This report is derived from a presentation I gave to the Piedmont Brain Tumor Support Group in Atlanta, Georgia in March, 2018.
Brain tumor symptoms, treatment side effects and medication side effects can support a finding of disability from Social Security.
How SSA Defines “Disability”
Social Security defines disability in terms of how your medical issues impact your capacity for work. More specifically the question is “do you have the capacity to perform a simple, entry-level job 8 hours a day, 5 days a week ongoing, without the need for excessive breaks or absences from work.”
Generally speaking, if you are likely to miss 3 or more days of work per month, or require 2 or more unscheduled breaks during the day, or be “off task” more than 20% of the workday, you will qualify.
Further, your condition must be one that has lasted or is expected to last 12 consecutive months or result in death.
SSA does not take into account:
● transportation – it does not matter if you cannot drive, or that you have no way to actually get to work
● compensation – it does not matter that an entry-level job would not pay you enough to survive
● boredom – it does not matter that you were a business executive earnings 6 figures, if you can reliably work as a box packer for minimum wage you are not “disabled” for SSA purposes.
How to Prove You are Disabled for SSA Purposes
Even though you may have paid into the SSA system, if you want to qualify for disability you have the burden of proving that you meet SSA’s definition of disability. Proof mostly takes the form of medical records from one or more long time treating physicians, and support from one or more physicians in the form of an informal functional capacity evaluation.
You need your doctor to identify specific issues you would have performing reliably at an entry-level job.
There are 3 “theories of disability” you can use to prove that you cannot work:
1. Meet a Social Security “listing” (see www.meetalisting.com)
2. Meet a Social Security “grid rule” (see www.gridrules.net)
3. Prove that your functional capacity for work has been so reduced by your condition that you would not be a reliable worker.
All 3 of these theories could apply in a brain tumor case.
The Listings. The listings describe medical conditions that by their very nature are significant enough to leave a patient without the capacity for any type of work over at least 12 consecutive months. You find the listings at https://bit.ly/adult-listings or at www.meetalisting.com.
– Example: Listing 11 contains a number of subsections that could apply to brain tumor patients:
—seizures described at Listing 11.02
—vascular insult to the brain at Listing 11.04
—benign brain tumors at Listing 11.05
—traumatic brain injury at Listing 11.18
Listing 13.13 describes cancerous brain tumors
Even if your symptoms do not exactly match the wording of the listing your doctor can explain how your diagnosis and symptoms are functionally equal to one of these listings.
The Grid Rules. Generally you can meet a grid rule if you are age 50 or over with limited work skills and a limited education, and your brain tumor symptoms limit your physical capacity for work. The grid rules are not a common theory of disability for brain tumor cases, but could apply in some circumstances
Functional capacity. This is where you would focus on symptoms, medication side effects, personality changes, etc. You would ask SSA to look at everything that impacts your capacity for work to determine that you cannot reliably perform any type of work.
How to Apply and Get Approved Quickly
SSA uses what could charitably be called inefficient and dysfunctional system to evaluate disability. When you first apply, your case will be assigned to an adjudicator (claims adjuster) who works for the State of Georgia under contract with SSA. Approximately 34% of claims are approved at this initial application stage and this is what you want to happen in your claim.
This process can take 3 to 6 months. This is also where you might argue for a compassionate allowance. SSA has identified several hundred medical conditions that qualify for quick approval because of their nature (see https://www.ssa.gov/compassionateallowances/conditions.htm). Examples of compassionate allowance conditions include Glioblatoma Multiforme (brain cancer), malignant brain stem gliomas, and Oligodendroglioma Brain Cancer Grade III. Here, too, your doctor could advise SSA that your condition is functionally equivalent to a compassionate allowance condition.
If the Compassionate Allowance definitions do not apply you can ask SSA to evaluate you for “Quick Disability Determination” (QDD – see https://www.ssa.gov/disabilityresearch/qdd.htm). This uses a computer based model to screen applications but it is always helpful to remind SSA if you think one of these programs applies.
If you are denied at the initial application, be prepared to wait. The first level of appeal is called reconsideration and it takes 3 to 6 months, but only 10-13% of claims are approved there.
If denied at reconsideration, your claim goes back to the federal government and SSA for a hearing. This can involve a delay of 2 years or longer. Much of the time after you request a hearing, your file is in limbo where it can be almost impossible to get anyone with authority to pull it for a review (i.e., if your medical condition takes a downward turn).
The Application Process
Whenever possible, apply online at https://www.ssa.gov/disability/disability.html. You can also apply by phone at 800-772-1213.
The SSD claims process is paperless but demands that you fill out form after form. SSA regularly adds questions to these forms that often repeat other questions. You will find yourself reporting the same information again and again.
Given that the decision makers at the initial application and reconsideration are not lawyers or judges, I suggest that you make their lives as easy as possible. If you meet a listing, identify that listing specifically.
You should also be aware that there are two types of disability – SSDI and SSI. You are eligible for SSDI if you have worked within the 10 year period prior to your alleged disability onset date and if you have earned enough credits to qualify for SSDI. Generally speaking if you have earned approximately $5,000 in a calendar year, you will have earned the maximum 4 credit hours for that calendar year.
If you do not have enough credit hours to qualify for SSDI, you may be eligible for SSI. SSI is a welfare disability program available for people who do not have enough work credits to qualify for SSI. The disability standard is the same, but SSI recipients are subject to offsets for household income or assets they may own. If, for example, you have been a stay at home mom for the past 15 years and have not worked within the past 10 years you will not qualify for SSDI. If your spouse works or if you have more than a few thousand dollars in the bank, you will not qualify for SSI for non-medical reasons. You may be disabled medically but you won’t receive any SSI because of income and resources.
SSD lawyers represent clients under a contingency fee contract. We are paid 25% of past due benefits with a cap of $6,000. For example, if a claimant applies in March, 2018 and alleges that her disability began in November, 2017, and a hearing was held in April, 2020, there would be 24 months of past due benefits (SSA does not count the first 5 full months of disability). If this person’s benefit was $1,500 per month, the gross lump sum would be $36,000. The lawyer would get $6,000 and the claimant $30,000.
You do not need a lawyer to apply for benefits and, practically speaking, there is not much we can do until you are denied. Occasionally a seriously ill claimant will hire me for a flat fee to process the application and submit medical records and forms but this is really not necessary.
I usually get hired after the initial denial, or after the reconsideration denial. It is not wise to appear at a hearing before a Social Security judge without counsel.