Social Security Disability for the Mesh-Injured – What You Need to Know
Many Mesh News Desk readers find the complications they suffer as a result of their pelvic mesh or hernia mesh implant has left them unable to work. This is no small matter but society provides a safety net in the form of Social Security, a federal program to help the retired, disabled, or children of deceased parents. Social Security Disability pays benefits if you’ve worked long enough and cannot work any longer, but many find it challenging to break through and actually receive Social Security after they’ve suffered a mesh-related injury.
Bruce Feifer of Farah & Farah, a law firm in Jacksonville, Florida specializes on social security and workers’ compensation. He talked to Jane Akre, editor of Mesh News Desk. The following is sponsored content.
Q: Bruce, let’s first define the terms under Social Security because it can be confusing.
Feifer: “There is Social Security Retirement (SSR), Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI). Social Security (SSR) is intended to be received after you retire. SSDI can be received if you are disabled medically from all work, permanently, not temporarily. SSDI is based on your work record. You must have worked five of the last ten years.”
“SSI is less dependent on your work record and it provides just the basics. SSI requires that the claimant meet the same medical criteria as one collecting SSDI but it is paid to those who have not worked the requisite time required to collect SSDI. That person is considered financially indigent per The Social Security Administration (SSA).”
“SSI provides for basic needs. While it doesn’t have a work requirement, it does have economic requirements – if you’re single you can’t have assets greater than $2,000 excluding one car and your primary residence. The car could be a Rolls Royce or Bentley as long as there is just one car. If you are married, $3,000 in assets is the limit. You still have to meet the same medical criteria.”
Feifer: “SSI is paid by the state of Florida. Disability (SSDI) is paid by the federal government.”
Q: So for someone disabled and not near retirement, does anyone get Social Security Disability on the first pass?
Feifer: “Yes some do. Typically the people who will get it and qualify earlier are over the age of 55 (classified as being of advanced age) where transferrable skills from their past work history are considered by Social Security. If they can’t transfer their skills, they qualify. Under age 55, it’s assumed you can assimilate.”
“So if they have a severe medical condition which is either terminal or expected to last greater than one year and they cannot perform their past relevant work (any past work performed within last 15 years) and that work also does not have transferable skills to a lighter level of work to which they are capable; they are found disabled.”
“Claimant’s between the ages of 50-54 (classified as closely approaching advanced age) and those under 50 ( classified as younger individuals) will have a tougher time of being accepted as they must prove the inability to perform past work plus the inability to perform any other type of work; irrespective of transferable skills. In other words, it’s perceived that it’s easier to teach a young dog new tricks!”
Q: What’s needed?
Feifer: “Objective medical evidence, X-Rays, MRI, diagnostic studies. And the treating physician outlining stringent restrictions. He can’t say they’re disabled. That’s for the administrative law judge (ALJ). You have to have evidence that shows you can’t work.”
Q: The word of a doctor alone is not enough?
Feifer: “The medical opinions and reports are allowed in, but just saying “My patient is totally disabled” is not enough. There is a durational requirement. The inability to work has to be proven to last greater than one year. If they have problems now but a doctor says they may be able to go back to work in less than one year, then they would not qualify for Social Security.”
Q: If one has to reapply, what additional information is needed or helpful at the reconsideration phase? How long should one expect the entire process to take?
Feifer: “The process can be lengthy and there are possibly three stages one will go through by which one may or may not be accepted. The Initial Application process typically takes 4-6 months with the SSA gathering medical reports from the applicant’s doctors and also sending the applicant and possibly third parties questionnaires about their daily living and functional capacities. All of this information is then considered along with their work history to make a decision as to whether they meet the criteria to be found disabled. If medical evidence is lacking, the SSA may send the applicant to one of their doctors – known as a conductive examination (CE) – for testing and a physical or mental examination.”
“The Reconsideration Stage is typically shorter lasting 2-4 months. Another team at the local SSA office will make an independent evaluation of the file again having the opportunity to gather further information through questionnaires to the claimant and third parties, a possible CE and most commonplace updated records from the treating physician.”
“The Hearing Stage is the longest with it typically taking up to 18 months for one to get their case heard before the Administrative Law Judge (ALJ). The claimant appears at the hearing and gets to present medical evidence as well as direct testimony as to both their work history and their current medical conditions and how they impact their ability (or inability) to perform their activities of daily living and general functioning. The ALJ has the opportunity to put a face to the black and white reports in the file and further develop deficiencies found at the lower levels by directly questioning the claimant. It is the level by which most people fund themselves being accepted.”
Feifer: “While there is fraud in every system, the rate of denials has more to do with so many people applying and their inability to meet the stringent requirements established by the SSA to qualify for benefits. In addition to having to be either terminal or have a condition lasting greater than one year, you also have to prove (especially those under 55 years of age) that you can’t do any other lighter area of work in the workforce such as be a ticket taker, a parking garage attendant or security monitor who sits in a surveillance room at Wal-Mart.”
“The SSA does not consider employer prejudices toward hiring the disabled; the fact that one cannot meet their financial obligations performing lighter and unskilled jobs to which the applicant is deemed capable; or even whether the jobs to which one is potentially capable are available in the local economy. The SSA can expect you to relocate to perform work. They find nothing wrong with concluding you can perform simple unskilled jobs as a ticket taker, security monitor, or silverware wrapper even though in their past careers they earned greater salaries than the jobs suggested garner.”
Q: If you move to another state are the benefits transferrable?
Feifer: “Your SSI may change but the federal disability would continue to pay. Usually cases are subject to review every three to five years regardless.”
Q: If you are rejected and you need to hire an attorney should the person be local or regional?
Feifer: “The SSA has become much more technologically advanced in recent years and this includes the use of video conferencing capabilities that allow applicants to appear in one part of the country and their attorney and/or the judge in another region. Further, many firms service multiple regions. For example from our Jacksonville office we service not only the local community but also have attorney’s handling claims in Orlando, Gainesville, Tallahassee and Brunswick, Georgia where we routinely make live appearances before ALJ’s.”
“So the technology is there. Given the technology that allows all of the information to be electronically transferred, it’s really communication and gathering of records and reports from doctors. The laws are the same throughout the country. New York has the same laws as Florida since it’s a federal program.”
Q: How is an attorney paid?
Feifer: “The SSA pays the attorney directly out of back due benefits secured for the applicant. The fee is 25% of the past due benefits secured with a maximum fee of $6,000. In rare circumstances, such as when appeals are filed beyond the ALJ, hearing level fees may exceed the $6,000 sum upon application of a fee petition documenting that a larger fee is deserved for a greater amount of work performed. All fees require the approval of the SSA. Basically it’s 25 percent of the back due benefit or $6,000, whichever is less.”
“In addition to fees, the applicant is responsible for costs incurred by their representative for such as items such as medical records, special reports from a treating physician etc. These costs are not overly burdensome and typically from $150-$350 per case.”
Q: Should one attempt to go it alone the first time around?
Feifer: “Retaining an attorney early on is highly recommended. We get involved in the case so we can direct clients how to fill out the forms. The forms the applicant is sent by the SSA may seem rather simplistic and easy to complete, however in reality, detailed answers regarding ones capabilities is important as is consistency in one’s responses throughout each stage of the application process.”
“If you go it alone, they may require too much information that is detrimental to the case. Experience and knowledge with regard to what information the SSA needs to know to make a well-grounded favorable decision is what an attorney specializing in SSDI and SSI brings to the table. For most applicants a successful outcome is the difference between having money and medical benefits to survive until reaching age 65 and becoming eligible for retirement and alternatively losing everything they worked so hard to gain prior to becoming ill.”
“So I do not recommend anyone go it alone. Representation is on a contingency fee so if they don’t win they don’t pay the attorney a single cent. Further, if they get picked up early on at the initial level, the fees will be nominal or perhaps nothing if there are no back due benefits secured. There is really nothing to lose and far much more to gain hiring an experienced representative.” #
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Expecting a Mesh Settlement? Will a Special Needs Trust Work for You, July 7, 2015, Mesh News Desk