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prepared by Prepared by Jeffrey A. Rabin, Esq. for
Hepatitis Magazine
Social Security disability benefits are often the
ultimate safety net for persons suffering from medical
impairments that make it impossible for them to work.
For most people, however, struggling through the Social
Security Administration's bureaucracy is frustrating,
confusing and slow. For people suffering with Hepatitis
C and liver disease, the requirements of the Act can
appear overwhelming. This article briefly explains the
essence of the Social Security Disability program and
how it applies in claims related to Hepatitis C and
liver disease. You may also want to visit the Social
Security Administration Web site for further
information.
Two Different Programs - Non Medical Requirements
There
are two programs under the Social Security Act providing
benefits for persons who are unable to work. The first
is the Social Security Disability Insurance (SSDI)
program found in Title II of the Social Security Act.
The second is the Supplemental Security Income program
found in Title XVI of the Social Security Act. The
medical test for both programs is identical. The
differences are in the non-medical eligibility
requirements.
SSDI benefits are paid to totally disabled individuals
who have worked and paid into the Social Security system
with the FICA taxes that are deducted from paychecks.
These FICA taxes are similar to insurance premiums paid
for automobile, homeowners or other private insurance.
The FICA payments, which are matched by employers, buy
coverage under the Social Security Retirement,
Disability and Medicare programs. For SSDI, the general
rule of thumb is that a worker must have worked and paid
FICA taxes for at five of the ten years prior to the
date of becoming totally disabled. SSA will pull the
work history for the ten years prior to the onset of
becoming totally disabled, and make sure that FICA taxes
were paid for at least 5 of those years.
If approved for SSDI the Social Security Administration
issues a monthly check based upon how much was earned
and paid into the Social Security system. Benefits are
also paid to dependent children who are under 16 years
old, or who are under 18 years old and still in high
school. Medicare eligibility begins twenty-nine months
after the onset date of total disability.
The SSI program requires that an individual be totally
disabled and "indigent." "Indigent"
basically means that the Claimant has little or no
income and less than $2,000.00 in non-exempt assets. A
home and furniture are not counted. A car with a value
of up to $4,000.00 is exempt. Bank accounts, IRAs,
profit sharing plans, cash value life insurance and
similar assets are all included in determining assets.
In the year 2001 SSI will pay a basic monthly benefit of
$530.00 which may be supplemented by some states. A
disabled person receiving SSI will also be eligible for
food stamps and a Medicaid card from the state.
Medical Requirements for Eligibility
The
Social Security disability program is designed to pay
benefits to people suffering from medical problems
causing symptoms so severe that it becomes impossible to
function at any type of work. Issues of employability,
job existence, insurability and location or desirability
of alternative work will not be considered, although age
and education are often important factors. This is a
medical program that focuses upon medically proven symptoms
and their impact on the ability to perform work
activities.
Therefore, the focus in on function, not on
diagnosis; SSA often admits that claimants have medical
problems and are "impaired," however, it
denies that they are "totally disabled." The
debate is over what the claimant can "do"
despite the medical problems.
The determination of disability focuses on
"proof" of both the medical problem and the
severity of the symptoms. The difficulty in claims based
upon Hepatitis C and Liver disease is in proving the
severity of the symptoms - articularly the fatigue which
is often the most disabling feature.
What is Proof?
The
Act and Regulations require an analysis of medical
records such as doctors' office notes, physician reports
and medical test results. The written statements of the
Claimant, and the testimony of the Claimant at a
hearing, are generally given little weight if not
supported by the medical evidence. It is absolutely
critical that a Claimant seeking this assistance
actively treat with appropriate medical specialists and
involve those doctors in the application process.
It is difficult to have a claim approved if the treating
doctors report that the Claimant retains the ability to
work.
The Medical Standards
A.
Meeting or Equaling the Listings of Impairments
Essentially there are two ways to prove disability in
Social Security claims. The first requires medical proof
that meets specific medical standards contained in
Social Security's Regulations. These standards are known
as the "Listings of Impairments." If medical
proof meets or equals the appropriate standard the
Claimant may be presumed disabled and benefits awarded,
as long as the non-disability requirements of the law
are also met.
The Listing for liver diseases is fairly complex and
specific. There is no specific Listing for Hepatitis C.
The Listing used by SSA for person with liver disease is
found at Section 5.05 of the Listings of Impairments:
5.05 (Chronic liver disease (e.g., portal, postnecrotic,
or biliary cirrhosis; chronic active hepatitis; Wilson's
disease). With:
A. Esophageal varices (demonstrated by X-ray or
endoscopy) with a documented history of massive
hemorrhage attributable to these varices. Consider under
a disability for 3 years following the last massive
hemorrhage; thereafter, evaluate the residual
impairment; or
B. Performance of a shunt operation for esophageal
varices. Consider under a disability for 3 years
following surgery; thereafter, evaluate the residual
impairment; or
C. Serum bulirubin of 2.5 mg. per deciliter (100 ml.) or
greater persisting on repeated examinations for at least
5 months; or
D. Ascites, not attributable to other causes, recurrent
or persisting for at least 5 months, demonstrated by
abdominal paracentesis or associated with persistent
hypoalbumnemia of 30 gml per deciliter (100 ml.) or
less; or
E. Hepatic encephalopathy. Evaluated under the criteria
in listing 12.02; or
F. Confirmation of chronic liver disease by liver biopsy
(obtained independent of social security disability
evaluation) and one of the following:
-Ascites not attributable to other causes, recurrent or
persisting for at least 3 months, demonstrated by
abdominal paracentesis or associated with persistent
hypoalbuminemia of 3.0 gm. per deciliter (100 ml.) or
less; or
-Serum bilirubin of 2.5 mg. per deciliter (100 ml.) or
greater on repeated examinations for at least 3 months;
or
-Hepatic cell necrosis or inflammation persisting for at
least 3 months, documented by repeated abnormalities of
prothrombin time and enzymes indicative of hepatic
dysfunction.
Even a cursory review of the Listing makes it obvious
that this is a medical standard that will not be met by
the medical evidence in most claims. The Listings are
intended to be a difficult standard. Liver transplant
claims will likely be analogized to the Listing for
kidney and heart transplants. Those Listings presume
disability for one year from the transplant. After that,
SSA will conduct a review to determine whether the organ
is functioning and whether the Claimant remains
disabled. A Claimant with liver disease should provide a
copy of this Listing to the treating physician to obtain
a medical opinion as to whether this standard has been
satisfied.
B. Residual Functional Capacity is reduced to extent
that no work activity could be performed.
The alternative means of proving a claim for Social
Security Disability benefits is to provide medical proof
of symptoms from the impairment which are so severe that
the person could not function at any type of work. The
focus is upon the medical proof as it relates to the
ability to perform work activities. The difficulty,
however, is in proving the both the symptoms and their
severity.
For Hepatitis C Claimants it is fatigue which
most often persuades Social Security Administrative Law
Judges to award this assistance. It is critical that
patients fully describe this problem, if it exists,
every time they visit the doctor's office. Social
Security will obtain and review all of the medical
records and search for consistent complaints of severe
fatigue. One of the most common problems is the failure
of the patient to fully discuss symptoms with the
physician creating a lack of evidence relating to severe
fatigue in the doctors' notes.
The Application Process
There
are multiple levels of review under the Social Security
Act. In an effort to increase productivity, and decrease
processing time, the Social Security Administration is
testing different review models across the country. This
article will describe the basic system which is still in
place throughout most of the United States.
A claim is initiated by filing an application, either
over the telephone, or, preferably, in person at the
local Social Security Administration District Office.
The application will require a list of all of the jobs
performed during the last 15 years, a list of all
medical providers, a list of current medications and a
copy of the Claimant's birth certificate.
After the application is filed, the Social Security
Administration will send the file to a Disability
Determination Service (DDS) run by the State. Each state
has a contract with SSA to do the first two levels of
review. At the DDS the file will be assigned to an
adjudicator who will be responsible for gathering
medical documentation, getting any additional
information from the Claimant, arranging for
consultative examinations and obtaining medical and
vocational opinions from the DDS's internal experts. A
written decision is issued in about 90 days on average,
although the time frame can vary widely. Historically
only about 35% of claims are paid at this level.
If denied, the second step is the filing of a Request
for Reconsideration at the SSA District Office. A
Claimant is allowed 60 days from the date of the initial
denial to file this appeal, although there is usually
little to gain by waiting. The Request for
Reconsideration is also processed by the state DDS.
Historically only about 17% of claims are approved at
this level and SSA is testing elimination of this step.
The third level of review, for those claims denied at
Reconsideration, is the hearing before the
Administrative Law Judge (ALJ). These are informal
administrative hearings held before independent judges
who hear testimony, review the medical records and issue
written decisions. A great deal of progress has been
made in reducing the backlog in setting hearing dates.
While time frames vary widely across the nation, many
hearing office backlogs are six months or less - far
shorter than the one to two year delays which existed in
the recent past.
The hearing is critical because it is the only time that
a Claimant has the opportunity to see, and talk to, the
decision maker. Up until this time all decisions are
made based upon medical reports and written
questionnaires. This is the only time in the process
where the decision maker gets to see and question the
Claimant. Further, all other reviews are based upon the
record made at the ALJ hearing. ALJs are now approving
just over 50% of the claims they review.
The final two steps in the review process are the
Appeals Council, and if unsuccessful, filing a complaint
in United States District Court. These reviews are
primarily based upon the medical evidence and testimony
from the ALJ hearing. The backlog at the Appeals Council
is now almost two years. Only a small percentage of
claims are reversed by the Appeals Council and federal
courts.
NOTE: SSA has begun testing different application
processes in different parts of the nation. Some
Claimants will now have face to face meetings with
claims managers at the initial level; some will not have
a reconsideration stage; some will not have Appeals
Council review. All Claimants will have an opportunity
for an Administrative Law Judge hearing.
Representation
The
system is designed so that Claimants are not required to
obtain representation. However, statistics clearly
establish that people with representation have much
higher success rates.
Familiarity with SSA's Regulations, Rulings, the federal
caselaw interpreting the Act and SSA's internal
guidelines called the POMS and HALLEX help guide
preparation of a claim. Representatives do not have to
be licensed attorneys and there are paralegals and other
non-attorneys who do provide representation. This law
firm's practice is to become involved in a claim as
early in the process as possible. The more a Claimant
understands the system, the greater the chance the
assistance will be granted at some point in the process.
Conclusion
Hopefully,
however, this brief analysis will provide some insight
into the disability system. While the tests are
stringent, millions of Americans are able to get this
assistance. For persons with Hepatitis C and liver
disease, the medical standards can be satisfied with
cooperative physicians who understand the issues being
decided.
Author Information
Jeffrey
A. Rabin, Esq. - Persons requiring more information
may contact Jeffrey A. Rabin, an attorney in the
Chicago, Illinois region, whose law practice focuses
exclusively in the represenation of disabled individuals
seeking SSA benefits, and disabled veterans seeking VA
benefits. He represents people nationally and is a
member of the executive committee of the ATLA Social
Security Disabililty Committee. He is also active in a
variety of local and national advocacy and law-related
organizations working on behalf of disabled individuals.
Mr. Rabin graduated from DePaul University College of
Law in 1980. Mr. Rabin may be contacted by e-mail at
jeff@rabinsslaw.com, or by telephone at 1-888-LAW-0600,
or 847-299-0008. He is also known as HOST PRC SSlaw@aol.com,
where he volunteers in the Pain Relief Center of America
On-Line, hosting a chat the first Wednesday of each
month and answering SS law questions on a message board.
Prepared by:
Jeffrey A. Rabin, Esq.
Jeffrey A. Rabin & Associates, Ltd.
640 Pearson St. Suite 300
Des Plaines, IL 60016
jeff@rabinsslaw.com
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