BEWARE OF SOCIAL SECURITY DEADLINES

Social Security has very strict deadlines for most filings.  The deadline to file an appeal on a denial, a partially favorable decision--or any other unfavorable decision--is 60 days.  This is a regulatory deadline and you cannot miss it.

This is important because the appeal process is where most disability claims are finally won.  Miss the deadline and you've missed the best chance you had for victory.

There are lots of excuses for missing a deadline.  But Social Security won't accept most of them.  So, if there is a decision you don't agree with, file an appeal within the deadline!

HOW UNEMPLOYMENT COMPENSATION AFFECTS A SOCIAL SECURITY DISABILITY CLAIM

Many judges frown on a claimant who has received Unemployment benefits since becoming disabled.  I've seen judges either deny claims or amend the onset date to the date unemployment benefits were stopped, costing a lot of money in back pay.  I even had one judge insist that the claimant repay unemployment benefits as a condition to getting SSDI benefits approved.

What Should Your Representative Argue Regarding Unemployment Benefits?

1)  Unemployment Compensation is not Substantial Gainful Activity because it does not involve work.  Therefore, it should not interfere with Social Security disability benefits.

2)  In the words of former Chief Administrative Law Judge Frank A. Cristaudo, "an individual need not choose between applying for unemployment insurance and Social Security disability benefits..." since the Social Security disability process can take months or years.

In a memo to all administrative law judges in 2010, Chief ALJ Cristaudo reminded judges that receipt of unemployment benefits does not preclude the receipt of SSDI benefits in many cases.  (Chief Administrative Law Judge Memorandum 10-1258, August 9, 2010).

3.  There is no clear rule in the federal regulations which prohibits receiving unemployment benefits and Social Security disability benefits at the same time.

It should be noted that many judges will use the issue of unemployment benefits to question the claimant's credibility.  While unemployment payments require an individual to be able to work, available for work and looking for work--Social Security disability requires that an individual prove that he/she is not able to work, at least at some exertion levels.  Unemployment and SSDI rules seem to contradict each other.  A claimant tells unemployment officials that he is able to work but tells Social Security that he is not.

So, the issue of unemployment benefits will usually come up in Social Security disability appeals or hearings.  I've had a few judges that didn't bring up the issue but most will.  Your representative will need to deal with it at the hearing level.

Is it better not to receive unemployment benefits after you allege disability?  Yes, that is better--but it may not be possible.  I tell my clients frankly, "It's better not to receive unemployment benefits; however, your first concern is not starving to death or losing your home while you're waiting on Social Security.  So do what you must do."

NO INSURANCE. NO DOCTOR. CAN YOU GET DISABILITY BENEFITS?

I often encounter individuals who need disability benefits but they have no doctor because they don't have health insurance and can't afford doctors.

It's a problem because Social Security always requires medical evidence to approve a disability claim. You can explain to them why you have no doctor but it doesn't solve the problem of no medical evidence.

What I recommend is to seek out one of the free medical clinics in North Alabama.  There are a number of doctors and clinics that will treat individuals with no health insurance, either without a fee or with a greatly reduced fee that is affordable.

Can you just go ahead and apply for benefits without seeing a doctor?  Yes, of course you can.  However, your case probably won't make it through the five-step process.  You will most likely stall out at Step 2:  no evidence of severe medically determinable impairment.

Won't Social Security send you to see one of their doctors?  They might but there's no guarantee.  If they do, there is still a big problem.  In a vast majority of cases, the consulting doctor from Social Security will not provide information that helps get your claim approved.  Most often, this doctor's exam will result in a denied claim.

You are nearly always better off to depend on your own doctor, not a Social Security consulting doctor.

How do you get a list of free or lower cost medical clinics?  My office provides that list free.  Using it, you may be able to find a doctor you can afford or a clinic right in your community, or close by.

HELP! WHERE ARE MY DISABILITY BENEFITS - ALABAMA EDITION

I frequently get calls from individuals who say, "I've applied for disability benefits 3 times and still can't get approved."  This is a common problem.  And right away, I can see where the problem lies.

This individual has been re-applying or filing a new application after each denial.  He believes the next application will have a better outcome than the one before.  The problem is, the same agency will look at the same information and reach the same decision--another denial.

Most of the time, it simply does no good to keep filing new applications.  This is NOT the way to deal with denied claims.

You can't "wear down" Social Security's resistance by asking them for a benefit over and over again.  Once they say No, the answer will be NO until:  (1) There is some material change in your situation:  new age category, new medical evidence, etc., or (2) You kick the denied claim into the appeal process and get someone at a higher level to review it.  This will be an administrative law judge (ALJ).

The dangers of simply filing a new claim after each denial are:

1.  You are spinning your wheels within the same agency, going nowhere.

2.  Your Date Last Insured (DLI) is running out.  Yes, disability benefits come with expiration dates.  You may reach a point where you can't file a new claim because your work credits have expired.

Once your disability claim has been denied, there are TWO appeals that should be filed (not at the same time).

A.  Reconsideration:  This is the next required step where the state agency that denied your claim gets a chance to "reconsider" it.  They will deny the claim again in 95 percent of cases, so don't expect much from "Reconsideration."  It's just a step you must use.

B.  Hearing before an Administrative Law Judge (ALJ).  Once you are denied at "Reconsideration," you may request a hearing before an administrative law judge.  This is the step that usually resolves the case.  This is also the step at which you have the best chance of approval.  Once your claim has been denied, the hearing is really where you want to go.  There are just steps you must follow to get there.  Reconsideration first, then a hearing.

The government only allows 60 days to file an appeal.  After that your claim dies.  Application denied?  60 days to file a request for "Reconsideration."  Denied at "Reconsideration"?  60 days to file an appeal.  

So, the moral of my story is this:  In most cases, do not file a new claim when you get denied.  File an appeal and keep the original claim alive, moving up the chain-of-command.  This preserves all your potential benefits under your original claim and it provides the best chance of getting an approval.  At least up until the hearing before a judge.  After a hearing, it's a hard choice on whether to appeal or file a new claim.  But until you get to a judge and a hearing....appeal, appeal, appeal.

It's a fact that claimants who are represented by counsel are more likely to be approved than those who go it alone.

I use this example:  Who has a better chance of safely landing a Jumbo 747?  A pilot who has flown the 747 for 20 years, or a passenger who has never flown before?

The passenger trying to land a 747 scares me.  (It happens in the movies but nowhere else)!  Give me the experienced pilot every time.

Trying to "land" your Social Security disability appeal alone is equally difficult and equally important to you.  Consider a professional!

WHO YOU MAY ENCOUNTER IN DEALING WITH SOCIAL SECURITY DISABILITY

Who are you likely to encounter in trying to get Social Security disability?

• The Social Security Field Office.  This is your local Social Security office.  It is responsible for collecting all the forms and pieces of the application for benefits.  It can also answer basic questions for you.

• The Disability Determination Service (DDS).  This is a state agency that works under contract with Social Security to process disability claims.  The DDS will order your medical records, review them and make the initial decision about whether you meet the rules to get a disability benefit.

• Disability Specialist - This is a state employee who works for the Disability Determination Service and manages your claim while at the DDS level.  You may get mail from this person or speak to them on the phone.

• Office of Hearings Operations (OHO).  This is the office that handles your appeal if your claim is denied at the initial level and at Reconsideration, and you file an appeal. 

• Administrative Law Judge (ALJ).  This judge works for the Social Security Administration and conducts hearings when your claim for benefits has been denied. You have a right to appear before this judge in person and you may be represented by legal counsel (who may appear with you).  Most claims get resolved here.  You must file a timely appeal to get a hearing.

• Vocational Expert (VE).  A vocational rehabilitation counselor who is called by Social Security to testify at a hearing.  The VE will classify each of the claimant's past relevant jobs and will answer a series of hypothetical questions posed by the administrative law judge concerning the ability to work under various restrictions.  The VE's testimony is very pertinent to the decision that will be rendered by the ALJ.

• Payment Processing Center.  After your claim has been approved, it goes to a payment processing center where benefits are calculated and checks are written to the claimant and representative (if any).

• The Appeals Council (AC) - is the group of administrative law judges in Falls Church, Virginia which reviews hearing decisions on appeal.  This is the final administrative appeal. There is no hearing and neither the claimant or representative appears before the AC for this appeal.  The Council will review the administrative law judge's handling of your hearing to see if it properly considered all the evidence and applied the rules of the Social Security Administration correctly.  The AC does not try to re-examine whether the claimant is disabled.

• Federal District Court (DC) - may review a denied claim upon appeal by the claimant--after the case has been denied by both an administrative law judge and the Appeals Council.  Only about 1 percent of all Social Security disability claims go to this level.  A federal district court challenge involves a federal lawsuit by the claimant against the Commissioner of Social Security.
  

DISABILITY: WHAT YOUR DOCTOR CAN AND CANNOT DO

I see a lot of misinformation about the role of doctors in the disability process.  I just read a post on the internet that said a note from your doctor can help you get disability benefits.  That's not entirely wrong but it is misleading.

A "note" from the doctor indicates a short or simple statement.  This generally is not admitted as evidence by Social Security judges.  Statements like, "This patient cannot work," or "This patient is totally disabled" are totally useless.  Why?  They don't explain in detail WHY the patient is disabled.  Social Security loves, loves detail and hates it when doctors draw conclusions.

What doctors may provide is a very detailed statement of your residual functional capacity (RFC).  The form I use has 6 pages of questions.  It asks the doctor to estimate the patient's function:  things like, sitting, standing, walking, lifting, stooping, kneeling, reaching, handling....etc.

I don't mean this to disparage doctors.  But most doctors don't know how detailed their statements need to be.  Social Security has very particular rules and it needs very precise and detailed functional information.  That's why we use forms and discourage letters or "notes" from doctors.

Of course, doctors will be asked to provide the patient's routine medical records.  But medical records alone are often not sufficient to prove disability.  And no medical record contains a residual functional capacity.

So, a note from your doctor won't do much good unless it uses Social Security's standards for determining disability.  And, again, doctors are not permitted to draw conclusions about who is disabled and who is not.

If a doctor writes:  "Mr. Claimant is limited to lifting no more than 5 pounds occasionally, is limited to sitting no longer than 30 minutes at one time or not more than 3 hours per 8-hour day.  He can stand only about 15 minutes at one time and  is limited to standing no more than 2 hours in an 8-hour workday.  He will be off task more than 20 percent of a workday due to back pain and probably will be absent at least 4 days per month."  Social Security may use this information to conclude that Mr. Claimant cannot work full-time at any exertion level and find him to be disabled. But that conclusion must be made by Social Security, not by the doctor.

One final thought:  Your doctor probably does not have a Residual Functional Capacity (RFC) form in his/her office.  You probably need to obtain this form from your attorney or representative, not from your doctor.  If you go to the doctor's office asking for a Residual Functional Capacity statement, the doctor may not know what you need.  I recommend that you get the form from your attorney, then take the form to your doctor and request that it be filled out.

WHAT KIND OF INCOME AFFECTS MY SOCIAL SECURITY DISABILITY BENEFIT?

Income from inheritance, pensions, retirement funds or court settlements will generally not affect Social Security disability (SSDI) benefits because SSDI is not a needs based or income based program.

In short, your eligibility for SSDI is not restricted by your income, as long as it is not earned income produced by your work (wages, salary, tips, commissions, self-employment income, etc.).

The only type of income to worry about if you are receiving SSDI (also called Title 2) is income from working.--whether working for yourself or someone else.  It's really not the income that is a problem, it's the work.  By working, you simply prove that you are not disabled according to Social Security's rules.

One word of clarification:  Social Security also operates a program known as SSI or Supplemental Security income, which is needs based and income restricted.  Almost any type of income can affect eligibility for SSI. So, be certain what type of benefit you are receiving before relying on any information on this site.  SSI requirements are very different from SSDI requirements.