People suffering from severe medical problems, including chronic headache pain, sometimes find it impossible to work. For these people, the ultimate financial safety net is the disability program managed by the Social Security Administration (SSA). Unfortunately, applying for benefits and proving eligibility can be a lengthy, confusing and frustrating challenge. This article will describe the disability programs, the application and appeals process, and tips for getting chronic pain claims approved.
Who Qualifies?
There are several programs that pay disability benefits under the Social Security Act. Each has a basic medical test that requires proof that an applicant is "permanently and totally disabled." The Act defines that test as: "...the inability to do any substantial gainful activity by reason of any medically determinable 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." It is important to understand how SSA interprets the terms used in this definition.
"Any substantial gainful activity": A claimant must prove the inability to perform work available in the national economy. Generally it is not enough to prove the inability to do any previous jobs. It is irrelevant whether someone could be hired, whether the claimant is insurable, could commute to work, or even whether jobs are actually available. The issue is whether the medical proof establishes symptoms that are so severe that the claimant can not sustain function at any type of job.
"Medically determinable impairment": Basically, the law requires objective medical evidence of the existence of both the impairment and the severity of the symptoms. Simple conclusory statements such as "My patient is totally disabled" are given no weight by SSA. The law requires a review of medical records, test results, and treating physician office notes and reports to determine the existence and severity of medical problems.
"Last or expected to last not less than 12 months or result in death": Benefits are paid for permanent impairments which preclude the ability to work.
"Permanent" means a condition that has lasted or is expected to last at least one year. Therefore, a simple leg fracture would not qualify as it would be expected to heal within a year. Episodic conditions, such as headache pain, manic-depression, and seizures, are often denied, at least initially, because SSA does not consider them permanently disabling.
It is important to remember that: the focus is on the ability to function. SSA often acknowledges that the claimant suffers severe medical problems. However, the claim is still denied because SSA physicians believe that the claimant could still perform a significant number of jobs despite the medical problems. Further, SSA will look at how treatment ameliorates symptoms and if, for example, pain medication eliminates pain sufficiently to allow a claimant to concentrate and function, that claim will be denied.
Types of Disability programs
Social Security Disability Insurance (SSDI) benefits are paid to persons who worked and paid Social Security taxes (FICA) for at least five of the ten years immediately prior to the onset of their becoming totally disabled. This rule is somewhat modified for younger individuals.
There are no SSDI benefits paid for the first five months of total disability. After this elimination period, benefits are paid monthly. The monthly benefit depends on prior earnings and is actually determined by a rather complex formula. There is no limitation on unearned income or assets. Benefits are paid to dependent children until age 16, or until age 18 if still in high school. Medicare insurance is available 29 months after the onset of being totally disabled. Payments can be made retroactively for up to one year prior to the application date.
SSDI includes provisions for persons who become totally disabled before age 22 and who have parents who are either disabled or receiving retirement benefits. It also includes disabled widows and widowers who are more than 50 years old and who became totally disabled within seven years of the death of a full insured spouse. SSDI recipients are entitled to a trial work period and other benefits when they attempt to return to work.
Supplemental Security Income (SSI) benefits are available to a totally disabled person who has not met the work requirements or paid the FICA taxes required for SSDI. In addition to being totally disabled, the claimant must be indigent. For a single individual that means non-exempt assets of less than $2,000.00 and virtually no income. The income of a spouse may preclude eligibility. The basic grant in 2004 is $564.00 a month, although some states supplement that amount. Medicaid insurance is provided to SSI recipients. There are no dependent benefits.
The Application Process
The general rule is to file as soon as possible and to persevere. Many initial and reconsideration denials are reversed at subsequent levels of review. Almost 50% of the people who are initially denied fail to appeal, and many of those are valid claims which could be awarded.
The Initial Application can be filed by visiting or calling the local SSA District Office. If the application is for SSDI only it can be completed over the Internet at www.ssa.gov. We strongly recommend going to the office to expedite the process. SSA will ask for a birth certificate, a list of physicians and medications, and a work history. Filing is free and SSA staff will help with the forms.
Each state has a contract with SSA to perform the first two levels of review. Therefore, SSA sends the file to the designated state agency which contacts doctors and hospitals, arranges for medical examinations and reviews the evidence. It generally takes about 90 days for an initial decision. Historically about 35% of initial applications are approved. The denial letter indicates that there are 60 days to file an appeal. However, we recommend filing the appeal as soon as possible - preferably the next day.
A Request for Reconsideration may be filed after an initial denial. While a telephone call will begin the appeal, we again strongly recommend going to the local SSA District Office to complete the forms. SSA will want to update both medical treatment and functional limitations. The state agency will again make the decision at this level. Nationwide only 15% of applications were approved at reconsideration and SSA is testing new application models which eliminate this level of review.
A Request for Hearing before an Administrative Law Judge (ALJ) must be filed within 60 days of the Reconsideration denial and, once again, should be filed as soon as possible. This is the most effective part of the claim process and is often the best chance to win benefits. The hearing is critical because it is the only time a Claimant gets to see and talk to the decision maker face to face. Annually ALJs award benefits in about one-half of the cases they review. Hearings are considered non-adversarial, informal and confidential, and are tape-recorded for review in the event of an appeal.
Currently there is a severe backlog at most Offices of Hearings and Appeals. The pending case load often means delays of up to a year or more from the time a Request for Hearing is filed. Claimants facing severe economic hardships may ask for their claim to be expedited. SSA has several initiatives aimed at resolving this problem but nothing is expected to change in the immediate future.
The ALJ should receive a complete medical record. This is especially important because any appeal will be based upon the medical evidence presented to the ALJ. Therefore, all medical records and reports should be submitted to the judge as early as possible. Often ALJs hire medical advisors or vocational experts to attend the hearings to offer their opinions on the facts of a claim. Cross-examination of these witnesses is often critical to having a claim approved.
Appeals Council and U. S. District Court reviews are possible if a claim is denied by an Administrative Law Judge. However, the standards of review applied at these levels are quite strict and not favorable to claimants. The most effective step for proving a claim is at the hearing before the ALJ.
Proving eligibility in headache claims
SSA Regulations focus upon medical proof of both the underlying medical impairment and of the severity of the symptoms. In a cardiac case, for example, an angiogram shows the existence of the heart disease and a treadmill test documents the extent of the functional limitations. Such clear documentation is usually not available in a claim based in whole, or in part, on headache pain.
There are several important items of medical proof in pain cases. First, SSA is going to review the medical notes and reports of the treating and examining physicians. This is the primary evidence in any claim. It is imperative that a claimant remain under medical care, preferably from an appropriate specialist. In headache cases SSA will give far more weight to the treating headache specialist, neurologist and/or pain management specialist.
SSA will take a longitudinal view of the medical record and consider how active the claimant has been in seeking help from the pain. One focus when reviewing the records will be consistency. SSA will compare what a patient relates to each physician to see if the complaints are similar - and they will compare those notes with both the testimony at the ALJ hearing and the written forms completed by the claimant.
Second, SSA is going to review the claimant's description of the location, duration, frequency and intensity of the pain, and how it effects daily activities. It is important to stress the severity of the pain, and its impact on daily functioning, to both physicians and to SSA so that the records are clear and consistent. SSA will also investigate the factors which cause and aggravate the symptoms.
Third, SSA will review the type of medications being used, their effectiveness and side effects. A claimant who describes totally disabling chronic pain but uses no medications, or only simple analgesics, may not be found credible. SSA will also consider other treatment or other measures used to relieve pain and other symptoms.
Representation
While the system is intended to allow Claimants to proceed without assistance, it is useful to retain a representative who is familiar with SSA's Regulations and Rulings to help prepare the record and to present the strongest possible case. In our experience the earlier a representative becomes involved, the greater the likelihood of success. In our practice we hope to be retained as soon as someone has filed an application for benefits.
We have found that explaining the issues applicable to an individual's case, based upon their education, work history and limitations is vital to making certain that the case is well documented. Making certain that Claimants are seeing the appropriate specialists is important. Reviewing the various questionnaires, especially the Activities of Daily Living form, can be critical to the success of a claim. Experienced representatives will also help prepare witnesses to testify at the hearing and be available to cross-examine the ALJ's medical and vocational experts at the hearing.
Chronic pain can cause a person to become unable to work. Proving the claim, however, will require some effort and diligence. The monthly cash benefits, and medical insurance, however, can be crucial to being able to meet financial needs and continue medical recovery. If additional information is needed, call SSA at 1-800-772-1213.
Jeffrey A. Rabin is an attorney and the principal of Jeffrey A. Rabin & Associates, Ltd. in Des Plaines, IL. His law practice is concentrated in representing disabled persons nationwide seeking Social Security Disability benefits. He can be reached at 1-888-LAW-0600 or through email here.
