J. Thomas Ash

Introduction to Social Security Disability

For Social Security, disability is based on your inability to work. The Social Security Act defines disability as a "person's inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months". The Social Security Administration (SSA) will consider you disabled if: (1) You cannot do the work that you did before; (2) The SSA decides that you cannot adjust to other work because of your medical condition(s); and (3) Your disability has lasted or is expected to last for at least one year or to result in death.

This definition of disability is strictly enforced. Social Security pays benefits only for total disability, so no benefits are payable for partial disability or for short-term disability. Social Security program rules assume that working families have access to other resources to provide support during periods of short-term disabilities, such as workers' compensation, private insurance, savings and investments.

Social Security Disability Lawyers

The Social Security Disability claims process is complicated and time consuming. It is helpful to have an experienced Social Security Disability Lawyer on your side that is knowledgeable about the eligibility requirements, the Social Security system, and the stages of the claims and appeal processes. The following list provides a few examples of how a Social Security Disability Lawyer can help you:

1. Evaluate your case and answer any questions
2. File your initial claim
3. Gather evidence to strengthen your claim
4. Monitor and notify you of your case's progress
5. Handle all aspects of the Administrative Law Judge hearing
6. Prepare you for the questions that will come up at your hearing
7. Ask the Administrative Law Judge to subpoena any witnesses necessary to proving your claim
8. Argue your case at the hearing by giving an opening and closing statement, cross-examining the vocational expert and any other adverse witnesses, and asking the Administrative Law Judge to review and reassess any prior claims
9. Ensure the your social security benefits are calculated correctly

At Ash Law Firm, we take pride in representing disabled individuals who have suffered through a serious injury or mental or physical illness and are dedicated to helping them obtain a positive result.

Types of Disability

There are several types of disabilities that have allowed people to collect social security disability. While some of the following conditions may automatically qualify you for social security disability, most others fall into a gray area. A social security disability lawyer can assess your medical condition and work requirements and help you through the social security claims process.

Mental Disorders:

1. Autism
2. Attention Deficit Hyperactivity Disorder (ADHD)
3. Bipolar Disorder
4. Depression
5. Schizophrenia

Bone, Joint and Tissue Disorders:

1. Degenerative Disc Disease
2. Disorders of the Spine
3. Fibromyalgia
4. Carpal Tunnel Syndrome
5. Reflex Sympathetic Dystrophy (RSD)

Neurological Disorders:

1. Traumatic Brain Injury (TBI)
2. Seizure Disorder
3. Stroke

Other Medical Conditions:

1. Multiple Sclerosis (MS)
2. Lupus
3. Lyme Disease
4. Diabetes
5. Interstitial Cystitis
6. Chronic Pain
7. Mesothelioma
8. Vision Loss
9. Heart Disease
10. Paralysis
11. Breathing Disorders

How the SSA Determines If You Are Eligible

To decide whether you are disabled, the SSA uses a step-by-step process involving five questions about your medical condition and ability to work. The questions are as follows:

1. Are you working?
   • If you are working in 2010 and your earnings average more than $1000 a month, you generally cannot be considered disabled. If you are not working, your claim goes to Step 2.
2. Is your condition severe?
   • Your condition must interfere with basic work-related activities for your claim to be valid. If it does not, the SSA will find that you are not disabled. If your condition does interfere with basic work-related activities, go to Step 3.
3. Is your condition found in the list of disabling conditions?
   • For each of the major body systems, the SSA maintains a list of medical conditions that are so severe they automatically mean that you are disabled. If your condition is not on the list, we have to decide if it is of equal severity to a medical condition that is on the list. If it is, the SSA will find that you are disabled and your claim will be approved. If it is not, your claim advances to Step 4.
4. Can you do the work you did previously?
   • If your condition is severe but not at the same or equal level of severity as a medical condition on the list, then we must determine if it interferes with your ability to do the work you did previously. If it does not, your social security claim will be denied. If it does, we proceed to Step 5.
5. Can you do any other type of work?
   • If you cannot do the same kind of work you did in the past, the SSA will see if you are able to adjust to another type of work. Your medical condition(s), age, education, past work experience, and any transferable skills you may have are taken into account. If you cannot adjust to other work, your claim will be approved. If you can adjust to other work, your claim will be denied.

Work Requirements

In addition to meeting the Social Security Administration's definition of disability, you must have worked long enough and recently enough under Social Security to qualify for disability benefits. Social Security work credits are based on your total yearly wages or self-employment income. Up to four credits can be earned each year.

The amount needed for a credit changes from year to year. In 2009, for example, you earn one credit for each $1090 of wages or self-employment income. When you've earned $4,360, you've earned your four credits for the year.

The number of work credits you need to qualify for disability benefits depends on the age when you become disabled. Generally, you need 40 credits, 20 of which were earned in the last 10 years ending with the year you become disabled. However, younger workers may qualify with fewer credits.

You must also meet two different earnings tests, including a recent work test based on your age when you became disabled and a duration of work test to show that you worked long enough under Social Security. Certain blind workers only have to meet the duration of work test.

Recent Work Test:

The recent work test is based upon your age when your disability began. The rules are based on calendar quarters. The first quarter runs January 1 through March 31; the second quarter runs April 1 through June 30; the third quarter runs July 1 through September 30; and the fourth quarter runs between October 1 through December 31.

• If you become disabled in or before the quarter you turn 24, you generally need 1.5 years of work during the three-year period ending with the quarter your disability began.
• If you become disabled in the quarter after you turn 24 but before the quarter you turn 31, you most likely need to have worked during half the time for the period beginning with the quarter after you turned 21 and ending with the quarter you became disabled.
• If you become disabled in the quarter you turn age 31 or later, you need to work during five years out of the 10-year period ending with the quarter your disability began.

Duration of Work Test:

The duration of work tests measures how much work you need if you become disabled at a certain age. For example, if you become disabled before age 28, you generally need 1.5 years of work. If you were disabled at age 60, you generally need 9.5 years of work. Each age has a different work requirement.

How to Apply for Social Security Benefits

You should apply for Social Security Disability benefits as soon as you become disabled. To apply for Social Security Disability Insurance benefits or SSI disability benefits, call the Social Security Office near you and tell them you need to file a claim. An appointment will be set up to conduct an interview in person, or over the phone, whichever is more convenient.

The Claims Representative assigned to your case will provide answers to all of your questions and will handle the paperwork needed to send your claim to Disability Determination Services (DDS). This is where the medical decision on the case will be made.

The Claims Representative will also determine the type of disability program you are potentially eligible to receive benefits from. Benefits can be drawn from either Social Security Disability (SSD), Supplemental Security Income (SSI), or in some cases both. Determinations regarding which program you are eligible for are based on your work history, or lack of in the case of children.

Applications can also be completed online at the SSA website.

Disability Denial

Those who are too sick or injured to work are eligible to receive social security disability compensation subsidized by the federal government. Aside from providing a means to get through daily life and replace lost wages, these integral funds are designed to assist with expensive prescriptions that help you cope with your illness or disability. Unfortunately, sometimes payment for your disability will be denied. Being bogged down by disability is bad enough, but a lack of income only compounds matters. It is not uncommon for the people responsible for reviewing your application for disability payment to deem you an unqualified recipient, although you believe this is not the case.

In 2005, the Social Security Administration (SSA) disbursed approximately $126 billion to over 17 million beneficiaries. If 17 million cases were approved by SSA, chances are yours could be too if you believe in it strongly enough.

Reasons SSA may deny you payment:

1. You are unable to provide ample medical proof.
2. Impairment does not warrant compensation due to its level of severity.
3. Your injury or illness is a direct result of substance abuse.
4. It is improbable that your disability will last longer than one year.
5. Your ability to perform at work is unaffected.
6. You can perform an alternative job to substitute for your previous occupation.
7. You do not adhere to the instructions pertaining to your medication.
8. You go back to work while the disability application is still being processed.

You should realize that when your application for disability payment is under review, your submission will be scrutinized and compared to every rule and regulation in order to identify a weakness in your claim. This seems unfair considering so many others with the same condition that you're suffering from were approved. If you end up being one of the unlucky few, SSA allows you to appeal their decision, but this appeals process can take up to a year or longer.

If your application for Social Security Disability is denied, do not reapply. This is a common mistake made by applicants for disability benefits. Instead, you should file an appeal. In addition, it is advisable to seek the services of a qualified Social Security Disability Lawyer who can guide you through the disability appeals process. Represented cases often have a much higher chance of winning than those that are not represented. A qualified Social Security Disability attorney can also help you recover past due benefits.

The Hearing and the Administrative Law Judge (ALJ)

Always request a hearing

The hearing process starts when the claimant applying for benefits is rejected at the initial and reconsideration stages. The following step in the appeals process is a hearing in the presence of an administrative law judge (ALJ). You or your social security attorney have the ability to request a hearing before an ALJ. The ALJ then makes a decision based on the evidence in the record, which includes any medical and other evidence and statements you've made at the hearing. The Social Security Administration (SSA) will guide you through the steps required to fill out a hearing request form, or simply write a letter to SSA. Don't forget, the request must be in writing.

Time constraints to file an appeal

Under normal conditions, you have 60 days after receiving SSA's decision to request an appeal; the countdown from 60 days does not commence until five days after SSA mails the notice. If you can show proof that it took longer than five days to reach you, that is acceptable. If SSA does not receive your response within the 60-day timeframe, the ALJ reserves the right to disregard the appeal. Essentially, there is a possibility that you will not advance to the next step in the appeals process and may forfeit the option for further review. If you delay and don't respond for more than 60 days, you will need a legitimate excuse, or "good cause," in order to be granted an extension. If you need help, representatives at the Social Security office can assist you in filing a written request that will lengthen the timeline.

Time and place of hearing

After SSA receives your appeal, your case details are turned over to the ALJ's office. SSA makes a concerted effort to schedule hearings as soon as possible, but there could always be holdups due to other appeals in progress or travel agendas. Across the country, SSA has fewer than 140 offices, and about 40 percent of hearings are held in remote areas. Due to these accommodations, the odds you will have to travel considerably for your hearing are not as likely. No more than 20 days prior to your hearing, you will receive a notice providing the date, time, and location of the hearing. The ALJ normally schedules a hearing within a 75-mile radius of your home, but if multiple hearings can be held in a specific location, your hearing may require more travel. If you foresee any potential problems with travel, alert the SSA office at the time of your appeal or shortly after making your request. If you have a health issue prohibiting you from appearing at the hearing, include a doctor's note along with your hearing request that clarifies why you will not be able to make it.

Before the hearing

You and your social security attorney can review your case file and submit new evidence. If you want the ALJ to take additional evidence into consideration, be sure to make it available as soon as possible. If it is not in your possession at the time of your hearing request, send it to the ALJ as quickly as possible.

During the hearing

The ALJ will issue an explanation of the terms of your case and could question you and any witnesses that you bring to the table. The ALJ could request that additional witnesses (i.e. medical or vocational expert) be present at the hearing. All questions are answered under oath. The hearing is held in an informal setting, but it still is recorded. You and your social security attorney are allowed to cross-examine any witnesses and offer up evidence.

Following the hearing

The ALJ sends out a written judgment after considering all evidence. The ALJ provides you and your attorney with a duplicate of the decision or dismissal order.

Appearing at the hearing

If you would rather not appear at the hearing, you need to let SSA know at the same time as your appeal. Ask the ALJ to determine your claim with the evidence in your file. Any new evidence can be submitted using Form HA-4608, which is available upon request at your local hearing office. If the claim has anything to do with disability, it may be a good idea to provide the ALJ with an explanation of your medical condition that impairs your daily routine and keeps you out of work. The ALJ could determine that your attendance at the hearing will be beneficial, especially if no one else can provide better testimony than you. If this is the case, the ALJ may schedule you to appear at the hearing despite your request to be absent.

If the ALJ schedules a hearing, you and your lawyer should make every effort to be there. If some sort of conflict keeps you from attending, alert the ALJ before the hearing, and explain the conflict. If you provide the ALJ with a valid excuse, your hearing will likely be rescheduled. Conversely, if the ALJ deems your excuse unacceptable, your hearing request may be denied.

How to reduce hearing processing time

The hearing process can be prolonged, so your cooperation will help SSA evaluate your request as rapidly as possible. There are a variety of methods to expedite your appeal:

1. If you plan to consult a social security lawyer, this should be done as soon as possible; your counsel will require time to review your file and get ready for the hearing. If you hold off until the date of the hearing or just before, your attorney may request that the hearing be rescheduled in order to dedicate more time to case preparation. Hearings are normally scheduled two to three months ahead, so if one is to be rescheduled, expect that much more of a delay in the hearing process.
2. Don't cancel your hearing unless it is completely unavoidable. Rescheduling your hearing will only delay the determination of your claim.
3. Before the day of the hearing, make sure you or your attorney submits any original or updated medical evidence that you want the ALJ to take into account. Updated evidence could eliminate the need for a hearing and result in an early positive outcome. If you are not so fortunate, and a hearing becomes a necessity, it will reduce setbacks caused from delays in the delivery of evidence.
4. Notify SSA of any recent address changes.