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How to apply for–and win–Social Security disability benefits

7 November 2011

What happens if, God forbid, you suddenly find yourself disabled and unable to work? You assume that, because you have been paying into the system throughout your working years that will be able to receive disability benefits from the government. After all, that’s what those withholdings are for, right?

Is it just as simple as applying for federal Social Security disability, and begin receiving your earned disability checks from the government? Not so fast, I’m afraid, as statistically up to a staggering 2/3 of claims for disability are rejected outright. The key, then, is to keep applying, keep your claim floating down the administrative chain, and have plenty of medical records to back up your claim so that when you get to the appeal stage before an administrative law judge, the judge will agree that yes, you are in fact disabled, and also find that you are unable to do any type of alternative “substantial gainful activity.”

By the way, about 85% are denied on Reconsideration — the second stage of the administrative appeal process. But about 50% are approved at the administrative law judge hearing level — the third level the appeals process. The difference? Most claimants by that point have someone representing them, helping them to jump through the bureaucratic hoops. AND THIS PERSON CAN BE AN ATTORNEY OR A PARALEGAL. Obviously, a paralegal would be able to work for you to earn your benefits for much less, so that is something to consider. Regardless, it would be prudent to have someone knowledgeable about the system to help you navigate it, as cumbersome as it is.

The information presented here is based on actual observations – and is not legal advice – that are made from personal experience. This author holds an advanced national paralegal certification in Social Security disability law, and has worked on these types of cases. This is one area of exception in that paralegals may represent claimants in the hearing process. Because it’s before an administrative law judge, it’s considered a “quasi-tribunal,” and thus does not operate under such stringent restrictions as one would normally encounter in a courtroom. The process, however, is no quick, easy task in order to procure your benefits, but you can get them. The key here is tenacity.

There’s an old joke floating around the disability industry that says if you are well enough to pick up a pencil to fill out the application, then you’re not disabled. While this is not exactly accurate, it does correctly portray the inherent difficulties in getting approved. It’s an extremely stringent system, laid out in codified law, administrative lawstatutory “grids,” and the SS Administration’s medical “Listings.”  It’s a cumbersome five-step sequential process to evaluate disability claims, and if at any step of the way, you do not meet their criteria, it’s possible you’ll be summarily booted out of the system. If you are truly disabled, then you have the right to the benefits that you’ve paid into during your productive working years.

The intent here is not to explain the laborious five-step sequential evaluation process, but rather to guide you on the path to your appeal(s).

Social Security was initially signed into law in 1935 by President Franklin Delano Roosevelt as part of his “New Deal.” Through amendments and new legislation, the program today encompasses retirement, disability, SSI, and survivor’s benefits. Disability is actually found under two programs, both located within the United States Code: One is known as Title II, commonly known as Social Security Disability, and is essentially an “insurance” program; and one under Title XVI, known as Supplemental Security Income, or SSI, and is a “welfare” program. The focus here is on the former, but you can find out more about the latter on the Social Security Administration’s web-site here (the SSA actually has an excellent, very helpful website, and it’d behoove you to thoroughly peruse it).

Title II is called an “insurance” program because, unlike Title XVI, its benefits are derived from your taxes paid into the system over your working life. If you do not have enough “quarters coverage,” you will not be eligible to receive benefits under this program, in which case you might try applying for Title XVI, which, as a “welfare” program, is not based on money paid into the system, and is actually based on a lack of assets. (There is a link to the SSI program at the end of this article.)

Chances are, if you are like the 2/3 of most initial claimants, you will apply for your SS disability benefits and receive an initial rejection letter. In this letter will be instructions on how to appeal. The sad fact is most folks “go away” at this point, but you should not. Get your claim on the appeal track – follow the instructions on your initial rejection letter carefully, and keep in mind you have just 60 days in which to appeal. If you do not appeal within the time allotted, you will be forced to start your claim process from scratch.

You will typically receive a letter from the SSA titled “Notice of Disapproved Claim”; a “Notice of Reconsideration”; or a “Notice of Federal Reviewing Official Decision.” Your time constraints meter starts ticking at this time, so make careful note of all due dates for appeals. The SSA lists the appeals stages thusly:

  • Reconsideration;
  • Administrative law judge hearing;
  • Appeals Council review; and
  • Federal court.

Most cases will never see federal court (which is possible only after all administrative law appeals are exhausted); some will see the Appeals Council Review; but the majority of cases will be decided at the administrative law judge hearing level.

When you receive your initial denial, the first step is to immediately file a Request for Reconsideration. You can find that form here.  Remember that you have 60 days in which to appeal, and your request must be in writing. If and when you receive a denial of the Reconsideration, follow the instructions to appeal again, also keeping mind of time constraints. To request an appeal before an administrative law judge, use Form HA-501.  It’s imperative that you appeal these initial rejections as soon as possible, and that you procure the necessary medical evidence to back up your claim. This cannot be stressed enough: you must have the medical evidence to prove up your claim of a medical disability.

The hearing stage is an in-person hearing held before an administrative law judge. This is where most cases are ultimately decided. In Houston, the hearing will be held at the Office of Adjudication and Review (known as ODAR), located at 9945 Bissonnet Street (there is also a location downtown); you may also Google your own city to see where your local ODAR office is located. You may have a representative with you at this hearing, and it’s strongly suggested that you do. There will most likely be testifying experts at the hearing, such as a medical doctor, psychiatrist, and a vocational expert (for an excellent explanation of what a vocational expert is at the hearing to do, please go here). These experts are not against you per se as this hearing is not adversarial, and nobody is there to represent the SSA, but they will go by what your medical evidence suggests and documents. That is why the medical records are such an integral part of a successful claim.

Disability impairments must meet the SSA’s definition of disability:

What We Mean By Disability

 The definition of disability under Social Security is different from other programs. Social Security pays only for total disability. No benefits are payable for partial disability or for short-term disability.

Disability‘ under Social Security is based on your inability to work. We consider you disabled under Social Security rules if:

• You cannot do work that you did before;
• We decide that you cannot adjust to other work because of your medical condition(s); and
• Your disability has lasted or is expected to last for at least one year or to result in death.

This is a strict definition of disability. Social Security program rules assume that working families have access to other resources to provide support during periods of short-term disabilities, including workers’ compensation, insurance, savings, and investments. 

And here’s a final tip worth repeating (again): Make sure you have plenty of documented medical evidence. You’ll need a diagnosis meeting the listings, and you’ll need the medical records to shore things up. Without it, you will likely be denied … and denied … and then denied. Remember to keep appealing to the next stage, and good luck!

For more info: I highly recommend getting an attorney or other knowledgeable representative to represent you during this bureaucratic maze. You can find a list of social security disability attorneys in all states here.

***Look for my complete article regarding this topic coming out in Paralegal Today soon.

Please see related articles:

Top 10 Guidelines for Paralegals Working in Social Security Disability Law

 

Quick Tips: Working on Social Security Disability Cases

 

**If you are low-income and unable to afford an attorney – though most if not all disability attorneys will take your case, provided it’s a winnable one, for a contingency fee – you can try a legal services organization, such as Lone Star Legal Aid (in Texas), or Google for a legal aid organization in your state or county.
 
For more info:
 
One of my favorite SS Disability web-sites is Severe.net
 
LegallyBlog® on Facebook. 

Please check out my series on discovery:

What is discovery, and what are interrogatories?

What is a discovery subpoena?

Discovery II: What are requests for disclosure? 

Federal discovery: Initial disclosures are automatic under the Federal Rules of Civil Procedure

Discovery III: What are requests for admissions?

Discovery IV: What are requests for production?

Discovery V: Depositions–What is a deposition on written questions, or DWQ?

 Sami K. Hartsfield, ACP is a paralegal at an appellate law firm and freelance writer based in Houston, Texas. She is a NALA Advanced Certified Paralegal, and has earned six specialty certifications since 2007: Discovery; Trial Practice; Contracts Management; Social Security Disability Law; and Entity & Individual Medical Liability. She has worked as a law firm Webmaster, law firm social media marketer, and ghostwriter for personal injury law firms. She holds a degree in paralegal studies with a 4.0 GPA and a bachelor of science degree in political science, graduating summa cum laude. Sami interned with Texas’ 14th Court of Appeals under Chief Justice Adele Hedges, and completed the University of Houston Law Center’s Summer 2008 Prelaw Institute with a 4.0. You can find her on Facebook and e-mail her with questions, comments, or ideas at LegallyBlog@yahoo.com

 

 

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One Comment
  1. samsung permalink

    Kudos for a great article! Yours is one of the most interesting articles I’ve read on this subject. Your readers are lucky to read this.

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