We get a lot of callers asking “How do I qualify for Social Security?” Great question! All applicants must go through the sequential evaluation process and I’m going to talk about what that is in this post.
The sequential evaluation process is the process by which Social Security determines if someone is disabled as defined in § 404.1505 of the Code of Federal Regulations. The first step looks at your work activity, if any. If Social Security finds you are doing substantial gainful activity (this term will be discussed in another post), you will be found not disabled.
The second and third steps of the process look at the medical severity of your impairments. In the second step, SSA must find that you have impairments which have lasted or will last longer than 12 months. These impairments can be either physical or mental. The third step considers whether your impairments meet or equal a “listing.” Social Security listings are criteria that are used to determine whether you are disabled. Not all conditions are outlined in the listings and even if you have something that is enumerated in the listings it doesn’t mean you will automatically qualify. Note: There is something called the Compassionate Allowances which automatically qualifies you for benefits. Sounds great, right? Nope. The conditions on the list get you benefits because it is clear beyond a doubt that if you have one of them you are disabled. (That’s not good)
The fourth step in the process is a determination of what is called your “residual functional capacity” (RFC) and your ability to do your past work. Social Security considers all jobs you have done in the past 15 years as relevant work. If you can do any of your past work, you will not be eligible for Social Security benefits. This is probably a good time to mention that if you feel like you can work but just aren’t able to get hired, you aren’t eligible for Social Security. They don’t take into account the economy, market conditions or the ability to secure a job.
The fifth and final step looks at what Social Security determined your RFC to be and if that translates into any other jobs in the national and local economy that you would be physical and/or mentally able to do. For most people, it doesn’t matter if you have ever done that particular job in the past. A lot goes into determining if you can make an adjustment to other work such as your education, age and work experience. I’ll devote a separate post to this at a later date.
Sometimes I find it helpful to show my clients or potential clients this. (Note: It was prepared by Social Security) There’s a flow chart on page 6 that shows the process and sometimes it’s easier for people to understand.
That’s the process in a nutshell. I’ll be going into further detail about some of the terms in later posts but please feel free to ask questions along the way. As always, if you have a question that is about your claim specifically, please give us a call and we’ll be happy to help.
I get quite a few questions on this blog and on the phone which start with, “I already have an attorney . . ” Which begs the question – Why don’t people feel comfortable asking their attorneys questions? Are they scared? Intimidated? Is the attorney impatient or in a hurry?
Injured workers have to be good consumers. If you are paying for a service, you should expect the person providing that service to take the time to answer your questions. Write your questions down. Make an appointment to meet with your attorney. Ask your questions, and listen to the answers. It might not be the answer you want or were hoping for, but you are entitled to an answer.
Keep in mind, there are no dumb questions. If you have a workers compensation claim, you are in a strange new world of procedures, forms, acronyms, rules and guidelines. Attorneys are here to help you figure out your next steps, and to insure you are getting the benefits and help this safety net is supposed to provide to you after a work injury. We’re here because sometimes the system doesn’t work like it is intended to work, and we’ve seen it before and can help you through it.
You are ultimately in control of any decisions to take action on your claim. To file an appeal or not; to litigate or not; to accept the return to work offer or not. You are in control, because the claim belongs to you and because the consequences are yours. You can only make good choices about what’s next if your questions are answered and you have the information you need to make informed decisions.
Ask the questions – and insist on answers.
If you have a Longshore* claim, and have not settled future medical care with an 8(i) agreement – then you have lifetime medical coverage for conditions related to your injury. That sounds great – but I like to tell my clients this does not mean treatment is automatically authorized, it means you have the right to fight about it.
The responsible carrier is always going to look for an argument that treatment is related to some new injury or workplace exposure. Such a new injury or worsening related to work activities can serve to shift liability to a more recent employer. That is not necessarily a bad thing – If your condition has worsened or been aggravated by a new injury or work conditions, it may well support a new claim. This may actually benefit the worker if wages have increased over time.
Whether to seek medical care under an existing or older Longshore claim versus filing a new claim will depend in large part on individual circumstances and the opinions of your treating medical provider. Either way, sorting out your best arguments based on your specific circumstance is something a qualified longshore attorney can help you with.
- This includes non-appropriated fund and DBA claims, which are covered through extensions to the Longshore and Harbor Workers C0mpensation Act.
This post is a reminder that it is OK to pick up the phone and call me. I know that sounds a bit odd. But, I can tell from the stats on this blog that traffic is up since the first of the year. I get it, you have questions. You’re an injured worker; it’s the first of the year; you want to get moving- take charge of your claim. Nope – take charge of your life again. So, you’re noodling around on ‘the line’ to see if you can get your questions answered.
You can. Just Call.
I had a couple in here a few days ago. Spent an hour or so answering their questions. She didn’t need an attorney, but she felt more at peace from having talked to one. They stopped at our front counter on their way out to pay their bill. Nope. That’s not how it works. Consultations are no charge. If you need an attorney, then we can talk about how fees are paid (hint: it’s a percentage of benefits obtained on your claim) But I am always happy to answer questions, walk you through where you are in the process and explain what to expect.
Workers Compensation claims are weird animals in a weird legal/administrative world. Spend some time talking to someone who understands the lingo and the terrain.
Just saw a super cool aerial video of the Port of Tacoma at the ILWU 23 Home page.
The fly over of the cranes is pretty spectacular. I represent workers who are injured at the Port, so sometimes I forget it can be a beautiful place. The aerial is a different view then I suspect most Longshoremen (and women!) appreciate, day to day. It’s worth a few minutes – and kudos to those responsible for the video!
Segregation Orders matter – sometimes a lot. If you receive an order from the department which says it is denying responsibility for a medical or mental health condition, do not ignore this order. You have a brief window – 60 days- to protest or appeal. If you do nothing the order becomes final, and that denied condition will not be covered under your claim. The department is trying to segregate this condition from your claim.
It might sound like splitting hairs. So what, if osteoarthritis in the lateral compartment of the knee is excluded or denied – you had a meniscus tear which was repaired in the medial compartment. The department is accepting that condition, so why should you worry? You should worry, because the next thing that may happen is some physician who examines you at the request of the department will conclude ALL of your problems with your knee, all of your work restrictions, are due to the osteoarthritis in the lateral compartment. The department isn’t responsible for that condition, so your benefits stop.
Some conditions are correctly excluded from a claim. If you have a work related back injury and cut yourself shaving, obviously the shaving injury should not be covered under your claim. But, if challenged, many attempts to deny conditions are overturned, which can preserve your benefits and your right to treatment. This is one of those issues you should talk to an attorney about. We can review the medical records, talk to the medical providers, and determine whether the denied condition should be accepted, and how best to work toward that outcome.
What is Opt-out? Why should you care? I’ve attached a link to a new ProPublica article which is well worth reading.
Two States, Texas and Oklahoma, already allow employers to opt-out of mandatory workers compensation coverage. That’s right – the employer gets to decide whether to provide the workers compensation safety net for its employees. If the employer opts-out of mandatory coverage, they then design their own bucket of benefits for injured workers, being sure to protect themselves in the process. More often than not, these employer designed benefits provide less protection than that required by State law. Employers do give up protections from law suits for work injuries if they opt-out of mandatory coverage. But to pursue such a claim the injured worker has to prove the employer’s negligence caused the injury; and there is always the risk the employer will file bankruptcy if there are catastrophic injuries and loss of life. This trend to opt-out of workers compensation coverage inevitably results in shifting the cost of work injuries away from the responsible employer and into state and federal programs, like Social Security, Medicare, unemployment and other public assistance programs. When the cost of injuries is not born by the employer, do they have an incentive to provide a safe workplace?
Why should you care? Read the article. This opt-out strategy could be coming to your State. If you are in a position to talk to your State Legislator about issues which concern you – put this on the the list.