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Disability Newsletter – Winter 2017

Disability Newsletter
The Law Firm of Dempsey & Dempsey, P.C.
Disability Advocates in Illinois and Missouri

Nurse Practitioners and Physicians Assistants are now Acceptable Medical Sources!

The Social Security Administration has made an important change in how it views medical and opinion evidence from Advance Practice Registered Nurses and Physicians Assistants. They are now included in the list of Acceptable Medical Sources in Social Security Disability and SSI cases. Licensed audiologists and optometrists can also be Acceptable Medical Sources for certain purposes within the scope of their practices. This new rule becomes effective on March 27, 2017 and applies to claims filed on or after that date. This is an important change. For years now, many of our clients’ primary care providers have been nurse practitioners and PAs.
The changes did come at a cost to Social Security Disability and SSI claimants. Heretofore, the Social Security Administration was to give “controlling weight” to the opinions of treating physicians. This provision has been eliminated. In fact, most Social Security Administrative Law Judges have not been applying it for quite some time. Under the new rules, adjudicators will give no special weight to the medical opinions of a claimant’s treating sources. Instead, medical opinions and prior administrative medical findings will be evaluated equally for “persuasiveness” based most importantly on consistency and supportability. Chiropractors, LCSWs and registered nurses (RN) are still not Acceptable Medical Sources in the Social Security scheme.
The great thing for Social Security claimants in West Central Illinois and Northeast Missouri is that the treatment records from their nurse practitioners and PAs can be used to establish the existence of medically determinable impairment(s)! The opinion evidence we receive from nurse practitioners and PAs will be seriously considered by everyone within the Social Security Administration.
This rule change is long overdue. We very much appreciate the hard work and dedication that nurse practitioners and PAs have provided our clients over the past thirty years. We believe the new rules reflect the medical reality for many of our clients and give our area nurse practitioners and PAs the respect they have earned and are due.

Introducing our New Attorney
We are proud to introduce the newest attorney at Dempsey and Dempsey. Courtney Shelley is no stranger to the area. She was born and raised in rural Colchester IL and is the daughter of Gregory and Tammy Shelley. She is a graduate of West Prairie High School and attended the University of Illinois – Springfield. In college she was in the Scholars Honors Program. She received a BS in Legal Studies and minored in Women and Gender Studies. On campus she was active in civil rights issues, was a Resident Assistant in Founder’s Hall, and a Research Assistant for the Center for Public Safety and Justice.
She completed her legal education at the North Carolina Central University School of Law. She was a member of Phi Alpha Delta Legal Fraternity, worked at the Domestic Violence Clinic, and was an intern with the ACLU of North Carolina and the ACLU Capital Punishment Project. Courtney has worked as a Ronald McDonald House Volunteer and worked with Habitat for Humanity. She was a volunteer with the Durham, North Carolina Boys and Girls Club. She was active in the Food Bank of Central and Eastern North Carolina and attended the Hugh O’Brian Youth Leadership Seminar
Before joining Dempsey and Dempsey, she was a coverage attorney with the Chicago IL Consumer Law Group. Courtney will be representing clients before the Social Security Administration and in bankruptcy court. She is happy to be back living in West Central Illinois and is looking forward to helping people in both states.

Transitioning from Child SSI to Adulthood

A very common scenario that we see in our office is the eighteen-year-old who has been on SSI since she was young and is now graduating from high school. The Social Security Administration sends the young person a letter terminating her benefits or an astute parent brings them to us before this situation arises in an attempt to head it off. The rules for adults, age 18 to 26 are very difficult to meet. I would like to share my thoughts with you as to how I counsel parents and students in this situation.

To qualify for SSI benefits as a child, one must have a physical or mental condition(s) that very seriously limits his or her activities; and the condition(s) must have lasted, or be expected to last, at least 1 year or result in death.
At 18 to 26 the adult claimant has the burden of proving to the Social Security Administration that she has a condition or conditions – physical or mental – that keep her from being able to perform any type of job that exists in the national economy. In addition, the individual must be incapable of working for more than a year. It is a very tough test.
A particular challenge is that the law states the Social Security Administration is to make an independent determination at this level. The prior child decision is not binding on them in any fashion. In fact, it seems as though the SSA bends over backwards sometimes to show how independent they can be! In any event, here is the advice I give parents who have children receiving SSI in high school.

Be certain to seek out and access any vocational rehabilitation services that are available. There are some wonderful agencies and services in West Central Illinois and Northeast Missouri that give young people the opportunity to explore jobs and see if there is something they can do. These programs work with our schools and special education districts. I always stress to parents that SSI is not something that young people should aspire to. While $735 a month and Medicaid is much better than nothing, it assures the claimant a lifetime of poverty. Even a minimum wage job at full time will double the income of the student.
In addition, work is important in many other ways. It gives the person a sense of purpose and community. From a long-term perspective, the worker is building up Social Security retirement and disability insurance. If the vocational rehabilitation services are not able to find a job for the student, it builds a stronger SSI case. It is only a win-win situation.

There are many students who are legitimately receiving child SSI benefits who are not going to qualify under the adult rules. We have had clients who have found employment they love with employers who value their contributions. Of course, there are always individuals who are never going to be able to obtain or maintain substantial gainful employment. We are always glad to meet with child SSI benefits who are facing the vagaries of life after school. We understand the concerns these parents have and try to point them in the right direction.

Social Security Applications
The other day we were doing an application for a claimant with liver cancer who was just diagnosed and quit work the month before. Because liver cancer is on Social Security’s compassionate allowance list, I explained that the SSA would quickly make a decision on the case. Because the family was middle class with far more assets than the $3000 allowed to a married couple to qualify for SSI, I explained that the claimant’s benefits would begin on the sixth full month after the date they became disabled. I then explained that because there would be no back benefits, that there would be no attorney’s fee in the case.
People have a hard time understanding why we do applications for clients knowing that we will not be paid a penny for doing them. Frankly, it happens all of the time. About one in five of our applications gets paid immediately. On those cases we frequently get a zero fee or a very nominal amount. Occasionally people have waited to come see us and there is a fee we are paid.

We want to do people’s applications! On the 80% of the applications that are denied, we are certain that the paperwork has been properly done and that our clients have not written or said anything that will be a problem down the road. People do not know the complex Social Security regulations nor how their age changes the rules they must comply with. We still have people coming to see us who have done their own applications and have done such a poor job on the paperwork that they end up losing their case as a result. For example, a forty-six year old might write, “I can’t do my job as a carpenter,” as the reason he feels he is disabled when the rules require him to prove he can’t do any type of job.
We very much appreciate those of you who refer clients to us. Please have them come before they apply. It is not a trick in any fashion. In fact, we have done an analysis and even adding in the cases that we do receive fees on, they do not cover our office costs for the time we put in on them. The real advantage to us is that the clients who we have served for free are our absolute best advertising. They send us friends and relatives who may need to apply for SSDI or SSI – and most importantly, we know that the other applications have been properly done!

New SSA Rules for People with Low IQs
The Social Security Administration has changed how they examine cases of people with low IQs. In some ways, the new rules are

more generous. A person can now receive disability or SSI benefits with a full scale (or comparable) IQ score of 70 or below on an individually administered standardized test of general intelligence or for a full scale score of 71-75 accompanied by a verbal or performance IQ score (or comparable part score) of 70 or below.
The individual must have significant deficits in adaptive functioning currently manifested by extreme limitation of one, or marked limitation of two, of the following areas of mental functioning:
a. Understand, remember or apply information
b. Interact with others
c. Concentrate, persist, or maintain pace
d. Adapt or manage oneself to changes in the workplace
The evidence must support the conclusion that the disorder began prior to age 22.
Previously an individual could receive benefits if any of their IQ scores were below 60 or if they were between 60 and 70 and the individual had another physical or mental limitation imposing additional and significant work-related limitations.

2017 Social Security changes
Maximum Taxable Earnings for 2017 is $127,200. In other words, all employees will pay Social Security tax (OASDI) of 6.20% on the first $127,200 they earn in a year. The 2016 figure was $118,500.
To earn a quarter of coverage (An individual must have paid in 20 of 40 quarters prior to the date they became disabled to be insured for Social Security Disability Insurance) is $1,300 in 2017
Maximum SSI monthly benefit for SSI is now $735 for an individual and $1,103 for a couple.
All Social Security recipients will receive a .3% cost of living adjustment.

As always, we would like to say thank you to all the hard working physicians, nurses, healthcare workers, psychologists, counselors, social workers and their support staff who help our clients every day in their quest for a healthier life. Thank you for referring your patients to us. We will take good care of them.

Nation Association of Consumer Bankruptcy Attorneys
The Missoui Bar
Illinois State Bar Association