Please follow this link to Benefits.gov for more information: https://www.benefits.gov/news/article/393?utm_source=govdelivery&utm_medium=email&utm_campaign=dr374
We are still here for you. We know that many of you are at-risk and we want to keep you safe. We want to keep doing our work to help you with as little interruption as possible. At present, we are only meeting with clients over the phone, rather than in our office. We are capable of doing all of our regular work for you, despite this change.
As of this date, all of our local Social Security offices are open but closed to the public. Online services and services over the phone are still available. Please rest assured that all of your business with Social Security can be accomplished by these means, and we are here to help. Social Security workers are still doing their work and we have not heard of any delays in the processing of cases, although this too may change in the days ahead.
Hearings are now being rescheduled to avoid in-person contact. Because of this, claimants will be given a choice of a) waiting for an in-person hearing (and it could be many months) or b) having a phone hearing at your scheduled time without delays. For years, we have had the philosophy that justice is best served in person and have traveled four hours round-trip to hearings in Spokane because we believed it was best for our clients. However, because the wait for an in-person hearing may be very long, we encourage clients to agree to phone hearings and we will do our very best to make these work. Video hearings are not an option because the Spokane hearing office, where they have the special secured video equipment, is closed to the public. Nevertheless, we will support you in any decision you make.
Marijuana and Your Disability Case
Marijuana use for medicinal purposes is becoming more common, and many people applying for disability use it regularly. However, this may interfere with getting approved for disability, depending on each individual situation.
Social Security Disability operates under federal law where marijuana is still considered an illegal substance. Because of this, marijuana use is generally not viewed favorably. Social Security experts and judges will evaluate each case to see whether marijuana (or any other illegal drugs and alcohol) are a contributing factor to disabling conditions. Specifically, would the disabling conditions persist or be as severe if drugs or alcohol were not used? If they suspect that marijuana is worsening a disabling condition, then benefits will usually be denied.
It is difficult to get benefits for someone who uses marijuana if some of their disabling conditions include the following symptoms, which the Mayo Clinic states can sometimes be caused by marijuana use:
- Paranoid thinking
- A disconnected state (dissociation)
- Worsened manic symptoms in someone with bipolar disorder
- Worsened depression in someone who has depression
- Psychosis in someone with schizophrenia
- Cannabinoid hyperemesis syndrome (cyclical vomiting, delayed gastric emptying). See https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3576702/.
Claimants who are using marijuana are less likely to negatively affect their chances for disability if:
- Their marijuana use is known, approved of, and supervised by a doctor who also treats their disabling conditions.
- There was a documented extended period without marijuana use when symptoms were no better.
- They have a physical condition that is known to not be worsened marijuana use.
- They do not have mental health issues.
As always, it is important to be up-front about marijuana use (or any other drug or alcohol use) with your doctor and your attorney so they can advise you.
The “Achieving a Better Life Experience (ABLE) Account” is now available nationwide. This account allows people who are disabled to save money tax free, without losing SSI and Medicaid benefits. The account is much like a checking account and comes with a debit card.
Individuals Who Qualify for an ABLE Account
- Your disability must have had started before turning 26. This must be documented by medical records or a doctor’s certification that you meet the disability rules or by showing proof of SSI/SSDI eligibility when signing up for an account. Rules on age of disability may be more generous in the future.
How Much You Can Save?
- The disabled person and other people can contribute up to $15,000/ year tax-free. This amount may change from year to year. The total account value cannot exceed $100,000 without affecting SSI eligibility. These numbers might change in the future or be different for different plans in different states.
What Can the ABLE Account Pay For?
- ABLE accounts can be used to pay for “Qualified Disability Expenses” (some examples are education, housing, basic living expenses, financial and legal fees, health and wellness). Beneficiaries must keep track of how the money was used and use the money for qualified expenses. A full list of rules and obligations will be available when you set up an account.
ABLE account vs. a Special Needs Trust (SNT)
A special needs trust (SNT) is another way to save without negative impact on public benefits. To decide what is best for you, learn all of the facts. Here are a few ways that ABLE accounts and SNT’s differ:
|ABLE Account||Special Needs Trust|
|You can set it up yourself||You need a lawyer with expertise in SNT’s|
|Is only for persons disabled before age 26||Is for disabled persons under age 65|
|Beneficiary has control||Requires a trustee to distribute funds|
|Can be used for “qualified disability expenses,” including housing||Can be used for anything the trustee thinks is acceptable, except housing and food|
|Can be used for inheritances less than $15,000||Can be used for inheritances more than $15,000|
|Contribution limits of $15,000/year, limit of $100,000 total in account||No contribution limits or caps|
|Upon death of beneficiary, balance of funds go to pay back Medicaid||Upon death of beneficiary, funds may be used to repay Medicaid, balance to those designated by the trust|
Financial planning for a disabled person is often complicated. At Kirsch & Clark we can advise you about which account works best in your situation. Mr. Clark is able to draft a special needs trust, if needed and advise on its administration. It is also possible to have an ABLE account and a Special Needs Trust at the same time.
Learning More about ABLE Accounts
Lots of information and examples about the use of ABLE accounts can be found here: https://www.able-now.com/
- In Idaho, eligible residents can set up an account with an out-of-state program (at the date of this post, Idaho does not offer an ABLE program). Ohio is a state that allows residents of other states to open an account. For more information see:
Idaho State Independent Living Council web-site: https://silc.idaho.gov/able-accounts/
Ohio program: https://www.stableaccount.com/benefits/
- For Washington residents, you can set up an account here: https://www.washingtonstateable.com/
The Social Security Administration (SSA) administers two programs for disabled individuals. Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI). Both SSDI and SSI use the same medical standard to determine who is disabled. They differ on non-medical parts of the program.
SSDI provides benefits to disabled individuals who have sufficient past work to be insured for disability. While working, FICA taxes are withheld from wages. Part of those taxes are a premium for disability insurance. Generally, a person must have worked five of the last ten years before becoming disabled to be insured (a different rule applies to those under 30). In some cases, disabled adult children and widows or widowers can receive disability benefits based on the work of a parent or their deceased spouse.
SSI makes cash payments to aged, blind, and disabled people (including children under 18) who have limited income and resources. No prior work history or contributions to an insurance fund are necessary.
Both SSDI and SSI have built-in incentives for work.
While your disability claim is pending, you can attempt to work. During the first 12 months you are disabled, if you perform what Social Security calls “substantial gainful activity” (SGA), you will lose your claim unless the work lasted 6 months or less and ended because of your condition or because of the elimination of special services or assistance you received which you needed to work. SGA is $1220 per month in gross wages in 2019.
After the first 12 months of disability, if you have applied for SSDI you may be eligible for a trial work period. A trial work period is up to 9 months during which you can work and still receive a disability benefit regardless of how much you earn. If you earn $880 or more in gross wages in a month in 2019, that will be a trial work month. After 9 trial work months Social Security can use your earnings as evidence you are not disabled. During a trial work month you can earn any amount (even over $1220) and your earnings will not be used as evidence your disability has ended.
For the year 2019, the SSA will pay up to $771 in SSI benefits minus countable income. Your countable income is made up of the following: wages you are paid from your job (minus $65), the value of free food and shelter provided for you, support money from family or friends (though not all of your spouse’s earnings are counted against you), and payments from other sources like Veteran benefits or unemployment.
If you have a pending SSI case and if you earn more than $1220 in gross wages in a month, SSA will determine that you are not disabled. After SSA decides you are disabled you can earn up to $1606 in a month (gross wages) and still receive $1 of SSI and be eligible for Medicaid health coverage in 2019. This is different if you also have unearned income like SSDI benefits. For example, suppose Gladys, a single person, was found disabled and eligible for SSI starting January 2019; SSI is her only income. In March 2019 she finds a part-time job which pays $1000 a month. SSI ignores the first $65 and subtracts half of the remaining earnings from the monthly SSI benefit. $1000 – $65 = $935; $935 ÷ 2 = $447; $771 – $447 = $324. So, in March 2019, Gladys will earning $1065 and SSI will pay her $233. She is much better off working this job than if she only had SSI.
Generally, at Kirsch and Clark, we encourage our clients to attempt to work. In most cases you will be better off if you work rather than receive SSDI or SSI benefits. If you attempt to work and it is unsuccessful, it is evidence to strengthen your disability claim. However, we need to know about the work to be able to evaluate it in your individual situation. Please call to discuss your work plans with Mr. Clark.
If you earn SGA during the first 12 months of your disability you may potentially jeopardize your SSDI or SSI claim. If you are working you should send copies of your monthly wage stubs or other record of your work and earnings to Kirsch and Clark.
This is a complicated area of disability law. This brief post does not cover all work incentives or rules regarding work and disability. Please call Kirsch & Clark if you have questions. You can also consult the Social Security web page for additional information. https://www.ssa.gov/pubs/EN-05-10095.pdf or https://www.ssa.gov/disabilityresearch/wi/generalinfo.htm
Some people have health problems that result in “good days” and “bad days.” Individuals with inflammatory arthritis, migraines, seizures, fibromyalgia, and some mental health difficulties, may feel relatively normal on some days, and completely incapacitated on others.
You may be found eligible for disability benefits at a hearing if bad days would cause you to miss 1 to 2 unscheduled days of work per month. The difficulty, however, is to prove this. Below are some ways we have used to document symptoms that come and go:
- If you worked for a time with your health problems and had many absences, get a report from your employer about the number of days over a year or so when you left work early, came in late, or took a sick day.
- Keep a diary of daily symptoms associated with your disabling condition. We can provide you with a specially tailored form to do this. If you have a seizure disorder or another condition that makes you an inaccurate historian of your own symptoms, have a witness help you with your record. Give your attorney a copy of your symptom diary.
- Share your symptom diary with your doctor, and get regular care. This will help you get the care that you need, and will also insure that your doctor understands your condition. Hopefully, your doctor will record the number of symptom flares and severity of those flares in your treatment record and adjust treatment accordingly. Medical evidence is always the most convincing evidence to a judge.
Your claim for disability benefits is generally won or lost based on doctor and other provider records. Seeing someone for the problems that cause you difficulty working is extremely important to both your general well-being and your claim for benefits.
If finances or lack of insurance is an issue, here is a list of free or reduced fee clinics:
Benewah Clinic, 1115 B St., Plummer, (208) 686-1931; medical, dental, counseling, sliding scale.
Latah Community Health (a CHAS Clinic), 719 S. Main St., Moscow, Medicare, Medicaid, private insurance, sliding scale. Mental health services also available.
Lewis Clark Health Center (a CHAS Clinic), 338 Sixth St., No. 101, Lewiston, (866) 729-8258 (208) 848-8300; Medicare, Medicaid, private insurance and sliding scale. Mental health services also available.
Palouse Health Center, Sandra K. Schorzman, ARNP, 235 E Main St, Palouse, WA 99161, (509) 878-8000. Sliding scale fee for those who apply, almost all insurance accepted.
Idaho Department of Health and Welfare provides free or reduced-fee mental health services at the following locations: Moscow office (208-882-0562), Lewiston office (208-799-4440), Grangeville office (208-983-2300).
Snake River Clinic, 215 10th St., Lewiston, (208) 743-5899; basic health care, referrals, non-narcotic drugs, prescription refills and laboratory work for patients without insurance only. Care for free or small fees. No appointments. Patients seen by number after 5 p.m. Line forms at 3:30 p.m. Warning: Records from this clinic are often illegible and very minimal, so they often are not helpful for your claim. In addition, you may see different doctors every time you go, so care is sometimes not as consistent as it might be with other options. Go here only as a last resort.
If you are paying out-of-pocket for imaging like X-rays or MRI’s, shop around. St. Joseph Regional Medical Center is often considerably more reasonable than other area hospitals.
Fibromyalgia is often a serious, debilitating condition that makes gainful work difficult. However, many Fibromyalgia patients who apply for Social Security Disability are initially denied. This is because the cause of Fibromyalgia is not understood yet, and because its symptoms are largely subjective. There are not typical objective indicators – like an X-ray or blood test – of the disease or of its severity, which makes it difficult for the Social Security Administration (SSA) to evaluate.
While the SSA doesn’t have a specific disability “Listing” for the condition, they will look at how the combination of a) your physical limitations from all of your conditions (as described by doctors and yourself), b) your age, and c) your past work experience and education; limit your ability to find gainful employment.
At Kirsch & Clark we have successfully obtained disability benefits for clients with Fibromyalgia. We urge clients to get a formal diagnosis of Fibromyalgia (if they have not already) from a Rheumatologist who uses American College of Rheumatology (ACR) guidelines. (See http://www.rheumatology.org/Portals/0/Files/2010%20Fibromyalgia%20Diagnostic%20Criteria_Excerpt.pdf). Regular doctor visits documenting your symptoms and your efforts to follow doctors’ directives also are important. If you have other conditions – arthritis, sleep disorders, degenerative disc disease, depression, for example – make sure you are getting help for those too, since the SSA will look at the whole picture. It is also important to make sure your doctor understands how Fibromyalgia, and any other conditions you have, affect you. His or her support will heavily influence the success of your claim.
At Kirsch & Clark we use our experience and legal expertise to advocate for you. We make sure your record is complete and encourage you to journal about your symptoms. If your claim requires a hearing (which is often the case when Fibromyalgia is involved), we carefully document and describe your condition in the most objective way possible in a written legal brief and go with you before the judge. We realize your condition affects your ability to concentrate and get things done without being overwhelmed, and we can help so your claim for benefits is more manageable.
If you are considering an application for Social Security disability, you must first be able to answer “yes” to the following multi-part question:
- Is your condition severe enough that you won’t be able to work for at least 12 months? Or, if you are still working, are you either . . . earning less than $1,170 per month in gross earnings due to your condition OR is your employer accommodating your limitations by changing the job or paying you more than you earn?
If you answered “YES,” you should then educate yourself about what disability programs you potentially are eligible for. Start by finding out from the Social Security Administration whether you are “disability insured” and what monthly cash benefit you might be eligible for if you are found disabled. Here’s how: go to www.ssa.gov and click on “My Social Security.” You will be prompted to create an account. Once you create the account you can review your earnings history. Social Security will tell you if you have enough work credits to be covered by Disability Insurance. If your disability insurance coverage ended recently, you may still be eligible for benefits if you can prove your disability started before your coverage ended.
Even if you are not disability insured, there are other benefits you may be eligible for. Visit www.benefits.gov/ssa/home to find out more. If you have low income and few assets (a home and a car do not count), you may be able to qualify for Supplemental Security Income (SSI).
If you have questions about Social Security Disability Insurance or SSI please contact Kirsch & Clark (208-882-3598 or 1-800-921-3700). Kirsch & Clark is a specialized law firm limiting its work to Disability and Elder Law. We handle the following types of disability claims: Social Security Disability Insurance, SSI, Long Term Disability Insurance, PERSI Disability Retirement, and Disabled Veterans. We help people at ALL stages of the process of getting Social Security Disability benefits, including completing the initial application. We have found that time spent making a complete and accurate application can pay off in the long run. Our knowledgeable staff knows what information the Social Security Administration needs and how to best explain your case.
We also practice in the area of Elder Law, helping with Medicaid applications, guardianships, Special Needs Trusts, Probate and Wills.