SOCIAL SECURITY MAKES DISABILITY PROCESS HARDER, TAKES LONGER THAN EVER

Effective October 1, 2019 Social Security is changing the process for getting a disability decision.  

Applicants now wait up to 18 months to get a hearing before an administrative law judge.  Many die waiting for a hearing that could have approved their disability benefits.

Social Security has promised that they will take action.  They have.  They are going to make it a lost worse.

Beginning in October of 2019, claimants who are denied for benefits in Alabama can no longer file an appeal with an administrative law judge.  They will have to re-file with the same state agency which denied them in the first place.  The state agency will "reconsider," (meaning delay) the decision, adding several additional months to the process.

One might ask, will this "Reconsideration" process approve claims without the need for a hearing?  The answer is no, it won't.  Forty states have used the Reconsideration process for years.  Tennessee uses it.  And it results in no significant number of approvals.  It only delays.

So, an already over burdened and barely functioning system adds more bureaucratic delays.  The main problems with Reconsideration include:

1.  The Disability Determination Service (DDS), which makes the initial decision on disability applications, has an error rate of up to 50 percent.  This is evidenced by the fact that a large number of denials get reversed when the cases come before judges.

2.  The DDS is already over worked and too slow.  When you dump tens of thousands of Reconsideration cases on the agency, they will be even slower.

3.  The Reconsideration process is of questionable value to begin with.  The same agency looks at the same set of data and, in about 98 percent of cases, makes the same decision--often flawed. It's the fox guarding the chicken coop.

4. Neither the claimant nor his/her representative gets to appear for this Reconsideration.  

WINNING DISABIILTY BENEFITS: THE 3 RULES

The 3 Rules of Social Security Disability:

1.  Appeal
2.  Appeal
3.  Appeal

You could state this many ways.

"Appeal first, talk later."

"The first to appeal is the first to get paid."

7 out of 10 claimants get denied.  Many of these can be approved at a hearing.  So, appeal, appeal, appeal.

You only have 60 days to file an appeal after you are denied.  This is a strictly enforced deadline.

WHY PAST RELEVANT WORK (PRW) IS SO IMPORTANT

Definition.  Past Relevant Work (PRW) is the work the claimant has performed during the 15 year period prior to the application for benefits or hearing.  All work may not be PRW.  Past Relevant Work is work which the claimant performed.....

• at substantial gainful activity (SGA) level - essentially full time
• performed long enough to be competent in the job.
• and worked in a normal, competitive work environment, as opposed to a sheltered workshop.

Importance.  PRW is important for several reasons.  At Step 4 of the required sequential evaluation process, the decision maker must determine whether the claimant can perform any of his or her PRW.  If PRW is possible, then the claim must be denied at Step 4.  Also, 20 CFR §404, Section P, Appendix II will direct the decision maker to a finding of disability in certain circumstances where past relevant work was unskilled.  Therefore, a proper classification of PRW is essential to use regulatory advantages that may be applicable.

Specifics.  The vocational expert called to testify at your case will need to know some particulars about past work. (There is always a vocational expert).  Here are some specifics that are essential:

• What kind of work did you perform, machines or tools you used...work process, etc.?
• How long did you perform each job?
• Was the work skilled, semi-skilled or unskilled (based on kind of work, process, etc.)?
•  How much lifting (in pounds) was frequently and routinely performed in each job?
• What is the maximum lifting (in pounds) you performed, even if only occasionally?
• How many hours per day did you sit, stand and/or walk?
• Were there any unusual requirements of your jobs?  For example, your job title may have been "Cashier," but you had to stock shelves and unload trucks at times, too.  Or, your job title may have been "Engineering Assistant" but what you really did most of the time was carry heavy tools or equipment around for your boss.  That changes the job from semi-skilled to unskilled, which the adjudicator needs to know.

On the Initial Application, details about past relevant work is obtained on a form called the "Work History Report," which is filed with the application.  Don't skimp on this form.  Fill it out completely, accurately and give all the details asked for.  This will help properly classify all of your Past Relevant Work.  This form follows you through the appeal process.

At the Hearing Level, your representative should take time to be certain that the vocational expert giving testimony will understand the details of each past relevant job.  Eventually, the judge is probably going to ask the vocational expert this question:  "Based on the claimants, age, education  and residual functional capacity I have outlined, can the claimant perform any of his/her past relevant work?"  A Yes answer will mean you are not disabled.  A No answer at least gets you past Step 4 and to the final step, Step 5.  In some cases, especially with older claimants, a No answer at Step 4 can end the hearing with a favorable decision if the claimant meets a medical-vocational guidelines or "grid rule."

If you take away only one simple thought from this post, it would be this.  Give enough detail about your past work that the vocational expert can properly understand and classify all of your past jobs (during the most recent 15 year period).  Don't skimp on the details.

PERSISTENCE: JUST KEEP TRYING

Getting approved for Social Security disability benefits is a unique combination of skill, luck and persistence.

Skill in that someone has to prepare the case for appeal before an administrative law judge.  The person preparing the case must understand, at minimum, the five sequential steps in the evaluation process.  The case won't go to step 2 until it passes step 1, etc. Legally admissible evidence has to be presented and that evidence should be compelling.  Social Security will, honestly, be looking at ways to deny the claim or appeal.  So, skill is required to develop and present a potentially winning case.

Luck, in that there are things you cannot control.  One example, you cannot control which judge hears your case.  Award rates vary widely from judge to judge.

Persistence, because most claims get denied at least once along the way.  Don't give up when this happens.  A denial early in the process is not the end, just the beginning.  Appeal and keep going.

What appeals are available to an ordinary Social Security disability claim, once it has been initially denied?  They are as follows:

1.  Reconsideration (used in 40 states, but not used in Alabama--go to # 2).
2.  Hearing before an administrative law judge.
3.  Review by the Appeals Council.
4.  File a suit in Federal District Court against the Commissioner of Social Security.
5.  File an appeal in the U.S. Circuit Court of Appeals

The appeals shown above must be taken in order.  You cannot, for example, file a suit in a Federal District Court until you have been refused by the Appeals Council.  For practical purposes, most claims end after the Appeals Council.  Only about 1 percent of all claims end up in Federal District or Circuit Courts.  At any point along the way, the claimant may choose to dismiss the appeal and file a new claim (which does not necessarily protect all of his/her interests in the original claim or appeal).  This should be done with caution and after vigorous consideration of the pros and cons.  Should you continue your appeal or file a new claim?  Get some professional advice before making that decision.

THE SUCCESSFUL DISABILITY CLAIM

A successful Social Security disability claim must meet, at a minimum, the following checklist:

1. There is a severe Medical impairment (either physical and/or mental) which has lasted, or is expected to last, a minimum of 12 consecutive months.
2. There is objective medical evidence to prove the impairment, its severity and its duration.  Medical evidence must include evidence from what Social Security acknowledges to be "accepted medical sources," in most cases medical doctors or clinical psychologists.  Certain other providers are acceptable in some cases.  For examples, a podiatrist may give evidence about foot disorders and an optician may provide evidence about vision disorders.  
3. Severity of the claimant's impairments must be such that he/she cannot perform any past relevant work.
4. Depending on the claimant's age and other factors it if often necessary to show that the claimant cannot perform ANY other work that exists in significant numbers in the national, regional or state economy. 

Add bonus points to your claim for any of the following:

• Support from one or more of your treating doctors in the form of a Medical Source Statement
• A long stable history of employment
• Failed attempts to return to work; you tried it and just weren't able to work
• You are age 55 or over (You may meet a medical-vocational guideline) 

Contact the Forsythe Firm for a free consultation (256) 799-0297 

BACK PAY

A high percentage of claimants who are approved for Social Security disability (SSDI) also qualify for back pay.  Back pay depends on two important factors:

1. The date disability began, and
2. The date the application was filed.

In SSDI or Title 2 cases, recovery of retroactive pay is limited to a maximum 17 months:  this is 12 months plus the 5 months comprising the waiting period.  

Thus, if you filed your application on June 1, 2015, but you had actually become disabled years ago, you would be able to recover 17 months of retroactive pay.

In addition, you would be able to cover any months AFTER the filing of the application--while you waited on Social Security to make a decision.  For example, if you file an application on June 1, 2015 but the decision on your case is not made until December 30, 2015, you could recover 7 months of back pay between June 1 and December 30--in addition to the retroactive pay.

There is technically a difference between "retroactive pay" and "back pay."

RETROACTIVE PAY - Covers months of disability BEFORE the filing of your application.

BACK PAY - Covers months of disability AFTER the filing of your application but before benefits are paid.

Also, it is possible to have a "protected filing date" that is earlier than the date of your application.  An example would be, you are in the hospital and are unable to file an application but you notify Social Security in writing that you intend to file as soon as you are able.  If you file a timely application after your release from the hospital, you may be able to use the date you notified Social Security of your intention to file as your protected filing date.  This could get more retroactive pay.

WHY IS "SGA" SO IMPORTANT?

"SGA" stands for "substantial gainful employment."  A person who is engaged in SGA is not eligible for any Social Security disability or SSI benefit.  In short, a person cannot be working at SGA level.  The definition of SGA changes slightly each year. In 2015, you are working at substantial gainful activity if you have gross earnings of at least $1,090 per month.  (Earnings include wages, commissions, bonuses, tips, etc.).

Only the earnings of the claimant are considered for SSDI eligibility, not the earnings of a spouse or other household member.  However, for Supplemental Insurance Income (SSI), the income of other members of the household may be counted.

If you are working part-time and earning less than the SGA threshold (above), you may still technically qualify for benefits.  However, it is my opinion that any work by the claimant can be problematic because it sometimes leads to credibility issues. For example, a judge may take the attitude that if the claimant is earning $1,040 per month, he or she is demonstrating that earning at least $1,090 would not be all that unreasonable from a health point of view.  In other words, if you are now working 30 hours a week, why are you unable to work 40?