I am seeing in more and more of my cases that the Social Security Earnings Record is an issue in and of itself. It isn’t that Social Security is getting it wrong. It is that the individuals have not checked to see that it is right. Having an incorrect earnings record can hurt in many ways. In a SSDI case, a claimant needs to be “insured” (have sufficient quarters of coverage from earnings) in order to be found eligible to collect disability insurance. If your earnings record does not accurately reflect all of your earnings, you may not be considered insured and therefore lose out on a benefit that you might otherwise be eligible for.
In both SSI and SSDI cases, the issue of earnings arises at the first step of the disability evaluation. The adjudicator is required to determine if the claimant is working and if so, to determine whether it is substantial gainful activity. (In 2014, substantial gainful activity is equivalent to earnings of $1070 a month, for a non-blind person.) It is not uncommon in a disability case for a claimant to have stopped working but then again resume working at a reduced level of hours. If the person is making over $1070 a month, he or she is not considered disabled. (There are exceptions to this, of course.) The adjudicator will look to the earnings record as well as other earnings information to make this determination.
The earnings record also comes up at the third step in disability evaluation when the adjudicator is trying to determine what kind of work you did in the past. The adjudicator will look back to the last 15 years. I have now seen cases in which employment was listed that my client did not perform or vice versa, employment was not listed but my client had performed it.
I am currently working on a federal court case in which my client completed 8th grade but believes that she really only has an education at the 3rd or 4th grade level. She claims that the teachers just passed her along to the next grade to get her out of their class. The issue of education arises in Social Security Disability cases as a vocational factor – when Social Security has already determined that you cannot perform your past work but is considering what other kind of work you can do.
Social Security’s method for evaluating education is found in 20 C.F.R. Section 404.1564. They understand that if a long time has passed since you have received your education, the skills and knowledge you obtained may no longer be useful. They will use a person’s numerical grade level to determine educational abilities unless there is evidence to contradict it. So, for example, in my case it will be important to look at the school records and determine whether my client actually passed any of the classes she was taking or was absent or tardy so much such that she was not there and thus could not have learned the material despite the fact that she was passed. Also, it will be important to check if she was in special education classes while she was in school.
Last week the Social Security Administration Office of the Inspector General (“OIG”) issued their Semiannual Report to Congress. It summarizes their auditing activities within the last six months and provides statistics on their investigations.
Does it seem like there are a lot of Continuing Disability Reviews in California? It is because there are. The OIG has a unit called Cooperative Disability Investigations (“CDI”) in which they work with State Disability Determination Services (“DDS”) and local law enforcement to identify and resolve issues of fraud and abuse in continuing disability claims. The OIG received 570 allegations in California alone, more than in any other state. Of those cases, 183 of them were denied. I.e., benefits were terminated. The OIG estimated that this resulted in a $12,505,334 savings to SSA. So interestingly, less than half of them resulted in benefits being terminated but would explain why it seems we are seeing many continuing disability reviews. (See p. 21 of the report.) (It should be noted that these statistics reflect only those allegations that the OIG acted upon. SSA conducts more that are not initiated by OIG.) Continue reading