The weather is changing. Bismarck resident Dan Neer can feel it from his lower back to the tip of his right toe.

Cool, damp weather makes his usual, constant back pain unbearable to the point he can be bedridden.

"I have a damaged nerve," Neer said. "It's not dead. It's damaged."

This distinction is the root of the pain he feels. Sometimes excruciating, stabbing pain travels down his right leg causing hime to cringe and his whole body to tense. He slowly moves to find a new position to ease the pain. Otherwise, the pain is always there.

The pain also was the center of a battle to get disability benefits from the Social Security Administration. After his first claim went through the initial review and appeal and was denied both times, he thought maybe the pain was in his head.

But a nerve test was a reminder that it was not in his head. A needlelike device probes the area of a nerve and tests for nerve damage. It can be painful. He also has had numerous doctor visits and surgeries.

It took two separate claims to the Social Security Disability Insurance, including appeals that were denied on the first claim, before he was approved for Social Security Disability in February. It took more than two years from his first application to be approved.

Social Security Disability Insurance is a benefit taken out in payroll taxes and available to qualifying disabled people who have worked at least five of the last 10 years. It is administered by the Social Security Administration, but it is a separate program from retirement benefits.

There were about 11,600 people in North Dakota receiving social security disability payments in December 2006, according to the Old Age Survivors and Disability Insurance Benefit report for North Dakota. Nationally, about 48 percent of claims are approved at the initial review. On the first appeal and subsequent administrative hearing, another 17 percent are approved, according to the 2006 Annual Statistical Report on the Social Security Disability Insurance Program. The percentage of approvals and denials were not available at a state level.

Sen. Byron Dorgan, D-N.D., has asked President Bush and the inspector general's office to look into the process.

"There seems to be something wrong if two-thirds on appeal are found disabled," Dorgan said.

He wants the process changed so more people win approval without going through appeals.

He wants the inspector general's office to investigate the process to find out why the approvals are happening on appeal instead of the initial consideration. He wants to know if it is deliberate or a lack of resources. Technology is one area Dorgan thinks the Social Security Administration could improve the process.

What the Social Security Administration does, however, is at Congress' will.

"It is an administration based on funding in Congress and laws passed by Congress and the president," said Doug Smith, senior public affairs specialist of the Denver regional office of the Social Security Administration.

Bulging disc

Neer, 38, injured his back on the job. He moved furniture as part of his responsibilities as an assistant store manager at a furniture store. He had a bulging disc in October 2002. It pressed on the nerve in his back, which causes the pain. Then in November 2003 he had a two-level back fusion because the bones were disentigrating.

"I knew something was wrong," he said about the surgery's outcome. "The pain was not gone, but it was a lot less."

A nerve condition test showed nerve damage.

He can go 15-20 minutes in a restaurant chair without squirming. If he can move around, he can sit for 45 minutes before he needs to stand up. He can stand for 10 to 15 minutes before needing to sit. He can walk short distances. When he's with his family at a large store, he walks with them, but he's pushing it. He rationalizes the extra pain as helping his family.

"I used to do a lot with the kids. My son, my daughters and I would play basketball," he said. "The effect on my family is the hardest for me."

When he'd play basketball with his kids, they'd talk. It was one of the ways the kids worked through questions and problems with their dad. It took time, but they've each found different ways to talk with him again, Neer said.

"It took awhile to figure out how to talk without doing that (basketball)," he said.

He and his son Austin, 14, now play video games together when they want to talk. He also has two daughters, Samantha, 15, and Heather, 19. His eldest daughter is his wife's child. He and his wife, Tammy, have been together 18 years.

He feels bad about the stress it has put on his wife. They didn't anticipate him being unable to work in his early 30s.

"It took a while for her to get used to it," he said. "I don't blame her."

After the bulging disc, he quit, then later took a job with another furniture store.

Injury compounds

The second injury to his back was when he picked up a big-screen TV from a third floor apartment. He used a back brace, and proper lifting and moving techniques. He was three stairs down when his hands slipped and he used his legs to block the TV from falling. Then he tried to stand up again.

"Instead of bending with the legs, I bent with the waist," he said. I heard this pop in my ears. It was the type of pain that made you scream."

In November 2003, his doctor discovered his discs were disintegrating. Workforce Safety and Insurance didn't approve a back fusion. Instead, Workforce Safety approved steroid injections for the nerve. The treatment didn't alleviate the pain.

During this time, he got a job where he could sit down. That job lasted until he went on a no work restriction in May 2004. His back pain was keeping him from work for long periods of time. He was then approved for a two-level fusion in July 2004.

He found out about Social Security disability insurance from his doctor. He thought he was too young for it, so he didn't apply right away.

A few months later, in December 2004, he made an appointment to talk with them. He had the option of filling out paperwork and sending it in or doing it online before his appointment. He chose to do it online and it took him six hours.

At the appointment he was asked all the questions that he answered on the online forms and signed a medical release. They set up appointments for him to see a physician of their choosing.

Weeks would go by without contact from the Social Security office. When he would hear from them it was to get more information or about a doctor's appointment. He didn't have a good sense of where his application was at during the process, he said.

His initial application was denied because their evaluation said his injury was not "debilitating enough."

Appealing the denial

He appealed the decision and four months later he was denied again. He made a second appeal, which also was denied. At this point, he needed to take it to court if he wanted to pursue his case. But Neer couldn't imagine how he'd pay for a lawyer when his family already had difficulty paying bills.

Claims are denied because they do not meet the Social Security Administration's criteria for providing the benefit, Smith said.

Reasons for denials can be based on one of many factors. The claim is judged on the amount of disability within a 12-month time frame or whether it is a terminal disability as well as the type of job and education of the person and the potential to retrain the person for another type of job. Claims generally take 90 to 120 days to process, he said. It took about four months from the time Neer submitted paperwork before he received his initial denial.

If a claim is denied, the person can request a hearing, where additional evidence is needed to prove the extend of the disability, he said. Claims can be appealed later if circumstances change.

The Social Security Administration is starting to use electronic medical records to make the process quicker, as well as bar codes for receiving information that can more easily put the information with the patient's claim.

There are companies, like Allsup Inc., that help claimants through the Social Security Disability Insurance process. Dorgan said they shouldn't be necessary in a properly working system.

"If the system, is working right, we don't need the services of someone else," he said.

Help arrives

Neer reached a point he felt he needed the outside help. He found out about Allsup from his father-in-law. He called and talked to them about his experience.

"This woman wanted to know everything," he said. "This lady believed me. She said 'Dan, I think we have a case.' Someone believed me. Someone could help. So much pressure lifted off."

He gave the company permission to act on his behalf. Throughout the process, he received monthly phone calls about the status of his claim, even if there was nothing different to report, he said.

Companies like Allsup only gets paid if there is a payout. It is a percentage, up to a maximum of $5,300, and it is regulated by the government.

Neer's claim was denied and they went to an appeal. In February, he was approved for benefits.

"I was ecstatic. I was so happy," he said. He called his wife at work.

He received disability for himself and also for his son and daughter because they have an injured parent. He received $36,000 in retroactive pay.

"They're supposed to help," Neer said about the Social Security Disability Insurance. "Their attitude is all wrong. It shouldn't be deny first."

(Reach reporter Sara Kincaid at 250-8251 or sara.kincaid@;bismarcktribune.com.)