Obesity, Generally

An individual having a body mass index (BMI) of 30 or more may be considered obese, while a BMI of 40 or more may be considered morbidly obese. These numbers are not absolute, however. When considering obesity, a medical professional will also look at excess fat, as someone with a large percentage of their weight coming from muscle may have an elevated BMI but not be obese. Conversely, a person may have a healthy BMI, but if a small percentage comes from muscle, they will most likely have an unhealthy percentage coming from fat. Generally, obesity manifests itself with regard to a low metabolism, which involves, among other symptoms, a large waist, insulin resistance, elevated triglyceride levels, and high blood pressure.

Previously, obesity was considered a disability for SSDI benefits, but, in 1999, the SSA deleted the listing, although it still must be considered in the evaluation process. What this means is that, to qualify for SSDI benefits, an individual needs more than a low metabolism. Rather, the obesity must contribute to or cause damage to another disease, and also lead to limited mobility or functional abilities, such that the individual’s situation constitutes a disability.

The Listing of Impairments

Because obesity is not listed in the Listing of Impairments, the SSA will only consider obesity under the Listing if its limitations on the individual are equivalent to another category in the listing or it causes or contributes to another listed impairment. As an example of the former, if obesity makes an individual unable to walk (i.e., the individual can only move through the help of a wheelchair), then the condition may qualify as being equivalent to an individual who cannot walk due to amputation. As an example of the latter, when obesity is a cause of diabetes, it may be deemed to be contributing to that disease. Thus, an individual can be awarded SSDI benefits for obesity, but only if he/she can demonstrate that the physical symptoms as a result of the obesity prevent him/her from working.

The Medical-Vocational Allowance

If obesity cannot qualify under the Listing of Impairments, the SSA will then assess an individual’s residual functional capacity. In other words, obesity can limit one’s ability to function, based on where the excessive fat is carried. For example, an obese individual may have trouble walking, standing, sitting, balancing, lifting items, and bending over, among other activities. Thus, if an obese individual suffers from walking, standing for long periods, or even sitting for long periods, the SSA may consider the pain to be a limiting symptom as part of one’s residual functional capacity.

This analysis of one’s residual functional capacity will then be used to determine what jobs one can do, if any. If the SSA determines that there are some jobs an obese individual can do, they will deny the SSDI claim. However, if the SSA determines that, due to obesity and its symptoms, there are no jobs that can be performed, an individual may be awarded medical-vocational allowance benefits.

Get Help

If you have filed (or are considering filing) a claim for SSDI benefits, and you feel that your obesity may contribute to your disability, contact the experienced disability legal team at Farrell Disability Law as soon as possible. It is crucial to have someone on your side as experienced as their attorneys are who can maneuver through the process in such a way to best present your evidence and give you the best chance for success. Contact our Jacksonville office today.

Resources:

newhealthadvisor.com/is-obesity-a-disability.html

ssa.gov/disability/

SGA

SSDI benefits are designed to go to individuals with disabilities unable to sustain more than insignificant amounts of work, and to support this intent, the SSA looks at the earnings of an applicant or recipient to see if he/she is working beyond the maximum allowable level. This threshold is called substantial gainful activity, or SGA, and limits the amount a person can earn and still qualify for benefits at $1,170 per month for 2017. Earning over this amount would disqualify an applicant, and could cause a current recipient to lose benefits, if the trial work period has passed. Further, the SSA assesses a person’s SGA based on more than just mere dollars earned. Any work performed that has a value and is usually compensated, including volunteer positions, even if no money is made, counts toward this limit. Specifically, the SSA will look at the amount of physical and mental effort a job requires to determine if this information indicates the ability to engage in regular employment, even if the current job is part-time or pays less than earnings before the onset of a disability. Consequently, striking the balance needed to earn a minimal level of financial support without losing disability benefits can be tricky, and make it difficult to know if engaging in any sort of work is a good idea.

Trial Work Period

SSDI recipients are offered a trial work period through the SSA to attempt a return to work without the worry of losing benefits due to exceeding the SGA monthly limit. Working during the trial work period, which applies to any nine months worked within a 60-month window (can be non-consecutive) in which a recipient earns more than $840, allows SSDI recipients to maintain a status of disabled, regardless of monthly earnings. Any month with earnings above $840 counts toward the trial work period, and once the nine months are expended, any month with earnings above $840 would terminate benefits. However, those able to return to work do retain the ability to have disability determined on a month-by-month basis for another 36 months. Thus, any month with earnings below the SGA are entitled to full SSDI benefits for that particular month during the extended eligibility period. Further, former recipients that lost benefits due to a return to work can file for an expedited reinstatement at any time during the five-year period after benefits were canceled if their earnings fall below the SGA.

Get Help

Trying to navigate the complicated laws and rules that determine when and how SSDI applications are evaluated is daunting for anyone, and those facing a disability are more disadvantaged because the attention their condition requires. An experienced disability insurance attorney can take this burden off your shoulders, and give you a fair chance at being approved for benefits. Farrell Disability Law understands your challenges, and will fight to get you the money you deserve. Contact the Jacksonville office for a free consultation.

Resource:

ssa.gov/oact/cola/sga.html

Types of TBI Injuries

A TBI occurs when the brain swells, is bruised, or experiences internal bleeding, which can be the result of falls, car accidents, sports injuries and bombs (for those in the military). The bodily systems that could possibly be affected by a TBI range from balance issues, inability to concentrate, loss of the use of extremities, and mood changes. The severity of a TBI is linked to if and how long a person loses consciousness. Loss of consciousness for less than 30 minutes is considered mild; though, even this level of loss can still cause memory loss, headaches and dizziness. A severe TBI is characterized by a loss of consciousness for more than 30 minutes, and can cause significant physical and cognitive impairments for years after.

Is It Severe?

Starting in October 2016, TBI was officially added to the SSA’s Listing of Impairments, which means that anyone diagnosed with this condition and experiencing severe impairments expected to last at least one year should be approved for benefits. Note that only severe cases of TBI will receive this treatment, and less severe cases will have to go through the residual functional capacity analysis that examines a person’s ability to perform past work or to learn and perform less demanding duties in a different job. In order to be considered a severe TBI case by the SSA, a person must present medical evidence documenting the following impairments:

• the inability to control movement in at least two extremities (arms and legs) for at least three consecutive months following the injury, which directly causes issues with the ability to stand up, maintain balance when standing or walking, or use one’s arms; or
• have a seriously limited ability to perform or sustain work due to physical impairments for at least three months following the injury, and have serious limitations related to thinking, finishing tasks, controlling behavior and/or interacting with others.

Staggered Evaluation Process

Because forming a long-term prognosis for a TBI is difficult in many cases, the SSA accounts for this variability by allowing claimants to seek benefits earlier and to be reassessed for evidence of impairments more than once. Specifically, TBI claimants can be approved for benefits as soon as three months post-injury, while most claimants must have a disabling condition for at least 12 months to qualify. Further, if there is insufficient evidence of impairment, the SSA will reevaluate the claimant when new information is available, giving TBI claimants additional opportunities to win approval within the first year of disability.

Contact a Disability Insurance Attorney

The onset of any disabling condition is hard to accept and manage. The financial impact that comes with this event only adds to the burden a person has to carry. A disability insurance attorney can help lift some that burden by getting you the benefits you need so you can focus on your health. Farrell Disability Law understands how the law and regulations work, and can help get you approved even if the SSA has already denied your claim. If you live in Jacksonville, Orange Park, Neptune Beach or the surrounding area, contact the office for a free consultation.

Resources:

ssa.gov/pubs/EN-05-10029.pdf

ssa.gov/disability/professionals/bluebook/11.00-Neurological-Adult.htm#11_18

Advantages of Private Disability Insurance

The biggest drawback to SSDI is the strict definition of disability that all applicants must meet in order to be approved. Specifically, only those unable to return to previous work or adjust to new work for at least one year will qualify. Thus, individuals who are partially or temporarily disabled will be automatically excluded from this insurance program. Private disability insurance covers this gap for individuals in this in-between situation, and almost always offers a much more liberal definition of what is considered a disability so more people qualify. Further, SSDI benefits are calculated based on a person’s average lifetime earnings, which is subject to a cap of $2,639 per month as of 2016. Private disability insurance often pays much more, up to 70 percent for some policies, and is tied to a claimant’s income at the onset of the disability, which can vary widely depending on a person’s age and profession.

Important Benefit Options

Returning to the definition of ‘disability,’ which controls how likely an individual is to be approved for benefits, private disability insurance offers policyholders the ability to select from a number of disability definitions. The three most common include:

• Own-Occupation Coverage – This is the most liberal type of disability coverage and offers benefits for a policyholder unable to perform the duties of his/her occupation. Thus, it does not require the policyholder to seek other types of employment or show total disability to obtain benefits;
• Own-Occupation Coverage with Time Limits – This option gives policyholders the same coverage described above for conditions that affect performance of that person’s job, but only for a limited time (one, two or five years is most common). After this period, most policies convert to an any occupation definition of disability; or
• Any Occupation Coverage – This coverage is substantially similar to the SSDI definition of disability, and requires the policyholder to be unable to perform any type of work to qualify for benefits.

In addition to choosing how strict or expansive the definition of disability is, private policies may also offer:

• an option to choose how long a disability must exist before benefits will be paid. For example, a 13- or 26-week waiting period;
• an annual cost of living adjustment that is almost guaranteed to be higher than that granted by SSDI; or
• a rehabilitation program designed to help disabled individuals determine if a return to previous work is possible, as well as job skills training, job placement and relocation assistance as necessary.

Get Legal Assistance

If you are someone dealing with a disability that will not allow you to work, talk to a disability insurance attorney about qualifying for benefits. Your life is stressful enough, and a firm such as Farrell Disability Law, can take away some of the struggle by handling the approval process and any necessary appeals. Farrell Disability Law represents clients throughout Florida and South Georgia, and can help you get the benefits you deserve. Contact the office for a free consultation.

Resources:

bloomberg.com/news/articles/2017-01-27/trump-freeze-seen-worsening-526-day-disability-case-backlog

ssa.gov/planners/disability/dqualify4.html

Time Limit to File a Complaint

Just as with other steps in the appeals process, the window to continue an appeal to the federal courts is very short. Once a claimant receives a denial of benefits from the Appeals Council, which is almost certain as only a very small percentage of applicants succeed at this stage, he/she has 60 days to file a complaint with the federal court. If this deadline is missed, the denial of benefits becomes final, and the claimant will have to file a brand-new application, and start the process over from the beginning. Most applications take years to reach this stage, so needing to start over would put most claimants at a severe disadvantage.

What to Submit to the Court

A written complaint must be filed with the appropriate federal court, which is determined by the geographic location of the claimant. The Social Security Administration (SSA) cannot be sued directly. Instead, the current SSA commissioner must be named as the opposing party. The SSA is not permitted to assist claimants with the complaint, so the responsibility to correctly follow the law and court rules falls on the claimant or on his/her attorney.

No evidence or testimony may be presented to the judge for consideration in these cases. The only material a judge reviews when making a decision are briefs (written arguments) filed with the court. These briefs attempt to convince the judge that the medical evidence provided was sufficient to justify an award of SSDI benefits, and the SSA failed to correctly evaluate the evidence and/or was not in line with the law. Additionally, the judge may schedule oral arguments to further understand the legal points of the case.

Decisions

A judge has three possible options when issuing a decision in an SSDI case:

• send the case back to the ALJ for further consideration. This is a fairly common outcome, and the ALJ usually approves benefits at this point to avoid being overturned by a federal court in a future appeal;
• uphold the ALJ’s denial of benefits. Claimants do have the option of appealing to the Federal Circuit Court, this process is even more complicated and expensive; or
• award disability benefits.

Talk to Disability Insurance Attorney

Filing for SSDI benefits is a convoluted process that can easily overwhelm applicants. An experienced disability insurance attorney can take away some of the stress associated with this process by handling the procedural aspects and explaining what to expect at each stage. Farrell Disability Law understands how important these benefits are, and will fight to get you the money you deserve. If you live in Florida or South Georgia, contact the office today for a free consultation.

Resources:

law.upenn.edu/live/news/6743-new-recommendations-by-penn-laws-jonah-gelbach#.WI9sevJggf9

ssa.gov/appeals/court_process.html

Medical Evidence

Medical evidence forms the heart of any SSDI claim, and applications based on mental illness are no different. However, impairments due to these conditions are particularly hard for examiners to evaluate because they often operate cyclically, leaving the sufferer with periods of stability followed by times of acute dysfunction. With mental health claims, in particular, the medical records should include an assessment of an individual’s ability to engage in normal daily activities and/or a reduced ability to keep up with them to show he/she is incapable of working. Evaluations of issues, such as the ability to concentrate, learn and retain information, and capacity to work with others will be crucial information to the success of an SSDI claim. However, the most important type of medical evidence for mental health disability claims relates to episodes of decompensation.

Decompensation

Decompensation is the decline of an individual’s ability to function at a normal level, which is indicative of an inability to work. Basically, if someone has repeated and extended episodes of mental health issues that impair his/her capacity to adequately function in a job, an employer is likely to terminate, and finding a new job may not be feasible. A lack of decompensation evidence does not doom an SSDI claim. All medical evidence is considered during the examiner’s assessment, and most individuals with mental illnesses have additional conditions that contribute to their overall ability to work, such as spinal deterioration and depression.

Listed Conditions

Some mental illnesses are known to involve repeated and increasingly severe periods of acute psychic dysfunction, and are consequently listed as officially recognized impairments. The SSA considers these conditions to be inherently debilitating, rendering a sufferer unable to work. An examiner looks for medical evidence of the symptoms associated with a particular mental illness to determine if a claimant meets the necessary criteria. Some of the conditions accepted as disabling by the SSA include:

• Schizophrenia;
• Bipolar disorder;
• Autism;
• Anxiety; and
• PTSD.

Contact a Disability Insurance Attorney

If you are suffering from a disabling condition, the income provided by SSDI benefits can mean the difference between having necessary medication and a place to live or being out on the street. Given how important SSDI benefits are, a disability insurance attorney should be consulted about filing a claim to give you the best possibility of success. Farrell Disability Law helps clients throughout Florida or South Georgia get the benefits they need and deserve. Contact the office today for a free consultation.

Resources:

ssa.gov/disability/professionals/bluebook/12.00-MentalDisorders-Adult.htm#12_13

nami.org/Learn-More/Mental-Health-Conditions

Application Date

The first factor in receiving back pay is the date the SSDI application was filed. Back pay is allowed for the time an applicant is waiting for approval. In addition, retroactive benefits may also be available for the months before the application filing date if the applicant can prove he/she was disabled and unable to work before requesting disability benefits. Since the average wait time for approval is over one year, SSDI claimants could be entitled to benefits covering more than one year once payment of benefits begins.

Date of Disability

The next factor for qualifying for back pay is the date upon which the disability started. Benefits are only payable once a person is officially designated as disabled, and this date (the established onset date (EOD)) sets this point in time. Thus, it is the most important issue for whether back pay is authorized. The EOD is established by an examiner or administrative law judge when a claim is approved, and is based on a person’s medical records and work history. However, one more factor controls back pay. This date can come before the application date, but cannot be more than 17 months before the application was filed.

Waiting Period

As noted above, taking a proactive approach to requesting SSDI is fastest way to start receiving benefits. This assertive tactic is especially important in light of the five month waiting period all SSDI recipients must satisfy. No SSDI recipient is entitled to benefits for the five months following a determination of an individual’s EOD. However, if the EOD was set before the claimant filed for disability benefits, and approval took the typical 12+ months, there would be no delay in payments, and any back pay would be paid as a lump sum.

Get Help

The rules that apply to SSDI benefits are extremely complicated. Consequently, anyone seeking approval or retention of benefits should consult an experienced disability insurance attorney who understands the relevant regulations, as well as how examiners and judges view disability claims. Farrell Disability Law helps clients throughout Florida and South Georgia get the benefits they need, and is available to help you with your concerns. Contact us for a free consultation.

Resources:

ssa.gov/pubs/EN-05-10153.pdf

ssa.gov/planners/disability/dqualify4.html

Periodic Reviews

The SSA is required to conduct “continuing disability reviews” for all recipients receiving SSDI benefits on a regular basis. These reviews are used to determine if someone no longer meets the definition of disabled under SSDI guidelines. If the SSA believes an individual is capable of returning to work because of improvements in his/her condition, benefits will end.

The frequency of these reviews depends upon the medical condition and the likelihood of improvement. If improvement is expected within a short period of time, the review will occur six to eighteen months after payments begin. For those with conditions where improvement is possible, the reviews are approximately every three years, and for conditions with little likelihood improvement, the reviews are every five to seven years.

Other Triggering Events and Payment Stoppage

In addition to periodic reviews, a review will also be triggered if the SSA learns that any of the following circumstances exist:

• the recipient returned to work;
• the recipient tells the SSA his/her condition improved;
• medical evidence indicates the recipient’s condition has improved;
• a third party notifies the SSA that the recipient is not following treatment protocol; or
• a new treatment for a condition is now available.

Once the review is complete, a letter is sent to the SSDI recipient informing him/her whether benefits will continue. If benefits are to be suspended, the person is entitled to appeal, during which time benefits will continue if timely requested. If no appeal is filed, benefits stop three months after the SSA decides the disability is no longer present. Note, however, that allegations of fraud result in the stoppage of benefits immediately until the individual can prove a qualifying disability exists.

Appealing Suspension

While recipients who are cut off do have the right to appeal, the timelines to request a continuation of benefits (10 days at each stage) are extremely short, so paying close attention to all documents sent by the SSA is crucial. Once someone receives notice that benefits will stop, he/she must ask for reconsideration within 60 days. If the reconsideration is denied, the person must again request a continuation of benefits and ask for a hearing in front of an administrative law judge. Further appeals are available beyond this stage, but are unlikely to be successful, and importantly, benefits will not continue, unless the case is sent back for a new hearing. Further, the SSA will demand repayment for benefits paid during the appeals process if the recipient is unsuccessful in his/her efforts to restore SSDI.

Talk to a Disability Insurance Attorney

Dealing with the potential loss of SSDI benefits is not a process you should face alone. The rules are very complicated and easily misunderstood, which, if not followed, can lead to devastating consequences. Working with an experienced disability law firm, like Farrell Disability Law, will give you a much greater chance at keeping SSDI benefits and avoiding any stoppage of payments. Farrell Disability Law represents clients throughout Florida and South Georgia, and can help you keep or obtain the disability benefits you need. Contact us for a free consultation.

Resources:

detroitnews.com/story/news/nation/2017/01/03/disability-social-security-fraud-probe/96095004/

ssa.gov/pubs/EN-05-10153.pdf

Disability insurance generally comes from three sources: employer-provided group policies, private individual disability policies and the benefits offered by the Social Security Administration. This coverage is intended to cover necessities, but not to replace the need for a person to work. Thus, while everyone should recognize the need to plan for this possibility and protect themselves accordingly, it is equally important to assess how these disability insurance options interact with one another in order to maximize benefit payouts and to determine how much additional income is necessary for financial stability.

Policy Review

The most important thing anyone with disability insurance coverage can do is review the terms of the policy. Clauses related to the percentage of income the insurance company will pay are a crucial provision that impact the level of benefits offered. For example, employer-provided disability insurance will typically pay up to only 60 percent of an employee’s salary, which leaves a significant amount that must be found elsewhere. A private disability policy could supplement this gap. In addition, how the policy defines “income” is also key information to know. Depending on an individual’s pay structure, the exclusion of bonuses or commission could greatly impact how much money an individual receives if he/she becomes disabled and consequently, whether the policy truly provides sufficient coverage. Further, many policies, both employer-provided and individual, place caps on the maximum amount the insurance company will pay each month, which could fall short of the percentage of income the policy is designed to replace. One final consideration for group or individual policies is how long the benefits are paid. Is it measured in months, to age 65, or beyond? Knowing this information is key to long-term financial planning.

Social Security Disability Insurance

The other alternative, Social Security Disability Insurance (SSDI), may seem like the easiest way to replace lost income in the event of a disability because it does not require an individual to pay a separate premium to obtain coverage, but merely to work a certain number of years. However, qualifying for SSDI is extremely difficult and time consuming, and almost always pays much less than any policy offered through an employer or purchased privately. Also, assuming a person does qualify, another important consideration in the overall picture of person’s disability coverage is the fact that receiving SSDI benefits can reduce the amount a person receives from group or individual policies. This adjustment offsets the total amount of money received, and could leave someone receiving less money than expected.

Contact a Disability Insurance Attorney

If you suffer from a disability that affects how much you can work, talk to a disability insurance attorney about your options for receiving benefits through SSDI or a disability insurance policy. Securing regular income during this difficult time is a top priority that deserves the careful and knowledgeable services of a disability insurance attorney. Farrell Disability Law helps clients throughout Florida and South Georgia get the money they need, and can assist you with your disability claims. Contact us for a free consultation.

Resource:

ssa.gov/pubs/EN-05-10029.pdf

How Long Each Step Takes

An SSDI applicant can expect to wait between 30-120 days for a decision on the initial application, with 90 days being the average wait time. A decision during the initial review is largely dependent on the amount of people applying for SSDI within a given geographical area, so individuals that live in larger cities can expect to wait longer because demand will be higher.

If the application is denied at the first stage, the vast majority of which are, the first level of appeal is to ask for a reconsideration. This stage is usually relatively short, often less than 60 days, because the evaluation process from the initial review is simply reapplied, and all medical evidence should be available for review, unless there is new information to submit. However, absent an error and compelling new medical evidence, applications are rarely approved at this stage.

The next step is to request a hearing in front of an administrative law judge. This stage is the longest, and applicants can expect to wait over a year to receive a hearing date, and then months to get a decision. However, applicants have the greatest chance of approval at this stage, making the wait worthwhile. Because this step involves an appearance before a judge, the services of an experienced Social Security disability attorney are usually necessary. These representatives understand the guidelines the SSA uses to determine disability claims, and thus will be able to present the applicant’s case most effectively.

Issues that Hamper Approval

Given the amount of time it takes to move through the SSDI claim approval process, limiting any issues that could hamper a decision are extremely important. The most common issues that can delay approval include:

• failing to update the SSA with current address and telephone contact information in case an examiner needs to call or write with questions;
• failing to provide all current and relevant medical evidence; and
• failing to keep a required SSA medical evaluation appointment.

Contact a Social Security Disability Attorney

Getting approval for SSDI benefits is vitally important to your financial and medical health. Thus, give yourself the best chance at success by hiring a social security disability attorney to handle your claim. Farrell Disability Law represents clients throughout Florida and South Georgia, and will strongly advocate for an approval. Contact the office for a free consultation.

Resource:

ncbi.nlm.nih.gov/pmc/articles/PMC4196714/