SOCIAL SECURITY DENIAL
The Social Security Administration (SSA) administers two types of disability programs: Social Security Disability (SSD) and Supplemental Security Income (SSI). The central premise of these programs is to provide a monthly benefit to persons who are still of working age but unable to work due to physical and/or mental conditions and impairments.
The major difference between the two programs lies in the basic requirements to receive benefits under each program. In order to be eligible to receive benefits under SSD, the applicant must be “insured”, meaning that the applicant has worked long enough and recent enough and paid Social Security taxes. Under SSI, the applicant need not have worked or paid Social Security taxes in the past, only that the applicant’s income falls below a certain maximum per month and assets fall below a certain value. The SSA has rules regarding what is considered income or assets and what are excluded as income or assets.
Once the basic requirements are met, SSA will then determine if the applicant is “disabled” under their rules. “Disability” is defined under both programs as an inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” In determining if an applicant is or is not disabled, SSA will engage in a 5 step process:
Step 1:
Is the applicant presently working? (If so, the applicant is ineligible);
Step 2:
Does the applicant have a “severe impairment,” i.e., one that “significantly limits” the applicant’s ability to do basic work activities? (If not, the applicant is ineligible);
Step 3:
Does the applicant’s impairment “meet” or “equal” an impairment on a specific SSA list (a/k/a a “listed impairment”)? (If so, the applicant is eligible without more) (for Listings go to: http://www.ssa.gov/disability/professionals/bluebook/AdultListings.htm);
Step 4:
If the applicant’s impairment does not meet or equal a “listed impairment”, can the applicant perform his or her “past relevant work?” (If so, the applicant is ineligible);
Step 5:
If the applicant’s impairment does not meet or equal a listed impairment and the applicant cannot perform his or her “past relevant work,” can the applicant perform other jobs that exist in significant numbers in the national economy? (If not, the applicant is eligible.)
An applicant need not wait any length of time before applying. One can apply for SSD or SSI on the very day of the start of disability, by contacting SSA by telephone to arrange a phone interview, by going to the local Social Security Office, in person to file the claim, or by going to the SSA website (at present, SSA does not take SSI applications online).
Once the application is submitted, the waiting begins. The determinations process will require gathering all relevant medical documentation and review. The applicant will also need to fill out forms ranging from the type of work performed in the past, how pain affects the applicant’s life and ability to do work activities, and what the applicant does on a daily basis, et cetera. If the disability adjudicator determines that a decision cannot be made based on the available medical records, then the applicant might be sent for a consultative examination, paid for by the SSA.
Should the claim be denied, a Request for Reconsideration must be filed within 60 days from the date of denial. SSA will gather any new medical evidence that exists, require the applicant to fill out more questionnaires, and possibly send the applicant to another consultative examination. At this stage, the claim gets the same type of review as the initial application stage, but with a different adjudicator. That is, the decision will be made solely on the evidence in the file.
Should the claim be denied again, a Request for Hearing must be filed within 60 days from the date of denial of the Request for Reconsideration. At this stage, the applicant will have an opportunity to present his or her case to a federal administrative law judge (ALJ). The ALJ will consider the record evidence, take testimony from the applicant, lay witnesses (if necessary), a vocational expert (if necessary), a medical expert (if necessary), and render a written decision.
The time it takes to get to a hearing will depend on the jurisdiction in which the claim is being handled. For example, the Jacksonville Office of Disability Adjudication and Review (ODAR) is taking approximately 14-16 months from the time that a Request for Hearing is filed to set the hearing. However, ODAR/SSA is processing some claims electronically which may cut this wait time down to as low as 6 months or less.
An ALJ’s written decision is binding unless the decision is appealed to the Appeals Council. Once again, the appeal must be requested within 60 days from the date of the ALJ’s decision.
The Appeals Council may deny the request for review, or it may grant the request and either issue a new decision or remand the case back to the ALJ. The time limit on this appeal could be up to one year or longer. Unfortunately, there is nothing we can do to make the decision happen any sooner.
Should you disagree with the Appeals Council’s decision, you must once again file an appeal within 60 days, this time to the U.S. District Court. In essence, you will be filing a lawsuit against the Social Security Administration.
How can I tell if I am disabled enough to apply for social security and/or supplemental security income benefits?
Being unable to work and being found “disabled” by the Social Security Administration are two different things. It is often difficult to convince SSA that someone is “disabled” even when they genuinely cannot work. But it is not impossible. If you really cannot work, apply for social security disability and/or SSI benefits.
How do I apply for Social Security Disability or SSI benefits?
The easiest and best way is to call the Social Security Administration directly at 1-800-772-1213. When you call, they will ask some basic questions name, address, when you stopped working, and generally why it is you are unable to work. Social Security will then set up a date and time when they will call you back to complete the application. You may also apply for disability benefits by going to your local social security office or through the internet (SSD only, not SSI) at www.ssa.gov.
Should I contact a lawyer to help me apply for Social Security Disability or SSI benefits?
As a rule, a person does not need a lawyer’s help to file the application. SSA makes this part very easy and, in fact, a lawyer (or anyone else) cannot sign the application for you. You must contact Social Security directly.
What happens if I am denied?
You have 60 days to appeal any decision of the Social Security Administration. If you do not file an appeal within 60 days, you will have to start over (unless good cause is shown), which may mean a loss of back benefits. You should contact a lawyer right away if you are denied.
What are some mistakes people make when trying to get disability benefits?
Failing to appeal. More than half of the people whose applications are denied fail to appeal. Many people who are denied at reconsideration fail to request a hearing.
Another mistake made by applicants is failure to obtain appropriate medical care. This is a mistake for both medical and legal reasons. First, no one needs good medical care more than those with chronic medical problems. Second, medical treatment records provide the most important evidence of disability in a social security case.
When should I contact an attorney about representing me?
We understand that some people may want to go through the earlier stages by themselves. On the one hand, if you are successful in handling it yourself, you will save having to pay attorney fees. On the other hand, your case might be one in which an attorney’s help would make the difference. It is up to you whether to contact us before a denial or after a denial; but the general rule is that it is better to contact us earlier rather than later.
How much do attorneys charge?
Most attorneys and firms, our firm included, will take a case based on a contingency, meaning an attorney fee is paid only if the claim is won. The fee charged is 25% of back due benefits, not to exceed $5,300 (currently). In addition to the fee, a client will be expected to pay the expense of gathering medical records, obtaining medical opinion letters, and other costs.
If we are already representing you, here are a few things that you can do to help us with your disability claim:
- Send us any and all medical records you may have relating to your disability.
- Ask you doctor for copies of your medical records every time you see him or her.
- Send them to us as you get them or drop them off at our office.
- Keep us advised of all treatment or tests you are given by your doctor and what he or she is saying about your condition.
- If you have any difficulty in obtaining your medical records, let us know about it right away.
- Also, we may find it necessary to refer you to a doctor to substantiate your claim.
If you have been denied, call us.
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