Benefits Training and Consulting
January Newsletter

Contents of this Newsletter

  1. Questions and Answers
  2. The Five Steps to Determining if a Person is Disabled.
  3. Need Your Assistance
  4. “Benefits and Employment in 2015” Webinar 

Questions and Answers

The purpose of this section of the newsletter is to continue expanding your knowledge of Social Security benefit programs and other benefits received by individuals with disabilities.  Here is a sample of the questions I have recently received.  If you have a question about a benefits please send it to me.

Question 1:

I wanted to ask if you knew if a person is convicted of a felony crime that actually has to do with financial fraud, are they still allowed to be a rep payee for their adult child with disabilities?

Answer:

There is conflict in SSA’s Operating Procedure regarding the answer to your question. One part says “…any criminal history casts serious doubts about the payee applicant’s suitability.” GN 00502.132 tells SSA staff they can not appoint a custodial parent convicted of a felony listed in GN 00502.133 as representative payee “unless there is no other suitable applicant…”. GN 00503.133 states a convicted felon cannot be appointed as a representative payee unless the individual is a custodial parent and makes no reference to “…unless there is no other suitable applicant.” I recommend you point this out to representative in your local office. If the SSA representative only reviews GN 00502.133 s/he would probably determine a custodial parent of an adult disabled child, although convicted of a felony crime listed in GN 00502.133, can serve as the representative payee for their adult son or daughter.

If you suspect this representative payee is not properly using the benefit payments for the beneficiary, you should report your allegation of misuse to the Office of Inspector General at http://oig.ssa.gov/report-fraud-waste-or-abuse 

Question 2 

Clients have been threatened concerning the Ticket To Work, when they do not meet the targets SSA have created. Client [is] with Department of Rehabilitation, in school, [has] many medical issues interrupting school (surgeries) and they said they would re-evaluate to see if she was still disabled! So, if she does not meet their goals, then they are not disabled

Answer:

When beneficiary “assigns” their Ticket to a state department of rehabilitation or another employment network, all medical reviews are suspended while the person is “using their ticket.” What is not clearly explained to beneficiaries is, SSA is monitoring the person progress while the ticker is assigned. Every twelve months the beneficiary must meet a specified level of progress in pursuing their occupational goal. If the beneficiary does not meet the specified level of progress their ticket is “unassigned” and the person is no longer protected from medical reviews while the ticket is unassigned. The beneficiary can re-assign the ticket and again be protected from medical reviews that have not already begun.

So, SSA is not threatening the person (while it may appear so), they are simply picking up where they left off, before the person assigned the ticket, and conducting a routine medical review of the person’s case. Virtually everyone receiving SSDI, CDB, DWB, or SSI is periodically reviewed for the possibility of medical improvement. Before someone begins seeking employment, s/he should know when their next medical review is scheduled.

Question 3:

I have a customer who is on SSDI and recently got married. Her husband does not have a disability. SSA is telling her that her benefits should have ended when she got married. I thought that the amount that she got would be decreased but not totally taken away. Can you give me some feedback on this? Thanks.     

Answer:

Marriage does not affect someone’s entitlement to SSDI or the monthly benefit payment. For Social Security to stop her benefit because of marriage, she had to have been receiving CDB (Childhood Disability Benefits) based on a parent’s work record, not SSDI. If she married someone who is not receiving a title II benefit, she is no longer entitled to draw CDB. She might qualify for SSI, but this will depend on the couple’s combined income and their resources. 

The Five Steps to Determining if a Person is Disabled.

I receive many inquiries about applying for benefits and denials of applications. I have addressed this previously, but many new people have joined the distribution for this newsletter. Thus, I think it time to address the five steps in determining if a person is disabled (there is a separate process for individuals who are blind). I am using “§ 404.1520. Evaluation of disability in general” in the Code of Federal Regulations, Title 20-Employees’ Benefits, Chapter III – Social Security Administration, Part 404 as my point of reference. These steps are sequential.

Step 1.   Are you working?

If the applicant is not working or is working, Social Security must determine if the person has the ability to perform Substantial Gainful Activity (SGA).

Many people think they cannot apply for benefits if they are working. In fact, people have been told they can not apply for benefits if they are working.

Federal law does not deny a person the right to file an application for benefits if s/he is working, but their countable earned income must be below the SGA level ($1,090 in 2015) because of the medical condition(s). There must be a medical reason why the person cannot perform SGA, not the person chooses to keep the monthly wage below SGA.

Several income exclusions (work incentives) can be used to reduce the countable earned income below SGA at the time of application. So, when a person is applying and is ask the question “are you working?” the response should be “Yes, I am working but I not performing Substantial Gainful Activity.”

If the person has the ability to perform SGA, the application is denied. If the person does not have the ability, because of the impairment(s) and possibly the use of income exclusions, to perform SGA then proceed to Step 2.

Step 2. Is your medical condition severe?

Part of the definition of disability states the applicant must have a medical condition “… which can be expected to result in death, or it has lasted or can be expected to last for a continuous period of 12 months.” This is known as the duration requirement. When an application is submitted, there must be evidence the duration requirement has been or will be met for the medical condition to be considered severe. Many people have short-term medical conditions and these conditions would not be considered severe, thus the application will be denied. If there is reasonable evidence the duration requirement has, or will be, met proceed to Step 3.

Step 3. Does your medical condition meet the Listing of Impairments?

Social Security has defined how severe the medical condition must be in the “Listing of Impairments.” The person’s condition must meet or equal the description in the listing. If the impairment(s) meets or equals the appropriate listing and the duration requirement is met (Step 2) the person will be found disabled and there is no need to go to Step 4.

This step is the key reason why many people are denied benefits. The typical doctor, psychiatrist, clinician, or psychologist is not aware Social Security has its own medical criteria. Thus, medical reports are not properly written to address Social Security’s medical criteria. I speculate this is the key reason why veterans are being denied. Social Security’s medical reviewers access medical records directly from the VA record system and the reports do not address SSA criteria.

But another problem also exists, the medical criteria is consistently updated and several of the Listings available through the Internet are not current. Do not use the criteria in the Code of Federal regulations, and do not use the “Blue Book” (aka “Disability Determination Under Social Security” SSA publication SSA 64-039 ), these are both out-of-date. Use the Listing of Impairments in the POMS. Part A is the medical criteria for adults:   https://secure.ssa.gov/apps10/poms.nsf/lnx/0434001000   Part B is the medical criteria for children: https://secure.ssa.gov/apps10/poms.nsf/lnx/0434005000

Step 4. Can you do the work you did before?

Medical reviewer will assess the applicant’s “residual functional capacity” and previous work experience to determine if the person can return to a previous occupation. Residual functional capacity essentially is an assessment of the person’s current physical and mental abilities. For example, while I may not be able to lift 30 lbs or stand for more than 60 minutes, can I sit at a desk and perform work I previously performed? If the person can return to previous work, s/he will be found not disabled. Otherwise, go to Step 5.

For more detail of residual functional capacity go to the POMS DI 24510.000 at

https://secure.ssa.gov/apps10/poms.nsf/lnx/0424510000

Step 5. Can you do any other type of work?

If the person cannot do the work s/he did previously, the medical reviewer explores whether the person is able to do other types of work. In this step, the medical condition, the person’s age, level of education, past work experience and other skills will be considered in a determination of other types of work the person may be able to do. If the combination of all of these factors identify occupations the person can perform, the person will not be found disabled.

Obviously, when the application goes beyond Step 3, it becomes increasingly more difficult to be found disabled. The key to a successful application for benefits is properly written medical reports so the sequential process stops at Step 3 and the person is found disabled.

Share this Newsletter 

My purpose in writing this newsletter is to empower people to make better decisions on employment and self-sufficiency.  Please share this newsletter.

I Need Assistance

I am currently developing a workshop for Self-employment and Benefits. In the course of this work, a unrelated event occurred. A person was terminated from benefits due to estimated wages and his parents asked for my help. In the course of trying to help them (while they were on an extended vacation) the issue of guardianship prevented us from expediently getting information from Social Security to prepare a Request for Reconsideration.

So this event raised several questions regarding self-employment. [the way I think]  If you have experience with guardianship and self-employment I would appreciate your feedback. I realize guardianship is determined by state law and there are several levels of guardianship.

Here are my questions:

If a court has determined a person with disability is incompetent and grants full guardianship “of the person and the estate” to another individual:

  1. How can the person with disability own a business?
  2. How can this person enter into business agreements and sign contracts?
  3. How are federal and state taxes paid?
  4. To what liability is the guardian exposed, in the course of operating the business?

In your response to my questions, please identify your state.

“Benefits and Employment in 2015” Webinar

In mid-December I released the 2015 edition of this very popular webinar. I am offering a SPECIAL RATE for the first 250 registrations.  The content of the webinar is identical to the material I present in live workshops.  The feature everyone likes – the content is divided into 5 sessions and each session can be viewed when your schedule permits.  Several customers are using the webinar for family group meetings, one session per meeting followed by discussion.  Other organizations are using the webinar for new staff training.

The Special Rate is $50.00 for the entire webinar. “Benefits and Employment in 2015” Webinar

For more details [Click Here]  

Upcoming Workshop

I will be presenting the “Benefits ad Employment in 2015” Workshop on the following dates:

January 26, 2015   Tallahassee, FL

January 27, 2015   Gainesville, FL

January 29, 2015   Fort Myers, FL

February 2, 2015   Boca Raton, FL

February 4, 2015   St. Augustine, FL

Workshops sponsored by organizations do not appear on this schedule.

For more information on the upcoming workshop  [Click Here]

Are You on the Distribution List?

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Some organization do not allow staff to receive this type of email, thus you will need to provide an email address that will accept mail from Constant Contact, the service I use to distribute this newsletter to over 17,000 people.

Email you request to join the distribution list.  

     Include your state of residence.                     [Click Here]

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Written by Michael Walling

Benefits Training and Consulting | | wallinginc@aol.com |

PO Box 1483, Chadds Ford, PA 19317

web site:  [Click Here]

 

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