Social Security Disability
Social Security Disability is a federal program that pays income benefits if you’re disabled and unable to earn income on your own. Benefits are based on money that you have contributed to the program throughout your employment history.
About one-half of all claims for Social Security Disability are denied and about one-half of those are appealed and won. Do not give up if you lost the first time around. As a matter of fact, please call us if you’ve already lost one appeal.
The Ogletree Abbott Law Firm is a Social Security Disability Law Firm that handles appeals for those whose claim has been denied. We represent clients for a percentage of what we can recover for you. You do not need money to hire us. If we do not recover benefits, you owe us nothing.
There is no cost or obligation to speak with us about your appeal. The actual representation begins when you give us written authorization to begin work on your case. Contact us today by telephone, email or by our LiveChat website feature.
How to File For Social Security – Haven’t yet filed for Social Security Disability? You can easily apply over the phone or even online. Don’t wait. File today!
If you have been denied, do not listen to the people at the Social Security office if they say that you are not entitled to benefits or if they try to discourage you from talking to a Social Security Disability lawyer to appeal the decision. Remember, we only get paid if we win the appeal, so let us make the decision as to whether or not you have a good chance at winning your appeal.
You should hire a Social Security Disability attorney for the appeals process due to the complexities of the law, changing Social Security rules, the ability of an attorney to choose which evidence is heard and that which does not need to be heard, and because an attorney can quickly react to questions by the hearing examiner due to his or her knowledge and experience. Claimants have little or no experience with Social Security Disability Appeals.
If your Social Security Disability attorneys are successful, they are paid from the award. This may bother you somewhat but it’s better than walking away with nothing. Social Security Disability Attorney’s fees are set by the Social Security Administration as follows: “No attorney’s fees are collected if your social security disability claim is not won. The attorney’s fees are always 25% of all past due benefits subject to a maximum amount determined by the Social Security Administration.
Do not be discouraged if your lawyer lost your claim. Not all lawyers are created equal. This time choose a law firm that handles Social Security Disability appeals. Call or email the Ogletree Abbott Law Firm this time. We are Social Security Disability lawyers who represent working men and women who have been wrongfully denied benefits. We want for you to have a fair hearing with competent legal representation. Call us today at 1-800-779-4950. Or, if you prefer, email us at Info@Ogletreeabbott.com and we will contact you right away. Let us help you today. What do you have to lose?
Social Security Disability And Social Security Insurance:
An Introduction To Your Rights
The Basics of Social Security Disability
When people think of “Social Security disability” and SSDI, they are really usually talking about several different programs, all from what is actually the Social Security Act. The three largest programs within the Social Security Disability Act are:
Retirement, Survivors, and Disability Health Insurance (RSDHI);
Supplemental Security Income (SSI); SSDI, and Medicaid.
RSDHI is the acronym for the federal government’s benefits program for workers and retirees. RSDHI itself is broken up into three separate programs…for (a) retirement, (b) Social Security disability, and (c) health insurance (called Medicare, which is not discussed here).
These three largest Social Security Administration (SSA) programs are extremely complicated. Very few potential claimants can successfully navigate these waters without professional, legal experience in the Social Security disabilities field: meaning, especially hiring a Social Security disability lawyer.
Who Are the People who file for social security disability or who apply for SSI disability?
A decision as to whether or not a claim will be for either SSD or SSI is almost always determined at the time of application, and will be based on a claimant’s (or their spouse’s) earnings record during their lifetime.
Both RSDHI and SSI programs define a disability as being an:
“(I)nability to engage in any substantial gainful activity by reason of any medically determined physical or mental impairment, which can be expected to last for a continuous period of not less than 12 months.”
A disability must be more than inconvenient. The physical or mental disability must be “of such severity” that a claimant’s lawyer will help prove the claimant is not only unable to do the work they had previously done, or were trained to do, but they must be unable to engage in any kind of gainful work for at least a year into the future.
It is usually not enough to simply believe the disability is self-evident and speaks for itself. Virtually every claimant’s Social Security Disability lawyer for either will help to meet the burden of proving, by use of medical evidence, that the claimant is disabled or blind. Furthermore, almost all disability claimants must wait at least five full months before their disability benefits can start. This does not mean a claimant should wait five months before seeking the advice of a Social Security Disability lawyer, however…just the opposite. This five month waiting period should also be a planning period for a Social Security disability and SSDI claim. And after benefits begin, each claimant’s case will be reviewed periodically to find out whether their condition might have possibly improved, to a point where they might be able to resume work.
RSDHI Disability Insurance: For Workers
RSDHI Disability Insurance provides benefits for workers with a substantial work history. Their work must have been in “covered employment.” The claimant must also be unable to continue working because they have become disabled before reaching age twenty-five. The term “covered employment” will include most types of work, though Social Security Disability attorneys are seeing increasing numbers of challenges from self-employed claimants. The disabled worker (as well as any of their dependents) is usually eligible for RSDHI disability benefits. Additionally, at least in some cases, a Social Security disability lawyer may even be able to win benefits for the survivors or heirs of a deceased, insured worker, too.
Supplemental Security Income (SSI): Based on Financial Need
SSI is based on need. The program is a national program, designed to provide income maintenance. Yet, even though Social Security disability and SSDI are national programs, it is important for claimants to work with Social Security lawyers who know Texas disability laws. SSDI eligibility is first based on having limited income or assets, as well as being either elderly, blind, or disabled. Most people do not know that although SSI is administered by the Social Security Administration, it is not funded by Social Security taxes. Whereas Social Security retirement is based on contributions during a lifetime, SSI is based on a claimant’s need for assistance. A person’s work record is not a factor in determining their eligibility for SSI. Thus, a disabled person under age sixty-five, and who has not worked enough to qualify for RSDHI disability, may still very possibly be eligible to receive SSI disability.
There is a formula for determining Social Security disability and SSDI eligibility, and the benefits calculation will include both income level and personal assets. When determining a person’s assets, the government will count: earnings; Social Security benefits; payments from pensions; any non-cash items such as food, clothing, or shelter and all personal items a claimant may own. Some things, however, will be claimed as exempt by the claimant’s lawyer, including:
- A Claimant’s home (without regard to its market value)
- Household goods, chattel, personal property, and cash (if less than $2000)
- One car (if less than $4500)
- Federal income tax refunds
- Food stamps
- Some portion of monthly earnings
A Social Security Disability lawyer, who deals with these exemption rules daily, can not only help obtain benefits, but also aids in managing (and keeping more of) a claimant’s resources.
A claimant who is apparently qualified for benefits, on the basis of blindness or disability, must also be referred to some kind of vocational rehabilitation (VR) services. If the disability is related to alcohol or drug dependency (and it must not be solely this condition), the claimant might even be required to enroll in an appropriate treatment program or else risk losing their eligibility for Social Security disability and SSDI. Residence in a publicly-paid institution, including jail, prison or certain hospitals or long-term care facilities, probably will disqualify a claimant. It remains possible, however, after leaving these facilities (or towards the end of a stay in such a place) that a new application may be filed, preferably making useful changes with the help of a disability attorney.
If a person receives SSI, they also may be eligible for other benefits, such as food stamps and Medicaid, which will be discussed below. Consultations with a Social Security attorney, to review a claimant’s their access to resources, is often vital in protecting—and calculating—their full claim.
What To Lose: Who Needs Legal Help in Determining Eligibility?
The statistics are clear: not having a Social Security lawyer to help win Social Security disability (SSDI) costs most claimants: money, time, and stress.
Social Security Disability lawyers are experts in matching those with disability needs to appropriate programs. As noted, Supplemental Security Income (SSI) is a federal program which provides income support to low-income people who are either 65 years or older, blind, or disabled. SSI recipients are seniors or disabled persons: they are usually not receiving Social Security disability and SSDI, because they are not insured or in the waiting period before receiving benefits (in the case of disabled persons). Eligible claimants are also often receiving some Social Security, or other income, in such small amounts that they need supplemental income support.
These applicants often feel they are in limbo, often facing immediate crises that will only get worse with delay.
Because these rules can be so complicated, even when a disability does not, there are specializing lawyers in both areas. These attorneys may be called Social Security lawyers, SSI/SSDI attorneys, or simply “disability attorneys.”
When it comes to understanding your essential rights, every case—your case—is unique. Nevertheless, Social Security Disability lawyers recognize a pattern of important issues. There are often four general issues that SSI/SSDI clients benefit from knowing:
I. Eligibility Rules
II. What To Expect When You File
III. Hearings and Appeals
IV. Differences Between States
I. Eligibility Rules
While the rules may change, and you should always seek the assistance of a Social Security attorney to pursue disability benefits, the Social Security Administration has established some very fixed requirements. Social Security attorneys spend much of their time checking for important changes. These rules also cut two ways: (1) most disabilities severe enough to keep someone from working for at least the next twelve months will meet basic eligibility; (2) there are also disabling conditions that are not allowed to receive benefits.
|Allowed Disabling Conditions
||Disallowed Disabling Conditions
Though infrequent, there are many people who are not citizens, who may still be eligible to receive Social Security disability and SSDI. Social Security attorneys recognize the limited number of exceptions and can also provide useful advice on the extensive paperwork required by SSA.
Distinctions Between Impairment and Disability
People often use terms that seem obvious enough. But, in understanding all of your legal rights in consulting with a Social Security disability lawyer, the rules used by the SSA may become matters of making beneficial ‘fine lines’ between certain meanings. One set of words points out just how important is a claimant’s medical evidence: differences between “impairments” and “disabilities.” An expert Social Security lawyer will be able to discuss the ways impairments and disabilities are evaluated, for purposes of presenting the strongest, most accurate case.
Though a claimant does not need to be a doctor, they certainly have every right to be sure their medical record is accurate…and above all, useful in a claimant’s diagnosis and treatment. There are too many instances when Social Security disability and SSDI are not properly used by eligible claimant’s physicians. Many times, then, a lawyer is as important as a doctor in obtaining the best medical treatment.
The American Medical Association (AMA) publishes a widely-used “Guides to the Evaluation of Permanent Impairment.” The Guides define”impairment” as being:
“(A)n alteration of an individual’s health status; a deviation from normal in a body part or organ system and its functioning.” Impairment has also been medically defined as being “any loss or abnormality of psychological, physiological or anatomical structure or function.”
The SSA, disability attorneys worry, arguably places the emphasis on defining”impairment” more as a matter of proof than diagnosis.
“an impairment that results from anatomical, physiological, or psychological abnormalities, which can be shown by medically acceptable clinical and laboratory diagnostic techniques.”
Unlike treatment by a doctor, who relies on what a patient tells them, the SSA leans toward what it views as more objective “evidence.” So the SSA also requires the claimant’s physical or mental impairment to be “established by medical evidence consisting of signs, symptoms, and laboratory findings—not only by the individual’s statement of symptoms.” A claimant’s Social Security lawyer does not labor under these limits: their first and last priority is their client and Social Security disability.
There are also key terms in these proofs, which are often key to the arguments made by disability attorneys. For example, AMA Guides say that impairments are to be rated as being permanent impairments. This leads to the idea of whether a claimant has shown maximum medical improvement (MMI). A claimant’s Social Security attorney will build a case to show the MMI has become well-stabilized and unlikely to change significantly in the coming year, “with or without medical treatment.” Lawyers note these are terms of art, and should be used to help a disabled claimant…not impede program assistance.
There are some similarities, but disability also may require different evidence from impairments.
Establishing the differences between ‘impairment’ and ‘disability’ can be all-important in a Social Security lawyer’s work. One individual can be impaired significantly, with no disability, while another person can be quite disabled with only limited impairment. As an example, a wheelchair-bound claimant with paraplegia can be successfully working fulltime…perhaps as an attorney or accountant. This means they probably would not have met the SSA’s definition of “disability.” Conversely, a professional golfer could have what seems to be a comparatively minor injury (perhaps damage to a nerve) that has the effect of severely limiting the ability to perform their normal, basic work activities (playing on the professional golf circuit). The golfer, then, is likely to be found to be disabled under SSA criteria.
According to the AMA Guides, disability is defined as “an alteration of an individual’s capacity to meet personal, social, or occupational demands because of impairment.” A broader, but not uncommon, definition of a disability is a limit on someone’s activity that creates a difficulty in the performance or completion of an activity in a usual manner, or in the range considered ‘normal’ for a person. Lawyers have successfully argued for Social Security disability by noting that “difficulty” may often encompass any of the many ways in which performance of the activity is normally accomplished. The advocacy of a disability lawyer makes these “difficult” distinctions applicable to a claimant’s case.
The SSA, once again, may use a very different standard to measure the results of the disability. In this case, the SSDI rules also add the impact in employment opportunities as measured in an amount of time: “(T)he inability to engage in any substantial, gainful activity by reason of any medically determinable physical or mental impairment(s), 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.”
As a comparison, Texas’s workers’ compensation system may define a significant “disability” as being a reduction in wage-earning capacity. Such a decrease in wages may occur because of an injury, illness or occupational disease, occurring in the course of work. In many disability cases, a claimant and their attorney has reason to feel they fit this definition…but they require the help of a Social Security attorney to make their explanation fit the meanings of the SSA’s rules.
The rules are also affecting how many doctors view SSA applications. Because of these sometimes very slight differences, between defining an impairment or a disability, medical physicians may feel pressure to rate impairments differently. Sometimes, based upon impact on the performance of activities of daily living (ADL); at other times, on the performance of work-related tasks.
Nor do all of the Social Security disability guidelines used to rate disabilities necessarily want to take a position favorable to a fair review of a claimant’s disability. For example, the AMA Guides themselves state they are not “intended for use as direct determinants of work disability.” Interestingly, and as Social Security attorneys know, many professionals and institutions do actually use the AMA Guides for direct measurements of claimant disability. Most states also recognize the impairment ratings determined by the AMA Guides as direct measures of disability, despite the Guide’s own caveat.
Sometimes, this ambiguity may work to a claimant’s advantage. For example, a Social Security lawyer may address the problems created if an insurer seeks to obscure a medical evaluation. The bottom line is that a disability claimant almost always needs an expert in the field of Social Security disability law in knowing what standards of disability are being applied.
Issues of “Partial” or “Temporary” Disability
Social Security disability can be temporary or permanent, as well as either partial or total. Thus, various disability programs have various categories of disability. An individual can be temporarily unable to perform work activity for pay or profit. It is not uncommon for a temporary condition to exist after a major psychological or physical trauma, especially if it results in surgery, or some form of residential care or treatment. Further complicating a claimant’s statement of an SSDI case, they may already have been classified as disabled under some state disability programs. This is another reason it is important to have a Social Security lawyer who is well-versed in the state’s laws, as well as general Social Security disability rules.
The Americans with Disabilities Act (ADA) may further confuse the definition of disability,. According to the ADA, disability is present if at least one of the following requirements has been fulfilled:
- Physical or mental impairment that substantially limits at least one of an individual’s major life activities; OR
- A medical record of such impairment; OR
- Being regarded by others as possessing this sort of impairment.
These potentially differing rules account in part for why differing Social Security hearings are sometimes criticized by disability attorneys for inconsistency. Worse, to an unrepresented claimant, an element of unpredictability is allowed to enter their disability evaluation. The fact is that claimants with legal help tend to receive more equitable treatment, by virtue of a Social Security attorney’s knowledge of the system and its practices. More details about the possibility of the hearings process itself (in the event a claim is denied) will be discussed in Section III.
With these broad definitions of what constitutes a “disability,” virtually everyone with a serious health problem, at some time in their life, will very possibly be able to establish that they have a disability. But, as lawyers know, establishing a valid SSDI disability claim is a different matter.
Arriving at one single definition of impairment or a disability is virtually impossible. As noted, however, it is important that one person’s case receive full, unbiased attention from a disability attorney. One of the principles of a Social Security attorney is to keep the “system” from treating every claimant in a cookie-cutter fashion…while simultaneously assuring that the system also treats all cases impartially.
Using Different Systems to Measure or “Rate” for Disability
Unlike many purely medical ratings system, the SSA will also consider age and education in its vocational analysis. These obstacles need to be discussed with a Social Security lawyer. For example, if a 34-year-old man with a severe, permanent leg injury has a strong educational background and a sedentary job, he could be denied the classification of “disabled” based on his educational background. The opposite result would probably occur with a 54-year-old man with the same diagnosis…if the older man’s work experience is solely as an unskilled manual laborer. The difference to the SSA is based on the 54-year-old’s having a minimal educational background.
Changes to the SSA ratings system do occur: Social Security Disability attorneys sometimes require medical experts to explain how some medical conditions were previously reported. One example of these wrinkles is The International Classification of Functioning, Disability, and Health (ICIDH) system. ICIDH is rarely used by the SSA, but is somewhat common among some medical professionals.
Many states are also currently working to streamline and improve new sets of impairment rating criteria. Social Security attorneys are especially pushing for more consistency: Texas has been included in a series of SSDI pilot projects to improve services and reduce delays. Having said that, one obstacle routinely tackled by disability attorneys remains distinguishing different disability systems.
After measuring impairment levels, the process will move to the next step: determining the extent of impact on the claimant’s ADL. Various ratings systems are in place to provide compensation based on these impacts. From a legal perspective, after a Social Security lawyer has reviewed claimant medical records, and as much as possible, correlated them with SSA criteria (from the Blue Book, to be discussed in a moment), it’s time to consider filing for disability.
II. What To Expect When You File
The processing period for a disability claim may, without any delays or extreme SSA area backlogs, take from a few weeks to six months to get an initial decision. One of the most common reactions for a claimant is to ask their Social Security attorney: “Can it go any faster?”
Proving An “Emergency”
Establishing an emergency need undoubtedly seems a contradiction: simply applying for SSI/SSDI is usually itself an obvious statement of an “emergency.” But the rules from SSA treat an emergency need quite differently. Social Security disability attorneys also understand how to deal with these extremely fragile, time-sensitive priorities…especially when the system seems to be moving with glacial slowness.
The path to establishing an emergency need has two paths: Presumptive SSI and Emergency Advance Payments. The Presumptive Disability Program actually allows a claimant to begin receiving payments from SSA. Emergency Advance Payments and Presumptive Disability program payments for SSDI have much in common. The critical need of ascertaining a claimant’s verifiable need for these programs makes obtaining the immediate aid of a Social Security attorney vital.
The SSA Blue Book and Disability Criteria: Presenting The Best Evidence
The SSA Blue Book is used to establish and publish written criteria. The Blue Book is well known to treating physicians. It is also a standard reference to Social Security attorneys. There are instances where the disability is not precisely written in the Blue Book, but a physician may determine the conditions meet or equal the Blue Book criteria. If the physician determines the criteria are not met, then the next deciding item for eligibility in the process will be considered.
A claimant’s disability attorney is instrumental in being sure the medical treatment and opinions are accurate, unbiased, and helpful. If there seems to be grounds to suspect medical treatment is biased or unfair, there is a process for obtaining another medical evaluation.
Claimants acting without the help of a Social Security attorney are often surprised to find some disabilities have changed, or even been omitted from the Blue Book: e.g., morbid obesity has been removed as a disability and Asperger’s syndrome has been folded into a related psychological condition. This does not mean they cannot receive disability for complications caused by these underlying conditions, however.
“Limits” for ADLs are defined in the SSA criteria, usually for a variety of activities. Examples include both physical (lifting, standing, walking, handling) and psychological (concentration and social interactions) conditions. The limits are then subsequently organized into four more categories, with special impact on the ability to perform work: sedentary, light, medium, heavy.
After filing, an adjudicator, working with a medical/physician consultant, is assigned to a claim and makes the initial determination regarding whether the claimant’s assigned residual functional capacity can allow for a return to their previous, or some other job. If the adjudicator decides a claimant can indeed return to a job, then disability qualification is denied; if the individual cannot work, their claim is allowed.
In approving or denying these claims, the state’s SSA medical consultant uses Federal form SSA-4734: The results from the 4734 are used to evaluate a claimant’s residual functional capacity. Specifically, the form will be used in collecting data and reviewing a claimant’s physical and mental capacity to perform basic work activities. It is imperative a Social Security attorney is involved in reviewing this vital data.
Preparing For Possible Denial, Preparing For Success
The majority of cases filed for the first time are denied: it is an unpleasant reality, to people already in a very difficult situation. Yet, with an attorney’s help, it is no less important to have helped prepare for a possible denial. First, preparing for the worst case (a denial) will improve the chances of not being denied. Second, making the best record will help a Social Security attorney proceed more quickly.
For all these the preceding reasons, a claimant needs to have at the earliest opportunity consulted with a Social Security attorney. There is also a pattern of self-help for a claimant during and after filing a disability claim”
1. Be Timely. When claimants have appointments to review their case with their Social Security attorney or staff, they should be certain to use their time effectively. Bring a list of question, of course…but also note the questions you are asked. These will be questions you will probably hear again and again, from other parties…including at any hearing itself.
Be certain to work closely with your attorney to collect information. Missed meetings with medical evaluators are one of the most frequently cited reasons for delays in the process. Worse of all, no administrative law judge hearing disability cases is absolutely required to have all the newest evidence to make a decision. While it may seem fair to give a claimant time, some SSA systems are not helpful to claimants…especially, claimants unrepresented by a disability attorney.
Finally, learn how to answer questions directly, honestly, and effectively. Long, rambling answers may indicate uncertainty about your claim, many doctors, working for the “system,” actually have a bias against claimants. While you will want to avoid sounding ‘rehearsed,’ you certainly want the benefit of clear brevity.
2. Learn What Questions Will Be Asked. It tends to be a dirty little secret about the way to get the best, most recent evidence introduced. Social Security lawyers have leaned when to not count on a claimant’s medical evaluators to be helpful in producing medical records. In turn, this may mean that what you expect to be asked (your current medical condition) is actually often avoided. Instead, be aware of what questions might come up to try and diminish your current claim. Once again, your Social Security attorney is invaluable in doing a trial run of the filing process, what the medical exams will ask, and if necessary at a hearing.
Making a record of more than your “opinion” (no matter how knowledgeable) is a requisite to winning a claim. For many claimants, this may mean unlearning the earlier part of the process, in order to concentrate on your current disability rating…and the questions supporting these medical records.
3. Try To Master Your Medical Information. Be ready to match the timelines of your work history with the required Social Security disability criteria for medical condition(s). Try not to leave doubt or confusion about what happened when. Understanding the medical terminology, in most cases, is going to be less important than being able to state the effects a condition has had, and what you tried to do to keep working and to remedy the disability. Have in mind very specific examples of your experienced limits: e.g., the impossibility of reaching overhead or of sitting, or an inability of concentrating on the telephone. While you can expect to experience nervousness, you will also be amazed at how quickly time flies by.
4. Know What Is Happening In Your Case. For the unrepresented, some judges will allow quite a bit of flexibility in reviewing the case file. Unfortunately, at such a late date, it can be an exercise in futility for all parties. While it is possible to proceed without a Social Security attorney, the better practice (borne out by statistics) is to have an attorney filing your claim and, if necessary, presenting your case in a hearing. Fortunately, this does not mean leaving every important duty to someone else, and having a resulting sense of helplessness. Instead, Social Security attorneys typically welcome claimant input, especially in disclosing the development of a disability and the effects of the process.
Even the best prepared of filings may be denied. Social Security attorneys have pointed out there is sometimes a bias against claimants’ applying for SSDI, or types of claims…especially of a psychological nature. SSA offices, sometimes even within a few hundred miles of each other, may have starkly differing denial rates for the same types of cases. But a disability attorney also knows not to give up: the filing and hearings process tends to give a well-prepared claimant and a strong case more even ground.
III. Hearings and Appeals of Denials
No one said it would be easy: according to disability lawyers, fully seventy percent of initial claims will be denied. Finding themselves at such a difficult point (being turned down on a claim), a claimant may consider three basic choices. First, simply giving up. Second, filing a new disability application. Third, beginning the appeals process (with a request for ‘reconsideration).
Fortunately, with the help of a Social Security attorney, those numbers can (and do) get better. The highest failure rate is among those who simply quit.
The first appeal is a request for reconsideration. In many ways, reconsideration is just a formal notice of an intent to appeal. Very few requests for reconsideration are successful…but disability attorneys point to consideration of the reversal rate in reconsideration as almost 15%, actually pointing toward a hopeful new beginning. This suggests those who pursue appeals are moving the odds more towards their favor…even more than the initial claim.
Social Security attorneys know one of the worst things about hearings is typically the delay in having them: the SSA has faced withering criticisms from Congress and the Government Accounting Office for the millions of people currently waiting for an appeals decision. Some places in the Midwest have the worst record, with delays of up to three years. Texas is running about average in appeals, with some delays a stunning two years.
Yet, even with the delays, claimants who pursue the process have told their Social Security lawyers it was worthwhile. The claimants reported the sense of actually having all the facts of their case reviewed…in other words, a real “day in court.” The success rate of appeals suggests, as well, that there is less bias against claimants at the appeals level. The hearings process is also important for another reason: the claimants actually enter into a more legal, more formal procedure. They will have the advantage of being able to have a Social Security lawyer’s assistance in presenting their case before an Administrative Law Judge (ALJ).
Procedure Before An Administrative Law Judge Hearing
It will be important to consult with a Social Security attorney to know what a specific haring process will be. However, the usual time needed for most disability hearings is fairly short: between thirty and ninety minutes. To begin, the ALJ will accept a claimant’s record into evidence. Unlike a conventional trial, the ALJ will be asking most of the questions
1. Introductory Questions. The ALJ will ask questions to confirm the claimant’s identity: date of birth, Social Security Number and address. Additional questions will probably include income and marital status.
2. Work History. An ALJ will usually ask extensive questions about a prior employment history…potentially as long ago as fifteen years. There will be very detailed, probing inquiry regarding the job responsibilities. Examples (discussed with a disability attorney) might include how long the claimant performed the job. Details might include issues bearing on the present disability claim: e.g., the types of machinery used in the work, duration of standing or mental concentration required, agility or how much weight had to be lifted to perform the job. Most ALJs will be especially interested in any work since the claimant filed for disability.
3. Impediments To Working. An ALJ will always ask a claimant to explain why they are applying for disability benefits. ALJs naturally want to hear from the claimant, to see their credibility as well as their how their narrative ties things together. To evaluate the issues of impediments, questions will take the form of when the disability occurred, and how it subsequently presented itself. This is also a prime opportunity for a claimant to explain how the disability creates real, tangible limits…not simply a ‘feeling’ of being overwhelmed, but how a claimant attempted to overcome the disability.
4. Medical Treatment Plan and its Effectiveness. The key questions from an ALJ will follow the timeframe of the disability. Injuries or disabilities from past history are irrelevant and will even suggest an exaggeration of disease or disorder. Instead, the ALJ will seek information from the time the claimant’s disability is shown to have begun. The issues in this series of questions reflect when the claimant sought treatment, and how the treatment helped…if at all. The proofs will include references to actual surgeries, or treatments, or medications. These will be able to literally go to the very moment of testimony at the hearing. But the most important elements will be documented evidence of the claimant’s testimony. Disability attorneys will have spent much of their time organizing and explaining the details of these records to support a claimant’s Social Security disability testimony.
5. Activities of Daily Life (ADL). Some claimants have prepared for this set of questions by having kept a journal of their daily activities. The intent is to be able to detail daily activities and how the disability limits those activities, under Social Security and SSDI criteria. Many incidents, especially if the claimant may be suffering from depression or acute anxiety, may simply not be readily recalled. The ALJ will ask questions that may seem odd, but address ADL … (W)ho does the shopping? (D)o you watch television?
6. Functional Limits. ALJs will ask you to describe how often you can perform various physical activities. ALJs ask about walking, sitting, standing: these are “exertional” issues. Being aware of very specific durations of time, or the ability to move about freely in a job, without interruption or rest, are vital. “Role playing” such questions (and answers) with a lawyer is often very helpful. Similarly, if certain periods of rest between activities are common, the specific nature and duration of these breaks is important.
7. Possible Inconsistencies. ALJs will again probe for credibility. Some claimants fail in their case because they were not willing to provide honest answers to difficult topics, such as drug or alcohol dependency or abuse. Mentioning potential problems with a Social Security attorney well before the hearing is often more than half the solution to an unwilling, and much more damaging, admission at the hearing.
8. Future Expectations. ALJs will want to see the claimant’s attitudes toward returning to work, and any plans for that possibility.
A claimant’s Social Security lawyer will also be able to ask additional questions. Many disability attorneys are aware of how particular ALJs conduct the hearings — sometimes, the ALJ asks the attorney to present the questions. Working with a Social Security attorney, there will also be a certain amount of unpredictability in the testimony. For example, a claimant and their lawyer may have anticipated “problem” areas in the testimony. Just because a judge does not ask these tough questions do not mean a claimant should not bring it up…sometimes, ALJs are simply waiting to see if the claimant is willing to address the point, via their attorney’s opportunity to explain.
Most experts are going to testify following the claimant’s testimony. Again, unlike traditional court proceedings, the medical expert in a Social Security disability case is there strictly as a way of letting the ALJ better understand the claimant’s medical record of SSDI evidence. While this may be the way an ALJ primarily interprets the written record, these experts will also usually be allowed to comment on the claimant’s testimony. This can be an unnerving experience: it is important for a claimant to have discussed proper decorum with their disability attorney.
Vocational Experts and Hypothetical Examples
Even if a Vocational Expert (VE) is not present at a hearing, their influence will still be felt. Disability lawyers often see the same VE at the hearings, and anticipate their testimony with great clarity. The SSA relies heavily on VEs; Step 5, of the SSA’s sequence/criteria used to evaluate disabilities, calls for VE evidence. Frequently, VE testimony will include evidence from the Dictionary of Occupation Titles. This is yet another instance where unrepresented claimant is ‘outgunned’ by the system. Social Security attorneys have a fine sense of what is allowed when it comes to attacking the accuracy or thoroughness of the VE job market forecasts, including misuse of the Dictionary. In fact, some VEs tend to rely more on purely hypothetical examples than the current claimant’s case.
• A typical ALJ question to the VE will be a hypothetical: the hypothetical should be based upon similar medical conditions to the claimant’s, and the ALJ will then ask whether the hypothetical claimant could physically do the work, and then could find a job, somewhere in the economy.
Typically, the VE used by SSA will testify that jobs “are possible,” based on the medical reports that the SSA previously used to deny a Social Security disability claim. In order for a claimant to have the best chances of being approved, the claimant’s attorney will question the number of jobs actually available to the claimant. A claimant’s Social Security lawyer will also ask the Vocational Expert questions about any additional medical evidence, often not relied upon by the VE’s opinion. In this way, the ALJ can be shown that the VE report is not necessarily reliable, accurate, or entire.
Other Medical Experts’ Testimony
There will not always be medical experts in a claim hearing, but it is common. Their testimony will assist an ALJ when there is a need for clarifying medical information, and the details in your file cannot necessarily settle medical issues.
Medical Experts may provide a description of a claimant’s condition and its duration and severity. The ALJ, or the claimant’s attorney, will review the basis for the expert’s conclusions. As with any expert, the claimant’s disability attorney will question whether the complete record was reviewed, and what reservations or information might change the expert’s conclusion. On rare occasions, the ALJ may even schedule another consultative exam, based on the need for yet more tests.
Concluding the Hearing…
At the conclusion of the hearing, the ALJ will have given the claimant and the claimant’s disability lawyer a chance for final comments. Then the ALJ “closes the record.” Once completed, there is yet another wait … ALJs usually take weeks or months to issue a written opinion. Depending on where the hearing was held, the opinion may take from a month to three months. The final opinion will give extensive details about the basis for the opinion.
There are cases where new medical evidence is managed to be introduced, in a motion for reconsideration, or appeal of a hearing, where a claim was denied. In reality however, most of time, there will be little opportunity to have new medical evidence introduced. A claimant needs to be certain to seek advice about the best options regarding an appeal, from a well qualified Social Security attorney, when relying on new medical evidence if a denial has been made.
The bottom line is for a claimant to be aware of their right to appeal denials of initial claims. Appeal rights also continue if the hearing results in a denial. In fact, many claimants’ Social Security attorneys have developed expertise in appealing denials into the federal court system itself and are controlled by many of the same rules. A claimant, who qualifies for one program may even occasionally receive disability benefits from both programs at the same time.
Successful claimants were wise to obtain the help of a Social Security attorney early in the process: claimants are also wise to appeal denials, frequently based on the same legal advice. By the time a denial of SSDI benefits reaches the federal court system, 51% of these cases are either remanded for further investigation or reversed outright.