Uncle Justin’s Guide to Presumptive SSI

If you’re like me (and God help you if you are), you’ve been led to believe that Presumptive SSI benefits are available only to people with HIV … or maybe to a few other people with some sort of god-awful impairments. This is patently untrue. Any impairment can be considered for Presumptive SSI. Intrigued? Well, who wouldn’t be. So let’s roll up our figurative sleeves (although as I type this my literal sleeves are, in fact, rolled up) and bushwhack into the murky backwaters of Presumptiveland.

First Things First: When does Social Security consider granting Presumptive SSI?

Well, if they were to follow their own rules, they would consider everyone:

Every individual filing an initial or subsequent Title XVI claim for disability or blindness benefits, including children, is considered a potential candidate for [Presumptive Disability] benefits. DI 11055.230

But let’s allow the Code of Federal Regulations to narrow things down, shall we? Voila:

We may make a finding of presumptive disability or presumptive blindness if the evidence available at the time we make the presumptive disability or presumptive blindness finding reflects a high degree of probability that you are disabled or blind. In the case of readily observable impairments (e.g., total blindness), we will find that you are disabled or blind for purposes of this section without medical or other evidence. For other impairments, a finding of disability or blindness must be based on medical evidence or other information that, though not sufficient for a formal determination of disability or blindness, is sufficient for us to find that there is a high degree of probability that you are disabled or blind. 20 CFR § 416.933

So as you can see, Social Security can approve Presumptives whenever they believe there is a ‘high degree of probability’ that your client is disabled.

Do you have to have medical evidence to get Presumptives?

I know, I know, you think this question is ridiculous. Well, think again. Believe it or not, the CFR allows Presumptives to be awarded in some cases even when there is no medical evidence whatsoever. If you don’t believe me, read on:

We may make findings of presumptive disability and presumptive blindness in specific impairment categories without obtaining any medical evidence. These specific impairment categories are—

(a) Amputation of a leg at the hip;

(b) Allegation of total deafness;

(c) Allegation of total blindness;

(d) Allegation of bed confinement or immobility without a wheelchair, walker, or crutches, due to a longstanding condition, excluding recent accident and recent surgery;

(e) Allegation of a stroke (cerebral vascular accident) more than 3 months in the past and continued marked difficulty in walking or using a hand or arm;

(f) Allegation of cerebral palsy, muscular dystrophy or muscle atrophy and marked difficulty in walking (e.g., use of braces), speaking, or coordination of the hands or arms.

(g) Allegation of Down syndrome.

(h) Allegation of severe mental deficiency made by another individual filing on behalf of a claimant who is at least 7 years of age. For example, a mother filing for benefits for her child states that the child attends (or attended) a special school, or special classes in school, because of mental deficiency or is unable to attend any type of school (or if beyond school age, was unable to attend), and requires care and supervision of routine daily activities.

(i)Allegation of amyotrophic lateral sclerosis (ALS, Lou Gehrig's disease). 20 CFR § 416.934

You go, CFR!

OK, so who approves your request for Presumptives? The local office? DDS in Springfield? Hey, Uncle Justin, what gives?

I know we’ve all spent fruitless hours trying to wrench a Presumptive approval out of a local office, only to be told “the file is in Springfield.” Or we’ve yelled at Springfield adjudicators who tell us the local office has to approve Presumptives. Well, lay your weary head to rest, and don’t you cry no more. Here’s the answer:

The local office can approve Presumptives only for a certain list of conditions.

DDS can approve Presumptives for any condition.

C’est tout simple, n’est-ce pas?

So, for what conditions can the local office approve a Presumptive SSI claim? Well, it’s the same as the list of conditions that require no medical evidence (which is on the previous page … and no, I’m not going to retype it) with a few additions:

1. A child has not attained his or her first birthday and the birth certificate or other medical evidence shows a weight below 1200 grams (2 pounds, 10 ounces) at birth.

2. A child has not attained his or her first birthday and available medical evidence shows a gestational age (GA) at birth with the corresponding birth-weight indicated:

GA: 37-40 weeks

Weight at Birth: Less than 2000 grams (4 pounds, 6 ounces)

GA: 36 weeks

Weight at Birth: 1875 grams or less (4 pounds, 2 ounces)

GA: 35 weeks

Weight at Birth: 1700 grams or less (3 pounds, 12 ounces)

GA: 34 weeks

Weight at Birth: 1500 grams or less (3 pounds, 5 ounces)

GA: 33 weeks

Weight at Birth: At least 1200 grams, but no more than 1325 grams (2 pounds, 15 ounces)

3. Symptomatic human immunodeficiency virus (HIV) infection or acquired immunodeficiency syndrome (AIDS) Form SSA-4814 or SSA-4815 is needed.

4. A physician confirms by telephone or in a signed statement that an individual has a terminal illness with a life expectancy of 6 months or less; or a physician or knowledgeable hospice official (e.g., hospice coordinator, staff nurse, social worker, or medical records custodian) confirms that an individual is receiving hospice services because of a terminal illness.

5. Allegation of a spinal cord injury producing an inability to ambulate without the use of a walker or bilateral hand-held assistive devices for more than 2 weeks, with confirmation of such status from an appropriate medical professional.

6. Allegation of end stage renal disease (ESRD) requiring chronic dialysis and the file contains a completed CMS-2728-U3 (End Stage Renal Disease Medical Evidence Report-Medicare Entitlement and/or Patient Registration). DI 23535.005

On the other hand, DDS can approve any case for Presumptives: “The DDS can make a [Presumptive] finding in any case in which there is a strong likelihood that the claim will be allowed on a formal determination.” DI 11055.230, see also DI 23535.001C. Moreover, it can be done at any point in the determination process:

A [Presumptive Disability] finding may be made at any point in the development process at which the available evidence, although not sufficient for a formal decision, demonstrates a strong likelihood that: disability or blindness will be established when complete evidence is obtained, or the evidence establishes a reasonable basis for presuming the individual is currently disabled, and; the disabling impairment has lasted or is likely to last at least 12 months. DI 23535.010

So stuff that in your pipe and smoke it, Mr. Nasty Adjudicator Man!

DDS is supposed to have a pecking order of cases that are more or less likely to merit a Presumptive finding. In other words, don’t try to argue that your client’s hang nail is really, really bad…

Impairments with High Presumptive Potential

1. Severe mental deficiency resulting in dependence upon others for personal needs (e.g., toileting, dressing, or bathing);

2. Malignant neoplasms identified as Stage IV, inoperable, or those that meet a listing based solely upon pathology;

3. Central nervous system diseases resulting in significant and persistent motor dysfunction in two or more extremities;

4. Renal disease requiring chronic dialysis; or

5. Symptomatic human immunodeficiency virus (HIV) infection or acquired immunodeficiency syndrome (AIDS).

Impairments Requiring Caution
Exercise caution in the following categories because of the difficulty predicting severity and duration:

1. Diabetes mellitus;

2. Epilepsy;

3. Essential hypertension;

4. Hypertensive heart disease;

5. Peptic ulcer;

6. Cirrhosis of the liver, or

7. Bone fractures.

Impairments with Limited Presumptive Potential

1. Do not make PD findings for mental impairments, other than severe mental deficiency with dependence upon others for meeting personal care needs unless there is convincing evidence of prolonged severe psychosis or chronic brain syndrome.

2. For respiratory impairments, pulmonary function tests are generally needed to determine the severity and limiting effects of the impairment. Therefore, do not make PD findings for respiratory impairments unless there is convincing evidence that the claim will be allowed.

3. Do not make PD findings for back impairments unless the case involves traumatic injury to the spinal cord.

4. Do not make PD findings for impairments requiring deferred development unless there is convincing evidence that severity and durational requirements are met. DI 23535.010 B

So as you can see, Social Security is supposed to assume that every HIV case “high potential” for Presumptives. Makes one wonder if Social Security reads its own manual, don’t it?

OK, so let’s talk specifically about getting Presumptives based on HIV. The POMs has specific rules for how the local office and the DDS (I like saying ‘the DDS’ because it sounds old-lady-like) are supposed to process these cases.

At the Local Office
Essentially, all you’ve got to do is present a completed Presumptive Form to the local office (form SSA-4814-F5). In fact, there are specific instructions that tell the local office worker how to evaluate the Presumptive Form. Moreover, the POMs state that the local office “will make a [Presumptive Disability] finding” if certain parts of the form are properly checked. For example:

The [local office] will make a [Presumptive Disability] finding if:

1. Either block in Section B has been checked, and

2. Any item has been checked in Section C, and

3. Section F has been completed and Section G has been signed. DI 11055.241(J)1

This language is particularly unusual, because everywhere else in the Presumptive POMs it says that Social Security may make an approval. Here the POMs make it clear that Presumptives must be approved if the form is filled out adequately.

Several sections in the POMS – DI 110055.241(J)-(M) – walk the local office worker through the Presumptive Form, and make it explicitly clear when the form is acceptably completed

It’s also important to note that the local office can grant Presumptive SSI even if the file has already been sent on to the DDS:

Upon return of the completed [Presumptive] form, the [local office] will make a finding of [Presumptive Disability], if appropriate, even if the medical file has already been forwarded to the DDS. DI 11055.241(I)10 (emphasis in original)

Moreover, the local office must not hold up the client’s case while waiting for the Presumptive form:

The [local office] will not hold the disability folder pending receipt of the form, but will forward the folder to the DDS… DI 11055.241(I)(8)

And here’s a little something that will really blow your mind. The POMs say that the local office worker can call the claimant’s doctor and fill out the Presumptive Form over the phone, following the doctor’s orders. DI 11055.241(I)(11). Yeah, that’ll happen.

At the DDS

Well, if you’ve been paying attention, you already know that the DDS can make a Presumptive Determination any old time they want to. But the POMs specifically directs the adjudicator to assess every HIV case for Presumptives:

If the medical file is received in the DDS without the [Presumptive Form], the DDS: verifies that a [Presumptive] finding has been made by the field office, or; determines if a [Presumptive] finding is appropriate if a [Presumptive] finding was not made the [field office]. DI 23535.012(A)

Can you submit the Presumptive Form to the DDS? You bet your sweet bippy you can:

Upon receipt of the completed check-block form … the DDS: associates the form with the claims folder, if necessary; reviews the form, and any other medical evidence forwarded by the [local office]; determines if a [Presumptive] finding is appropriate if a [Presumptive] finding was not made by the [local office]. DI 23535.012(C)

So all those pinhead adjudicators who say they can’t approve Presumptives are full of hot air.

All right, I’m spent. Now get back to work.

Thanks to Justin Hayford, AIDS Legal Council of Chicago for sharing his article.
Read his blog at alcc-legalpad.blogspot.com