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?

If you received this newslet­ter from a col­league and would like to receive future edi­tions direct­ly sim­ply send me an email request.  You must provide your name and your state of res­i­dence.  I main­tain lists by states.

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]

I do not dis­trib­ute, sell, or share dis­tri­b­u­tion lists.

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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