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Find answers to frequently asked questions.

Question:
My client has not been completely honest with hospital staff because he "does not trust people." Therefore, his medical records do not show all of his illnesses. Should I send all of the records I have, or just the parts that actually show his illnesses?

You should definitely send all of the medical records. SSA has a rule called the “All Evidence Rule” which requires applicants (through their representative) to submit all medical information known, which includes knowledge of impairment and/or treatment sources. 

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Question:
Once a protective filing date is set with SSA how long do I have to submit the completed application and medical summary report?

Once you have set the Protective Filing Date (PFD), you have 60 days to submit the complete application & MSR.  Read Steps in the SSA Disability Application Process.

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Question:
I have a client who is interested in appling for SSDI.She is married and her husband makes over $40,000.Would she still qualify?

Yes, if she meets the medical criteria for disability and has sufficient work credits to be insured through SSDI, should could be eligible for these benefits. While SSI takes spousal resources into account in eligibility criteria, SSDI does not. She should be able to check her history of work credits by signing up for a “My Social Security” account, here: https://www.ssa.gov/myaccount/.   

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Question:
Can minors/children receive SSI, and is the money given to the legal guardian?
Yes, minors (children under age 18) can receive SSI if they meet the childhood criteria for disability. Whether or not the legal guardian receives the money depends on a few factors. Individuals under age 18 are generally presumed to be incapable of handling their own funds and would need a representative payee, so a legal guardian or other payee service would manage the funds. Children under age 15 are required to have a payee.
 
In some instances a child aged 15-17 may be determined as capable of handling his/her own funds if one of the following conditions exists:
 
  • The child is entitled to disability benefits based on his/her own earnings.
  • The child is on active duty in the armed forces
  • The child is living alone and self-supporting
  • The child is a parent and filed for his/her own or his/her child’s benefits,  and has experience handling finances
  • The child is within 7 months of attaining age 18.
  • The child has demonstrated the ability to handle finances, and no qualified payee is available.
 
In addition, if a child is emancipated under state law, he/she is not required to have a payee, unless there are indications to the contrary. More information about determining capability in children can be found here
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Question:
Can a “T” Visa holder who is a nonresident and without a work history in the US apply for SSI benefits? She has severe medical needs.

Yes, she is “potentially” eligible because she is in possession of a non-immigrant T visa. See SSA guidance below which requires “proper certification” of status by the US Dept. of Health and Human Services. You will want to contact the individual’s local SSA field office and bring proper documentation.  See link below for documentation required to prove identity and status.

https://www.ssa.gov/ssi/spotlights/spot-non-citizens.htm

For purposes of SSI eligibility, individuals are not considered qualified aliens if they were admitted to the U.S. under the provisions of the Victims of Trafficking and Violence Protection Act of 2000.  Their eligibility is subject to the proper certification in such status by the U.S. Department of Health and Human Services and possession of a valid "T" non-immigrant visa.  Once the alien obtains proper certification and is in possession of a "T" non-immigrant visa, he or she becomes potentially eligible for SSI.

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Question:
What are the Medical-Vocational Guidelines, or "Grids"?

The “Grids” are formally known as Medical-Vocational Guidelines and can be found here. DDS evaluates an applicant using these guidelines only at Step 5, so if the applicant meets a listing at Step 3, the Medical-Vocational guidelines will not be used. 

The guidelines reflect the analysis of the various vocational factors (i.e., age, education, and work experience) in combination with the individual's residual functional capacity (used to determine his or her maximum sustained work capability for sedentary, light, medium, heavy, or very heavy work) in evaluating the individual's ability to engage in substantial gainful activity in other than his or her vocationally relevant past work.

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Question:
During the ALJ hearing, is it okay to have your client physically demonstrate simple movements to show physical limitations that records may not document?

Not really.  There are many reasons for this.  Firstly, hearings are tape recorded and physical movements won’t show up on audio.  As well, any physical limitations that are the basis of a disability claim must have medical records to back it up, not just an ALJ’s observations. Courts have discounted “sit and squirm” opinions from ALJs who “eyeball” the client, and say they have no back problems, for example, because they sit in a hearing for two hours in no obvious discomfort.  DDS is supposed to consider the claimant’s capacity to perform work activities on a sustained basis, not just on what they can or cannot do on a one-time basis.  (See Social Security Rulings 96-8p and 96-9p) https://www.ssa.gov/OP_Home/rulings/rulfind1.html#YRT1996)

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Question:
How is it that work credits expire? And how long does it take before they do start to expire?

The SSA program which concerns “work credits” is Disability Insurance Benefits (DIB or Title II).  To be eligible, an applicant (who is the wage earner) needs “insured” status which depends on the quarters of coverage that have been acquired as a result of gainful, “covered“ employment [FICA taxes].  A “quarter of coverage” is based on 1 of 4 calendar year quarters, i.e. the 3-month time period that ends on March 31, June 30, September 30, or December 31. 

A wage earner must have sufficient quarters of coverage to be “fully insured,” and therefore, entitled to DIB.  The maximum quarters of coverage needed is 40, but 6 quarters of coverage are required at a minimum. In addition to being fully insured, the wage earner must also be “currently insured.” This is the part of your question about “expiring credits.” For the period of 40 quarters immediately preceding disability, the wage earner must have a least 20 quarters of coverage in that 40 quarter period. This is the “20/40 rule.” 

In other words, the wage earner must have worked steadily and fairly recently until disability. Insured status will lapse if she or he stops working, or becomes disabled, and fails to earn quarters of coverage for 20 quarters (about 5 years).  So, if the wage earner did not work steadily during the 40 quarter periods, the insured status lapses sooner than 5 years. The wage earner must be fully insured at the time of becoming eligible in the first full month of becoming disabled. Lapse in insured status means that the wage earner is not eligible for disability insurance benefits. 

The date that the insured status lapsed becomes critical for establishing that disability began before that lapsed date in order to be eligible for DIB. The SSA field office can compute the wage earner’s date last insured, also known as “DLI”. Note: quarters of coverage are computed differently for younger wage earners.  Read more at https://www.ssa.gov/oact/progdata/insured.html

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Question:
What are video teleconferencing (VTC) hearings? Are VTC hearings being heard quicker? Can the client go to the VTC for the ALJ hearing by him/herself?

ALJ hearings may be conducted using video teleconferencing (VTC) equipment, rather than in-person, if there is equipment available to conduct a VTC hearing and if this would be more efficient than conducting an appearance in person. Applicants have a right to object to a VTC hearing if using the VTC model would cause undue hardship or for other reasons specified in HALLEX regulations. 

Here is a link to SSA data on length of time it takes to get a hearing, by hearing office:  https://www.ssa.gov/appeals/DataSets/01_NetStat_Report.html.   You can also see how many video vs. in person hearings a particular office does, though there is much local variation on how cases are assigned to in-person vs. video dockets. While VTC hearings generally come up quicker, this is in the context of long wait times for hearing scheduling generally.  

It is our opinion that all applicants at the hearing level should be represented by someone who is knowledgeable about preparing and presenting claims at the ALJ level.  ODAR will have a staffer who will assist with the equipment, but not much more than that. An advocate will be able to directly examine the applicant and cross examine any experts that are present, e.g. vocational and/or medical experts.

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Question:
How significant is an RFC (Residual Functional Capacity) assessment form in regards to appeals? Does one have to develop RFC evidence if the claimant meets a Listing?

RFC forms are very useful and can be a vehicle for the treating source to provide medical opinion evidence, forcing the ALJ to consider it.  Sometimes the ALJ will discount the RFC form if he/she feels that it is not supported by the medical records.  For instance, sometimes a doctor will give the opinion that the applicant “can sit for 30 minutes” but nowhere in the medical record is there anything about this at patient appointments. So, be aware of that.  Also, be sure that the answers on the form are internally consistent. 

For the second question, once DDS determines the applicant has met a Listing (at Step 3 of the Sequential Evaluation), DDS stops developing the claim for other impairments.  DDS looks at the applicant’s RFC at Step 4 and Step 5.  The applicant’s RFC is determined and compared to the physical and mental demands of the past relevant work (Step 4). When it is determined that the applicant cannot perform past relevant work, RFC, age, education and past work experience must be considered to determine if there is other less demanding work the applicant can do.

Finally, RFC forms which are designed with space for the physician to provide their medical opinion, and not merely a form with check off boxes, is most effective. 

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