THINGS A JUDGE WILL CONSIDER

Most people who apply for Social Security disability will wind up before a judge, who must decide if they qualify for benefits.  What type of things will the judge consider?

In addition to your medical record, there are several factors that judge will look into:

1.  Your Work Record.  Judges like to see claimants who have a long, steady work history.  This gives the claimant a great deal of credibility.

2.  Are Other Family Members on Disability?  Judges don't like to see a household where multiple members of the family are on disability benefits.

3.  Have You Tried to Keep Working?  Judges will ask how you have tried to stay in the workforce.  They want to know about medical treatment, physical therapy, rehabilitation or looking for an easier job that you may still be able to perform.

4.  What Are Your Hobbies and Recreational Activities?  You say you are not able to work, but how do you spend your time?  Do you go to ballgames, hunt, fish, travel or engage in other hobbies?  Do these recreational activities indicate inconsistency with the idea that you are disabled?

5.  Do You Have Unreported Wages?  Judges want to know if you have worked "under the table."  They usually view this as dishonesty because no FICA or federal tax were paid on these earnings.  Such work may also indicate that a person really isn't disabled, since they have been working.

THE REALITY TEST

When you apply for disability, Social Security will send you a  lot of forms.  These forms will ask you about every facet of your everyday life.  They take the answers on these forms very seriously.

When you complete your disability forms, have a relative or friend review them with you.  Do the Reality Test.  Are my answers really accurate?  Have I under-stated or exaggerated any of my answers?  Strive for absolute honesty.

Often, I interview claimants with a spouse present.  As the claimant is telling me what they can and cannot do, the spouse is very often incredulous.  Their expression says, "You certainly can't do that!" Or, "Are you kidding me?"

We tend to minimize our inabilities and downplay our limitations.  Our family members may notice our limitations more than we do.

When filling out Function Reports, address your worst days--not your best days.  If you can trim the grass two days out of an average week but you cannot do it five days out of the week, then you have a severe limitation. 


The reality test simply asks, "Is this a true reflection of what I can do, day in and day out?  

Keep in mind, too, that just because you can do something once or twice around the house, performing that same function on the job all day is a different matter.  Can you lift 10 pounds?  You say, "Sure, I can lift 10 pounds with no problem."  If I rephrase the question, Can you do a job all day that requires lifting 10 pounds? the answer might be totally different.


The same might be true with a simple thing like sitting.  Around the house you sit in a recliner and read or watch TV.  At work, however, you would sit in a much less comfortable chair with both feet on the floor, not elevated.  How long can you sit in those conditions?

Perform the reality test.  I also recommend having your spouse or family member review your answers.  He/she may look at what you have written and say, "Are you kidding me?"

SSI vs. SSDI: 2 VERY DIFFERENT PROGRAMS

The US Social Security Administration (SSA) operates two basic disability programs--which have some similarities and some differences.

SSDI

• Called "Title 2" because it was created under Title 2 of the Social Security Act.
• SSDI stands for Social Security Disability Insurance (Yes, it is insurance).
• Requires a claimant to have worked and paid FICA taxes for a number of years
• Poses no income or resource restrictions to get a benefit
• Requires that the claimant be medically disabled
• Has a 5-month waiting period (no benefits for the first 5 months of disability)
• Comes with Medicare after 29 months of continuous disability
• Requires a disability lasting at least 12 straight months or expected to end in death.
• Maximum 2020 benefit is $3,011 per month; the average benefit is $1,258 per month.

SSI

• Called Supplemental Security Income
• Also called "Title 16" because it's covered by Title XVI of the Act.
• Does not require any work history to qualify.
• Has severe income and resource restrictions.
• Requires that the claimant be medically disabled or at least age 65.
• Has no waiting period; benefits available the month after the application.
• Comes with Medicaid with no Medicaid waiting period.
• Requires a disability lasting at least 12 straight months or expected to end in death.
• Maximum 2020 benefit is $783 per month (non-blind) but may be less. 
• Living arrangements and household income affect eligibility and benefits.
• *benefits for a blind individual may be higher

You will hear a lot of people talking about getting "a Social Security disability check."  You never know if they are talking about SSDI or SSI.  

I hear people say, "He gets a disability check but he never worked a day in his life."  Of course, that's absolutely impossible with SSDI but could be possible under SSI.

Which do you want to apply for, SSDI or SSI?  

You want SSDI in most cases because it potentially has a much larger monthly benefit.  It also has no financial restrictions.  But if you can't qualify for SSDI because you didn't pay enough in FICA (withholding) taxes, you should try for SSI.  In some cases, a person can get both SSDI and SSI benefits.  This would occur in cases where the combined SSDI and SSI benefits do not exceed $783 per month.

The medical requirement to get SSDI and SSI is exactly the same.  The big differences are in the financial restrictions for SSI and the larger benefit possible under SSDI.

CANCER AND DISABILITY BENEFITS

There are many forms and stages of cancer.  Depending on the type and stage of cancer, it very often qualifies for Social Security disability.

Cancer is usually considered disabling and eligible for benefits when

1.  it has spread beyond the regional lymph notes, or
2.  it has been treated and has recurred, or
3.  it has required a stem cell or organ transplant, or
4.  it's symptoms or treatment results in the inability to sustain basic work-related functions on an ongoing basis (8 hours per day, 5 days per week).

There is a Duration Requirement which says that a medical condition must have lasted at least 12 straight months, be medically expected to last at least 12 straight months or to result in death.  Most forms of cancer will meet the duration requirement but some may not.

Your doctor and medical team will provide specific information to help determine if you qualify for benefits.

What you, the claimant, can do to speed up your benefits:

A.  Notify Social Security on your application that you have cancer.  Be specific as to the location, type and stage of cancer.  Special attention is paid to claims involving cancer.

B.  Get a record of pathology from your doctor and send it to Social Security as soon as possible.  This may be a laboratory test or biopsy report showing a cancer diagnosis., giving the location of the cancer.

C.  Provide Social Security with the name, full address and telephone numbers of all the doctors who treat you.

D.  Ask your doctor to provide a written statement which details your specific functional limitations.  This will state, for example, what your limits are on sitting, standing, walking, reaching, lifting, bending, etc.  If you are likely to miss several days a month for chemotherapy or treatment, the doctor should explain this, also.

The more details you are able to furnish Social Security, the more likely you are to get a quick and favorable decision on your benefits.

Please remember that SSDI (the normal Social Security disability program) does not pay for the first 5 months of disability because of the waiting period.  However, if you have already been out of work several months before you file your application for disability, claim those months to reduce the time you must wait.  For example, if you file on 2/20/20 but became too ill to work on 10/20/19, you have potentially already met 3 months of the waiting period.

Don't be hesitant to ask for help with your claim. Any experienced advocate or attorney will be glad to assist you in getting the quickest possible resolution to your disability claim.  It's a complicated process for anyone, and especially so for a patient undergoing cancer treatment.

A SUPPORTIVE DOCTOR HELPS YOU SSDI CLAIM

Perhaps the strongest ally you can have when filing for Social Security disability is a supportive doctor.

Social Security will need 2 things from your doctor:

1.  Your complete medical records.
2.  An opinion of your functional limitations (called a Residual Functional Capacity statement).

Just like any other legal case, Social Security disability must be proven.  This proof always rests in your doctor's office.

If you are considering filing for disability, I urge you to talk to your doctor.  His or her support can be instrumental.

The truth is, Social Security denies about 75 percent of all disability applications at first.  Those denials require an appeal process in order to be approved.  

If we handle your SSDI case, we will obtain the necessary medical records for you.  We will also request a Residual Functional Capacity opinion from your doctor.  This detailed form is a lot of work for your doctor.  But it can form the absolute best piece of evidence to help prove your case.

Let me say something about the term "your doctor."  This refers to a qualified medical doctor who has treated you over a period of time and has an established professional relationship with you.  This is not a new doctor you see just to get forms filled out for disability.  The longer you have been treated by this doctor, the more weight is likely to be given to paperwork he or she provides.  Also, the term doctor refers to a licensed physician--either a Doctor of Medicine (MD) or Doctor of Osteopath (OD).  A podiatrist can provide evidence about foot or ankle disorders.  An optometrist can provide records concerning vision.  A licensed psychologist (Psy.D. or Ph.D.) can explain mental or psychological disorders.  A psychiatrist, of course, is an MD or DO. 

If your doctor is not supportive, it may be that you will have difficulty getting Social Security disability benefits.

Of course, doctors cannot approve you or sign you up for disability benefits.  But they can provide important evidence.

THE BIGGEST KILLER OF SOCIAL SECURITY DISABILITY CLAIMS

Here is the most dangerous and biggest killer of Social Security disability claims:


Failure to file an appeal within 60 days of denial.

This thief stalks every single Social Security disability claimant.

The law allows you 60 days to file an appeal and have an unfavorable decision reconsidered.  But only 60 days.  Wait longer and the door to the appeal process closes and you cannot reopen it.

It's important to realize that about one-half of Social Security denials are mistakes.  Mistakes get corrected in the appeal process.  But if your case never goes to appeal, the mistake is never corrected and you never get benefits.

The most important thing you can do if you get denied is to file an appeal within the 60 day time limit.

MOST COMMON DISABILITIES

The top 5 impairments for which SSDI benefits are awarded are:

1. Musculoskeletal system and connective tissue disorders: 30.5 percent of SSDI beneficiaries. Includes osteoarthritis, fibromyalgia, spinal cord injury, carpal tunnel, degenerative disc disease, amputations and more.
2. Mood disorders: (14.9 percent): Includes bipolar disorder, depression and more.
3. Nervous system and sense organs (9:3 percent). Includes stroke, Meniere’s disease and more.
4. Circulatory system (8.3 percent): Includes coronary artery disease, peripheral vascular disease and more.
5. Schizophrenia and other psychotic disorders(4.8 percent):.

Does a diagnosis for one of the above disorders automatically qualify for disability benefits?

No.  Social Security will look at severity, duration and functional restrictions of each disease or injury.

Severity:  The impairment must be severe.

Duration: Social Security must believe that the impairment has lasted or will last at least 12 straight months or result in death.

Physical Functional Restrictions:  The impairment must be shown to significantly reduce the ability to perform basic work functions (such as sitting, standing, walking, lifting/carrying, pushing/pulling, reaching, etc.).

Psychological Functional Restrictions must reduce functions such as the ability to understand, remember and carrying out instructions; appropriately relate to others, complete work in a timely manner, etc.

Claims are evaluated using medical evidence from the claimant's doctors and other providers. 

About 75 percent of applicants are initially denied and will require one or two appeals to be approved.  Most claims are approved in the appeals process, not in the initial application process.

Have you been denied with the past 60 days?  File an immediate appeal.

HOW WE CAN HELP YOU GET SSDI BENEFITS

How can we help you get Social Security disability benefits?

As experienced and successful disability representatives, we advocate for you.  We start by building your case, then effectively presenting it to decision makers at the Social Security Administration--and if need be, to appeals.

1.  We meet with you to get the facts of your situation.

2.  We obtain objective medical evidence.

3.  We attempt to get doctor's opinions to support the case.

4.  We analyze the case to develop a legal theory:  how does the law support the fact that you are entitled to benefits?

5.  If you are denied, we prepare for a hearing with an administrative law judge and appear with you to present the case.

6.  We stay with you until your case is resolved.

How do we get paid?  When your case is approved, the Social Security Administration will approve our fee, which is based on a percentage of the back pay you receive.  This fee will be deducted and paid to us directly by Social Security.  If you are not approved, we do not charge any fees for the services we have provided. 

STILL WORKING BUT NEED DISABILITY

We get calls frequently from individuals who are still trying to work but want to apply for disability benefits.  In most cases, this is just impossible.

The first step in the disability screening process eliminates persons who are working at substantial gainful activity.  That's defined as working and earning at least $1,260 per month before deductions.  

If an individual earns at least $1,260 per month from a job or from self employment, the application is denied right off the bat. (This amount is for non-blind individuals). Social Security won't even look at whether the applicant is disabled if they are earning this amount.  There is substantial work, so the claim is automatically denied on technical reasons.

It doesn't matter why you are working.  It only matters that you are.  

This rule forces a person to either quit work before filing for disability--or at least to reduce earnings to below $1,260 per month.

Are there any exceptions to this?  Not for most claimants.  If an individual is legally blind, the test for substantial gainful activity is $2,110 per month.  So, a claimant who meets the regulations for blindness is able to earn a higher income from work and still be considered for disability.

REPRESENTING YOURSELF IN DISABILITY CASES

I've seen very intelligent, very organized individuals represent themselves in disability cases.  They do an inordinate amount of work, make perfectly logical arguments, and they lose their case.

Let me explain, using a "what if" story:

Suppose you have become disabled and filed an SSDI claim which is then denied.  I come to you and say:

 "I want to represent you.  I have never handled a disability claim before.  I don't know the first thing about Social Security law, and yours will be my first case.  Your hearing will also be my first one. I'm going to figure this out as I go along. I would like to practice on you as my very first case. I'm intelligent and well organized.  How about letting me represent you?"

What would your answer be?  I think you would rightly say, "No, thank you.  There's too much riding on this."

Yet, this is exactly what you get when you represent yourself.  

Social Security disability is one of the most complicated processes that you will ever deal with.  It's based on a certain set of laws, rules and burdens of proof.  It is certainly not for the beginner.  Do you really want a beginner handling your case?  If not, is it wise to represent yourself.

I think most people who choose to represent themselves feel that they might save a few thousand dollars.  It's true, of course, they might.  But if they lose, there is no way to come back and do it over.  When the judge has ruled, the decision is made.  You may appeal, but your odds at the appeal are less than half as good as they were at the hearing.  

The advice to get counsel may seem self serving.  However, my firm has all the work it can handle and I often refer prospective clients to other firms in the area.  My sincere advice is, "If you don't hire us, hire someone else to help you with this."

Look at your own resume, then decide if it's wise to hire yourself to represent your disability claim.  

MEDICARE OR MEDICAID WITH DISABILITY

When you are approved for SSDI benefits, you will get Medicare coverage after the appropriate waiting period.

When approved for SSI benefits, you will get Medicaid benefits almost immediately.

Let's talk about the waiting period for SSDI.  It is 29 months from the onset date of your disability, as determined by Social Security.  However, if you reach age 65 prior to this date, Medicare will begin as of your 65th birthday.

Medicare is only available with an SSDI benefit.  SSDI is the standard Social Security disability benefit, based on the fact that you worked and paid into Social Security.  Medicare has two primary parts:

Part A:  Covers hospitalization.  No cost for Part A.

Part B:  Covers many outpatient medical expenses.  Typical premium for Part B is $144.60 per month.

If you didn't have the required number of work credits, you have filed a Supplemental Security Income or SSI claim.  SSI benefits do not qualify for Medicare but do qualify for Medicaid.  Medicaid usually becomes effective the month following your approved application.

Many people fail to realize what a great value Medicare and Medicaid are.  These two programs provide inexpensive medical insurance coverage which allows the beneficiary to receive excellent medical care.  And Medicare costs a fraction of what a private medical insurance plan would cost.  (You simply cannot buy a quality medical plan for $144 per month in today's marketplace).

In most cases, Medicaid is free to the beneficiary; you don't usually pay anything for it.  

3 POSSIBLE DECISIONS ON YOUR DISABILITY CASE

After a disability appeal hearing, you will wait 1 to 3 months to get a written decision.  This is usually when you will know whether your claim has been approved.

There are 3 possible decisions.  I will outline them here:

FULLY FAVORABLE - 

This means that your application has been approved without modification or substantial change.  You are getting everything you asked for, or everything the law allows you to get.  You were found disabled on the date you alleged.  This decision allows for the most back pay.

PARTIALLY FAVORABLE -

This favorable decision provides you with a benefit, but not all the benefits you requested.  Some change was made to your application which adversely affects you.  Usually, this means that the judge found you to have become disabled at a date later than the date stated on your application.  This may reduce or eliminate back pay but will have no effect on the amount of monthly payments.  Incidentally, Social Security does not recognize any type of "partial disability."  If you get any benefit at all, you have been found disabled, not "partially disabled."  It is the decision that is partially favorable, not the disability itself. A partially favorable decision can be appealed within 60 days (however, the ENTIRE decision goes under appeal, not just the part you disagree with).

UNFAVORABLE -

An unfavorable decision is totally unfavorable to you.  You were not found to be disabled and are not qualified for any disability benefit.  This decision may be appealed within 60 days.

There is another type of decision that I will mention here.

FAVORABLE - CLOSED PERIOD

A closed period means your disability began on a certain date and has ended on a certain date.  Therefore, the claim will pay past due benefits during the period of disability but there is no ongoing benefit.  For example, a person might be found to have been disabled from March 1, 2017 through November 30, 2019.  The judge found that the disability ended on November 30, 2019 and no benefit is payable after that date.  This would be subject to an appeal within 60 days, but here again, the entire decision goes under appeal, not just the part you disagree with.

HEARING QUESTIONS TO ALWAYS EXPECT

You will be asked a lot of questions at your Social Security disability hearing.  There are some questions that claimants should always expect and be prepared for, including:

1.  When did you last work?  

2.  Why did you stop working?

3.  Have you looked for work since your last job?

4.  Why do you believe you are unable to work?

5.  Describe the symptoms that keep you from working?

There will doubtless be many other questions; however, these 5 are critical and must be answered correctly.

WHY SSDI OFTEN HAS BACK PAY

When you win a Social Security disability insurance (SSDI) claim, you often receive back pay.  This usually comes as a lump sum which catches up the arrears that the government owes you.

Back pay really has two parts in most cases:

1.  Retroactive pay, covering the period of time you were disabled before you filed your application.  You may collect up to 12 months of benefits for a period prior to your application date.  

2.  Other Back Pay, covering the period of time it took Social Security to adjudicate your claim.  Benefits accrue while you are waiting on a decision.  If you get involved with an appeal, you may wait several months.  I've seen cases delayed two years or more in the appeal process.  When the case is finally approved, the government "catches up" all the benefits it owes you in the form of back pay.

It's really important to think about your Alleged Onset Date (AOD)--the date your disability began.  Take that date as far back as you practically can.  Remember, however, some important factors about Alleged Onset Date:

A.  You must have evidence to prove you were disabled at the AOD.

B.  You must not have been working at substantial gainful activity (SGA) at the time of the AOD, because this is disqualifying.

One of the services I provide my clients is analyzing how far back we can and should take the AOD.  Most claimants became disabled before they filed their application for benefits.  Of course, Social Security will subtract the five month waiting period from all back pay.  Still, most successful claims will come with some amount of back pay.

WHY ARE YOU DISABLED?

To win your Social Security disability case, it is important to explain why you are disabled.

There are two parts to being able to work:

1.  Being able to do basic work related activities, such as standing, walking, pushing, pulling, stooping, kneeling, balancing, reaching, handling, and lifting and carrying.

2.  Being able to sustain and maintain full-time work.

At your hearing, you must show the judge that you have a significant limitation in performing the activities of work.  These limitations must result from one or more medical impairments that have lasted for at least twelve straight months. These impairments must be evident in your medical records. Depending on your age, you must show that your limitations of function prevent you from doing work at all exertion categories--from heavy work to sedentary work.

Being able to sustain and maintain full-time work is different.  If you would be absent from work excessively because of a medical condition, you are not able to sustain work.  The same is true if your impairment would keep you off task or unfocused for a substantial part of the workday.

A person who will be absent 2 or 3 days a month can't sustain a job very long.  Someone who is off task due to pain or psychological stress more than about 10 percent of the time cannot maintain work.

Winning a disability case is complicated.  First, you gather the medical evidence.  Next, you analyze it to see what the medically determinable impairments are.  Then, you find out what restrictions the impairments pose on work related activity. Then, find out how the regulations support the proposition that you cannot work. At the end, you have a legal theory of the case, which, hopefully, will win your benefits.

THE DISABILITY WAITING PERIOD

SSDI, the normal Social Security disability program, does not pay for the first 5 full months of disability.  This 5-month period is called "the waiting period."

It often takes more than 5 months to get approved, anyway.  So, by the time your application is approved, you have already past the 5 month waiting period and are ready to start getting benefits.  If back pay is due, Social Security simply deducts 5 months of benefits from the total back pay.

In the rare instance where a person gets approved very quickly, they must wait a full 5 months to get benefits.  The 5 months is calculated from the date of onset, not from the date of approval.  The date of onset is nearly always earlier than the date of approval.

For example:

Onset Date of Disability:  June 3, 2017
Date of Approval by SSI:   December 31, 2017
Eligible for payment:       December 2017

In the above example, by the time Social Security approves the claim, the 5-month waiting period has already passed.  There is no back pay but the claimant gets paid for December (the December payment arrives in January, one month in the arrears).

There is another waiting period for Medicare benefits to start.  Medicare begins 24 months after the claimant becomes eligible for a payment.  In the example above, Medicare coverage begins in December 2019.

Social Security administers another program called Supplemental Security Income (SSI) and these rules do not apply to SSI.  SSI recepients has no waiting period and it comes with Medicaid, not Medicare.  Medicaid does not have the 2 year waiting period.

WHAT IF MY IMPAIRMENT DOES NOT MEET A LISTING.?

Individuals often look up their impairment on the Social Security Listing to see if it qualifies for benefits.  This gives a false sense of hopelessness because most impairments do not meet the Listing.

The Listings are for catastrophic and very severe diseases which obviously and automatically qualify for benefits, no questions asked.  I'd say that 95 percent of all disabled persons do not meet one of the Listings but may still qualify for benefits using a different method.

The Listings are considered early in the determination debate--at Step 3.  If an impairment is so severe that it meets the Listing, the process stops here and an award is made for disability.

However, if the claimant does not meet a Listing at Step 3, the discussion continues to Step 4 and Step 5, where a more complicated discussion occurs.  At these steps, a claimant must prove that the symptoms of his/her impairment are so severe that no full-time work can be performed.  These steps consider not just the medical evidence, but also age, education and past work experience.  Residual functional capacity (RFC) comes into play in these later steps.

Bottom Line:  You are not likely to qualify for disability at Step 3 using the Listings.  However, you may qualify at Step 4 or 5 by showing that you are not able to perform any past work or any other work.  You have to work a little harder to get approved without meeting a Listing but it is often done.

The disability process is complicated and confusing.  That's why we don't recommend "do it yourself" approaches.  Mistakes are easy to make, simple things get overlooked and these errors can cost you the claim.  It's well worth getting a disability attorney or representative to work with you.

ELIGIBLE FOR SOCIAL SECURITY DISABILITY?

You could spend countless hours researching, trying to figure out if you are eligible for Social Security disability benefits.  Or, you could make a 5 minute call to a disability advocate who spends all of his time working in the field of Social Security disability.

The question of eligibility has to take into account your age, past work history, education, residual functional capacity, and medical history.  You will also need to explore the Listings from the Social Security Blue Book and the Medical-Vocational Guidelines from CFR Part 404, Subpart P, Appendix II.

Many individuals tell me that they come away from their hours of research confused, dazed and very unsure whether or not they can qualify for SSDI benefits.

One of our advocates can talk to you for 5 or 10 minutes and give you a pretty good idea of the strengths and weaknesses of your situation.  It's a free call since we never charge any consulting fee for a case evaluation.


SOCIAL SECURITY JUSTICE

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Free case evaluations

WHEN SHOULD YOU FILE FOR DISABILITY?

Generally, you should file a claim with Social Security as soon as you believe you will be unable to work for at least 12 straight months.  Don't worry too much about trying to figure out if you will be approved. You won't know that until you try.

You do not have to wait 12 months to file your claim.  The rules say you must be off work for 12 months, expect to be off work for 12 months, OR have a condition that is expected to result in death.  This is called the duration requirement.

Social Security does not pay for short term disability, which is those lasting or expected to last less than 12 consecutive months.  

EXAMPLE 1:  You break your leg and require surgery to repair it.  Your orthopedic surgeon says you must be off work for about 6 months for healing and physical therapy. You won't qualify for SSDI because of the duration requirement.

EXAMPLE 2:  You have gallbladder surgery with complications which requires you to be off work for 4 months.  You recover and would be able to return to work soon; however, you have a car accident before you go back to work.  The accident injuries keep you off work for another 9 months--a total of 13 months.  Does this meet the duration requirement?  No, because it is two separate, unrelated impairments, neither of which lasted 12 consecutive months  by itself.

EXAMPLE 3:  You suffer a stroke which requires extensive rehabilitation.  Your doctor says you will be unable to work for an indefinite period of time, but definite for more than 12 months.  Can you file a disability claim now?  Yes and you should.  Although you have not been off work for 12 months yet, it is medically expected that you will be.  

So, if you have a severe impairment expected to keep you form working for at least 12 straight months, you should file a disability claim now.

WHAT JUDGES DO AT DISABILITY HEARINGS

At your disability hearing, the judge will act as a fact finder.  The judge will then apply the law to the facts to see if you qualify for SSDI benefits.

Here are the things that the judge must do at your hearing.

1.  Determine if you are now working.

2.  Determine what your severe impairments are.

3.  Decide how your impairments effect your ability to function in a work environment and in the 5 different exertional levels:  Sedentary, light, medium, heavy and very heavy.

4.  Decide whether you can perform any of your past full-time jobs (looking back only 15 years at past work).

5.  Decide if there is any other work in the national economy that you can perform (especially if you are under 50).  Also, decide whether one of the grid rules apply to you, which may direct a finding of disabled.

Here are some important questions the judge will ask:

• How did your last job end?  Why are you not there?
• Have you looked for other work?  Why not?
• Why do you believe you are not able to work?
• When did symptoms become bad enough to prevent you from working?
• What has your doctor told you about working?
• Has your doctor placed any restrictions on you?
• Tell me about your daily activities.

Hopefully you have a lawyer or "representative" to assist you in preparing for your hearing.  One of the valuable services your lawyer will perform is to sit down with you and help you prepare to face the judge.  I do this a few days prior to the hearing.  If we do it too far in advance, the claimant may forget what we talk about.  

UNEMPLOYMENT BENEFITS AND SSDI

Are you allowed to receive unemployment benefits and Social Security disability at the same time?

I don't know of any law that says you can't.  However, I know several judges who think you can't or shouldn't.  Many judges will say frankly that they feel it is wrong to get both unemployment and SSDI at the same time.  Many of them will not approve SSDI benefits during periods in which the claimant received unemployment money.

To get unemployment benefits, an individual must certify that he/she is able to work, available for work and looking for work.  This statement, if taken as true, disqualifies the person for SSDI, which is intended for persons who are NOT able to work.

So, unemployment and SSDI are really very different programs for individuals in very different situations.  Unemployment is for persons who are able to work but are between jobs.  It provides temporary payments while a person looks for another job.  If a person is disabled, he is not eligible for unemployment benefits. On the other hand, SSDI is for persons who are not able to work due to a physical and/or mental impairment.  If able to work, he is not eligible for SSDI benefits.

WHAT HURTS YOUR DISABILITY CLAIM THE MOST?

Several things can hurt your chances of winning Social Security disability.  No current treatment with a doctor is high on the list because it results in no medical evidence to prove the case.

However, I think there is one thing even worse.  That is working while applying for disability benefits.

Social Security disability insurance (SSDI) is intended to be a safety net for individuals who become disabled.  The very definition of disability is being unable to work.  

Nothing proves that you are able to work like working.


Also, federal regulations do not permit Social Security to pay a claimant who is currently involved in substantial gainful activity.  So, if you're working and earning at least $1,260 (2020 amount), you can't get SSDI benefits, regardless of how sick or impaired you are.

Working and earning less than $1,260 per month will not technically disqualify a claimant.  However, judges will consider whether part-time work is evidence that the claimant may be able to perform more substantial work.  It can still hurt the case.

DISABILITY EFFORTS HURT BY SOCIAL MEDIA POSTS

Are you one of those persons who just loves to share the details of your personal life with everyone on Facebook or Twitter?

It may hurt you if you're getting Social Security disability or trying to.


The New York Times reports that Uncle Sam is taking an increased interest in what those receiving "federal assistance" are posting to Facebook, Instagram, Twitter and other social media accounts.  What you post on social media is increasingly making it into the courtroom.

The US Congress has gone on record as openly encouraging the Social Security Administration to look at an applicant's social media accounts before awarding disability benefits.  It's legal, it's encouraged, and it is being done!

Here is the best advice we can give you:  Never post anything on social media that you would not be comfortable discussing in a Social Security disability hearing before a judge.  

It's not just alcohol, drug use, gambling, partying or getting a ticket or fine that may hurt you.  It can also be a vacation, a fishing trip, playing with the grand kids, winning a bowling tournament or coaching the little league team. A judge may cite evidence he sees on Facebook to argue that you are not as disabled as you say you are.

The problem is that what you post on social media is up for interpretation.  One picture is worth a thousand words; however, those thousands words can be whatever someone wants to make them.  

Of course, if you are disabled, suddenly away from work and homebound for weeks on end, you turn to social media.  It may be the only social thing you are able to do.  Sadly, the government seems to be targeting what has become the only communications lifeline for disabled adults.

But we know that critics of Social Security, the politicians and the media, continue to harp on fraud in their attempts to reduce disability benefits.  

It's not a friendly environment today for individuals on disability or those trying to get disability.  Almost nothing is off limits and we recommend that you be aware.  

3 WAYS TO INCREASE YOUR CHANCE OF GETTING DISABILITY BENEFITS

"You may be disabled but unable to prove it."

Social Security has made it hard to get disability benefits.  Here are 3 things you can do to improve your chances.

1.  Make Sure Your Medical Information is Accurate and Up to Date.

Social Security will only consider data from the medical providers you list on your application.  They won't go fishing for information on their own.  So, be sure to list every medical provider you have seen within 2 years prior to filing the application.  Provide their correct names, mailing addresses and telephone numbers.  Also, list every medical condition you have, whether or not you feel it is severe.  Decisions are made on medical information, so be sure it is complete.  If you begin seeing a new doctor or have special tests made after you submit your application, notify Social Security about that immediately.

2.  Get Your Doctor to Provide Specific Functional Limitations.

It doesn't help to get a general statement from your doctor.  A statement like, "This patient is disabled and cannot possibly work," is of no help.  Your doctor needs to provide detailed and specific limitations on your ability to function.  What are the specific limits on your ability to sit, stand, walk, lift, push/pull, reach, bend, kneel, etc.?  It will help to give your doctor a form that asks for each of these limitations and have the doctor fill it out.

3.  Get Effective Representation.

Social Security disability is a complicated matter.  There are rules that lawyers struggle to understand.  And you will probably have to deal with a judge and vocational witnesses before you get approved.  "Going it alone," without representation ties your hands behind your back and puts you at a real disadvantage.  You may be disabled but not able to prove it.  An advocate or attorney cannot charge you any fee unless you win and also collect back payments from Social Security.  There is never an upfront cost for legal fees.  Social Security will settle up with the attorney after you have won your case.

WHY YOU NEED TWO APPEALS FOR DISABILITY

I think it's rather unfortunate, but you will probably have to appeal your disability decision twice to get it approved.

That's right.  Not one appeal but two.  Here's why.

The initial application screening process is designed to weed out individuals who are not qualified for SSDI benefits.  It throws the baby out with the bath water.  In other words, as unqualified applicants are denied many deserving applicants are also denied.

When you appeal the first time, you undergo something they call "reconsideration."  This is also a rather mechanical go-through-the-motions process that denies nearly everyone.

The third stage is when you ask for a hearing before an administrative law judge (ALJ).  This is your absolute best chance to get your disability case approved.  The judge will give your case a really thorough, personal review.

So the steps are usually:  (1) Application (2) Reconsideration (3) Hearing

You have a strict 60 day deadline to appeal any unfavorable decision on your claim.  Do not miss the deadline.

If I had my way, we would just skip the application and reconsideration and start with a hearing before a judge.  Of course, that's not possible.  We have to go through the steps in order.  Just be sure that you keep kicking your denial up the chain of command (with appeals) until it gets to the administrative law judge. 


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FILE FOR DISABILITY AGAIN WHEN YOU TURN 50

When you turn age 50, you are entitled to a a different disability evaluation.  

That's why you should file for SSDI again when you turn 50, if you've been denied before.

Under the federal regulations, it's totally possible for the same individual to be "not disabled" at age 49 but "disabled" at age 50.  A rather complex set of rules called "grid rules" or Medical Vocational Guidelines come into play when you turn 50.

Using the grid rules to your advantage can be your best chance to get approved.  So, if you were denied previously and have reached the 50th milestone, consider filing a new claim.

I should also say that you will probably have to appeal, not once, but twice. The first stage is the application stage and very few people get approved there.  The second stage is called "reconsideration" and almost no one is approved there.  The third stage takes you before a judge (the hearing stage), and this is your best bet.

HOW CAN VETERANS GET SSDI + VA BENEFITS?

Disabled veterans can often get Social Security disability benefits in addition to VA benefits.

According to the US Census Department, there are about 3.8 million disabled veterans in the United States.  About 1.1 million of these have disability ratings of 70 percent or higher from the US Veterans Administration.

A VA disability rating of 70 percent or higher means that the veteran has significant restrictions in function, which certainly may reduce their ability to work.

Veterans are also covered by the Social Security Act.  The rules for SSDI are different than the VA rules, however.  A separate application and appeal process is required.

While the VA may award partial disability benefits, Social Security cannot.  To get SSDI payments, the government must find that the veteran is unable to perform any full-time work (in effect, he is "'totally disabled").

Here are the usual steps for getting SSDI:

1.  Apply either online or at a Social Security office.
2.  Appeal the denial within 60 days.  (Up to 80 percent of applications are denied initially and require appeals).
3.  Appeal the "reconsideration" denial within 60 days.  This makes the second appeal.
4.  Attend a hearing before an administrative law judge.

Veterans with a 100 percent permanent and total VA rating can ask that their applications and appeals be expedited.  It is possible to get the process resolved within a matter of months.  

2 PERSONS WHO MAY HELP YOU GET DISABILITY BENEFITS

There are two people who may be able to help you get Social Security disability benefits:  your doctor and your lawyer.

Unfortunately, you may require help from both of these professionals to get your disability money.  

Your Doctor is needed to provide the medical evidence that you have a disability that meets the government's rules for benefits.  

Your Lawyer will probably be needed to convince Social Security that you meet all of their strict rules about getting a benefit.  I don't think it should be this way, but it is.

The doctor's role is to examine you, perform tests, and provide an analysis of your symptoms and how severe they are.  This in turn can be used to decide what limitations you have in the ability to perform basic work functions:  sitting, standing, walking, bending, reaching, etc.

Social Security is forbidden by law to pay a disability benefit unless there is medically determinable evidence of a severe impairment which prevents the ability to work.  So, you need your doctor to provide this evidence.

Your lawyer's role is to intervene when Social Security denies your claim.  Their rules are very narrow.  They have their own definition of "disability."  It's difficult to meet it.  A skilled lawyer or advocate can help you get the medical evidence that's required, interpret it and apply it to the Social Security regulations.  

So, there is both a medical part and a legal part to getting disability benefits.  

IF YOU HAVE MONEY CAN YOU STILL GET SSDI BENEFITS?

Yes, individuals who have money, even wealth, may still qualify for disability benefits.  There is no financial test for SSDI.

SSDI is a government sponsored disability insurance plan.  You paid into this insurance plan by payroll deduction out of every paycheck. If you become disabled, the fact that you have savings or money set aside does not restrict the ability to get benefits--any more than having money in the bank would prevent you from collecting on your car insurance if you have an accident.  How much money you have has nothing to do with it.

There are two things that cause confusion on this, and I want to discuss them briefly:

First, you can't be working, earning a substantial paycheck, and qualify for SSDI benefits at the same time.  Obviously, if you are working you are not unable to work.  Social Security allows a little part-time work without making you ineligible for SSDI but they set limits.  The limit in 2020 is earnings of at least $1,260 per month.  But this limit refers to earnings or work limits, not how much money you have.

Second, the Social Security Administration manages a type of welfare program called Supplemental Security Income or SSI.  This program is based on financial need and it does have very strict income and asset restrictions.  SSI is designed for persons who need financial assistance to meet the basic necessities of life.  It is a completely different program from SSDI, although the two are often confused because they both run through the Social Security office.

Summary:  If you have worked enough in the past to be covered for SSDI, there is no income or financial limitation for getting SSDI benefits under Title 2.  SSDI is not just for the needy.  All you need to prove is that you're disabled.

Again, think about it this way. You purchased a homeowners policy on your home to protect against certain disasters like fire, wind or storm damage.  Your home is destroyed in a fire.  The insurance company is not going to ask if you really need them to pay off on your policy, right?  They have an obligation to pay if you have a loss that is covered by your policy.  Social Security isn't going to ask if you really need the money when you file an SSDI claim.  (They will ask, however, if you file an SSI claim, which is a very different program, based on financial need).

SSDI - has only a medical requirement.  You must be disabled to get a benefit.

SSI - has both a medical requirement and financial restrictions.  You must be disabled or elderly and also have a financial need.