HBV and Disability Issues
Mike Silver, Esq., Silver & Silver
This session provided an overview about the disability process and how people living with chronic hepatitis B can qualify for disability benefits. Mr. Silver is a nationally recognized disability attorney.
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Saturday, July 9, 2005
Two disability programs are currently available through the Social Security Administration (SSA).
Social Security Disability (SSD)
*Program for disabled workers who worked for the last 5-10 years
*Assists those entitled to receive Medicare, 29 months after onset of disability
Supplemental Security Income (SSI)
*Program for uninsured workers
*Essentially for those who qualify for welfare in their state
* Eligible, if approved, for Medicaid immediately
The official definition of “Disability” – medically determined impairment expected to last at least 12 months (or result in death) and individual is unable to return to any past or other available work. Practical test: Can you work 5 days a week, 8 hours a day, and miss no more than 1-2 days a month?
Most people who apply to Social Security for disability benefits get turned down and have to go to a hearing before a judge. Individuals applying for disability are supposed to be re-evaluated every few years to see if they are still “disabled”.
What do you need to do?
- First, find a lawyer who is knowledgeable about disability. The rules change, and so do the judges hearing the cases. Therefore, your lawyer needs to be on top of these changes.
- Second, you don’t have to pay the disability attorney yourself. They are paid on a “contingency” basis, which means they only get paid if you are approved for disability and receive the funds! They usually receive 25% of the “back due” of the disability benefits (not future, though) if you are approved. This “back due” fee is governed by federal law (there is a cap around $5,300, and the average fee is about $2,500).
What kind of questions are asked in the disability application process?
- Are you gainfully employed? Have you work fulltime in the past? If only part-time, then a different test is used. If you continue to earn more than $800 per month, then you’re not eligible because you are considered to be “gainfully employed”.
- If you are not working, then do you have a severe impairment that will last 12 months or result in death? Does it interfere with life activities or your job (examples: depression, serious breathing problems, chronic fatigue)?
- Does the impairment meet or equal severity as defined in the “Medical Listings” (Social Security creates a “List” of diseases and the associated conditions that qualify as disabling.
- Are you physically and emotionally capable of returning to your job or previous work
- What is your ability to hold another job? Can you do other generally available work (could depend on your age, education, work background)? This is usually the most confusing step.
For example, two 55 year old men file for disability. One is a laborer, the other a physician. The laborer may qualify for disability because he can’t find other work due to lack of “transferable” work skills. The physician, however, may not qualify for disability because he can transfer his skills – that is, even if he can’t see his patients, he could become an administrator or educator.
How do you file a claim for disability benefits?
- Go to the Social Security office in-person, telephone, or visit online at
www.socialsecurity.gov. If your disabling problems are not easily identifiable, it is probably best to use the phone or visit the website.
- If you go in person, the clerk will surreptitiously take notes about you during the entire interview (do you appear to be in distress or pain, have trouble walking or sitting, shortness of breath, how you look, etc.). These notes are reviewed by the judge, in addition to your application. It is important that you don’t mask your problems.
- The government contacts a state agency to make a decision. The state agency may schedule a physical or mental exam if your own treating doctors don’t provide sufficient medical documentation.
- People are frequently discouraged by even their own doctors from applying for disability because most initial claims are denied and not all doctors understand all the rules about qualifying.
- If you persevere, then you are likely to be successful and the benefits will be granted usually retroactively.
What is the disability application process?
- Initial Filing – Social Security staff will conduct the phone interview. Initial claims are denied 65% of the time, but there is much greater success on appeal.
- Hearing – this is a formal, private, face-to-face meeting with an Administrative Law Judge. There are over 1,000 in the U.S. (60 in Philadelphia area) and it is supposed to be “non-adversarial”. At the hearing level, most claims are approved (60% nationally, 75% with a lawyer, and even greater success with a disability attorney). PA has faster turnaround than most states.
The Judge can bring in a medical advisor to help them understand your illness – Hep C is seen a lot, Hep B is not. If your problem is not common, then you need to educate the judge about your condition or disease. A disability lawyer is helpful with this. The hearing can be 30 minutes to 3 hours, and is private.
- Appeals Council – this is a second chance for your application. If the decision is unfavorable, you have 60 days to appeal to the Appeals Council. At this point, only 2% are reversed, but 26% are remanded or sent back to the judge. Often Remands go to the same judge, and most will be positive at the remand (usually another year has passed and there is more documentation of the illness).
- Federal Court - If the appeal is denied, it goes to federal court. About 6% of appeals are reversed, 40% are remanded, and the good news is that if you are approved, the government pays your attorney fees!
Social Security Administration’s Regulations on the Digestive System/Liver
Social Security has created “medical listings” for every disease that quality as disabling. Conditions must last 12 continuous months. The listings for viral hepatitis need to be changed, but this has not yet happened.
Currently, chronic liver disease includes “chronic active hepatitis”, with:
- Esophageal varices, bilirubin of 2.5 or higher, persistent for 5 months
- Hepatic encephalopathy
- Liver biopsy, which confirms chronic disease
Why Your Doctors are So Important
Your doctors are important because they are needed to provide “Medical Source Statements” with your disability application where your doctor provides a professional opinion about how the disease affects you and your ability to work on a daily basis. It documents your physical, mental, and stress exertions, and how much you can do.
When filing a disability claim, your medical records are reviewed carefully for a history of symptoms such as chronic fatigue, pain, depression, or anything that would interfere with your ability to hold a fulltime job. The diagnosis is secondary to your symptoms, so tell your doctor at every visit about ALL of your symptoms (you’re tired, you take regular naps, have trouble sleeping at night, etc. ) and all of the side effects from any treatment so that your medical records include everything that could support your disability claim.
It often takes 1 to 2 years to go through the disability claims process. Remember – persevere, appeal, and get good legal representation. Your doctor is an important ally in this process, and it is important to have a good relationship so he or she will make a strong medical case for your claim.
- Use your benefits from work (long and short term disability plans) during the disability claim process.
- For those who can’t afford doctors, qualify for public assistance, or locate low cost medical clinics to initiate treatment and document your symptoms and disabilities.
- For those who look healthy, do not apply in person! Use the phone or visit the website. At the hearing, the judges are usually more knowledgeable and will not use your healthy appearance against you.
- Should you work part-time while going through this process? You will not obtain benefits if you earn more than $800/month, or run your own business and make all of the decisions.
- If you work part-time, does it help with the amount of disability benefits you get? Possibly – any additional earnings credited on your record may increase your benefit amount.
- There is a “Trial Work Period” – after you have qualified for benefits if you work and earn over approximately 550.00/month in each of 9 months during a 5 year period, you may only qualify for an additional 36 months of benefits, after which are no longer considered disabled. If you can’t complete the 9 months, coverage continues.
- The “Ticket to Work Act” Social Security Administration has a new program where they will help you find a job and pay for training. You will continue to qualify for the medical benefits for 8 years if you go through this process.
Where can you find a disability attorney?
(1) The National Organization of Social Security Claimants’ Representatives (NOSSCR) – www.nosscr.org – maintains a directory of attorneys listed by state, and most of them practice exclusively disability law.
(2) Contact Mike Silver, Esq., Silver & Silver, former President of NOSSCR, at email@example.com , 42 W. Lancaster Avenue, Ardmore, PA. Most of Mr. Silver’s work is done in PA, NJ and DE.
(3) Visit www.hbvadvocate.org - Chris Kukka, HBV educator and advocate, is creating a handbook to help with short and long-term disability applications for people living with chronic hepatitis B who work. She explains that the basic definition for hepatitis B will not get most people covered by disability, but that patients can use other symptoms to help qualify (medication side effects, fatigue, etc).
This summary is being made available as a courtesy only; therefore, please be sure to speak with your health care provider (or attorney if filing a disability claim) if you have any questions about the information in these notes.