Monthly Archives: February 2011

Denied at a Disability Hearing

Claimants denied Social Security Disability benefits at the Administrative Hearing level have already been denied once or twice at the application level and the reconsideration level (unless this level was omitted). At this point most claimants are very discouraged and maybe even angry.

If this sounds like how you feel, you are not alone. It is estimated that up to 60% of Social Security Disability claimants who go to a Social Security Disability hearing, and are not represented by a Social Security Disability lawyer, will have their Social Security Insurance Disability Insurance or Supplemental Security Income benefits denied.

So what should you do next? Should you file a new Social Security Disability application and begin the fight all over again or should you attempt to file another appeal with the Appeals Council in the last step of the Social Security Disability appeals process? Let’s talk about your options.

Appealing to the Appeals Council

If you decide you would like to appeal the Administrative Hearing Decision to the Administrative Appeals Judge you will have 60 days from the date you receive the notice of denial to ask for any type of appeal. The Social Security Administration will assume you have received the denial notice within 5 days from the date they have mailed it, unless you can prove otherwise.

The Appeals Council has the right to refuse to review your case. They do look at all requests for reviews, but if they decide the hearing decision was accurate, they may deny the request for review. If the Appeals Council decides to review your case they can do one of two things 1) they may review the case themselves or 2) send your case back to the Administrative Law Judge who initially reviewed the Social Security Disability case and made the denial decision. The Appeals Council, if they decide to review your Social Security Disability case, may evaluate all of the issues of your case and will send you a copy of their final decision.

What happens if the Appeals Council denies your claim or they refuse to review your Social Security Disability claim? Filing a civil suit in the federal district court is the last step to challenge the federal government’s denial of your Social Security Disability claim. If you decide to file a claim to evaluate the judicial review of the Social Security Administration’s denial decision the Social Security Administration will be responsible for putting together the record for the SSD claim for the court. The Social Security Administration will provide all the documents and evidence they reviewed to make their decision. Claimants will be charged for filing a case in federal court. If you choose to file an appeal with the Appeals Council, get ready to wait. According to the Social Security Administration’s statistics their average processing time for Appeals Council cases can be up to 260 days.

Applying for Social Security Disability Benefits a Second Time

If you have been denied Social Security Disability benefits at the Administrative Hearing level you may decide to simply re-file and start the process a second time. This is not ideal, but many Social Security Disability lawyers will tell you it is your best chance for receiving Social Security Disability benefits. How do you improve your chances for approval a second time?

  • Get consistent medical care and find a physician who will support your Social Security disability case. Ideally, your physician will provide RFC or residual functional capacity forms which specifically outline your physical or mental limitations.
  • Get copies of your medical records, including records from recent appointments and provide these medical records to the Social Security Administration when you reapply for SSDI or SSI benefits.
  • Answer all Social Security Administration letters and calls as quickly as possible and attend all required medical exams. Do not let deadlines pass. Failure to appeal either the application denial or reconsideration denial may force you to start the process again.
  • Contact a Social Security Disability lawyer for help. Social Security Disability attorneys help hundreds of claimants a year and understand the Social Security Disability process. SSDI and SSI lawyers understand how to prove you are unable to perform any type of job.
  • Be patient. Kind and courteous. Claimants who are easy to work with have a better chance of getting the help they need.

How can I get Social Security Disability if I haven’t worked or I have not worked in a long time?

Disability benefits are administered by the Federal government through two different disability programs: Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI). The Social Security Disability Insurance program is offered to workers who have worked and paid employment taxes, earned “work credits” and are considered insured. Supplemental Security Income is paid to disabled, blind or aged claimants who have limited income and resources.

Can you be denied benefits, if you have worked but it has been a long time? You may be denied Social Security Disability Insurance if you have worked for many years, you stop working and too much time has elapsed since your last day of work. How does this happen? Workers may be insured through a certain date, which the Social Security Administration calls their DLI or date last insured. If you stop working and do not pay any more employment taxes at some point in time your date last insured will pass and you will no longer be insured.

This is a tough situation, but it happens all too often. For this reason it is important to file for Social Security Disability as soon as you become disabled with a mental or physical health condition which you believe will last for at least 12 months or may result in your death. The Social Security Administration can answer questions regarding your date last insured.

So if your date last insured has past you have several options. If you are able to return to work you may be able to earn enough work credits to qualify for Social Security Disability Insurance in the future, but if you have a serious disabling health condition this is probably not possible. Another option is to apply for Supplemental Security Income benefits.

Supplemental Security Income payments are monthly benefits paid to the aged, blind or disabled. You do not have to have earned work credits or have paid employment taxes to qualify. Supplemental Security Income recipients must be determined disabled by the Social Security Administration, and they must have limited income and resources. Income can include wages, Social Security benefits, pensions, food and shelter. Resources can include real estate, bank accounts, cash, stocks and bonds. In 2010, the Social Security Administration allows you to have no more than $2,000 in resources if you are single and $3,000 if you are married. The Social Security Administration does make exemptions for certain types of property and other resources such as one car, your primary home, life insurance of $1,500 or less, and burial plots.

So if you have not worked or if it has been several years since you have worked and your date of last insured has passed, your best option is to see if you can qualify for Supplemental Security Income benefits.

How long does it take to get a Social Security hearing decision?

Has it been weeks since you attended your Social Security Disability Hearing and presented evidence for your Social Security Disability claim? Maybe you are wondering if you have been approved for Social Security Disability benefits. No doubt you are frustrated. You may have thought you would receive your benefit notice at the hearing. Maybe the Administrative Law Judge gave you some indication you would receive benefits, but you have waited weeks or months and you have not received payment.

So how long will you have to wait to receive your Social Security Disability hearing decision? Like other processes within the Social Security Administration, the answer is not clear-cut. It may depend on the number of cases assigned to the Administrative Law Judge or how many Social Security Disability Insurance or Supplemental Security Income cases are assigned to your Social Security Disability hearing office.

Most Social Security Disability hearing decisions are made with in 45 to 90 days after the Social Security Disability hearing. If you have not received your Social Security Disability hearing notice after this time you can contact the Social Security Administration, your hearing office or your Social Security Disability lawyer for more information.

Do Denials take longer than Approvals?

Denials and approvals both take a long time to process. There is some evidence to suggest the longer it takes to process a claim the greater chance it will be a denial, but this is not always the case. In fact, many Administrative Law Judges will have all of their decisions written by a decision writer which increases the amount of time it takes to process Social Security Disability decisions including denials and approvals.

If you are waiting for a Social Security Disability hearing decision, do not be discouraged. If you are awarded Social Security Disability Insurance or Supplemental Security Income benefits you are near the end of the Social Security Disability process. If you are denied Social Security Disability benefits, it may be time for you to regroup and consider what you can do differently if you decide to apply for Social Security Disability benefits a second time.

Denied for Other Work by Social Security Disability

Social Security Disability Insurance or Supplemental Security Income benefits are awarded to claimants who are determined to be totally disabled and unable to perform substantial gainful activity. Unlike other types of disability programs such as Veteran’s disability, SSDI and SSI payments only awarded for total disability. Disabilities, either physical or mental, must be expected to last at least 12 months or be expected to result in the claimant’s death.

To determine if a claimant is disabled, the disability examiner will review relevant work they have performed in the past 15 years. Claimants who can not perform their current job may be able to retrain for other types of employment. Disability examiners will make this determination by evaluating a claimant’s age, education, work history and their mental and physical residual functional limitations.

Overview Of The Social Security Disability Claim Process

The Social Security Administration maintains a listing of common impairments called the Listing of Impairments. If a claimant does not immediately meet a listing (which automatically allows a claimant to receive disability benefits) the claimant’s residual functional capacity can become more important than the actual impairment. Vocational guidelines have been created to help disability examiners make uniform, standardized decisions about a claimant’s disabling health conditions. Claimants may be limited to sedentary, light, medium, heavy or very heavy work based on their residual functional capacity. Older claimants may have more difficulty adjusting to new employment, and therefore, have a greater chance of receiving benefits than younger employees using the vocational guidelines.

How is the disability decision made?

The first step in the disability determination process is for the disability examiner to determine if a claimant can perform the work they have done in the past. Claimants must provide a detailed description of their past jobs. Detailed physical requirements should be provided by the claimant including the amount of time they were required to sit, stand or walk and the amount of weight they had to frequently lift. Jobs are matched against similar jobs identified in the Dictionary of Occupational Titles, which is a handbook for jobs maintained by the Social Security Administration. The disability examiners evaluate the job requirements for each past job and compare this information to the residual functional capacity information identified in the claimant’s medical files or the residual functional capacity forms (RFC Forms) provided by the claimant’s physicians.

Claimants whose mental or physical residual functional capacity makes it impossible to perform their past work may be able to be retrained to perform another job available in the regional economy. The question of other jobs which may be performed by the disability claimant most frequently arises at the Administrative hearing level when the vocational expert has a list of other job which they claim the claimant may be able to perform given their current limitations. Claimants who have hired an experienced Social Security Disability attorney will hopefully be able to evaluate these “other jobs” and present evidence which proves the claimant does not have sufficient residual functional capacity to perform the suggested work.

The term “denied to other work” may be used by the Social Security Administration to mean that they have denied Social Security Disability benefits based on their evidence that even if a claimant can not perform their old job, they should be able to retrain for new employment based on their residual functional capacity, age, work skills and education level.

How do you win a Social Security Disability benefits? You must prove not only that you can not do your old job, but you can not do any other job available in the regional economy. Social Security Disability lawyers can help you gather relevant medical records to prove your Social Security Disability claim. Residual functional capacity forms, which are completed by a claimant’s doctor, outline the claimant’s physical and mental limitations. These forms are one of the best pieces of medical evidence which can be provided to the Social Security Administration to prove the claimant is unable to work other jobs and keep the SSA from denying a claimant with the reason they are “denied to other work”.

Can I work and get Social Security Disability benefits?

Claimants may qualify for Supplemental Security Income or Social Security Disability Insurance working part-time and receiving a limited income, but Social Security Disability Income (SSDI) or Supplemental Security Income (SSI) will be denied by the Social Security Administration if the SSA determines the Social Security Disability applicant is performing “substantial gainful activity”.

Substantial Gainful Activity

The Social Security Administration defines “substantial gainful activity” as doing any type of mental or physical activity which is “substantial”. Work is considered substantial if the non-blind applicant makes a gross income of $1,000 per month (for 2010), and the blind applicant makes a gross income of $1,640 per month (for 2010).

Activity or work does not have to be performed full-time to be substantial. When claimants consider “work” or “gainful activity” they might think of a full-time job that they do 40 hours per week, but activity can be gainful under the Social Security Administration’s definition if it meets any of the following Social Security Administration’s criteria:

·         Any work performed or done for pay or profit.

·         Work which normally receives pay or profit

·         Work which is intended for profit even if profit is not realized

After a claimant applies for Social Security Disability their application is sent to the disability examiner who will review their application to determine if their mental or physical health condition is severe enough to receive disability benefits. Claimants working above the pre-defined SGA level will have their Social Security Disability application denied by the Social Security Administration before it is sent to the disability examiner, and the disability examiner will not have a chance to evaluate the severity of the mental or physical health condition.

Claimants often are not healthy enough to work full-time and often seek Social Security Disability benefits for short-term or partial disability payments. Unfortunately, Social Security Disability benefits are only for claimants who have a mental or physical health condition which is expected to last for at least 12 months or result in death. Claimants who need Social Security Disability benefits should not expect to work at a level which can support themselves or their family.

The idea of substantial gainful activity is not only factored into the decision at the Social Security Disability application level and Social Security disability appeal’s process but also for every review for continuing an applicant’s Social Security Disability benefits.  Any claimant who currently receives Social Security Disability benefits and is considering returning to work in any part-time capacity should contact the Social Security Administration. Regulations and income rules can change. Returning to work and making more than the allowable income amount can jeopardize the claimant’s rights to continue receiving Social Security Disability benefits. Talk to a Social Security Disability lawyer for more information about your rights to work.