Tuesday, October 25, 2016

How Did You Do on the Test?

Assume an individual born in 1954. 

This person has 33 quarters of coverage total in her lifetime. 
This person has 20 quarters of coverage in the period of 2003 to 2009. 
The other 13 QC occurred prior to 2003. 

Question 1:  What is the date last insured for disability purposes, if ever?

Answer 1:  A person can receive a period of disability and disability insurance benefits only if the person is both fully insured and currently insured.  42 USC sec. 416(i)(3).  The statute defines fully insured status as
one quarter of coverage (whenever acquired) for each calendar year elapsing after 1950 (or, if later, the year in which he attained age 21) and before the year in which he died or (if earlier) the year in which he attained age 62, except that in no case shall an individual be a fully insured individual unless he has at least 6 quarters of coverage
42 USC sec. 414(a)(1).

Our claimant was born in 1954.  She turned 21 in 1975.  Counting 33 years, one for each quarter, takes us to 2008.  The year before the claimant becomes disabled or dies is 2008.  She is fully insured to 2009.

The statute defines currently insured status as:
The term “currently insured individual” means any individual who had not less than six quarters of coverage during the thirteen-quarter period ending with (1) the quarter in which he died, (2) the quarter in which he became entitled to old-age insurance benefits, (3) the quarter in which he became entitled to primary insurance benefits under this title as in effect prior to the enactment of this section, or (4) in the case of any individual entitled to disability insurance benefits, the quarter in which he most recently became entitled to disability insurance benefits, not counting as part of such thirteen-quarter period any quarter any part of which was included in a period of disability unless such quarter was a quarter of coverage, and who satisfies the criterion specified in subsection (c).
42 USC sec. 414(b).

Our claimant has 20 quarters accumulated between 2003 and 2009.  She has at least one in 2003 and at least one in 2009.  She is missing eight quarters of coverage during those seven years.  Her currently insured status extends 12 more quarters, to December 31 2012.

The claimant must have both, fully insured status and currently insured status.  Her date last insured for disability purposes is December 31, 2009. 

Question 2:  When this person turns 62 in 2016, can she collect a RIB?

No.  She doesn't have 40 quarters of coverage to be fully insured for RIB or early RIB.  Telling the claimant that lacks 40 quarters of coverage to take a RIB of any kind is below the standard of care.

Question 3:  If she is insured for DIB, define the period for assessing past relevant work?

This is the math problem.  The period for assessing past relevant work is 15 years before the date last insured.   20 CFR sec. 404.1560.  Counting back 15 years is not 2009 minus 15.  That would include 1994.  One year prior to December 31, 2009, is January 1, 2009.  Counting back 15 years is January 1, 1995.

Bonus Question:

Assume a the ALJ finds light residual functional capacity for work performed in 1994.  Is that a legally sustainable finding of fact?

No.  Work performed in 1994 is legally irrelevant under the regulations defining the relevant period.  Some may quibble that the period reaches to December 31, 1994.  Now meet the substantial gainful activity test of $500 per month in earnings with that day alone.  Can't be done.  It isn't relevant.

Assume that an attorney obtains a remand from the USDC to reassess the RFC.

Why does that help?  The ALJ found an inability to perform work after 1994, just the past work performed in 1994.  The first bonus question did not assume the ability to perform work done in 2003 to 2009.  Don't assume facts not in the question and not in evidence.  The correct issue is the lack of past relevant work.  In 1999, the person was 55 years of age.  She just needs a light residual functional capacity to "grid" out.

I left a lot out of the question.  The focus of the question is the technical issue -- calculating the date last insured and the period of the past relevant work.  If you got the date last insured right but counted the work done in 1994 as relevant, give yourself a B.  If you thought the date last insured was other than December 31, 2009, i.e. 2012 or some other date, give yourself a C.  If you got the date last insured correct as well as excluded the work in 1994 as irrelevant, give yourself the A.  You earned it. 

Monday, October 17, 2016

Test Your Knowledge of How the Disability Insurance Benefit Program Works

Assume an individual born in 1954. 

This person has 33 quarters of coverage total in her lifetime. 
This person has 20 quarters of coverage in the period of 2003 to 2009. 
The other 13 QC occurred prior to 2003. 

Question 1:  What is the date last insured for disability purposes, if ever?
Question 2:  When this person turns 62 in 2016, can she collect a RIB?
Question 3:  If she is insured for DIB, define the period for assessing past relevant work?

Bonus questions:

Assume a the ALJ finds light residual functional capacity for work performed in 1994.  Is that a legally sustainable finding of fact?

Assume that an attorney obtains a remand from the USDC to reassess the RFC. 

I will post the answers this week.  If you want to play at anytime without looking at the answers, post them on the Law Offices of Lawrence D. Rohlfing facebook page.   

Saturday, October 15, 2016

Chiclets, Poverty, and Policy

I spent two weeks in Mexico recently and had the opportunity to see first-hand how the socialist government of Mexico treats its disabled.  As an attorney representing the disabled for nearly 31 years, I have a perspective and foundation to look at and compare the treatment of the disabled in the United States and Mexico. 

1. They Call Him BinLaden

Mostly because of his scraggly appearance.  This man is gaunt, unshaven, and unbathed.  He walks the beaches of Mazatl├ín with a box of chiclets gum.  He sells the individual pieces for 5 pesos.  Under current exchange rates, each pack of two pieces of gum costs 25 cents.  The locals tell me that this man goes downtown and buys the box of gum for 35 pesos, about $1.75.  If he sells the box, he grosses 250 pesos.  But he has to keep 35 pesos for tomorrow and as far as I can tell, he doesn't sell out everyday.  He lives on $10 a day.

This man doesn't speak.  He kind of grunts, holding out the box of gum.  He doesn't walk well, stiff legged with little if any flexion of the knees.  Did I mention that he walks on the beach?  He holds the box of gum with his open right hand and takes money with his open left hand.  I never saw him make a fist or touch his palm with any of his fingertips.  I am not a doctor but I pretend to be one in court and before SSA.  I suspect that he is palsied and that it happened at birth.  So this man has struggled his entire life. 

I luxuriated on the patio of the hotel.  Bin walked by.  He spotted Maggie and I -- recognized the faces as people that always overpaid for the chiclet.  Don't get too excited, we paid 10 pesos for each piece of gum  The 50 cents means nothing to us and a lot to him.  Paint me as not proud. 

I waved Bin off.  We were in a conversation that was serious.  Bin cocked his head to the side and rubbed his abdomen with his left hand.  He was hungry.  I gestured him to come over and bought some gum.  Paint me as shamed. 

2. Mexico's Social Safety Net

I contemplated leaving this entire section blank.  There isn't one.  Bin gets nothing in terms of housing assistance.  He is homeless as far as I could tell.  He gets nothing in terms of food assistance.  I know this from speaking with locals and asking questions.  Bin survives on the sale of chiclets gum mostly to tourists, most of whom don't want to be bothered by this unkempt mess.  The social safety net does not exist for Bin and others like him. 

I understand that Mexico does have an aged pension program.  It is meager.  Everyone gets old or older but most do not get palsied at birth or disabled during life.  In the industrialized world, that happens to 5% to 10% of the population. 

3.  The United States Safety Net

If Bin lived in the US, he would get nothing.  Not a citizen and not here before August 1997.  He would get nothing.  Bill Clinton signed that into law cutting off permanent residents that did not have 40 quarters of coverage in the family unit. 

If Bin were born in the US or got citizenship, he would get SSI.  That welfare component of the Social Security Act has a federal benefit rate of $733 for an individual and $1100 for a couple.  California provides a supplement, folding the food stamps into the monthly SSI check, $156.40 per month.  Bin is homeless so in California he would get $240.40 as the supplement. 

4.  The Pros and Cons of the Policy Choices

In Mexico, Bin has to go downtown (El Centro, or the center), buy the gum, and go back to the beach to sell.  He has to plan for the 35 pesos tomorrow.  He has to interact with people to the extent able and find something to eat.  It rains a lot in Mazatl├ín, or at least compare to Los Angeles -- but then again everywhere gets more rain than LA.  Bin has to manage life and has to ambulate. 

But it isn't just about Bin.  It is about me ... and you.  We have to or get the opportunity to see Bin everyday while on vacation.  But for the grace of God, there goes me.  I was born into the wealth of the United States and had a physician deliver me with forceps that prevented birth brain injury.  But for the grace of God, there goes me.  I get slapped in the face with the proposition of my incredible blessing of a well-functioning mind, body, and resources.  Paint me as humbled. 

In the US, we would give Bin SSI benefits.  When his parents died, retired, or became disabled, we would give him benefits on his parents' earnings record.  SSI would give him Medi-Cal or Medicaid.  The disabled adult child would get Medicare. 

Bin would not have to go to El Centro.  He would not have to hobble through the Playa (beach).  He would not have to sell chiclets to get something to eat.  Bin would not have to get the physical exercise and would not have to interact with people in order to survive.  And that would be my loss.  I would not have the reminder that but for the grace of God there goes me.  I would not have the reminder of the blessing of being born in the US.  I would not have the reminder that this well-functioning mind, body, and access to resources arise from nothing that I did.  They are gifts of happenstance; I was born here.  But that is what we do to the disabled in the US.  We give them enough money to stay home -- to stay out of sight.  We can't be bothered with the messiness of the disabled and disfigured.  Paint me as cursed. 

5.  The Choice

Under the guise of largesse, do we shutter away the aged and disabled so we don't have the guilt of not doing more?  Under the guise of indifference, do we force the Bins of our own little corner of the world to struggle mightily just to eat enough to barely survive and claim -- the exercise is good for him.  Is there another solution, a middle ground? 

Part of the problem rests on the proposition that in the micro, I can use compassion and discernment to pick the Bins.  In the macro, I use sterile standards to pick and choose.  The people that effectuate policy bring their own bag of bias with them.  And then there is fraud and waste.  I have no solution, just observations based on a short vacation in Mexico and a deep desire to understand the human condition.