant could do job x, y, and z.
Can an ALJ then ask the vocational expert, at steps 4 or 5, “Given reasonable accommodations, are there any jobs that claimant could be employed?” If not asked by the ALJ, can the vocational expert consider reasonable accommodations in determining if there are any jobs within the national/regional economy that the claimant could do in his/her disabled condition?
In many cases it is difficult to obtain benefits for a client. When the question of allowing accommodations comes into the process, there are real concerns for the claimant, for example, not all employers or all jobs require that accommodations be provided, how would that be factored into the process? Since much of the vocational expert’s testimony is based upon subjective determinations on which jobs are available and which jobs are not, give the VE the opportunity to ponder on this issue would/could greatly expand the available jobs.
It would be improper for the Administrative Law Judge or the Vocational Expert to consider reasonable accommodations under the Americans With Disability Act at steps 4 or 5 of social security’s sequential evaluation process.
The ADA provides that a covered entity (generally an employer engaged in interstate commerce and who employs 15 or more workers) shall not discriminate against a qualified individual with a disability (an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires).
Under the sequential evaluation used by Social Security to determine if a claimant’s disability(s) prevent him/her from being employable in the national economy the focus in on availability of jobs that the claimant, given his residual functional capacity, may be able to work. Under step four, the focus is on jobs that the claimant had successfully worked during the past fifteen years. If the claimant is unable to do a prior job then at step five, the focus turns to any job within the national economy that claimant could work.
The questions posed at step four and then step five, ask:
Step Four: If your impairment does not meet or equal a listed impairment, can you perform your "past relevant work?" If the claimant cannot do past relevant work, then the inquiry moves to -
Step Five: If your impairment does not meet or equal a listed impairment and you cannot perform your "past relevant work," then can you perform other jobs that exist in significant numbers in the national economy?
If the requirements of the ADA are applied at either Step Four or Step Five of the sequential evaluation, the questions would be given reasonable accommodations can claimant perform past relevant work or any work. If allowed it makes a significant difference in the process. Allowable?
Such was the issue in Eback v. Chater, 94 F.3d 410 (8^th Cir. 1996). The Court’s holding in Eback was that it was inappropriate to consider accommodations—


“This rationale is faulty for numerous reasons, the most significant of which is that a determination of relevant jobs existing in the national economy in significant numbers must be based on an assumption that the employer would be willing to make accommodations under the ADA. The Associate Commissioner of Social Security issued a statement that the ADA and the disability provisions of the Social Security Act have different purposes and have no direct relationship to each other.
[The inquiry into other available jobs] is based on the functional demands and duties of jobs as ordinarily required by employers throughout the national economy, and not on what may be isolated variations in job demands (regardless of whether such variations are due to compliance with anti-discrimination statutes or other factors). Whether or how an employer might be willing (or required) to alter job duties to suit the limitations of a specific individual would not be relevant because our assessment must be based on broad vocational patterns ... rather than on any individual employer's practices. To support a ... finding that an individual can perform "other work," the evidence ... would have to show that a job, which is within the individual's capacity because of employer modifications, is representative of a significant number of other such jobs in the national economy.” @ 412 (underlining added)


SSR 00-1c provides some insight into the issue by looking at it from the opposite direction, i.e. does application for SSDI preclude application under the ADA? SSR 00-1c is based upon the U.S. Supreme Court Case, CAROLYN C. CLEVELAND v. POLICY MANAGEMENT SYSTEMS CORPORATION ET AL., ____ U.S. ____, 119 S.Ct. 1597 (1999 . In the case the United States Supreme Court looked carefully at the underlying statutes and focused on one key difference: The SSDI provisions deal with the person's condition without accommodation, and the ADA is based on providing reasonable accommodation for the disability.


The regulation provides, in part:


“The SSAct and the ADA both help individuals with disabilities but in different ways. The SSAct provides monetary benefits to insured individuals who are under a disability, as defined in the SSAct. The ADA seeks to eliminate unwarranted discrimination against any individual who is considered a "qualified individual with a disability" as defined in the ADA...


The Social Security Act provides monetary benefits to every insured individual who "is under a disability." 42 U.S.C. § 423(a)(1). The Act defines "disability" as an "inability to engage in any substantial gainful activity by reason of any ... physical or mental impairment 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." § 423(d)(1)(A)…


The ADA seeks to eliminate unwarranted discrimination against disabled individuals in order both to guarantee those individuals equal opportunity and to provide the Nation with the benefit of their consequently increased productivity. See, e.g., 42 U.S.C. §§ 12101(a)(8),(9). The Act prohibits covered employers from discriminating "against a qualified individual with a disability because of the disability of such individual." § 12112(a). The Act defines a "qualified individual with a disability" as a disabled person "who ... can perform the essential functions" of her job, including those who can do so only "with ... reasonable accommodation." § 12111(8).


By way of contrast, when the SSA determines whether an individual is disabled for SSDI purposes, it does not take the possibility of "reasonable accommodation" into account, nor need an applicant refer to the possibility of reasonable accommodation when she applies for SSDI…”

The ADA and Social Security are not overlapping legislation, and they serve different purposes. Questions on accommodations are irrelevant to the considerations that are to be made under Steps 4 or 5 in the Social Security’s sequential evaluation process.

Disclaimer: Blogs posted herein are only the thoughts of the author and 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.

Appeal your SSDI denial into Federal Court

I just finished watching the Robert Redford movie “All is Lost”.  It started me thinking about that case in which benefits were not awarded at the initial claim level, or at the reconsideration, or before the Administrative Law Judge (ALJ) and finally, the Appeals Council (AC) found no reason to change what the ALJ had decided.  As bad as it may seem, if you believe you have a good case, all is not lost!  You can take your case into the Federal Court system.

Things get much more formal when you take the case into federal court. There are special rules in each district, and many judges have special procedural rules that apply to cases assigned to that judge.  More importantly, Social Security now has an attorney to represent it’s interests. Last but not least, there is the requirement of briefing the issue(s) in your case.  Most attorneys will look at a case very closely before a decision is made to take a case into the Federal Court.  The amount of work needed to present a brief really requires that there must be a good issue.  Without a good issue, an attorney will not want to invest the amount of work that is needed at this level of appeal.

Let’s say that your case has merit and you believe that the ALJ was wrong when he denied benefits in your case.  What is the next step?

First thing to do is to check the calendar.  You have only 60 days from the date of the decision by the Appeals Council to file a case into Federal Court.  (If you need additional time, or have a reason for the delay, you can request additional time from the AC (not from the Federal Court—you are not in the Court yet)). 

If you are within the 60 day time limit, you now need to draft a complaint.

What is a complaint?   A complaint is a pleading which starts an action and sets forth a cause of action.  It must be drafted carefully to properly state the factual as well as legal basis for your claim.

Although some leeway is given to pro se parties (people proceeding without counsel), as to the content of the complaint, there are basic rules concerning the basic content of a complaint. (Before an attorney may take up representation s/he may request that you provide an affidavit indicating that you do not owe the federal government any money, and that you waive any requirement that attorney fees (under the Equal Access to Justice Act) be paid to you; but directly to the attorney if you are successful at this level of appeal.  The reasons for this are subject of another blog.

What are the basics?  Your complaint must be typed or printed legibly in English on 8½ x 11 inch paper, double spaced, using one side of the page only, typed in 13 point font, and must contain your original, not photocopied, signature. There is no requirement as to the font, although the U.S. Supreme Court prefers Century.

You are the plaintiff.  You must write your name as the plaintiff in the caption and include your Social Security number (confidentially). The Commissioner of Social Security is the only proper defendant in an appeal from a final decision by the SSA.  The Commissioner would be listed in the caption as the Defendant. If you do not know the Commissioner’s name, you can write “Commissioner of Social Security.”

In the body of the complaint you want to set forth the nature of your disability, the date your disability began, the date of your hearing and the date of the Administrative Law Judge’s decision. You can attach a copy of the Appeals Council’s letter (the “final decision”) at the end of your complaint.

The following complaint form is provided only as a guide.  If you are putting your case into Federal Court, it is your obligation to correctly follow the rules so that your complaint complies with requirements of the jurisdiction in which the court is housed (venue).

UNITED STATED DISTRICT COURT

DISTRICT OF MINNESOTA

-------------------------------------------------------------------------------------------------       

                                                            )

Disabled Claimant,                               )

                                                           )

                                    Plaintiff,         )

                                                          )

-vs-                                                     )           COMPLAINT

                                                          )

Carolyn Colvin,                                   )

Commissioner of                                 )

Social Security,                                  )

                                                         )

                                    Defendant.    )

                                                        )

-------------------------------------------------------------------------------------------------

Preliminary Statement

1.             This is an action for review of the final decision of the Commissioner of Social Security (hereinafter “Commissioner”) pursuant to 42 U.S.C.A. §§ 405(g) and 1383(c) (3).

2.             By this action plaintiff seeks a judgment reversing the final decision of the Commissioner denying him Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C.A. §§ 401 – 431 and directing the Commissioner to award such benefits to plaintiff both retroactively and prospectively.

Jurisdiction

3.             Jurisdiction over this suit is conferred upon the Court by 42 U.S.C.A. §§ 405(g) and 1383(c)(3) as an action to review a final administrative decision of the Commissioner denying Disability Insurance benefits under the Social Security Act.

         Parties

4.             Plaintiff is a resident of Minnesota, and a citizen of the United States.  His Social Security number has been attached to the copy of this complaint that was served on the Commissioner of Social Security.

5.             Defendant is _______________, Commissioner of Social Security.  In this capacity he is ultimately responsible for the approval or denial of all applications to the Social Security Administration for Disability Insurance (DIB) benefits, including those benefits sought by the plaintiff herein.

Facts

6.             Plaintiff applied for Disability Insurance benefits on _________________ alleging disability insurance benefits beginning _____________. 

7.             The claim was denied initially on ____________.  Subsequently plaintiff filed an application for reconsideration and it was denied on ____________.

8.             Plaintiff filed written request for hearing before the Office of Disability Adjudication and Review on _______________. 

9.             A hearing that plaintiff attended was held on ________________ in Minneapolis, MN.

10.          On __________________,  the Honorable _______________ Administrative Law Judge, signed a decision finding that plaintiff was not disabled under sections 216(i) and 223(d) of the Social Security Act.

11.          Plaintiff then requested review by Appeals Council.  On _______________ the Appeals Council issued a ruling that denied plaintiff’s request for review. 

12.          The facts of this case are more fully set out in the record of the administrative proceeding which must be filed in this Court by defendant pursuant to 42 U.S.C.A. §§ 1383(c) and 405(g).

Statement of Case

13.          The decision of the Administrative Law Judge  was erroneous, not supported by substantial evidence, and /or it is contrary to law.

            Wherefore, plaintiff requests that the Court reverse the decision of the commissioner and grant plaintiff DIB benefits, award attorney’s fees, and grant such other and further relief as this Court may deem just and proper.

Dated: _____________________                        ____________________________

                                                            Claimant’s name         

With the Complaint drafted, the next step is to file it with the Court.  If you do not have the money necessary to pay the filing fee ($400.00 at present), you can prepare an Application to proceed without payment of fee.  The court will review application and if it finds that your income and resources are below the means it deems necessary to pay such costs, filing fee, etc., it may enter an Order allowing you to file without the payment of costs.

After the Court accepts your filing of the Complaint, it will issue a Summons.  It is a legal document issued by the Court.  It is served upon the defendant with the Complaint to inform the defendant that a legal action has started and the defendant is a party and needs to provide an answer if the defendant does not want judgment entered against her/him.  You then have 120 days to service the summons and complaint.  The defendant will have 60 days to respond.

I have mentioned that you must serve the summons and complaint, but how and on whom?

Under Rule 4 of the Federal Rules of Civil Procedure, you need to serve the following in person or by certified mail:

The United States Attorney                     Carolyn V. Colvin

For the District of Minnesota                   Acting Commissioner of Social
 600 U.W. Courthouse                           Security

300 South 4^th Street                              Office of General Counsel

Minneapolis, MN. 55415                       Social Security Administration

                                                             611 Altmeyer Building

Social Security Administration               6401 Security Boulevard

Office of the Regional Chief Counsel      Baltimore, MN. 21235

OGC – Region VI

1301 Young Street, Suite A702           The United States Attorney
 Dallas, TX 75202-5433                      General

                                                            10^th & Constitution Avenue NW

                                                            Washington, DC 20530

The parties and addresses are not fixed in stone, so a word to the wise, check the addresses and parties at the time you file your case.

After your case is filed the Court will assign a Magistrate Judge and a District Court Judge to your case.  If both parties agree, the Magistrate Judge can handle the entire case.

You will receive an Answer from the Government.  You than need to prepare, serve and file your Motion for Summary Judge and Memorandum of Support.

Your memorandum analyzes the decision and argues it is in error based upon evidence, medical evidence and other, in the file (you cannot bring up new evidence at this time), the law, testimony from the hearing, in an attempt to persuade the judge that the ALJ failed to properly consider the evidence or to otherwise make a decision in accordance with the law.

Hopefully you get a decision in your favor.  If not, there is a right to Appeal to the Circuit Court of Appeals.  The procedure to get into the Circuit Court of Appeals is not part of this blog.

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[1] Pro Se Civil Guidebook, www.mnd.uscourts.gov/Pro-Se/GuideAndInfo.shtml