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By Evan Zagoria
Don’t throw your hands up and give up hope! If you, your spouse or your child are disabled, frustrated, and are trying to collect Social Security disability benefits, you are not alone. The process seems difficult, long and discouraging at every turn.
Don’t despair! You can succeed in recovering these benefits that you deserve if you have professional help and understand that the process is designed to wear you down, frustrate and discourage you. It is a marathon, not a sprint!
This guide can help you understand and get through the process of filing and collecting social security disability benefits. One thing that can’t be overlooked is the importance of getting professional help from an attorney that specializes in social security disability claims. Not every attorney understands the process or has the experience to maximize your chances of recovery.
Buckle up! Here we go!
The Social Security disability program really is two systems, known as (1) Social Security Disability Benefits (Title II) and (2) Supplemental Security Income/SSI (Title XVI). Social Security disability benefits can be paid to the worker, and auxiliary benefits to a spouse and minor children. . Disability benefits can be paid to the widow(er), age 50 and over, of a deceased worker. Disability benefits can also be paid to the child, age 18 and over, of a disabled, deceased, or retired worker, if disability starts prior to age 22. Social Security survivor benefits can be paid to the spouse and minor children of disabled, deceased, or retired workers. Social Security retirement benefits can be paid to workers of appropriate age and their spouses. Social Security disability benefits generally require a worker, age 31 and over, to have worked 5 of the 10 years before they become disabled or have 20 calendar quarters of earnings in the 40 calendar quarter period ending with the quarter in which disability begins. Workers disabled prior to age 31 have special rules but must in general work half of the time between age 21 and when disability commenced.
Supplemental Security Income (SSI) benefits are a form of welfare benefits payable to disabled, blind, or aged (65 and over) individuals. To be eligible for these benefits the disabled person need never have worked. In place of the work requirements, SSI has strict income and resource rules. Countable assets cannot exceed $2,000.00 for an individual. Income cannot exceed $623.00/month, generally (in 2007). Income can be deemed from parent to minor children and from spouse to spouse.
The definition of disability is the same for both Social Security and adult SSI disability benefits. The statutory definition is as follows:
‘The inability to perform 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.’
Merely being unable to perform your usual occupation or return to your former employer is not sufficient grounds for being found disabled. Employer hiring practices, unavailability of jobs, and a poor local economy, for example, are also not grounds for being found disabled.
To be considered disabled, generally, the claimant must be unable to perform the exertional demands (sitting, standing, walking, bending, lifting, carrying) and non-exertional demands (mental, visual, hearing, pain, fatigue, etc.) of simple and unskilled sedentary or sitting down jobs. There are occupations that require very little lifting, allow for postural changes, require minimal use of the hands, or require little education or job training. Claimants under age 50 must be unable to perform even unskilled sedentary occupations. For claimants age 50 and over, there are different combinations of age, education, prior work, skills, and the level of work one can do that help determine if disability exists. The definition of disability becomes somewhat easier at ages 50, 55, and 60.
The Disability Process:
Even though the Social Security program is national or federal in scope, there are significant local and state variations to the process, such as case processing times and allowance rates. A disability decision is often a subjective conclusion, as many medical judgments are gray, rather than black and white. Some adjudicators and Administrative Law Judges (ALJ’s) might be more liberal or more conservative.
The general claim process is to file an application after which a state agency makes the initial decision. If your claim is denied, you can request reconsideration. After a reconsideration decision, if benefits are still not granted, you can request a hearing from an Administrative Law Judge. If your claim is still denied, you can request an Appeals Council review, and if denied by the Appeals Council, the next step is Federal Court review. If you are denied at one level, you have 60 days from receipt of the denial, absent ‘good cause’ to appeal or file for the next level. You are presumed to have received a decision 5 days after the date on the decision unless you can prove receipt at a later date. Examples of ‘good cause’ include, but are not limited to, death or serious illness in the family, being hospitalized, or not receiving the denial notice.
In 10 states, including Michigan, SSA began testing a program called Prototype. This omitted the reconsideration level and allows claimants to go directly from the initial denial to the ALJ hearing level. The rationale for the experiment was that the allowance rate at the reconsideration level tends to be comparatively low. The Prototype program was not extended to the other states but it continues in existence in the original 10 states.
The SSA disability process needs to be considered as more of a marathon than a sprint. One must be prepared for the process to take time, and for rejection. The SSA process can be aggravating, frustrating, time-consuming, and duplicative. Not all claimants have the resources, willpower, or stamina to deal with SSA’s lengthy process. A significant percentage of claimants denied at one level do not appeal to the next level. Some of these claimants might have gotten better or decided they were not actually disabled. Many, however, abandon the process despite believing they are disabled, because they believe they will not win or do not have the ability to continue to fight the system. You need an experienced attorney to help you maneuver through the obstacle course and keep pressing your claim through the levels of reviews and appeals until you succeed. Representation by an experienced attorney who is willing to press your claim through all steps and levels of the process relieves much of the burden of the claimant in completing the process. The further one goes in the process, the more likely one is to win, particularly at the ALJ level. The ALJ level is the single most favorable level of the process. The ALJ’s are more independent and have greater discretion to believe a claimant’s subjective complaints of pain, fatigue, or emotional distress.
Not every lawyer understands the SSA process from both sides of the table. Not every lawyer understands the Social Security Act and Regulations as well as others. Not every lawyer understands medicine as well as others. Not every lawyer understands how to obtain medical evidence and opinions, in the form of sworn statements of treating physicians, reports, records, or treating physician statements about residual functional capacity and how to use that to prove disability. You need an attorney with a lot of experience in handling these cases to maximize your chances of success.
It is best to apply as soon as possible. Even though the Act has a 12 month durational criteria, one need not actually be out of work or disabled for 12 months before an application is filed. Social Security disability benefits cannot be paid more than one year prior to the application date.
It is very important to have attorney representation as soon as possible in the process. The more subjective the disability, i.e., pain or fatigue or emotional problems, the more likely it will be denied at the initial or reconsideration levels. Adjudicators at these lower levels have less discretion to believe more subjective complaints. There are better and worse ways to complete an application. Seemingly innocent questionnaires as to daily activities, pain, headaches are frequently relied on to DENY claims. These should be reviewed by your attorney. The attorney and his or her staff should help you complete these forms.
Despite statements by SSA, claimants who are trying to be found ‘disabled’ do not need to attend consultative examinations scheduled by SSA. The examinations requested by SSA may not be complete and the doctor’s evaluations may be less than impartial. Under SSA’s Regulations, the treating physician is supposed to be the primary source of providing medical evidence.
Spending this extra time preparing applications, filling out activity forms, managing the consultative exam process does not always guarantee a favorable decision at the initial or reconsideration levels, but allows the attorney to help his or her clients win more claims at the ALJ level.
Claimants must continue to see doctors regularly and preferably the same doctor(s). The burden of proof of disability is on the claimant. You are presumed to be ‘not disabled’ until you prove to the Social Security Administration’s satisfaction you are. You meet this burden of proof with your medical records, reports, sworn statements, residual functional capacity assessments, etc. The more medical evidence you have the easier it is to meet your burden. Older medical evidence does not necessarily prove current impairment and, more importantly, resulting functional loss. Being awarded VA benefits, Workers Compensation benefits, disability benefits from an employer or insurance company is not necessarily proof of disability to SSA by Regulation. Every disability program has its own unique medical and legal criteria. A doctor you see regularly, a doctor seen over a longer period of time, is considered a long time treating physician, and is entitled to more adjudicative weight than a doctor seen only once or twice. Under appropriate circumstances, the long time treating physician can be entitled to ‘controlling weight’.
It is often very difficult for a claimant to represent themselves. Most do not understand SSA’s complex medical criteria and legal requirements. Most claimants do not understand what their medical records say or whether they help or hurt regarding the SSA claim. You cannot always rely on SSA to request and obtain complete medical records, or residual functional capacity assessments from doctors, hospitals, and clinics.
You need an attorney who will professionally represent a claimant at all levels of the process, before or after the ALJ hearing. Many lawyers will not get involved at the early stages of the claim.
Social Security and SSI disability claims are usually handled on a contingent fee basis which means you will not owe any fee unless your claim is approved. Under SSA’s system, when represented by an attorney (or an SSA approved non-attorney representative), SSA will withhold 25% of all retroactive benefits payable to the claimant and his/her family members for direct payment of the authorized fee. SSA must authorize or approve any fee that any representative can charge. You do not pay any extra or higher fee to hire an experienced lawyer compared to less experienced lawyers. In some cases, retaining an experienced lawyer results in a lower fee if benefits can be awarded at an earlier stage of the process or prior to the hearing date. Why not hire an attorney with many years of experience, handling thousands of claims?
For most claimants, winning or losing their Social Security claim means the difference between being able to retain some normalcy of life or not.
About the Author: Evan Zagoria of Provizer & Phillips, P.C., AskEvan.net; (800) 399-EVAN (3826); has spent his entire 30+ yr. career handling social security and other disability matters. He is a former attorney for the Social Security Administration, and a member of N.O.S.S.C.R.
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