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Social Security Disability Lawyer Discusses Social Security Disability Claims

SOCIAL SECURITY DISABILITY

Everyone knows that Social Security benefits are available to retired workers. But did you know that you might qualify for Social Security payments before you reach retirement age?

If you are disabled and unable to work, you may be eligible to receive Social Security benefits. There are two separate programs that pay disabled persons-Social Security Disability and Supplemental Security Income (SSI).

To qualify for Social Security Disability benefits, you must work a minimum number of quarters (three months) and earn at least $500 in each quarter. If you do, the Social Security Administration (SSA) then applies a five-part analysis to determine if you receive benefits. The criteria for receiving SSI benefits are basically the same, except that a person with no work history may qualify to receive SSI benefits. The five-part analysis is as follows.

  1. Are you working? If so, even part-time, no benefits are payable. As a general rule, you must be out of work to receive benefits.
  2. Do you have a severe medical impairment? A severe medical impairment is one that significantly limits your physical or mental abilities to do basic work activities and is expected to last, or has lasted, at least twelve consecutive months, or will result in death.

Physical limitations involve standing, walking, sitting, pushing, pulling, lifting, bending, carrying, reaching, handling, and the ability to see, hear, and speak. Mental limitations involve attention and concentration, the ability to understand and follow instructions, dealing with the public, handling work stresses, and the like.

All physical and mental problems must be documented and supported by medically accepted tests and by available records and reports from treating doctors and hospitals.

  1. Does your medical problem meet or equal the listing of impairments maintained by the SSA? The SSA publishes a seventy-page listing of impairments by which it measures the severity of an impairment to determine if you will receive benefits. This determination is made without consideration of work history, skills, education, or age. This evaluation turns on the medical evidence available. If an impairment does not fit within the listing, the SSA goes on to Step 4.
  2. Does the medical impairment prevent you from returning to your past relevant work? This means the job or jobs that you held within the fifteen years before the date of application. In reaching a decision, SSA will consider your physical and mental limitations and the job requirements of all jobs you held within the last fifteen years. If SSA concludes that you cannot perform past relevant work, it must proceed to Step 5.
  3. Does the medical impairment prevent you from performing other work that exists in the national economy? In so deciding, the SSA must consider factors such as your age, education, and work experience along with your physical and mental limitations. The SSA also takes into account your residual functioning capacity. This involves evaluating your ability to sit, stand, walk, lift, carry, bend, push, pull, climb, and other physical activities. The SSA does not have to show that you could actually receive a job offer, nor does the SSA refer you to a specific job. All the SSA has to do is determine if you are capable of performing other work.

Based on this evaluation, the SSA will determine whether you can perform a job ranging from sedentary to heavy work. The SSA also takes into account whether skills you learned in prior jobs can be transferred to any other job.

Example: Alan is fifty-two years old, has a 12th grade education, and worked as a truck driver for twenty years in a job classified as medium work (one that routinely requires lifting of up to fifty pounds). Alan suffers from a chronic sprain of the lower back that keeps him from lifting more than ten pounds and from standing and walking for more than a few minutes at a time. His doctor clears him to perform sedentary work (mostly sitting). However, under SSA regulations, Alan would qualify to receive disability benefits.

Why? Even though Alan can still perform a sit-down job, his age (over fifty) is a factor that would make it difficult for him to find and hold a job. If he were forty-two years old, with all other factors the same, his benefits would be denied.

NOTE: With private disability insurance, you are required only to show
that you are unable to return to your former work.

Applying for Benefits

The first step in applying for benefits is to visit your local SSA office and complete an application. You can find the address of your local office by checking the government section of your telephone directory or by calling the toll-free number for Social Security information at 800-772-1213 (be patient-you could be in for a long wait).

When you visit the office, you will be asked to fill out a lot of paperwork. You will describe in detail the physical requirements of each job you held (standing, walking, lifting, etc.) and your medical history. It is very important that the SSA have a complete list of your medical providers. Keep a record of the names and addresses of each of your doctors and of any hospital where you received treatment. Bring this with you when visiting your SSA office.

The SSA sends the completed paperwork to a designated state agency that assigns someone to obtain and review the medical evidence. Within three months, the SSA will send a written decision either granting or denying benefits. According to figures provided by the SSA, about 61% of all initial applicants for fiscal year 1993 were denied. Ten years later, about 60% of all initial applicants were still being turned down.

NOTE: Social Security disability law and the criteria for receiving benefits are separate from and are not related to the Americans with Disabilities Act.

Applying for Reconsideration

If your application is denied, the next step is to ask for reconsideration. Your local office has the forms. You must request reconsideration within sixty days after receiving the written notice of denial. If you do not, you have to start all over again. A majority of the requests for reconsideration are denied.

Requesting a Hearing

If you file for reconsideration and are denied, you can request a hearing before an administrative law judge (ALJ). You must file a request for a hearing within sixty days after receiving the written notice of reconsideration. Your local office has these forms (as do most attorneys who handle disability and SSI cases).

Your chance of receiving benefits improves greatly once you get to an ALJ hearing. According to SSA figures, ALJs granted benefits in 68% of the claims they heard in fiscal year 1993. Ten years later, almost two-thirds of appellants who were initially denied were ultimately granted benefits. This disparity between the high percentage of initial denials and high percentage of ultimately successful claimants suggests that something needs to be changed in the system. Persistence pays off when it comes to Social Security disability claims.

At a hearing, you get a chance to tell the ALJ your story and to present evidence in your favor. The ALJs are independent hearing officers with greater knowledge of applicable law and medical terms than the reviewers who decide initial applications and reconsideration.

Disability hearings are informal, fact-finding procedures. You and your attorney will appear before the ALJ to present your evidence. A hearing officer attends and records the hearing and handles your file. Sometimes medical and vocational experts attend and offer testimony about your case.

Your testimony will cover your age, education, vocational training, work record, and your physical and/or psychological disability. The ALJ considers your testimony along with the medical records, expert testimony, and your attorney’s legal arguments before rendering a decision. You can expect to receive a written copy of that decision within ninety days after the hearing. If you win, figure on waiting an additional two to three months before you get your first check.

Appealing an Unfavorable ALJ Decision

If you have a hearing and the ALJ rejects your claim, you have the right to request review by the Appeals Council (within sixty days). The Appeals Council is composed of various ALJs who review the evidence and decide whether to uphold or reverse the decision, or to send the case to another ALJ for a new hearing.

If the Appeals Council rejects your appeal, you have the right to file a lawsuit in your local federal district court where you can ask that the court reverse the SSA and grant you benefits or a new hearing. This must be done within sixty days of the Appeals Council’s decision. You may be able to request an extension if you have good cause, but it is best to file within the sixty day time frame.

You are entitled to legal representation at each stage of the process. Federal regulations limit attorney’s fees to 25% of the benefits obtained for the client. Be sure that any lawyer you retain specializes in Social Security disability litigation. This area of litigation is very different, procedurally, from car accidents, slip and falls, and other kinds of personal injury litigation.

Keep in mind that persistence and a good deal of patience usually payoff when dealing with the SSA.

If you need more information or think you need an attorney, please contact Evan Aidman, Esq..

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