Get Answers to Your Legal Questions in Our FAQ
Dealing with a legal issue whether it be applying for and receiving disability benefits, fighting for a personal injury claim, or navigating through a divorce, can be a challenge, and many people are left with questions about what they can do to get the help they need. At the law offices of Loyd J. Bourgeois, we understand how hard it can be to get the answers you need. That’s why we’ve put together the following list of Frequently Asked Questions (FAQs) and answers dealing with family law, personal injury, disability benefits, claims, and appeals and the related law in Louisiana.
The following are some FAQs that I receive as a Louisiana attorney. They may answer some of the questions you have regarding your Social Security Disability appeal, your long-term disability insurance denial, your personal injury claim, or your Louisiana divorce. If you have a question that is not answered here, please call the legal team of Loyd J Bourgeois, LLC at 985-240-9773.
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What is Residual Functional Capacity (RFC)? Social Security Disability Lawyer Explains!
One of the most important concepts in evaluating disability claims is Residual Functional Capacity (RFC) also referred to as Residual Functionality.
The code of federal regulations describe residual functional capacity as follows:
Your residual functional capacity is the most you can still do despite your limitations.” 20 CFR 404.1545; 20 CFR 416.945.
What is Residual Functional Capacity?
Residual Functional Capacity is an evaluation of your remaining ability to do things (work) after taking into account all of the limitations your severe medical conditions cause you.
Think of it as “How much can you do & for how long?”. SSA will look at how your medical condition(s) has affected your ability to exert yourself physically for work-related tasks. These are things like:
- How long can you sit?
- How long can you stand?
- How long can you walk?
- Exert yourself physically for various work-related activities (such as sitting, standing, walking, lifting, carrying, pushing, pulling).
- Can you do manipulative and postural activities (such as reaching, handling large objects, using your fingers, feeling, climbing stairs or ladders, kneeling, crouching, crawling)?
- Can you stoop?
- Can you balance?
- Can you tolerate certain environmental conditions (such as high or low temperature extremes, wetness, humidity, noise, dust, fumes, odors, gases, poor ventilation, vibrations)?
- Can you work in hazardous working conditions like around or with machinery?
- Can you work at heights without any protection?
- Do you have any problems seeing, hearing, and speaking?
Your RFC encompasses your mental faculties as well.
- Can you maintain concentration and attention at work for extended periods of time?
- Can you understand and remember instructions and carry out your duties throughout the day and from day to day?
- Can you get along with people in your workplace or the general public?
- Can you cope with changes in the work setting?
- Can you respond appropriately to supervisors, co-workers, and usual work situations?
For example, let’s assume you have chronic back pain and take narcotic pain medications for treatment. Your doctor has told you that the most you can lift is 20 pounds occasionally and less than 10 pounds frequently. Assume further, that as a result of the medication you take to treat your back pain, that you experience drowsiness, fatigue and should not operate heavy machinery. You also cannot sit for longer than 1 hour at a time or stand for longer than 30 minutes before you need to rest.
Knowing these limitations, what can you do?
- You can lift 20 pounds occasionally and 10 pounds frequently.
- You can sit for up to 1 hour.
- You can stand for up to 30 minutes at a time.
- You cannot operate heavy machinery.
- Can you do anything else?
- Are you limited in other ways?
There are a number of other factors that should go into your residual functionality, but these are not always clearly explained in the medical records. When these other factors are not clearly explained in your medical records, Social Security may find that you can perform these tasks. Some factors that should be considered are an ability to twist, bend, stoop, reach, grasp, handle/finger, kneel, crawl, and climb.
Additionally, other non-exertional factors can play a role in establishing your residual functionality as well. These factors can include things such as the ability to follow directions, maintain concentration, pace, and persistence, ability to get along with co-workers, reliability (do you show up), and a host of other issues.
Your overall residual functional capacity is your remaining physical and mental ability after taking into account your physical and mental limitations.
Often times, the medical records that I review do not discuss a number of factors essential to a proper determination of your RFC. The reason is that many of these factors are irrelevant to a doctor’s actual treatment of your medical condition. However, they are important for Social Security Disability claims because SSA’s determination is focused on your functional ability – not your medical history.
Social Security defines residual functional capacity as sedentary, light, medium, or heavy.
If you do not meet a listing, your RFC needs to be at a certain level to qualify you for social security disability benefits. Your RFC needs to prevent you from performing your past relevant work and all other types of work that exist in significant numbers. The specific RFC needed to show that you cannot perform your past relevant work or other types of work is dependent on your age, education, training, and past work history.
A thorough understanding of all of the factors that go into an RFC determination is important if you want to have the best chance of success with your SSDI claim. As a Greater Houma SSDI attorney, I can help you understand the residual functionality you will have to prove in order to give your disability case the best chance of success. Give me a call at 985-240-9773.
What are skilled and unskilled occupations under SSDI?
An issue that you may face when you apply for Social Security Disability benefits, especially if you are over-50 and fall onto the Medical-Vocational Grid, is the subject of skilled versus unskilled occupations. An understanding of these terms is important because how your prior work is classified can be determinative of whether or not you will be entitled to disability benefits under the Grid Rules.
Unskilled occupations are the least complex types of work. Jobs are unskilled when persons can usually learn to do them in 30 days or less.
A simple example would be a dishwasher in a restaurant. Other jobs can also be learned in 30 days or less, such as product assembler, crossing guard and laborers—although these may not be as obvious.
In the Houma area, these unskilled occupations can be something like an assistant at a car wash.
Skilled occupations are more complex and varied than unskilled and semi-skilled occupations. They require more training time and often higher educational attainment.
Skilled occupations may require abstract thinking (chemists and architects, for example), or special artistic talents (an example is a school band instructor or pottery maker).
Practical knowledge of machinery and understanding of charts and technical manuals can indicate a skilled occupation. Other attributes include organizational skills, working extensively with people, making difficult decisions in short time frames, and developing data.
Jobs requiring a professional license are usually skilled—barber, lawyer, doctor, accountant, and even HVAC mechanics or automotive mechanics, too.
Skilled work can be broken down even further to semi-skilled. These are occupations such as heavy equipment operators, masons, and specialty machine operators.
Why Is Your Work Classification Important to your SSDI Claim?
Under the Medical-Vocational Grid rules, how your past work is classified can be the deciding factor into whether you get benefits. Let’s look at an example:
We will take a Thibodaux resident with less than a high school education and past relevant work as a painter (a semi-skilled occupation), which is a medium exertional job. This individual’s Residual Functional Capacity (RFC) is at the sedentary exertional level due to degenerative disc disease, arthritis, and a cardiac condition. He cannot perform his past relevant work and has no transferable skills.
If this person is:
45 – He is not disabled under the grids;
52 – He is disabled under the grids;
58 – He is disabled under the grids.
If the individual had an RFC of light, and was:
45 – He is not disabled under the grids;
52 – He is not disabled under the grids;
58 – He is disabled under the grids.
For this reason, understanding how your prior work is classified is important to the success of your Louisiana Social Security Disability Claim. If you have questions about your work classification or disability claim, call Loyd Bourgeois at 985-240-9773 for a free consultation.
What is the difference between SSDI and SSI?
- Social Security Disability Insurance (SSDI) is a disability insurance program financed by Social Security taxes. To qualify for SSDI, the worker must earn a certain level of credits based on taxable work. SSDI disability benefits are payable to disabled workers, widows, widowers, and adults disabled since childhood if they are otherwise eligible.
- Supplemental Security Income (SSI) is a need-based government assistance program. SSI makes monthly payments to people who are blind, disabled or age 65 or older who have low income and limited resources, meet certain living arrangement requirements, and are otherwise eligible. Disabled or blind children and those who have never worked or whose work history has not earned them enough credits to qualify for SSDI may receive consideration for disability benefits under the SSI program. The Social Security Administration manages the SSI program, but SSI is not paid for by Social Security taxes. SSI is paid for by U.S. Treasury general funds.
For more information, see blog posting: SSI vs SSDI
Can I Get Social Security Disability benefits for COPD?
I am currently working on a New Orleans social security disability application for a client with chronic obstructive pulmonary disease (COPD). I thought it would be good to discuss how a disability claim for COPD is evaluated by SSA under the listings.
COPD is a listing level disease. It is a Respiratory Impairment. It is listed at Listing 3.02(A). This means that if your medical records establish the requirements set forth in the listing then your disability application should be approved at Step 3 of the Sequential Evaluation Process. This is important because if your COPD meets the requirements in the listing, then SSA does not have to evaluate whether or not your COPD prevents you from performing past relevant work or work generally available in the national economy.
What Is Required To Meet Social Security’s COPD Listing?
The listing provides as follows:
“A. Chronic obstructive pulmonary disease, due to any cause, with the FEV1 equal to or less than the values specified in Table I corresponding to the person’s height without shoes.
Height (w/o shoes) (cm) Height (w/o shoes) (in) FEV1 equal to or less than (L, BTPS) 154 or less 60 or less 1.05
FEV1 is defined as the forced expiratory volume at one second – that is – it is the amount of air a person can exhale (blow out) in one second.
If you are close to meeting or do in fact meet, the FEV1, you are in pretty bad shape health wise. The values SSA uses for the FEV1 analysis are considered low because SSA is erring on the side of caution.
Claimants who have COPD usually cannot tolerate dust, smoke, or fumes and can have problems with extreme temperatures or humidity. COPD usually results in an exertional impairment. The full extent of the exertional impairment will have an impact on whether your COPD qualifies for disability.
Many disability applicants with COPD are older than 50 and thus, fall onto the grids. Winning disability for a claimant younger than 50 with COPD is difficult unless the COPD is termed as moderate or worse (and often severe or worse is required) and results in significant exertional impairments.
Social Security will also look at your longitudinal medical record (your medical history over time) to determine whether treatment provides any functional recovery. If you do not have a regular doctor or receive regular medical care despite your COPD, you may not be able to meet the listing, but may be able to equal the listing or show functional limitation sufficient to qualify you for benefits.
Typically, if you apply for social security disability alleging Chronic Obstructive Pulmonary Disease or another respiratory ailment, SSA will send you for a consultative examination. At this CE, the doctor will perform a spirometric pulmonary function test. This test measures your FEV1.
SSA has developed detailed rules for interpreting the FEV1 results and uses your most stable state of health values for determining whether or not you meet the listing.
Even if you do not meet the listing for Chronic Obstructive Pulmonary Disease, your COPD may result in sufficient functional limitations to prevent you from performing your past work or any work in the national economy. At Louisiana Disability Law, we have experience obtaining disability benefits for clients with COPD. If you have COPD and need help applying for Social Security Disability benefits or need to appeal a denial, give us a call at 985-240-9773.
What Is The Any Occupation Review?
You have been receiving long-term disability benefits for about 12-18 months and then you receive a letter from the insurance company that says something like this:
According to the provision of your group policy, in order to be eligible for LTD benefits you must meet the following definition of disability:
Total Disability or Totally Disabled means you are prevented from performing the Essential Duties of:
1) Your occupation or a reasonable alternative job offered to you by the employer during the elimination period and for the 24 months following the elimination period; and
2)After the 24 month period, Any Occupation.
Your LTD benefits became effective 12 months ago. To continue receiving benefits after 24 months, you must be disabled from any occupation.
Please be advised that we have initiated an investigation to determine if you will qualify for benefits after the 24 months have elapsed. We will notify you regarding our determination.
What exactly does this mean? You were granted disability benefits because you couldn’t work. You still cannot work. What is the insurance company talking about here?
Almost all (at least that I have seen) employer-provided long-term disability policies have a change in the definition of disability after you have been receiving disability benefits for 2-years (or 24-months). I have seen some that change after 1-year (or 12-months).
The change is that you must be disabled from performing any occupation instead of just your own occupation.
This is a major change.
For example, if your occupation was a truck driver at a light-medium exertional level, your back injury may qualify you for long-term disability benefits initially. When the definition changes, the question is does your disability prevent you from doing ANY OCCUPATION – such as clerical work, inventory work, or other sedentary type occupations.
The disability company understands that if you are entitled to benefits after this point in time, then chances are you will be receiving benefits for a long time. The disability company does not want this. The “any occupation review” is done by the long-term disability insurance company at or around the time the definition of disability changes in your policy. The change in definition gives the insurance company an opportunity to deny perfectly valid disability claims under the guise of the claimant being able to perform some type of occupation. In doing their “any occupation review,” the insurance company will often use a vocational expert (VE) to opine on whether or not with your disability you can perform the substantial and material duties of another occupation.
In some policies, the definition requires that you be suited for the occupation by age, education, training, or skill while others require that the occupation results in you earning, at least, a certain percentage of your pre-disability gross income. However, many policies place no restrictions on the type of occupation the insurance company can say you are qualified for.
You can expect to receive a number of documentation requests and/or interviews in the months leading up to your 24th disability payment. They all have one purpose — finding out what you can do so that they can get you off of claim, and/or bombarding you with so many requests that you may fail to turn one in and then your claim can be dismissed.
You will be faced with a completely new inquiry into your disability. Basically, you will have to prove your disability again, but probably to a more detailed level.
You will probably need to collect additional evidence of your disability and of your inability to perform the tasks the disability company now claims you can do.
If you are lucky, the definition of disability in your policy will give you some added protections – such as you must be able to earn a certain percentage of your pre-disability earnings.
It is important to maintain a good relationship with your doctor. Keep your journal/diary up to date. Make sure your family and friends know of your continued disability and can support your claims if needed.
The unfortunate truth of the "any occupation review" is that many claimants are found by the disability insurance company to be capable of performing, at least, one occupation. Because of this, continued long-term disability benefits will be denied.
If you are faced with an Any Occupation Investigation or Denial, you do not have to fight the insurance company alone. Mandeville long-term disability claimants faced with such a denial can call me for help.
Successfully appealing any occupation denials takes creativity, hard-work, and a detail-oriented approach. If you live in Kenner, or anywhere in Louisiana, and are faced with an Any Occupation long-term disability denial, I may be able to help you. Give me a call at 985-240-9773 or use our simple contact form.
What's the difference between Short-term and Long-term Disability?
As a Louisiana disability lawyer, I have been asked to explain the difference between short-term disability benefits and long-term disability benefits on more than one occasion. This is my attempt to explain the differences and similarities as briefly as possible.
Short-term disability insurance is designed to pay you benefits quicker and for a shorter period of time. The elimination period (the period of time you must be disabled before benefits start) in a short-term disability policy is often from 0-14 days. This means that a short head cold would probably not qualify you for short-term disability. The benefit period usually ranges from 60-180 days (or 2-6 months). This means that you will be paid, if you are disabled, for that period of time.
The universe of ailments and injuries that can qualify you for short-term disability are greater than those for long-term disability because of this. For example, while a broken arm may not last long enough for you to claim a long-term disability, it could qualify you for a short-term disability benefit. For this reason, a short-term disability policy may be referred to as a sick-leave policy.
Short-term disability policies do have terms, conditions, and exclusions that you must be aware of. The number of policies and differences makes it impossible to point them all out here. For this reason, you need to read the policy.
Long-term disability insurance policies, on the other hand, are designed to replace a portion of your income over a longer period of time. For this reason, their elimination period (long-term disability waiting period) is usually longer – often 90-180 days (but policy specific). This means that you will not get paid for the first 3-6 months of your disability. Long-term disability policies can pay you a benefit for a very long time, as long as you are disabled – usually up to a certain age, like 65.
The policy terms, conditions, and exclusions of long-term disability policies are often more onerous (bad for you) than short-term disability policy conditions. Also, because the benefit period is substantially longer, insurance companies carefully review and manage their long-term disability claims.
Going from Short-Term Disability to Long-Term Disability
I should also point out that just because the insurance company approved your short-term disability benefits does not mean they will approve your long-term disability claim. Long-term disability claim denials are common for those coming from short-term disability.
From a legal perspective, I do not see many short-term disability disputes but they do exist. Long-term disability insurance disputes are more common. However, the legal principles applying to reviewing decisions of the insurance company under both short and long-term disability insurance are the same – if the benefits were provided by your employer. There may be a difference if you get one benefit through your job but paid for the other separately.
I hope this brief explanation cleared up some confusion. If you want to discuss your short-term or long-term disability case, call me at 985-240-9773 or use our contact form.
If you're preparing to file for long-term disability, we've created a checklist of "8 Specific Actions to Take Before Filing Your Long-Term Disability Claim." All we need is your name and email address, and we'll send you the checklist right away. Don't make a costly mistake before you've even applied! Just click here to receive your copy of "8 Specific Actions to Take Before Filing Your Long-Term Disability Claim."
When can I/When should I apply for Social Security Disability Benefits?
If you expect to be out of work for a year or longer or you have a terminal condition, you should not delay in filing a claim for Social Security Disability Insurance (SSDI) benefits. You may file your claim for SSDI benefits as soon as you become disabled. You must prove that your disability will last at least 12 months or is expected to result in death. You do NOT need to wait to apply until after you have already been disabled for 12 months. You can apply for Social Security Disability benefits online (www.ssa.gov) or at your local Social Security Office. See also blog posting: How long do I need to wait to apply for SSDI?
How Long Should I To Wait To Apply For SSDI Benefits?
The surprising answer is – YOU DON’T NEED TO WAIT!!
You can file for social security disability benefits on the day that your doctor diagnoses you with a disability, or on the first day that you can no longer work because of your disability.
Many people mistakenly believe that they must be disabled for a certain period of time before they can even apply for social security disability benefits. The longer you wait to file, the longer you will have to wait to receive your disability benefits if you are disabled. This is true for Houma social security disability claimants, Thibodaux SSDI claimants, and even those in Galliano applying for social security disability. In fact, it is true throughout Louisiana and the Nation.
If you have a serious illness, disability, or impairment that will last at least a year (or is likely to result in death – like cancer or Lou Gehrig’s disease), you can apply on the day the illness, disability or impairment impacts your ability to work.
Now, this does not mean, that if you have a minor illness or injury that will heal within one year, you need to rush out and apply. Don’t do it. Your claim will be denied, I cannot help you, and you will be taking up valuable resources needed by those truly disabled.
Remember, a large number of disabled individuals, especially in Louisiana, are denied social security disability benefits when they first apply. Then they have to go through an appeal process, often including a hearing with a judge. Some even have to go to court to have their case approved. The process takes time.
The longer you wait to apply, the longer it takes for the process to get started. I usually recommend that my Louisiana disability clients apply for social security disability as soon as they can no longer work because of their disability to get the process started.
How Long Does It Take To Get SSDI Benefits After I Am Approved?
Congratulations! Your social security disability benefits claim was approved. If you are like most of my Louisiana disability clients after your SSDI claim has been approved – you want to know WHEN WILL I GET THE DISABILITY BENEFITS I HAVE BEEN AWARDED?
It will usually take a few months for your benefits to start – AFTER YOU RECEIVE A FAVORABLE WRITTEN DECISION.
How long after approval for disability do you get your money?
If you received a favorable decision on your initial application WOW – your benefits will start as soon as the paperwork is processed. You probably won’t have to work to obtain back benefits. Your benefits will probably start within 30-90 days, assuming that you have completed the 5 month elimination period.
If your claim went through a hearing with an Administrative Law Judge, you will have to wait longer.; Many ALJs in the New Orleans Social Security and Metairie Social Security hearing offices take about 1-3 months to issue their written decision. When the decision is favorable, the claim file is then sent to the payment processing center, where it can take another 1-3 months for current benefits to start.
How long does it take to get back pay from Social Security?
In some situations, Social Security issues current monthly benefits, but not the back payments. This is because they need to investigate if you received any Supplemental Security Income (SSI) benefits. If you also have a claim for SSI benefits, you will need to call or go to your local Social Security office for an appointment before your benefits can be released.
Social Security does not have any specific rules on when they will pay you after being approved, but if you have not received your benefits 60 days after your hearing, give your local Social Security office a call.
If I am approved for SSDI benefits, do I get other benefits?
An SSDI beneficiary is automatically eligible for Medicare 24 months after the onset date or date they were found to be disabled. Medicare coverage starts in the 25th month of your SSDI entitlement. SSA will automatically send you information approximately 3 months before you are eligible for Medicare.
Social Security disability recipients may be eligible for Food Stamps but must file a separate Food Stamp Program application. Requirements for eligibility vary.
A Social Security Disability (SSDI) recipient may also qualify for SSI, depending on the amount of your monthly SSDI benefit and your other assets.
When Should I Stop Work If Applying For LTD?
There are a few reasons why the date that you can no longer work due to disability is important. Two very specific reasons are:
- It impacts coverage; and
- You may not be disabled.
In our previous installment, we talked about pre-existing conditions, waiting periods, and effective dates of coverage. Those are important topics to understand when you and your doctor are determining that you can no longer work.
- Are you sure that you are covered under your employer’s long-term disability policy?
- Did you fill out your election timely and has the waiting period passed?
- Are you beyond the pre-existing condition exclusion?
- These are just a few of the questions that impact whether or not you have coverage and are entitled to benefits at the time you can no longer work.
If you have been following along, you know the importance of having your doctor diagnose your disabling condition.
You also know that your policy contains a specific definition of disability. To get benefits under the policy, you must be disabled according to the definition. Most definitions will require that you could no longer work because of a disability.
Unfortunately, some people stop working BEFORE their doctor diagnoses a disabling condition. When that happens, the person will have no medical proof of a disability until AFTER they stopped working. Sometimes, people file without any medical support.
The long-term disability provider will have an easy decision – that person decided to stop working (quit). The person cannot prove that a disability caused their inability to work. Why? Because they have no medical opinion saying so. The medical opinion only comes after the decision to stop working.
A good example here is the chicken and the egg. You know the one – which came first, the chicken or the egg?
While there is no clear answer on the chicken or the egg, in long-term disability settings there is. You must have a doctor’s opinion and medical proof of disability BEFORE stopping work and filing a claim.[Just for the record – the chicken came first]
You should only stop working after you are certain that you are covered under the long-term disability policy, and you have adequate medical support and documentation. And not before.
Good luck. And, remember the things you need to know before you file your long-term disability claim. If you need help filing a disability claim or appealing a denial, we're here to help. Give us a call at 985-441-3448.