Social Security’s definition of disability contains a duration requirement. The medical condition that prevents you from working must be a long term problem – you can only qualify if your medical or mental health problem keeps you out of work
- for 12 consecutive months
- is likely to last 12 consecutive months
- is likely to result in death
This is why short term conditions that keep you out of work will not qualify you for Social Security. I frequently get calls and emails from men or women who are recovering from an arm or leg fracture and are missing work. In most of these cases, there is not much I can do because absent any unusual complications, most large bone fractures heal up within a few months.
At the other end of the spectrum are disabling medical conditions that last a year or longer but come to an end when the claimant returns to work. You can win these cases if you pursue your claim as a closed period of disability.
Social Security Judges Like Closed Period Cases
In some respects, closed period cases can be easier to win because there is a lot less financial risk to Social Security when a closed period case is approved. For example, if a 40 year old woman is asking for on-going disability, the judge has to consider that an approval will mean disability payments for 20+ years. By contrast, that same claimant asking for 18 months as a closed period will be much less of a financial consideration for the Social Security Administration. In my experience many Social Security judges are very aware of the potential financial liability to the agency when they consider claims.
Remember as well that your credibility and your attitude serves as a very important factor in the judge’s decision making process. I always advise my clients to avoid displaying an attitude of entitlement. By returning to work you are sending a message to the judge that you are fighting the medical or mental health problems that have kept you out of work. Judges are much more likely to give you the benefit of the doubt about your capacity to work during the claimed closed period if you are now back to work.
Closed Period Cases When No Medical
Treatment Because of Finances
I have also used closed period arguments in cases where I have no medical evidence supporting my client’s claim for disability after a certain point. Sometimes, my clients have to make very difficult decisions if they have not had treatment for several years because of financial issues. For example, I recall a recent case involving a client with severe back pain arising from bulging disks. Her medical treatment consisted of physical therapy, epidural shots and medication – none of which fully resolved the pain. Then her insurance ran out and she was left to fend for herself with exercises at home and over the counter pain medications.
The hearing was held about four years after last treatment. During the hearing the judge stopped the proceeding (called “going off the record”) and said to me that he would be prepared to find in favor of my client for a closed period from the date of her original injury through about 6 months after her last treatment. He was of the opinion that the absence of emergency room visits or other indicia of severe pain, in addition to my client’s testimony that she was able to handle basic household chores (cooking, cleaning, laundry) and care for young children meant that her condition had improved to the point where she was not “disabled” for Social Security purposes. I believe that the judge was of the opinion that my client could have done some simple, unskilled sit-down job but that she chose to stay at home with her kids.
I stepped outside the hearing room with my client and gave her the option – accept the closed period and recover a lump sum, or continue with the hearing and end up with an unfavorable decision. In this case, my client chose to go with the closed period, which was probably the right choice, although the call to settle for a closed period is not always so clear cut.
A closed period of disability can serve as a useful compromise to recover benefits if your medical record is not strong or if you have a judge who is especially demanding. In those cases where your condition has improved or is likely to improve, the closed period argument can be a helpful “plan B.”