It has been years of waiting and not being able to work. You filed your claim for social security disability and provided the supporting documentation of your claim, yet social security continued to turn you down. It took over a year just to get a hearing before an Administrative Law Judge. But at long last there it is – a decision in the mail, and the decision is an approval!
Over the past 25 years of handling only social security disablity cases in Dallas Fort Worth, I have known few moments sweeter than when we finally win the claim for a deserving disability claimant. Folks have waited and suffered for so long, few think about what is next now that their cause has been vindicated. But there are important things that a successful disability claimant needs to know. Now that the “fully favorable” ALJ decision has arrived, here are some 5 things you need to know:
“Fully Favorable” means you have been granted what you asked for.
Put simply, “fully favorable” means that you have won. Check the date the judge selected as the date you became disabled. It should be the same date you said you became disabled. Please realize that it may not be the same date of disability you gave the government when you first applied for disability. Often times, ALJs asked claimants if they would “amend” their alleged onset date at the hearing. This is often the case when the claimant is represented by an attorney (i.e., the claimant has someone who can explain the onset date amendment issue) and the claimant attained an important age milestone after filing her claim for disability. Fo rexample, the claimant may have claimed disability as of 1/1/14 and was born 5/1/66. Since this person became 50 years of age on 5/1/2016. The vocation rules changes at age 50, so an ALJ may ask the claimant and attorney if they would “amend” the onset date to 5/1/16. If the claimant and attorney agree at the hearing to so amend the onset date, the “Fully Favorable” decision will so refllect.
2. The language about the Appeals Council taking the victory back is generally meaningless.
There is “boilerplate” language in the decision indicating that the Appeals Council can review the decision within 60 days, and could take it bace chances of this happening are extremely remote. In 25 years of disability practice, I have only seen iit happen where the claimant’s earnings record reflected wages aftern the disability onset date, and the ALJ did not explain the wages in the decision.
3. The big picture: what is the future going to look like.
When we get a Fully Favorrable ALJ decision, clients often ask me: “Does this mean that I am on disability now forever?”. The answer is no, – but you are on disability as long as you remain disabled under the Social Security Act and are unable to work. For most people with a chronic health problem that is not likely to improve – and indeed is likely to worsen – this means they will remain on social security disability. But, it is unfortunately true that whether you are in fact still disabled is a question that Social Security can examine and in some cases can conclude you are no longer disabled.
But there is a very imporant difference between your fight to win disability and what the government must show to take your disability away. When a claimant files for social security disability, the burden of proof is on the claimant to establish inability to work. The presumption is that you are able to work. But once on disability, the claimant is no longer required to prove that they are disabled. Now, for the government to take the claimant off disability the goverment must proof 2 things:
- Your medical condition(s) have improved;
- That improvement is sufficient to allow a return to “substantial gainful activity” (i.e., work).
If social security takes someone off of social security disability it is in the context of what is called a Continuing Disability Review. Most disability claimant are in fact reviewed at some point. You will be given general notice in the Award Letter that comes after the Fully Favorable. If you have an attorney, make sure you cover this issue before you part ways.
4. If you face a Continuing Disability Review, you may not be able to rely on back benefits to pay a lawyer to represent you.
If the result of a Continuing Disability Review is a decision that you are able to work, your disability benefits will be ceased. You are given appeal rights, and if you appeal the benefit termination with 10 days you can continue to receive you monthly disability benefits during the pending appeal. If, however, you are not successfull in the appeal of your benefit termination, you will have to pay social security back the benefits you have continued to get. Most disability claimants with a termination of benefits letter will understandably appeal within10 days to continue to get their disability check. This means, however, that there are no past-due disability benefits from which to pay an attorney.
I always encourage my winning client’s to hold back some of the past-due beneeefits they get in savings to pay an attorney to assist with the Continuing Disability Review should that be needed.
5. Don’t get complacent: stay in medical treatment and consider work activity carefully.
Many claimant limit or cease medical treatment. This is a big mistake. For many with a intractable medical problem, one for which many medical treatments and medications have not been successful, this is understandable. But if you face a Continuing Disability Review, you are going to need the support of treating medical professionals. Often times social security will require a medical evaluation in a Continuing Disability Review. Should that doctor who you see only once and is paid for my social security contend that you have improved and are able to return to work, you need an opposing opinion from your treating doctor. Ceasiing medical treatment after winning a disability case will leave you vulnerable to being taken off disability.
A second area of complacency is working while on social security disability. At least 90% of the calls I get from claimants removed from disability involve work and a failure to understand the implications of work. The bttom line: work activity and social security disability do not mix. Supplementing your social security disability with part-time work will come back to bite you everytime! Once on disability there is only one reason to work: to test an recover or improvement in you health to see if you can in fact return to full time work and get off disability.