Filing for Disability Benefits Information
by Tonya A. Fedewa Attorney-At-Law
There are three ways to apply for Social Security disability benefits. They are as follows:
- Call the Social Security Administrator at 1-800-772-1213.
- Go to your local Social Security Office. The Grand Rapids, Michigan Field Office is located at 50 College S.E. 2nd Floor.
- Apply on-line at www.socialsecurity.gov.
When an individual applies for Social Security Disability Benefits, the Social Security Administration (SSA) is required to take an application for any and all benefits that the individual may be entitled to. There are two disability programs; the Social Security Disability Insurance Program and the Supplemental Security Income Program (SSI). In order to qualify for Disability Insurance benefits you must have earned enough credit quarters. There are two tests for receiving Disability Insurance benefits: a “recent work test” and “duration of work test”. Once an individual has earned enough credit quarters to qualify for disability insurance benefits it is said that they have insured status. The amount of the benefit is based on the amount that an individual pays into the system. Generally the higher one’s earnings, the higher the Disability Insurance benefit amount.
If an individual has earned enough credit quarters to qualify for Disability Insurance Benefits, they must apply for that benefit within five years of when they last worked. In other words, Disability Insurance Benefit status does not last forever. Generally, the rule of thumb is approximately five years after your last job.
The Supplemental Security Income program is an assistance program and requires that the claimant prove a financial need before the benefit is paid. In other words, it is a two part test. First, it must be established that the claimant is disabled and then they must also establish a financial need for the benefit. In determining whether an individual meets the non-medical requirements for SSI payments, the SSA will consider income and also resources.
The SSA statistically denies two out of three initial applications for Disability Benefits. Once a claim is denied, the claimant has sixty (60) days from the date of the Notice of Disapproved Claim to file a Request for Hearing. Presently, it is taking the SSA approximately twenty four (24) months from the date that the Request for Hearing form is filed until a Hearing date is actually scheduled.
The SSA defines disability as a medically determinable condition which has prevented an individual from working for twelve (12) consecutive months. The medical condition whether it is mental or physical must be “severe”. In order for a condition to be “severe” the medical activities significantly limit the claimant’s ability to do basic activities such as walking, sitting, standing, remembering, concentrating, or focusing.
If it is determined that the claimant’s medical condition is severe, the SSA may determine that you are disabled if your medical condition meets or equals a Listing. If you do not specifically meet a Listing; you may still be determined disabled if your condition equals the functional limitations of a Listing. The Social Security Listings are as follows:
- Musculoskeletal System.
- Special Senses and Speech.
- Respiratory System.
- Cardiovascular System.
- Digestive System.
- Genitourinary Impairments.
- Hematological Disorders.
- Skin Disorders.
- Endocrine System.
- Impairments That Affect Multiple Body Systems.
- Neurological.
- Mental Disorders.
- Malignant Neoplastic Disease.
- Immune System Disorders.
The Listing that relates specifically to epilepsy is Listing 11:00: Neurological.
The relevant portions of the Listing are as follows:
11.02 Epilepsy
Convulsive epilepsy, (grand mal or psychomotor), documented by detailed description of a typical seizure pattern, including all associated phenomena; occurring more treatment. With:
A. Daytime episodes (loss of consciousness and convulsive seizures): or
B. Nocturnal episodes manifesting residuals which interfere significantly with activity during the day.
11.03 Epilepsy
Nonconvulsive epilepsy (petit mal, psychomotor, of focal), documented by detailed description of a typical seizure pattern, including all associated phenomena; occurring more frequently than once weekly in spite of at least 3 months of prescribed treatment. With manifestations of unconventional behavior or significant interference with activity during the day.
Recently, the SSA has somewhat changed the requirements for determining whether epilepsy is a disabling condition. Due to medical advances over the past decade and the rapids growth in the knowledge in the effective clinical approaches to epilepsy along with potent anticonvulsants which are available and more reliable to determine blood anticonvulsant levels, the SSA believes that most epileptic seizures are controllable and individuals who receive appropriate treatment are able to work. Therefore, an individual seeking disability benefits must have major motor seizures occurring more frequently than once weekly in spite of being on prescribed treatment for at least three months.
It appears that the Administration is taking the position that in those situations where seizures are not under control it is usually due to the individuals non compliance with prescribed treatment rather than the ineffectiveness of the treatment itself. Non compliance may be established by failure to continue ongoing medical care or taking or not taking the medication at the prescribed dosage and/or frequency. The determination of blood levels of anticonvulsive drugs may serve to indicate whether the prescribed medication is being taken. There also may be incidences where the use of alcohol has been found to be a contributing basis for the individual’s failure to properly follow prescribed treatment.
In order to establish that the seizures are occurring despite treatment, I would suggest the following:
- Continuing medical care which would include discussions with your primary care physician regarding the type of seizure, frequency of seizure, and the after effects of the seizures. The patient’s file should contain adequate information regarding the history of the treatment regiment and the patient’s response to it.
- It is recommended that each individual keep a monthly seizure log which would include the date of the seizure, length of the seizure, severity of the seizure, and the after effects of the seizure. This monthly seizure log should be shared with your physician. Always keep a copy for your records.
- The records of the treating physician should include the treatment regiment and your response to the regiment in addition to corroboration of the nature and frequency of seizures in order to permit an informed judgment on impairment severity.
- The record of the physician should include the anticonvulsant blood levels.
If frequent seizures are occurring despite anticonvulsant therapy, then detailed information is necessary to establish whether the seizures are due to factors beyond the individual’s control or to noncompliance with prescribed therapy.
It is generally accepted that the main reason for low anticonvulsant blood levels is that the individual is not taking the drug as prescribed. However, in some cases individual idiosyncrasy in absorption or metabolism of the drug causes therapeutically inadequate anticonvulsant blood levels. The reason for abnormal absorption or metabolism of these drugs is linked to the individual’s clinical condition. It would have to be recognized by the treating physician in his or her efforts to obtain control of the seizures. In other words, the information obtained from the treating physician should include an explanation as to why the levels are low and the results of any relevant diagnostic tests concerning the blood levels. Unless convincing evidence is provided, the conclusion would be that the individual is not complying with the treatment regimen. The SSA has established Listings of Impairments- Section 11. The following are the requirements for meeting a Listing for Epilepsy being disabling.
Regardless of the ideology of the disorder, the degree of the impairment will be determined according to the type, frequency, duration, in sequel of the seizures. At least one detailed description of a typical seizure is required. The description should include the presence or absence or an aura, tongue biting, sphincter control, injuries associated with the attack, and postictal phenomena.
If an individual is following prescribed treatment and the Listing is not met or equaled, the SSA will continue with a sequential evaluation process requiring an assessment of the claimant’s residual functional capacity. If the claimant is unable to perform past relevant work, then the claimant’s age, education, training, and work experience must be considered as they relate to the ability to perform any other work.
The Social Security Administration is required to evaluate all claims using a five step process. The steps are as follows:
- Are you working?
If you are working and earning more than a certain amount of money each month, you will generally not be considered disabled. However, this is a rebuttable presumption. If you are working a limited number of hours and/or earning a limited amount of money, then you may still be determined disabled if you continue to work. - Is your condition “severe”?
- Does your medical condition meet a Listing or equal a listed impairment?
- Can you do the work you did before?
- Can you do any other type of work?
The preceding information was provided to the Epilepsy Council by
Tonya A. Fedewa Attorney- At - Law