Social Security may approve Supplemental Security Income (SSI) benefits to children with a low birth weight (regardless or whether the child is premature).

According to the Social Security regulations, these cases are often reviewed by the child’s first birthday.

When we will conduct a continuing disability review. … we will start a continuing disability review …

By your first birthday, if you are a child whose low birth weight was a contributing factor material to our determination that you were disabled; i.e., whether we would have found you disabled if we had not considered your low birth weight. However, we will conduct your continuing disability review later if at the time of our initial determination that you were disabled.

That last sentence from 20 CFR 416.990 is a bit unclear. While not legally binding on Social Security, the publication Benefits For Children With Disabilities provides a better explanation.

By age 1 for babies who are getting SSI payments because of their low birth weight, unless we determine their medical condition is not expected to improve by their first birthday and we schedule the review for a later date.

In other words, unless Social does not expect improvement, a low birth weight baby approved for Social Security SSI benefits will usually have his or her case reviewed by age 1.

Under Social Security regulations low birth weight babies may qualify for Social Security disability (Supplemental Security Income – SSI) benefits.

It is important to note that Social Security does not specifically consider whether the child is premature or not. Social Security considers the birth weight of the child:

“Low birth weight” is defined as a birth weight under 1,200 grams (2 pounds 10 ounces) or under 2,000 grams and small for gestational age.

Social Security does provide SSI disability benefits to certain low birth weight infants, whether or not they are premature. A child who weighs less than 1200 grams (about 2 pounds, 10 ounces) at birth can qualify for SSI on the basis of low birth weight, if otherwise eligible. A child who weighs between 1200 and 2000 grams at birth (about 4 pounds 6 ounces) AND who is considered small for his or her gestational age may also qualify. For this second category of low birth weight infants, the following chart shows the gestational age at birth and corresponding birth weight that satisfies our “small for gestational age” criterion.

However, even newborns over 1,200 grams may qualify for SSI depending on their gestational age. LIsted below are the gestational ages and birth weights that may qualify a child for Supplemental Security Income benefits (re-formated from the Social Security website for easier viewing:

37-40 weeks — Less than 2000 grams (4 pounds, 6 ounces)

36 weeks — 1875 grams or less (4 pounds, 2 ounces)

35 weeks — 1700 grams or less (3 pounds, 12 ounces)

34 weeks — 1500 grams or less (3 pounds, 5 ounces)

33 weeks — 1325 grams or less (2 pounds, 15 ounces)

For more information, check out the Social Security FAQ.

Yes. Under some circumstances, Social Security can immediately start Social Security disability benefits, and continue to pay benefits for up to six months, while the state agency component of Social Security makes a formal decision of whether the child is disabled. These are called “Presumptive Disability” cases.

Basically, Social Security is saying that the child is probably disabled, and as such will pay benefits, while it reviews the case to confirm the presumed disability.

Here are the conditions that may qualify:

• HIV infection;
• Total blindness;
• Total deafness;
• Cerebral palsy;
• Down syndrome;
• Muscular dystrophy;
• Severe mental retardation (child age 7 or older); and
• Birth weight below 2 pounds, 10 ounces.

According to Social Security (POMS DI 11055.230):

The presumptive disability/blindness payments end the earliest of:

• The month in which the Disability Determination Services (DDS) makes a formal finding on whether the claimant is disabled or blind;
• The month for which the claimant is paid the sixth monthly payment based on PD or PB; or
• The month in which the claimant no longer meets one of the other eligibility requirements for SSI (e.g., excess income/resources).

If the Social Security state agency decides that the condition is not severe enough for SSI, you do not have to pay the money back. And that is very good news.

However, (you knew there had to be a however, didn’t you?) payments on presumptive disability cases CAN be considered overpayments (which a parent/guardian may have to pay back) if:

• The claim is disallowed due to ineligibility based on non-medical factors; or
• Social Security subsequently determine that it computed the amount of payment in error.

Or, put in English, if the child is later denied for non-medical reason (for example, if the household makes too much money or has too much in assets) or if Social Security got the benefit amount wrong.

See Social Security publication for a general overview. See  DI 11055.230 Presumptive Disability (PD) and Presumptive Blindness (PB) Provisions for more information about the overpayment issue.

Mark E. Smith’s great blog Wheelchairjunkie.com, has a great article about powerchairs — a topic which combines two issues I am passionate about: disabilities and technology.

I have seen some amazing powerchairs, from a super speedy model with an Herman Miller Aeron chair, running circles around people at Sam’s club, to a Dean Kamen Segway filled with a small bench (!) at Whole Foods letting the rider sit much higher that in a traditional chair, aiding in shopping and interacting with people at a common height. It is exciting seeing the developments in this area. These advances create an expectation of more than just simple mobility but also freedom.

So, do powerchairs chairs really cost as much as a car.

Not long ago, I saw a television news story about an amazing young woman who happened to use a power wheelchair. … However, just as I was enjoying the story, watching the young woman walk her dog through the grass at a park, the reporter uttered the very words that make me want to rip my flat-screen cable television from the wall every time I hear such statements: “Her power wheelchair cost $30,000, as much as a car,” the reporter said.Like a football fan whose quarterback just dropped the ball, I wanted to jump into the television and choke the reporter. “Power wheelchairs dont cost as much as cars – thats a $5,000 wheelchair configuration, not a $30,000 one!” I screamed, rolling close to the TV, trying to get in the reporters face.

via Cars VS. Chairs – WheelchairJunkie.com.  Also check out Mark’s other blog, PowerchairDairies.

People often ask, “Do I have to pay taxes on Social Security benefits?”

Here is the answer directly from Social Security:

Some people who get Social Security will have to pay taxes on their benefits. Less than one-third of our current beneficiaries pay taxes on their benefits.

You will have to pay federal taxes on your benefits if you file a federal tax return as an “individual” and your total income is more than $25,000. If you file a joint return, you will have to pay taxes if you and your spouse have a total income that is more than $32,000.

For more information, call the Internal Revenue Service (IRS) toll-free at 1-800-829-3676 and ask for IRS Publication Number 915, Social Security and Equivalent Railroad Retirement Benefits. People who are deaf or hard of hearing may call the IRS toll-free number, 1-800-829-4059.

If you wish to have federal taxes withheld from your check, see  Can I have federal taxes withheld from my Social Security check?

The Social Security Administration has no authority to withhold state or local taxes from your benefit.  Many states and local authorities do not tax Social Security benefits.  You should contact your state or local taxing authority for more information.

Via Social Security’s FAQ page.

If you are looking at your Social Security exhibit file and you notice that all the exhibits are numbered with a letter in front, such as “B1A, B2A, B1B, B2B,” etc, this means that you are looking at the “B” file — a file for the second application for Social Security disability benefits.

In other words, the first time you file for benefits, Social Security creates an “A” file. Since this may be the only file you ever have, it is not referred to as the “A” file.  However, if you file a second application, the second file becomes the “B” file. The third application becomes part of the “C” file, and so on.

These letters are just a way to distinguish the file and quickly tell whether a file is an earlier file or a later file.

Note: this system does not always work. I have had clients with 5 or more applications and their file had either no letter or it may have only been the “B” file. So, the absence of a letter does not mean there isn’t a prior file, but if there is a letter, then there definitely is a prior file.

So, do you want it and how do you get it?

If there is Social Security information out there, I generally want it. There are exceptions of course. I do not necessarily want a file from 10 years ago, but a file that is only 2 years old may have some valuable evidence in it. It all comes down to the specific circumstances of the case. Sometimes a client tells me that a prior Social Security examiner gave the client a favorable report, or a prior hearing denial said the client was limited to light work and since the client is now 55 year old, that by itself my let the client be approved. Then, absolutely, I want to get my hands on that file!

This usually just means asking for it. I do this by addressing a request, a letter really, to the judge or the judge’s office. I request that the prior file be made available, or requested (if it is in storage) and I state my reasons for why the file may be important in the current case. I have never seen a judge refuse this request.

Then, follow up to make sure the file has been received, and either request a copy of the file on CD or schedule time to make a copy of the file the ODAR (Office of Disability Adjudication and Review) office.

Did you know that Social Security has a special disability benefit rule just for individuals who did not complete high school and who have done hard physical work for most of their lives?

Maine and New Hampshire Social Security Attorney Gordon Gates lets you in on this little know exception:

There is an offbeat little provision in the Social Security regulations that grants benefits for a worker who fits a particular vocational profile. This is the “worn out worker” rule.

The rule has 3 requirements for claimants:

1) a marginal education,

2) 35 years or more of only arduous unskilled physical labor,

3) the claimant is unable to do this kind of work because of a severe impairment(s).

Click through to Gordon’s article for details on what consistutes a “marginal” education and more information on how Social Security applies the “Worn Out Worker Rule” to see if it can help you in your case!

via Social Security Disability Lawyer | Maine Social Security Attorney | New Hampshire ALJ Hearings: The Worn Out Worker Rule.

Well, it looks like there may be an extra stimulus payment to seniors to help offset the increase.

President Barack Obama called on Congress Wednesday to approve $250 payments to more than 50 million seniors to make up for no increase in Social Security next year.

Check out this article for more information: Obama calls for $250 payments to seniors – Yahoo! News.

It always shocks me when I hear that Social Security has discouraged someone from filing an appeal. However, several times a year someone tells me something like this:

When I asked for the forms to appeal I was told, ‘if you appeal, you are just going to be denied.’

This is improper for a number of reasons:

1. It is not Social Security’s job to encourage or discourage people from pursuing cases. You have a right to appeal!
2. If you are requesting a hearing, the person telling you not to appeal will not be the person making the decision. So he or she has not idea what the outcome will be.
3. Telling you not to appeal assumes that Social Security knows all there is to know about a case and nothing will change the decision. As a lawyer whose job it is to get Social Security to change its mind, I can tell you I have not seen a single case that Social Security had all of the relevant information.

If someone at Social Security tells you not to bother appealing, get the person’s name and ask to speak to head of that Social Security office. Better still, send a letter both to head of the Social Security office and to your Congressperson complaining that Social Security is bullying you out of pursing your rights.

You may have a good case, you may have a bad case. But it is an abuse of power to try to talk you out of pursuing your rights by telling you that you will be denied again.

Terry Petterson of DisablogND recently posted about changes in the Social Security rules which now let you report earnings to SSA by telephone:

Beneficiaries, deemors and representative payees reporting a change in wages can report their monthly wages to SSA by telephone. These instructions explain what beneficiaries, deemors, and representative payees need to do in order to use the SSA phone system to report monthly wages.

Beneficiaries, deemors and representative payees who would rather not report wages by telephone can use traditional reporting methods such as mailing or bringing paystubs into their local Social Security office. Monthly telephone reporters who experience technical difficulties should contact their local field office for assistance.

For more information, including when you should call to report wages, and what you need to have before you call, check out the article at DisaBlogND.

My previous article discussed how Social Security makes it easier for people over 50 years old to receive disability benefits, even if they can still perform some kind of work.

I am 49 years old! I am about to turn 50. Isn’t that close enough?

It might be. If you are within a few months of an age when the Social Security rules change (50, 55, 60),  you might have a “borderline age” case.

Using the example above, if you are 49 years old and within a few months of your 50th birthday,  Social Security may apply the rules for 50-year-olds to your case. This might make the difference between being approved Social Security disability benefits, and being denied!

However, you need to be aware of the borderline age issue and bring it up to Social Security, or to the judge, if you are at the hearing level.

As part of my series on how to prove you are disabled and eligible for Social Security disability benefits, my latest article, “Winning Social Security Disability Benefits After Age 50” is now on Dallas Texas Social Security disability attorney Bob Kraft’s P.I.S.S.D. (Personal Injury Social Security Disability) website.

Click the link and check it out!

As discussed previously, impairment related work expenses (IRWEs for short — pronounced “Eer-whee’s”) are a way of reducing an individual’s earnings below the substantial gainful activity threshold, and thereby preserve eligibility for disability benefits.

Social Security has a great chart showing examples of which IRWEs are deductible (can be used to reduce income) and which are non-deductible (cannot be used to reduce income):

Keep in mind that these are just examples and not an exhaustive list of allowable IRWEs.

For more information, check out the Social Security Red Book.

If you are between 18 years old and 50 years old, you are in the most difficult age range to get Social Security benefits.

Before you turn 18, Social Security uses the “child” standard for disability evaluations.

After you turn 18, though, Social Security uses the “adult” standard. You have to show that you are unable to do any type of work which exists in substantial numbers in the national economy. That bit of legalese basically means that you have to show that you can’t do any kind of work anywhere, anyhow so long as it is a substantial gainful activity (SGA).

Social Security can deny your benefits if you are able to perform work at any exertional level.

Some attorneys do not want such a case such where an individual is less than 50 years old. However it is possible to win a Social Security disability case if you’re under 50.  It is just harder, and the attorney has to work for it. But after all, that is why you are hiring a lawyer in the first place.

Social Security classifies work into different exertional levels. You might have heard that somebody was denied  because he was still able to do “light work.”

Does  light work in the Social Security case mean the same thing as light work an a workers’ compensation case?

Or, light work that an employer might give you?

Is anything less than the regular job duties, light work?

Actually,  light work is a description of one of the four exertional levels of work (how physically demanding a job is).

Social Security has very specific definitions for all exertional work levels. Let’s take a look at them:

Sedentary work

Lifting and carrying is limited to 10 pounds or less, standing and walking is limited to under two hours out of an eight hour day. The majority of the time is spent sitting. However, a job can allow you to alternate between sitting and standing, and still be considered a sedentary job.

This is your basic “sitdown job.” Sedentary jobs include receptionist, dispatcher, assembler, packer, sorter,  and the all-time Social Security favorite: surveillance systems monitor.

Here is how the Social Security Ruling describes sedentary work.

The regulations define sedentary work as involving lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although sitting is involved, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. By its very nature, work performed primarily in a seated position entails no significant stooping. Most unskilled sedentary jobs require good use of the hands and fingers for repetitive hand-finger actions.

“Occasionally” means occurring from very little up to one-third of the time. Since being on one’s feet is required “occasionally” at the sedentary level of exertion, periods of standing or walking should generally total no more than about 2 hours of an 8-hour workday, and sitting should generally total approximately 6 hours of an 8-hour workday. Work processes in specific jobs will dictate how often and how long a person will need to be on his or her feet to obtain or return small articles.

Light work

In light work, the standing and sitting maximums are flipped: sitting is limited to 2 hours out of an eight-hour day, and standing is limited to 6 hours out of an eight-hour day.  Lifting increases from 10 pounds to 20 pounds occasionally, and 10 pounds frequently.

Light jobs include cashier, stocker, security, and many jobs that are not too physical, but require a person to stay standing or walking for most of the day.

Here is the definition of “light work” from the ruling:

The regulations define light work as lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted in a particular light job may be very little, a job is in this category when it requires a good deal of walking or standing — the primary difference between sedentary and most light jobs. A job is also in this category when it involves sitting most of the time but with some pushing and pulling of arm-hand or leg-foot controls, which require greater exertion than in sedentary work; e.g., mattress sewing machine operator, motor-grader operator, and road-roller operator (skilled and semiskilled jobs in these particular instances). Relatively few unskilled light jobs are performed in a seated position.

“Frequent” means occurring from one-third to two-thirds of the time. Since frequent lifting or carrying requires being on one’s feet up to two-thirds of a workday, the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday. Sitting may occur intermittently during the remaining time. The lifting requirement for the majority of light jobs can be accomplished with occasional, rather than frequent, stooping. Many unskilled light jobs are performed primarily in one location, with the ability to stand being more critical than the ability to walk. They require use of arms and hands to grasp and to hold and turn objects, and they generally do not require use of the fingers for fine activities to the extent required in much sedentary work.

Medium work

Now we are getting into the more physically demanding jobs including many skilled trades jobs such as plumbing, electrical and some construction work.

Medium work requires almost constant standing or walking, or kneeling, squatting, bending, climbing along with lifting 50 pounds occasionally and up to 25 pounds frequently.

Here is the definition of “medium work” from the ruling:

The regulations define medium work as lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. A full range of medium work requires standing or walking, off and on, for a total of approximately 6 hours in an 8-hour workday in order to meet the requirements of frequent lifting or carrying objects weighing up to 25 pounds. As in light work, sitting may occur intermittently during the remaining time. Use of the arms and hands is necessary to grasp, hold, and turn objects, as opposed to the finer activities in much sedentary work, which require precision use of the fingers as well as use of the hands and arms.

The considerable lifting required for the full range of medium work usually requires frequent bending-stooping. (Stooping is a type of bending in which a person bends his or her body downward and forward by bending the spine at the waist.) Flexibility of the knees as well as the torso is important for this activity. (Crouching is bending both the legs and spine in order to bend the body downward and forward.) However, there are relatively few occupations in the national economy which require exertion in terms of weights that must be lifted at time (or involve equivalent exertion in pushing and pulling), but are performed primarily in a sitting position, e.g., taxi driver, bus driver, and tank-truck driver (semi-skilled jobs). In most medium jobs, being on one’s feet for most of the workday is critical. Being able to do frequent lifting or carrying of objects weighing up to 25 pounds is often more critical than being able to lift up to 50 pounds at a time.

Heavy & very heavy work

Heavy and very heavy work is any work above the median exertional category. It involves jobs lifting up to, or more than, 100 pounds. The heaviest and most difficult construction work, often including construction cleanup, may be characterized as heavy or very heavy work.

For more information about  how Social Security defines the different exertional levels see SSR 83-10. Keep in mind that this is just the exertional levels of a job. Social Security also considers the non-exertional requirements of a job such as personal interaction, but exertional requirements are where the job analysis starts.

Maybe you have moved out of state and had to get a new lawyer on your Social Security disability case. Maybe you fired your lawyer. Maybe your lawyer fired you. But now, you have to find a new lawyer!

What is going to happen to the attorney fees?

Do I have to pay both lawyers?

There are two things that can happen:

First, the first attorney may withdraw and waive fees. If the first attorney waives fees, there is no problem. You will not have to pay the first lawyer. However, you may still owe expenses – what it cost to develop your case (for example: costs for medical records).

If the first lawyer waives fees, they you simply have to deal with the fees for the second attorney. These articles deal with attorney’s fees in Social Security cases.

Second, if both attorney’s claim fees, everything is a lot more complicated.

You should know, there is nothing unethical about both your current and former attorney both asking for fees. Both attorneys worked on your case, and both may want to be compensated for their contribution to your case.

I know many of you may be saying:

My first attorney didn’t DO anything!

My first attorney said she would not charge me!

My first attorney did not win my case, why should I pay them?

Everything depends on the circumstances of your case. If your attorney said he would waive fees when you changed lawyers, then he will probably not charge you. Just make sure to get it in writing!

Also, always remember in Social Security cases, the lawyer (or non-lawyer representative) CANNOT charge you any fees UNLESS Social Security approves the fees. Note: this only applies to fees and not the expenses in the case (which you have to pay).

If you have two (or more) lawyers asking for fees in your Social Security case and they are not part of the same firm, each lawyer must file a fee petition with Social Security.

The fee petition also has a place for you, the client, to sign if they approve the fees requested by the attorney.

My lawyer sent in a fee petition and I never signed anything!

The client signature section of the fee petition is optional. If the lawyer and client agree on the fees, there is a space on the fee petition for the you to sign. However, the lawyer can still submit a fee petition even if the client disagrees on the amount. Before you say this is unfair, please remember that Social Security lawyers work for you for 6 to 24 months before they hope to be paid. There are clients who will happily work with an attorney and then contest the attorney’s fees after the case is won. Letting the lawyer file a fee petition without the client’s approval protects the lawyers time investment in a case.

Getting back to the situation where you have two lawyers, each lawyer asks Social Security to approve fees for their work. Not only does each lawyer ask for a dollar amount, they have to explain exactly why Social Security should approve their fees.

Normally, after the lawyer sends in the fee petition, Social Security send a letter to you, the client, asking for your input. If you disagree with the amount the lawyer is asking for, or if you feel that the lawyer deserves nothing at all, this is your chance to let Social Security know.

After the fee petition and the response is provided to Social Security, the judge in the case will issue a decision. Basically, who gets paid and how much. Please note: this process can take months!

So, will I have to pay twice?

The only thing I can say is “maybe.” If you hired more than one lawyer, you may have to pay for the reasonable value of each attorney’s services.

Now that I know the critical dates and the medical history I review the work history. Social Security reviews cases using the 5 step sequential evaluation process. At step 4, if you are still able to do any of the jobs you performed in the last 15 years before you became disabled, you can be denied benefits. There are a couple more wrinkles to this, such as the job has to be a substantial gainful activity, but the general idea is that if you can still do a job your over the last 15 years, you can be denied.

I often start with the “Disability History – Work Report” and the “Work Background Report.” These are forms you filled out for Social Security describing the type of work you did.

There may be jobs here that you have forgotten about and these documents may provide the beginning and ending dates for the various jobs.

However, you also have to check the earnings reports:

These provide your earnings reported by your employers and are another way to make sure you have not forgotten about a job. There have also been several instances where my clients and I found that someone in another state was using their Social Security number to work because those earnings were also showing up in these reports. Going over each employer is a way of making sure that you have not forgotten any work. This goes a long way to avoiding any surprises at your hearing.

The last report also describes any unemployment benefits you received. Read the linked article for more information about how unemployment can affect your case.

To quote an old lottery slogan, “you can’t win, if you don’t play.” It may seem obvious, but you cannot receive Social Security disability benefits if you do not apply.

If fact, many Social Security regulations about Social Security eligibility start with this simple requirement:

Step 1: You apply.

As I have written about before, Social Security uses the protected filing date (PFD) to decide how far back your benefits can go.

From time to time, I receive a phone call like this:

I’ve been disabled since 1994, but Social Security only wants to pay me 12 months of back benefits!

I see. When did you apply for benefits?

Last month…

I then explain how Social Security pays back benefits using the protected filing date as the starting point.

Here is what it comes down to: if you want Social Security benefits, you have to apply!

What’s the next thing to review in the Social Security exhibit file after the medical records?Check these critical dates: Alleged Onset Date (AOD) & Date Last Insured (DLI)!

The E section usually contains for two documents that provide this information:

• “Disability Report – Field Office”
• “Disability Report – Appeal”

These reports also tells you whether Social Security thinks there should be a later (or earlier) alleged onset date and Social Security also discussed whether work after the alleged onset day was an unsuccessful work activity or not a substantial gainful activity.

I have been in a number of hearings where being able to point out that Social Security previously noted a claimant’s past work as an unsuccessful work attempt made all the difference.