Legal and Medical Expertise for your Disability Claim

Are You Disabled? Get the Facts.

How to Handle a Health Problem that Limits Your Ability to Work:  Are You “Disabled”?

Deciding to apply for social security disability is a painful and difficult decision to make.  Most of us need a steady check, so financial considerations are critical.  Moreover, moving from a productive work life to the stigma of “being disabled” is psychologically traumatic, to say the least.

The Social Security Disability benefits program is intended to protect the disabled worker and his/her family from financial ruin.  But the sad realty is that it often does not.  There are two primary reasons, in my opinion, for this: (i) the assessment of social security disability is inconsistent and  (ii) the delay in securing benefits is simply astounding.  Consequently, one should never choose to file for social security disability; rather, one should file for social security disability because one simply has no choice.   Here are some simply rules to follow in making your decisions as your health falters:

If you have a job-

1. Find out if your company has long-term disability insurance.  If it does, get a copy of the policy immediately, and determine what it would take for you to qualify, and how much money you would be entitled to.  Be sure to check about any pre-existing condition provisions that would exclude your illness, and look for an minimum time period you need to work for the company before you could qualify for benefits.
2. Adjust your lifestyle now to anticipate the long delay in getting social security benefits.
3. Check the COBRA benefits at your company (extended medical benefits) and determine how much you would have to pay to keep your medical benefits.
4. Stay on the job as long as you can.  Do not quit your job until you simply cannot go on.

If you do not have a job-

If you are not working because of a physical or mental condition, and feel that there is a good chance you will be unable to go back to work for at least 12 months because of these problems, you should apply for social security disability benefits immediately.  Social Security disability benefits will not begin until the sixth full month of disability. The Social Security disability waiting period begins with the first full month after the date we decide your disability began.

How do I apply?
Call the Social Security Administration at (800) 772-1213.  You can go to your local Social Security office and apply, but you do not need to in order to start the process.

What Documents and Information Do You Need?
These include: your Social Security number; your birth certificate or other evidence of your date of birth; your military discharge papers, if you were in the military service; your spouse's birth certificate and Social Security number if he or she is applying for befits; your children's birth certificates and Social Security numbers if they are applying for benefits; and your checking or savings account information, so your benefits can be deposited directly; names, addresses and phone numbers of doctors, hospitals, clinics, and institutions that treated you and dates of treatment; names of all medications you are taking; medical records from your doctors, therapists, hospitals, clinics and caseworkers; laboratory and test results; a summary of where you worked in the past 15 years and the kind of work you did; a copy of your W-2 Form (Wage and Tax Statement), or if you are self-employed, your federal tax return for the past year; dates of prior marriages if your spouse is applying The documents presented as evidence must be either originals or copies certified by the issuing agency. Do not delay filing for benefits just because you do not have all of the information you need. The Social Security office will be glad to help you.

BASICS OF THE SOCIAL SECURITY DISABILITY APPEAL PROCESS

Social Security Disability Assessment: Who Makes the Decision?

The Initial and Reconsideration Decisions - Disability Determination Services

You would think the answer would be obvious: the Social Security Administration – who else?  In fact, in each state the initial and reconsideration determinations of disability under the Social Security Act is performed by the Disability Determination Service (DDS) for the Social Security Administration.  Here in Texas, the Disability Determination Services division of the Texas Rehabilitation Commission (DDS) makes the initial and reconsideration decisions.

DDS will start by ordering medical records from the doctors, hospitals and clinics that you told them about.  DDS (or the “ALJ” discussed below) may ask you to undergo an examination by “their” doctor, at the government’s expense.  Our clients uniformly complain of the brevity and lack of thoroughness in these exams, and often find these doctors to lack in the bedside manner arena.  Some of these examination, however, are helpful and competent, but if you fail to go to such a CE it will not help your disability case: DDS seems to assume you must be hiding something if you are unwilling to be evaluated at their expense.  These examinations are never invasive tests.

After completing its initial development, the DDS makes the disability determination. The disability examiner cannot make the decision without having a medical or psychological consultant sign off on the decision.  The disability examiner and the doctor may find, however, that additional evidence is still needed, or that they have questions about something on your case.  The disability examiner may recontact a medical source, or ask the claimant for supplemental information typically in the form of a questionnaire.

After the DDS makes the disability determination, it returns the case to the Social Security field office for appropriate action depending on whether the claim is allowed or denied.   Most social security disability claimants are denied at the initial and reconsideration levels.  It will take from 4 to 6 months to for a decision.

The Administrative Hearing – the Office of Hearings and Appeals

The Social Security Act provides the claimant who has a reconsideration denial the opportunity to an administrative hearing before an Administrative Law Judge (ALJ).  This is the most important event in your social security disability case.   The hearing level is where most claimants are awarded benefits. The hearing is where the claimant will for the first time meet the person face-to-face who has the power to grant or deny benefits.   Unfortunately, in the two Dallas OHA offices, the wait for a hearing is about 7 months. 

Medical development by the Office of Hearings and Appeals is frequently conducted through the DDS. However, hearing offices may also contact medical sources directly. In rare circumstances, an administrative law judge may issue a subpoena requiring production of evidence or testimony at a hearing.

The Administrative Law Judge (ALJ) Hearing

The ALJ hearing is relatively informal and will usually last no more than 20 minutes.  There will be no attorney for social security trying to trick or confuse you. There is no jury nor are there any spectators at the hearing. Your work experience and your education are also discussed during your hearing, along with your statements about your daily life, your medical history, and your physical and mental abilities.  Sometimes, the ALJ will request a Vocational Expert or Medical Advisor to testify. Some ALJs will ask questions, and some will let me ask all the questions. Our office will prepare you for the hearing, and there will be no surprises.

The ALJ will hear all the evidence and make a decision based on your medical records and testimony heard at the hearing.   Most ALJs will not announce his or her decision at the hearing, but I will have a very good idea and will be able to discuss my impressions after the hearing,

The ALJ will issue a written decision.  It usually takes between 6 and 12 weeks for the decision to be issued.

Appeals Council and Federal Court

If the ALJ decision is not favorable, there is one last level of appeal inside Social Security itself: the Appeals Council. The Appeals Council generally will not consider new evidence about your disability regarding the period of time after the hearing decision. Perhaps more importantly the Appeals Council will be looking at whether the ALJ made a legal and technical mistake, NOT whether the ALJ was right in denying the claim.  This is why the ALJ hearing is so important: once mistakes are made at the ALJ hearing they cannot always be fixed when you file with the Appeals Council. The Appeal Council is incredibility backlogged: it now takes 12 to 18 months for the Appeals Council to even consider an appeal!

The Appeals Council may uphold the hearing decision, reverse the local judge's decision outright, or send the case back to the ALJ for a new hearing. It is now possible to re-file for social security disability while the case is at the Appeals Council.  If the second, re-filed claim gets to the ALJ hearing level while the Appeals Council still has the first case, the Office of Hearings & Appeals will not proceed with an ALJ hearing until the Appeals Council decides the first case.

If the Appeals Council declines to review the ALJ decision, claimants are able to appeal to federal court. 

Social Security Disability Assessment: How is my Disability Decided?

All decision makers, whether DDS at the initial and reconsideration stages, or the ALJ at the hearing, follow the same criterion for determining disability.   The so-called Sequential Evaluation Process follows the following steps:

1. Is the claimant working?  A claimant cannot generally be considered disabled if they are working.  If the claimant is not working, the decision maker goes to the next step.
2. Is the impairment "severe"?   The impairment must interfere with basic work-related activities. If it does not, the decision maker will turn the claim down. If the impairment does interfere with basic work-related activities, the decision maker will go to the next step.
3. Is the impairment found in the list of disabling impairments?  Social security maintains a list of impairments for each of the major body systems that are so severe they automatically mean a claimant is disabled.  If the criterion of the listing is met, a fully favorable disability decision will be issued. If it is not, the decision maker goes to the next step.
4. Can the claimant do any of his/her prior work?  If your condition is severe, but not at the same or equal severity as an impairment on the list, then we must determine if it interferes with your ability to do the work you did previously. If it does not, your claim will be denied. If it does, we go to the next step.
5. Can the claimant do any other type of work?  The decision maker will consider the claimant’s medical conditions vis a vis his or her age, education, past work experience and any skills that could be transferable to a new job. If the claimant could adjust to new work, the claim will be denied.  If they cannot, the claim will be approved.