TRUE OR FALSE? SOCIAL SECURITY APPROVES TWO-THIRDS OF DISABILITY APPLICATIONS.

Answer:  False as George Washington's teeth.

The Disability Determination Service (DDS) will deny over two-thirds of all Social Security disability applications.  

 
Here is why the DDS will usually deny your disability application at the first step in the process:

1. DDS will decide that there is other work you are able to sustain, even if you cannot do any of your past relevant work.  (Step 5 Denial).
2. DDS will nearly always assign a residual functional capacity that is unreasonable based on your medical records but which allows for some work, thus justifying a denial.
3. DDS will nearly always allow more weight for the opinion of their own medical consultant than for the opinion of your treating doctor(s)--even though this directly contradicts federal regulations and Social Security's rules. 
4. DDS decisions are generally made by individuals who have never seen or examined the claimant, thus cannot possibly have a good picture of his or her impairments and how they affect the ability to do work like activities.

You have 60 days to appeal a denial.  The next step is a hearing before a US Administrative Law Judge.  (Unless you live in one of the non-prototype states, in which case you must ask for Reconsideration before requesting a hearing).

In Alabama (a prototype state), you go from a DDS denial to a hearing by a US Administrative Law Judge.  It can take 18 months from the date of denial to get a hearing, so the process is lengthy and frustrating.  You must file the request for a hearing within 60 days of the denial of your claim. 

 

HOW FAR BACK SHOULD MEDICAL EVIDENCE GO?

The question of how far back to look for medical evidence in a Social Security disability claim can vary case by case.  Typically, we consider the alleged onset date (AOD) and look for evidence beginning about one year prior to that date.  That would certainly not always be the case.  Sometimes the medical evidence needs to go back further.  (The AOD is the date on which the claimant alleges that he/she first became disabled).

One common mistake that claimants make is obtaining recent medical evidence, which may prove that they are disabled now, but failing to obtain older evidence that proves that they became disabled a year ago, two years ago, or longer.  The result can be a partially favorable ruling in which benefits are paid but some or all of the back pay is lost.

If a person alleges that he became disabled on June 1, 2012, for example--it is vital that he provide medical evidence showing a disability back to June 1, 2012.  If he only submits evidence showing a severe disabling impairment beginning in December of 2015, no benefit can be paid under Title 2 until June of 2016 because of the mandatory five-month waiting period.  Thus, there would be no back pay.

Social Security disability is a rather complex field that is governed by complicated laws, federal regulations and even federal court decisions.  Navigating through this complexity is generally best done with professional help, especially at the appeal level.

 

THERE WILL BE A VOCATIONAL EXPERT AT YOUR HEARING

In all the years I've been doing Social Security disability hearings, I have never attended a hearing for an adult claimant in which there was not a vocational witness present to give testimony.  The vocational expert is called by Social Security and paid for by Social Security.  It is vital that the claimant and his/her representative understand the role of the vocational witness and how that role is likely to play out at the hearing.

Who Is the Vocational Witness (Expert)?  The vocational witness is a vocational rehabilitation counselor.  This counselor does not work for Social Security; however, he or she may derive most of his/her income from testifying at Social Security hearings.  Technically the witness is neutral and impartial, bound to give objective testimony under oath, regardless of the fact the Social Security is paying his or her fee.  

What is the Purpose of the Vocational Witness (Expert)?  The vocational witness has two broad roles, as follows:

1)  To classify and describe the claimant's past relevant work--that is, work performed during the past fifteen years prior to the claim.  The past work will be classified according to skill level as unskilled, semi-skilled or skilled.  The past work will be classified according to exertion level, as either sedentary, light, medium, heavy or very heavy work.

2)  To answer a series of hypothetical questions from the hearing judge about work which may exist in the national economy and whether an individual could perform such work.  To help you understand a typical hypothetical question, I will provide an example:

Administrative Law Judge:  Mr. Vocational Expert, assume that we have an individual who is the same age as the claimant with the same education  and work history as the claimant.  I'd like you to further assume that the individual retains the capacity to perform work at the light exertion level, can sit for 8 hours out of an 8 hour day, can stand and/or walk up to 8 hours in an 8 hour day with customary breaks; can lift up to 25 pounds occasionally and 15 pounds frequently.  This individual can frequently climb ramps and stairs but can only occasionally climb ladders, ropes or scaffolds.  The individual should never be exposed to odors, fumes or pulmonary irritants and should avoid exposure to dangerous moving machinery.  The individual can maintain concentration, persistence and pace sufficient to complete tasks in 2-hour intervals and to complete an 8-hour workday.  Would such an individual be able to perform any of the claimant's past relevant work?

Vocational Witness:  No, Your Honor, all past relevant would be precluded.

Administrative Law Judge:  Would there be any skills transferable to sedentary work?

Vocational Witness:  No.

Administrative Law Judge:  Would there by any other jobs in the national economy that such a person would be able to perform?

Vocational Witness:  Yes, this individual would be able to perform the work of a Cashier-Stocker.... [The expert will proceed to list 3 jobs representative of light work].

Keep in mind that, depending on the claimant's age, if Social Security finds that the claimant can still perform some other work, then a finding of disability cannot be made and the claim will be denied.  The judge will often use the testimony of the vocational witness at the final step in the decision making process, Step 5, to find that the claimant can perform some types of work, thus to deny the claim.  It is then up to the claimant or the claimant's representative, to question the vocational witness effectively with a goal of showing why the claimant would not be able to perform any of the jobs suggested byh the vocational witness.  Note that it is not effective to argue that the claimant does not want to perform any of these other jobs or that he cannot find any of these jobs.  Just the ability to perform the jobs is sufficient to deny the claim. 

WHAT IS A "PARTIALLY FAVORABLE" DECISION?

You attended a hearing on your Social Security disability claim.  A few weeks later, you receive a Notice of Decision in the mail that says you have received a Partially Favorable decision.  Does this mean that you are only partially disabled, not fully disabled?

ANSWER:  No.  Social Security does not make awards for partial disability.  You are either disabled or not disabled.  There is no such category as "partially disabled" within Social Security law.

A "partially favorable" decision means that the administrative law judge has found you to be disabled.  However, he or she has changed some material fact in your application.  Most often, this change involves the established onset date--the date you were found to have become disabled.  For example, in your application you may have alleged that you became disabled on June 1, 2012.  After reviewing the facts of the case, the judge may have decided that you did not become disabled until September 1, 2012.  Therefore, he will amended the onset date to September 1, a material change in the application. 

This change will affect the amount of your back pay.  In short, you will not be paid for the months June - August, 2012, a loss of 3 months of  benefits.The amount of your monthly benefit will not be affected.  You are still considered disabled, but for not as long a period as you originally claimed.  Since you lost part of your period of disability, thus part of your back pay, the decision is partially favorable.  In other words, it is not as favorable to you as it would have been if the judge had found that you became disabled in June instead of September.

I often encounter well meaning public officials who believe that a "partially favorable" decision means that the claimant is only "partially disabled."  This is not the case because, as I have said, Social Security never makes any award for a "partial disability."  You are either disabled or you are not disabled - nothing in between.  The date on which you became disabled is an example of why a decision might be "partially favorable.:"

The confusion is complicated by the fact that some agencies, such as the Veterans Administration, do make partial disability awards.  A VA claim decision may find that a veteran is 50 percent disabled, or 80 percent disabled, for example.  However, Social Security will never make such an award.  With Social Security, it is all or none.

SOCIAL SECURITY DISABILITY: WHAT YOU WISH YOU HAD KNOWN

You Must File a Timely Application.  You must apply for Social Security disability benefits within 5 years after you stop working.  Your insured status will expire, making a new claim impossible.  If there are gaps in your work history, you may have even less time to file a new claim.  Don't wait too long to file after you stop working.

You Must Have Enough Quarters of Work.  You become an insured person under the Social Security Act by working and paying FICA taxes.  Most adults need 20 quarters of work to be covered.  These 20 quarters generally must have been accumulated within the most recent 10 year period prior to filing a claim.  Very young individuals might need less than 20 quarters of work.

Your Disabling Condition Must Last At Least 12 Months.  Short term disability lasting less than 12 consecutive months is not covered by Social Security.  You must have an impairment that has lasted, or can be reasonably expected to last at least 12 months.

You Cannot Be Working When You Apply.  You may not be working at "substantial gainful activity" during the period you wish to receive disability benefits.  In 2015, Social Security classifies substantial gainful activity as earnings/wages of at least $1,090 per month.

You Must Have Medical Treatment.  Under Social Security regulations, a disabling impairment must be medically determinable.  Medical records must be available to support the impairment.  Medical treatment should be consistent and recent.

You Cannot Depend on a Social Security Doctor's Examination.  Social Security may send you to a doctor with whom they contract to perform an examination.  This exam will be brief and superficial.  In our experience, these exams fail to help the claimant 99% of the time.  Social Security will use this exam to deny your claim.

You Need Support From Your Own Doctor.  According to Social Security regulations, much weight will be given to opinions of your own treating doctor(s).  Your doctor should provide support and this includes more than just routine medical records. Try to get your doctor to provide you with a Medical Source Statement that lists your functional limitations, such as restrictions in sitting, standing, lifting, bending, kneeling, etc.  Mental restrictions, such as concentration and memory, should also be documented.

You May Need To Be Examined By a Specialist.  20 CFR 404.1527 provides that extra consideration may be given to a doctor who is a specialist practicing in his/her field of medicine.  For instance, if you have a bad back you may need an orthopedic specialist.  For arthritis or fibromyalgia, you would need to consult a rheumatologist.

You Must File An Appeal Within 60 Days If You Are Denied.  Only about 30 percent of applications are approved by Social Security at the initial level.  The other 70 percent must be appealed.  The 60 day deadline is absolute.  If you do not appeal within the 60 days your claim dies and there is no appeal.  Do not wait on medical evidence or anything else.  File your appeal immediately, then work on whatever needs to be done to shore up the case.

Most Appeals Are Handled By a Professional Disability Advocate or Attorney.  Social Security appeals comprise a highly specialized field and require knowledge, skill and experience.  Contact a professional advocate, such as the Forsythe Firm, to help you with the appeal.  We offer free claims evaluation and never charge a fee unless you win.  We will also help insure that you receive maximum benefits, including back payments.

VETERANS MAY GET EXPEDITED BENEFITS

Veterans may get expedited claim processing for Social Security disability benefits.

To get expedited processing, veterans must self identify and have a 100 percent permanent disability rating from the Veterans Administration.

By "self identify," we mean that the veteran must inform Social Security of their 100 percent VA disability rating at the time the application is filed.  We recommend sending a copy of both your DD-214 form and your VA awards letter that shows the percentage of disability award.

Does a 100% VA disability award guarantee approval of Social Security benefits?  No.  While a VA award does not automatically qualify for Social Security disability benefits, it does qualify for a much faster processing time--that is, a much quicker answer.  And, since the VA disability evaluation is similar to the Social Security evaluation process, the VA award can work in your favor.

If a vet receives Social Security disability benefits, will it reduce the VA benefits?  No.  Veterans paid into the Social Security trust fund during their military careers and may be entitled to Social Security benefits in addition to VA benefits.

What about veterans with a less than 100% VA award?  May they still be eligible for Social Security disability benefits?  Yes, of course.  

What if a veteran is not able to perform military duties but is still on active duty and is receiving full military pay?  He or she may still be eligible for Social Security disability benefits.  The key issue is whether or not the individual is able to perform the job, not whether he or she is receiving military pay.  Thus, a veteran should apply immediately for Social Security disability and not wait for a discharge from military duty, which would waste unnecessary time and lose benefits.

The Forsythe Firm is honored to review disability cases for veterans and help them decide the best course of action to receive Social Security disability benefits.  Consultations are absolutely without cost or obligation.  We only charge a fee if we represent you, win your case, and also recover past due or retroactive benefits (in a lump sum).  Please contact Charles Forsythe in Huntsville at (256) 799-0297.

Our office is located at the intersection of Old Madison Pike and Governors West directly in front of the Bridge Street Town Centre, near Arsenal Gate 2.


 

RECONSIDERATION vs. REQUEST FOR HEARING: HOW DO YOU SCORE?

Answer the 10 questions below to test your understanding of "reconsideration" vs. hearing as the way to appeal a denied Social Security disability claim.  Improve your knowledge of how the Social Security disability process works.  Answers are given at the end of the quiz.

TRUE OR FALSE (1-7)

 1. Reconsideration is required in all 50 states before a claimant may request a hearing before an adminsistrative law judge.

2.  You may file a request for hearing and reconsideration request at the same time in most states.

3.  The reconsideration process results in just as many awards as the appeals process.

4.  Your attorney or representative may appear with you at a hearing but not at the reconsideration process.

5.  Alabama does not use the reconsideration process.

6.  Social Security is a federal program; therefore, the rules for appealing a denied claim are the same in all 50 states.

7.  in Tennessee, my chances of getting a better decision are less than 10 percent with reconsideration but over 40 percent at a hearing.

SHORT ANSWER (8-10)

8.  What are states that do not use the reconsideration process called?

9.  What federal officials preside over hearings involving US administrative agencies such as the Social Security Administration?

10.  What is the deadline for filing a request for hearing OR request for reconsideration after a claim has been denied?

BONUS QUESTION:  Under what circumstances can the 60 days for filing an appeal be extended to allow more time to file?

ANSWERS

1)  False.  Only 40 states require the reconsideration process.

2)  False.  You must use one or the other, depending on the state.

3)  False.  The reconsideration process is favorable only about 3% of the time.  Hearings result in a much higher approval rate.

4)  True.  Neither claimants nor their representatives usually appear at reconsideration.  It is a review of the file by a state employee.  However, the claimant does have a right to request an interview.  This is not the same as a hearing.

5)  True.

6)  False.  10 states do not use reconsideration but 40 states do.  Eligibility requirements are the same in all states but the process is different.

7)  True, based on 2014 fiscal year data.

8)   Prototype states

9)  US administrative law judges

10) 60 days from the date on the denial (plus 5 extra days for mailing) 

BONUS ANSWER:  When the claimant can show "good cause" for not filing a timely appeal.  The requirements for this are pretty strict, so file on time.

9 - 10 correct   GOOD
6 -  8  correct   ABOVE AVERAGE
5 -  7  correct   BRUSH UP A LITTLE MORE
0  - 4  correct   Hire a representative today