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Advice

Is Age Considered for Disability Benefits?

Is Age Considered

Is an applicant’s age considered when applying for Social Security disability benefits?

Yes, age is one of the most important factors in an individual’s Social Security disability claim.  Generally speaking, the older an individual is the easier it is to qualify for benefits.

Age is especially a factor when a claimant does not meet a listing of an impairment(s).  The listings are the medical criteria that will automatically qualify a claimant without any consideration to age, past work, skill level or education.  You can find these listings on the Social Security website.

Many claimants do not meet a listing, but once an individual turns 50, a different set of rules and regulations come into play.  These rules consider an individual’s residual functional capacity (or RFC), which refers to the maximum you can do in spite of your physical and/or psychological impairments.  Also considered after the age of 50 is a claimant’s work history, education, and skill level.  At the age of 55 another factor is considered, and that is how much vocational adjustment there would be to another kind of job.  This different set of rules and regulations in effect lower the bar for a claimant to qualify for disability at age 50, then lower the bar further at age 55.

This can admittedly be complicated and confusing, so let me give you a simple example.  Recently I helped a client who was 57 years old and spent his entire adult life as an electrician.  My client developed a significant lack of functionality in his hands and was unable to use the tools and do the fingering as is required of an electrician.  Additionally, he had serious back issues that had developed over years of doing physical work.  My client did not meet a listing.  However, because he was over 55, other factors were considered, such as the vocational adjustment needed to perform an easier type of work.  He was not expected to learn a new job that was sedentary in nature and less physical, as most sedentary jobs would require a vocational adjustment that would not be reasonable for his age.   My client was found disabled.

Applying During COVID-19

Apply During Covid?

How is the Covid-19 pandemic affecting applying for disability benefits? Should I Apply?

Yes, you should apply!

It can take months or even years to get approved for Social Security Disability Insurance (SSDI) even when there is no pandemic.  And while it is true that the Covid-19 pandemic has made the process even more difficult and time-consuming, don’t let that stop you or cause you to delay an application.

At present local Social Security field offices are closed and their employees are working from home.  This has been a big adjustment for the Social Security Administration and has slowed many of their processes down.  It is also true that there are no in-person judge hearings taking place—a phone hearing is all that is being offered at this time.  Wait times to speak with a Social Security worker on their national phone line is averaging 90 minutes.

The Covid-19 pandemic has had an effect to be sure.  However, many claimants are being approved.  Don’t hold back in applying if your mental or physical impairments prevent you from maintaining employment.

With the difficulties presented by this critical time of Covid-19 it is more important than ever to have an advocate on your side.

My doctor wrote a letter and said I am disabled—so why was my claim denied?

Claim Denied

A physician’s support for an individual’s claim is extremely helpful. However, your physician’s comments are considered to be an opinion, not the final say. The opinion can be given great weight, some weight, or no weight by the Social Security Administration. The adjudicator of a claim relies also on the complete medical record, and a doctor’s opinion must be consistent with the record.

Another point is that we don’t really want a doctor to say “my patient is disabled.” When a physician makes the comment “my patient is disabled,” the Social Security Administration’s answer is that this conclusion is not up to the physician, but is a decision “reserved for the Commissioner of the Social Security Administration.” In other words, the physician doesn’t have the authority to make such a determination. Nor do most physicians understand the rules and regulations involved in the decision- making process.

So…rather than have your physician write a letter saying you are disabled, it is better if a letter is written regarding how your IMPAIRMENTS affect your FUNCTION. For example, if you have mental health issues, do you have difficulty with focus, concentration and memory? If you had a job, would you be off task a significant part of the day? Or, if a claimant has chronic pain due to a back injury, is it the opinion of your physician that your pain would be so distracting so as to make you off task or miss more work than is accepted by an employer? Or prevent you from doing even a sedentary job?

For the most part, think of it this way. It isn’t the name of your impairment—it is how you function with your impairment. There are degrees of most everything. What needs to be established is that your impairment significantly interferes with doing any kind of employment.

That being said, the Social Security Administration welcomes the opinions of health care providers, and their support is of great value.

What if Judge Hearing is Required? What Happens?

Many claimants have to have a hearing with an administrative law judge to determine their eligibility for disability benefits. Most find this very stressful. But as your representative, I prepare you for the hearings and attend them with you. By the time you have a hearing, we will know each other well enough that we both will be comfortable.

The hearings are not like a courtroom trial. They are considered to be “non-adversarial” and are held in a small conference room. You will sit at a small table, and I will sit with you. The judge usually wears a black robe and is seated up higher on a platform. There are microphones and the hearing is recorded. A court reporter is present. A vocational expert is present either by telephone conference call or in person. Sometimes there is a medical expert involved either in person or by telephone conference. You will be sworn in “to tell the truth.”

Every judge is different. Some judges want to ask all the questions themselves. Some want your representative to ask you many of the questions. No two hearings are alike. But I will be there with you.
The most important evidence in your claim is your medical records, but your testimony is also important. The judge will ask you questions about your daily activities to determine your functional limitations. For example, let’s say you have a bad back. The judge may ask you, “How many pounds can you lift? How long can you sit? How far can you walk? Can you shop for groceries?” Or perhaps you have a mental impairment. The judge may ask questions such as “How long can you concentrate? Do you have problems with your memory?” Then the judge compares your testimony to your medical records. If there is something I feel has not been brought out sufficiently, I will do so.

Often the best ways to describe your limitations is by relating a story or painting a picture. For example, the judge may ask you if you drive or not. The answer to this question is either yes or no. But a better way to answer this question, rather than just a quick yes or no, would be to say something like this.

“Yes, I can drive. But I rarely do because I can’t feel my feet from the neuropathy and I have almost had accidents.” Examples such as these illustrate how your impairments affect your ability to function, and this in tum directly relates to your ability to sustain substantial gainful employment. Or, if you have a mental impairment such as severe anxiety, and if the judge asks you if you go out in public as in an activity like grocery shopping, it is better to describe what you do. For example, you may say something like “Yes, I do grocery shop about twice a month. But I go at 11 p.m. when hardly anyone is there, and even at that, I can only go if someone is with me. I’ve had to abandon my cart in the grocery store at times when I had an anxiety attack.”

One thing we emphasize with our clients is it is important to not exaggerate, but conversely not to minimize. There is nothing like the “ring of truth.”

And remember, I will be there to help you.

To be Successful with Your Claim, Seek Medical Treatment!

Social Security Disability Medical Treatment

The very first question an individual usually asks is “Am I eligible for disability?” The Social Security administration first looks at whether or not an individual has not or will not be able to work for at least 12 consecutive months due to a medically determined impairment. This stresses the need for a claimant to seek medical treatment, as you must receive a diagnosis by a medical professional. The impairment must also be considered severe. Depending on the impairment, time is needed with a medical professional to establish a record of severity and the effect of your impairment or impairments on your ability to function in an employment setting. Diagnostic testing may be appropriate. Compliance with prescribed treatment is necessary.

The importance of seeking treatment and diagnostic testing where applicable can be demonstrated by a claimant I represented named John (name has been changed). John was 57 years old and had well
documented back and neck problems as evidenced by medical imaging. His medically determined impairments did preclude many jobs, but not all jobs. But the picture was incomplete. John’s nerve damage in his spine also caused numbness and pain in his arms and this made it difficult for John to use his hands on a consistent basis for more than 15 minutes. Obviously, most jobs in our national economy require the use of your arms and hands. How could he prove this, though? A nerve conduction study! After recommending this testing, it was proven that, indeed, the nerve signals to his arms and hands were compromised and there was a medical scientific basis for the pain and numbness in his arms and hands. John won his claim at the administrative judge level.

We can advise you, too, on how to obtain the necessary documentation to successfully prove your case.