| 8217;t throw your hands up and give up hope! If you, | | | | claimants have the resources, willpower, or stamina to |
| your spouse or your child are disabled, frustrated, and | | | | deal with SSA’s lengthy process. A significant |
| are trying to collect Social Security disability benefits, | | | | percentage of claimants denied at one level do not |
| you are not alone. The process seems difficult, long | | | | appeal to the next level. Some of these claimants |
| and discouraging at every turn. | | | | might have gotten better or decided they were not |
| Don’t despair! You can succeed in recovering | | | | actually disabled. Many, however, abandon the process |
| these benefits that you deserve if you have | | | | despite believing they are disabled, because they |
| professional help and understand that the process is | | | | believe they will not win or do not have the ability to |
| designed to wear you down, frustrate and discourage | | | | continue to fight the system. You need an experienced |
| you. It is a marathon, not a sprint! | | | | attorney to help you maneuver through the obstacle |
| This guide can help you understand and get through | | | | course and keep pressing your claim through the levels |
| the process of filing and collecting social security | | | | of reviews and appeals until you succeed. |
| disability benefits. One thing that can’t be | | | | Representation by an experienced attorney who is |
| overlooked is the importance of getting professional | | | | willing to press your claim through all steps and levels |
| help from an attorney that specializes in social security | | | | of the process relieves much of the burden of the |
| disability claims. Not every attorney understands the | | | | claimant in completing the process. The further one |
| process or has the experience to maximize your | | | | goes in the process, the more likely one is to win, |
| chances of recovery. | | | | particularly at the ALJ level. The ALJ level is the single |
| Buckle up! Here we go! | | | | most favorable level of the process. The ALJ’s |
| Overview: | | | | are more independent and have greater discretion to |
| The Social Security disability program really is two | | | | believe a claimant’s subjective complaints of |
| systems, known as (1) Social Security Disability | | | | pain, fatigue, or emotional distress. |
| Benefits (Title II) and (2) Supplemental Security Income | | | | Not every lawyer understands the SSA process from |
| SSI (Title XVI). Social Security disability benefits can be | | | | both sides of the table. Not every lawyer understands |
| paid to the worker, and auxiliary benefits to a spouse | | | | the Social Security Act and Regulations as well as |
| and minor children.. Disability benefits can be paid to the | | | | others. Not every lawyer understands medicine as well |
| widow(er), age 50 and over, of a deceased worker. | | | | as others. Not every lawyer understands how to |
| Disability benefits can also be paid to the child, age 18 | | | | obtain medical evidence and opinions, in the form of |
| and over, of a disabled, deceased, or retired worker, if | | | | sworn statements of treating physicians, reports, |
| disability starts prior to age 22. Social Security survivor | | | | records, or treating physician statements about residual |
| benefits can be paid to the spouse and minor children | | | | functional capacity and how to use that to prove |
| of disabled, deceased, or retired workers. Social | | | | disability. You need an attorney with a lot of |
| Security retirement benefits can be paid to workers of | | | | experience in handling these cases to maximize your |
| appropriate age and their spouses. Social Security | | | | chances of success. |
| disability benefits generally require a worker, age 31 | | | | It is best to apply as soon as possible. Even though the |
| and over, to have worked 5 of the 10 years before | | | | Act has a 12 month durational criteria, one need not |
| they become disabled or have 20 calendar quarters of | | | | actually be out of work or disabled for 12 months |
| earnings in the 40 calendar quarter period ending with | | | | before an application is filed. Social Security disability |
| the quarter in which disability begins. Workers disabled | | | | benefits cannot be paid more than one year prior to |
| prior to age 31 have special rules but must in general | | | | the application date. |
| work half of the time between age 21 and when | | | | It is very important to have attorney representation as |
| disability commenced. | | | | soon as possible in the process. The more subjective |
| Supplemental Security Income (SSI) benefits are a | | | | the disability, i.e., pain or fatigue or emotional problems, |
| form of welfare benefits payable to disabled, blind, or | | | | the more likely it will be denied at the initial or |
| aged (65 and over) individuals. To be eligible for these | | | | reconsideration levels. Adjudicators at these lower |
| benefits the disabled person need never have worked. | | | | levels have less discretion to believe more subjective |
| In place of the work requirements, SSI has strict | | | | complaints. There are better and worse ways to |
| income and resource rules. Countable assets cannot | | | | complete an application. Seemingly innocent |
| exceed $2,000.00 for an individual. Income cannot | | | | questionnaires as to daily activities, pain, headaches are |
| exceed $623.00/month, generally (in 2007). Income can | | | | frequently relied on to DENY claims. These should be |
| be deemed from parent to minor children and from | | | | reviewed by your attorney. The attorney and his or |
| spouse to spouse. | | | | her staff should help you complete these forms. |
| The definition of disability is the same for both Social | | | | Despite statements by SSA, claimants who are trying |
| Security and adult SSI disability benefits. The statutory | | | | to be found “disabled” do not need to |
| definition is as follows: | | | | attend consultative examinations scheduled by SSA. |
| “The inability to perform any substantial gainful | | | | The examinations requested by SSA may not be |
| activity by reason of any medically determinable | | | | complete and the doctor’s evaluations may be |
| physical or mental impairment which can be expected | | | | less than impartial. Under SSA’s Regulations, |
| to result in death or which has lasted or can be | | | | the treating physician is supposed to be the primary |
| expected to last for a continuous period of not less | | | | source of providing medical evidence. |
| than 12 months.” | | | | Spending this extra time preparing applications, filling out |
| Merely being unable to perform your usual occupation | | | | activity forms, managing the consultative exam |
| or return to your former employer is not sufficient | | | | process does not always guarantee a favorable |
| grounds for being found disabled. Employer hiring | | | | decision at the initial or reconsideration levels, but allows |
| practices, unavailability of jobs, and a poor local | | | | the attorney to help his or her clients win more claims |
| economy, for example, are also not grounds for being | | | | at the ALJ level. |
| found disabled. | | | | Claimants must continue to see doctors regularly and |
| To be considered disabled, generally, the claimant must | | | | preferably the same doctor(s). The burden of proof of |
| be unable to perform the exertional demands (sitting, | | | | disability is on the claimant. You are presumed to be |
| standing, walking, bending, lifting, carrying) and | | | | “not disabled” until you prove to the |
| non-exertional demands (mental, visual, hearing, pain, | | | | Social Security Administration’s satisfaction you |
| fatigue, etc.) of simple and unskilled sedentary or sitting | | | | are. You meet this burden of proof with your medical |
| down jobs. There are occupations that require very | | | | records, reports, sworn statements, residual functional |
| little lifting, allow for postural changes, require minimal | | | | capacity assessments, etc. The more medical |
| use of the hands, or require little education or job | | | | evidence you have the easier it is to meet your |
| training. Claimants under age 50 must be unable to | | | | burden. Older medical evidence does not necessarily |
| perform even unskilled sedentary occupations. For | | | | prove current impairment and, more importantly, |
| claimants age 50 and over, there are different | | | | resulting functional loss. Being awarded VA benefits, |
| combinations of age, education, prior work, skills, and | | | | Workers Compensation benefits, disability benefits |
| the level of work one can do that help determine if | | | | from an employer or insurance company is not |
| disability exists. The definition of disability becomes | | | | necessarily proof of disability to SSA by Regulation. |
| somewhat easier at ages 50, 55, and 60. | | | | Every disability program has its own unique medical |
| The Disability Process: | | | | and legal criteria. A doctor you see regularly, a doctor |
| Even though the Social Security program is national or | | | | seen over a longer period of time, is considered a long |
| federal in scope, there are significant local and state | | | | time treating physician, and is entitled to more |
| variations to the process, such as case processing | | | | adjudicative weight than a doctor seen only once or |
| times and allowance rates. A disability decision is often | | | | twice. Under appropriate circumstances, the long time |
| a subjective conclusion, as many medical judgments | | | | treating physician can be entitled to “controlling |
| are gray, rather than black and white. Some | | | | weight”. |
| adjudicators and Administrative Law Judges | | | | It is often very difficult for a claimant to represent |
| (ALJ’s) might be more liberal or more | | | | themselves. Most do not understand SSA’s |
| conservative. | | | | complex medical criteria and legal requirements. Most |
| The general claim process is to file an application after | | | | claimants do not understand what their medical |
| which a state agency makes the initial decision. If your | | | | records say or whether they help or hurt regarding the |
| claim is denied, you can request reconsideration. After | | | | SSA claim. You cannot always rely on SSA to |
| a reconsideration decision, if benefits are still not | | | | request and obtain complete medical records, or |
| granted, you can request a hearing from an | | | | residual functional capacity assessments from doctors, |
| Administrative Law Judge. If your claim is still denied, | | | | hospitals, and clinics. |
| you can request an Appeals Council review, and if | | | | You need an attorney who will professionally |
| denied by the Appeals Council, the next step is Federal | | | | represent a claimant at all levels of the process, |
| Court review. If you are denied at one level, you have | | | | before or after the ALJ hearing. Many lawyers will not |
| 60 days from receipt of the denial, absent | | | | get involved at the early stages of the claim. |
| “good cause” to appeal or file for the | | | | Fees: |
| next level. You are presumed to have received a | | | | Social Security and SSI disability claims are usually |
| decision 5 days after the date on the decision unless | | | | handled on a contingent fee basis which means you |
| you can prove receipt at a later date. Examples of | | | | will not owe any fee unless your claim is approved. |
| “good cause” include, but are not limited | | | | Under SSA’s system, when represented by an |
| to, death or serious illness in the family, being | | | | attorney (or an SSA approved non-attorney |
| hospitalized, or not receiving the denial notice. | | | | representative), SSA will withhold 25% of all |
| In 10 states, including Michigan, SSA began testing a | | | | retroactive benefits payable to the claimant and his/her |
| program called Prototype. This omitted the | | | | family members for direct payment of the authorized |
| reconsideration level and allows claimants to go directly | | | | fee. SSA must authorize or approve any fee that any |
| from the initial denial to the ALJ hearing level. The | | | | representative can charge. You do not pay any extra |
| rationale for the experiment was that the allowance | | | | or higher fee to hire an experienced lawyer compared |
| rate at the reconsideration level tends to be | | | | to less experienced lawyers. In some cases, retaining |
| comparatively low. The Prototype program was not | | | | an experienced lawyer results in a lower fee if |
| extended to the other states but it continues in | | | | benefits can be awarded at an earlier stage of the |
| existence in the original 10 states. | | | | process or prior to the hearing date. Why not hire an |
| The SSA disability process needs to be considered as | | | | attorney with many years of experience, handling |
| more of a marathon than a sprint. One must be | | | | thousands of claims? |
| prepared for the process to take time, and for | | | | For most claimants, winning or losing their Social |
| rejection. The SSA process can be aggravating, | | | | Security claim means the difference between being |
| frustrating, time-consuming, and duplicative. Not all | | | | able to retain some normalcy of life or not. |