Personal Injury and Social Security Disability Blog

Fibromyalgia Victims — Good News From Social Security

The Social Security Administration (SSA) gave some good news to disability claimants suffering from fibromyalgia recently. This explanation is from the National Organization of Social Security Claimants Representatives:

SSA has issued a Social Security Ruling (SSR) on the evaluation of fibromyalgia in disability claims. SSR 12-2p is effective July 25, 2012. 77 Fed. Reg. 43640 (July 25, 2012). This ruling states that fibromyalgia is a medically determinable impairment when it is established by appropriate medical evidence and that it can be the basis for a finding of disability. A claimant who alleges disability based on fibromyalgia must have a diagnosis by a licensed physician (medical or osteopathic doctor) and evidence of the criteria from either "the 1990 American College of Rheumatology Criteria for the Classification of Fibromyalgia" or "the 2010 American College of Rheumatology Preliminary Diagnostic Criteria."

SSA may consider additional medical evidence pursuant to SSR 06-3p. Recognizing that the symptoms and signs of fibromyalgia may vary in severity over time and may even be absent on some days, SSA will also make a longitudinal review of the doctor's treatment notes and the claimant's symptoms. Once it is established that a claimant has a medically determinable impairment of fibromyalgia, SSA will consider it in the regular sequential evaluation process to determine whether the person is disabled. Additional details about SSR 12-2p will be provided in the July 2012 NOSSCR Forum.

Final Rule Allows SSA to Skip Step 4 If "Insufficient Evidence" of Past Work

SSA has issued a final rule that gives adjudicators the discretion to skip step 4 in cases where they have "insufficient evidence" to make past relevant work (PRW) findings. 77 Fed. Reg. 43492 (July 25, 2012). The changes are effective August 24, 2012.

The "Expedited Vocational Assessment" will work as follows: If the adjudicator does "not have sufficient evidence about your past relevant work to make a finding at the fourth step, we may proceed to the fifth step of the sequential evaluation process." The adjudicator has the discretion to make the decision whether to use the proposed expedited process, i.e., deciding whether "sufficient evidence" regarding PRW exists. SSA will "not require an adjudicator to make a reasonable effort to collect additional evidence [re PRW] if he or she could use this expedited process."

Social Security Adds 38 New Compassionate Allowance Conditions

In a bit of good news for Social Security disability claimants and their representatives, the Social Security Administration has added 38 new medical illnesses to the list of "compassionate allowance" conditions. This means that claimants suffering from one of these problems may be able to accelerate the benefits process and get their benefits sooner. This press release is from the Social Security Administration:

Michael J. Astrue, Commissioner of Social Security, today announced that the agency is adding 38 more conditions to its list of Compassionate Allowances. This is the first expansion since the original list of 50 conditions - 25 rare diseases and 25 cancers - was announced in October 2008. The new conditions range from adult brain disorders to rare diseases that primarily affect children. The complete list of the new Compassionate Allowance conditions is attached.

“The addition of these new conditions expands the scope of Compassionate Allowances to a broader subgroup of conditions like early-onset Alzheimer’s disease,” Commissioner Astrue said. “The expansion we are announcing today means tens of thousands of Americans with devastating disabilities will now get approved for benefits in a matter of days rather than months and years.”

Compassionate Allowances are a way of quickly identifying diseases and other medical conditions that clearly qualify for Social Security and Supplemental Security Income disability benefits. It allows the agency to electronically target and make speedy decisions for the most obviously disabled individuals. In developing the expanded list of conditions, Social Security held public hearings and worked closely with the National Institutes of Health, the Alzheimer’s Association, the National Organization for Rare Disorders, and other groups.

"The diagnosis of Alzheimer's indicates significant cognitive impairment that interferes with daily living activities, including the ability to work," said Harry Johns, President and CEO of the Alzheimer's Association. "Now, individuals who are dealing with the enormous challenges of Alzheimer's won't also have to endure the financial and emotional toll of a long disability decision process."

“This truly innovative program will provide invaluable assistance and support to patients and families coping with severely disabling rare diseases,” said Peter L. Saltonstall, President and CEO of the National Organization for Rare Disorders (NORD). “On behalf of those patients and families, I want to thank Commissioner Astrue and his enthusiastic team for creating and now expanding a program that will have a direct impact on the quality of life of thousands of individuals."

“The initiative not only assists those whose applications are quickly processed, but also assists those whose applications need more time and attention from SSA adjudicators,” said Marty Ford, Co-Chair, Social Security Task Force, Consortium for Citizens with Disabilities. “We are pleased to see today's expansion and look forward to working with Commissioner Astrue on further expansion of this decision-making tool and other ways to expedite determinations and decisions for disability claims.”

“We will continue to hold hearings and look for other diseases and conditions that can be added to our list of Compassionate Allowances," Commissioner Astrue said. “There can be no higher priority than getting disability benefits quickly to those Americans with these severe and life-threatening conditions.”

Social Security will begin electronically identifying these 38 new conditions March 1, 2010.

For more information about the agency’s Compassionate Allowances initiative, go to www.socialsecurity.gov/compassionateallowances.

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New Compassionate Allowance Conditions

1. Alstrom Syndrome
2. Amegakaryocytic Thrombocytopenia
3. Ataxia Spinocerebellar
4. Ataxia Telangiectasia
5. Batten Disease
6. Bilateral Retinoblastoma
7. Cri du Chat Syndrome
8. Degos Disease
9. Early-Onset Alzheimer’s Disease
10. Edwards Syndrome
11. Fibrodysplasia Ossificans Progressiva
12. Fukuyama Congenital Muscular Dystrophy
13. Glutaric Acidemia Type II
14. Hemophagocytic Lymphohistiocytosis (HLH), Familial Type
15. Hurler Syndrome, Type IH
16. Hunter Syndrome, Type II
17. Idiopathic Pulmonary Fibrosis
18. Junctional Epidermolysis Bullosa, Lethal Type
19. Late Infantile Neuronal Ceroid Lipofuscinoses
20. Leigh’s Disease
21. Maple Syrup Urine Disease
22. Merosin Deficient Congenital Muscular Dystrophy
23. Mixed Dementia
24. Mucosal Malignant Melanoma
25. Neonatal Adrenoleukodystrophy
26. Neuronal Ceroid Lipofuscinoses, Infantile Type
27. Niemann-Pick Type C
28. Patau Syndrome
29. Primary Progressive Aphasia
30. Progressive Multifocal Leukoencephalopathy
31. Sanfilippo Syndrome
32. Subacute Sclerosis Panencephalitis
33. Tay Sachs Disease
34. Thanatophoric Dysplasia, Type 1
35. Ullrich Congenital Muscular Dystrophy
36. Walker Warburg Syndrome
37. Wolman Disease
38. Zellweger Syndrome

Substantial Gainful Activity Amounts for 2010

When Social Security evaluates a disability claim, the first issue they resolve is whether you are engaged in substantial gainful activity (SGA.) As an employee, the amount of monthly earnings are considered. Each year the earnings threshold changes by regulation. The SGA amount for 2010 is $1,000 per month.

If you are an employee earning more than $1,000 per month, you are probably not eligible for Social Security disability benefits. See 20 C.F.R. 404.1574. I say probably not, because other factors can be considered, including impairment-related work expenses and unsuccessful work attempts.

If you are self-employed, the test for SGA is more complicated. See 20 C.F.R. 1575.

Thanks to fellow blogger on disability, attorney Gordon Gates of Maine, for posting on the above revised SGA numbers for 2010.

Supplemental Security Income (SSI) Simplified?

Fellow disability attorney and blogger Charles Hall recently posted about likely upcoming changes to the Supplemental Security Income (SSI) program administered by Social Security. I thought readers of our blog might also be interested, and have summarized his comments here. Because income and resource requirements have not been adjusted for inflation in decades, it is widely agreed that things have to change. Simplification of SSI seems likely. According to the recent article in the Social Security Bulletin, change in the in-kind support and maintenance rules may be what to expect. Thanks to Charles Hall for providing the following excerpt from the article:

... [S]implifying policy on food or shelter support to recipients from family and friends is especially compelling. Current policy on such in-kind support requires that recipients answer detailed questions about household composition, household expenses, and any contributions from the recipient and members of the household toward household expenses. This detailed household information is collected not only for initial applications, but also when there are changes in address, household composition, or household expenses. Moreover, although this information is collected for most recipients, much of it is unverifiable. ... [T]here is a consensus among policymakers and program administrators that current SSI policies on in-kind support and maintenance (ISM) are complex, intrusive, and sometimes inequitable. In addition, these policies create a disincentive for families and friends who might otherwise increase food or shelter support to recipients. Finally, year-after-year ISM is shown to be a major source of payment error ...

Over the years, policymakers have evaluated several alternatives to ISM ... Of these alternatives, benefit restructuring has emerged as an interesting option because it simply eliminates all ISM-related benefit reductions, assuring program simplification. The benefit restructuring options considered here incorporate a cost neutrality constraint; that is, the cost of increasing benefits to recipients with ISM is fully offset by other benefit reductions. ...

Under benefit restructuring, benefit reductions for ISM recipients would be eliminated and, to offset the program cost increases, a smaller benefit reduction would be implemented for the large number of adult recipients who live with other adults.

Social Security Administration Announces 2007 Cost-Of-Living Adjustments

The Social Security Administration has announced cost-of-Living Adjustments for 2007. The information below is from the Social Security Administration Web site.

Cost-of-Living Adjustment (COLA):

Based on the increase in the Consumer Price Index (CPI-W) from the third quarter of 2005 through the third quarter of 2006, Social Security and Supplemental Security Income (SSI) beneficiaries will receive a 3.3 percent COLA for 2007. Other important 2007 Social Security information is as follows:

Tax Rate	2006	2007
Employee	7.65%	7.65%
Self-Employed	15.30%	15.30%
NOTE: The 7.65% tax rate is the combined rate for Social Security and Medicare. The Social Security portion (OASDI) is 6.20% on earnings up to the applicable taxable maximum amount (see below). The Medicare portion (HI) is 1.45% on all earnings.

Maximum Earnings Taxable:	2006	2007
Social Security (OASDI only)	$94,200	$97,500
Medicare (HI only)	No Limit

Quarter of Coverage:	2006	2007
	$ 970	$1,000

Retirement Earnings Test Exempt Amounts:	2006	2007
Under full retirement age NOTE: One dollar in benefits will be withheld for every $2 in earnings above the limit.	$12,480/yr. ($1,040/mo.)	$12,960/yr. ($1,080/mo.)
The year an individual reaches full retirement age NOTE: Applies only to earnings for months prior to attaining full retirement age. One dollar in benefits will be withheld for every $3 in earnings above the limit.	$33,240/yr. ($2,770/mo.)	$34,440/yr. ($2,870/mo.)
There is no limit on earnings beginning the month an individual attains full retirement age (65 and 8 months for retirees born in 1941; 65 and 10 months for those born in 1942).

Social Security Disability Thresholds:		2006	2007
Substantial Gainful Activity (SGA)	Non-Blind	$  860/mo.	$  900/mo.
	Blind	$1,450/mo.	$1,500/mo.
Trial Work Period (TWP)		$  620/mo.	$  640/mo.

Maximum Social Security Benefit: Worker Retiring at Full Retirement Age in	2006	2007
NOTE: For retirees born in 1941, full retirement age is 65 and 8 months; for those born in 1942, it is 65 and 10 months. Full retirement age will gradually increase to age 67 for those born in 1960 and later.	$2,053/mo. (Age 65 and 8 months)	$2,116/mo. (Age 65 and 10 months)

SSI Federal Payment Standard:	2006	2007
Individual	$ 603/mo.	$ 623/mo.
Couple	$ 904/mo.	$ 934/mo.

SSI Resources Limits:	2006	2007
Individual	$2,000	$2,000
Couple	$3,000	$3,000

SSI Student Exclusion Limits:	2006	2007
Monthly Limit	$1,460	$1,510
Annual Limit	$5,910	$6,100

Estimated Average Monthly Social Security Benefits Payable in January 2007:	Before 3.3% COLA	After 3.3% COLA
All Retired Workers	$1,011	$1,044
Aged Couple, Both Receiving Benefits	$1,658	$1,713
Widowed Mother and Two Children	$2,098	$2,167
Aged Widow(er) Alone	$  976	$1,008
Disabled Worker, Spouse and One or More Children	$1,593	$1,646
All Disabled Workers	$  947	$  979

Link of the Day - Social Security Acronyms

One of the most daunting challenges to lawyers in a Social Security Disability practice is the ridiculous number of acronyms you need to learn. The National Organization of Social Security Disability Claimants Representatives (NOSSCR) has put up two comprehensive lists of acronyms. The first Acronym Glossary is for general claims and appeals acronyms, and the POMS list is for acronyms specific to the Social Security Administration's Program Operations Manual System. Whether you're a lawyer or a Social Security disability claimant, these sites can be helpful.