Social Security Disability
Social Security Disability (“SSD”) benefits are available to people who have paid taxes to a Social Security account that earn “quarters of coverage.” To meet the required number of quarters, an individual usually must work five out of the last ten years, and there are special rules for younger people. You must establish that you became disabled before your quarters of coverage expire, which is your date last insured (“DLI”). Just because your DLI has expired does not mean you cannot qualify for SSD benefits. To see if you have earned enough quarters to be eligible for SSD benefits, the amount of your estimated monthly benefits, and your DLI, see my June 10, 2012 blog entry entitled, “How Much Will Social Security Pay You?”
Are You “Disabled”
To be eligible for SSD benefits, you must show that you are “totally disabled” by a physical or mental impairment (or a combination of impairments) severe enough to prevent you from working for at least twelve months. It does not matter if you can find a job, only whether there are jobs available that you could perform. Depending upon your age, education, and work experience, you may not have to prove that you cannot do all types of work. You can be denied even if your doctor says you are disabled because that statement by itself is not enough to establish you total disability under the Social Security rules and regulations. Social Security defines disability differently than Workers Compensation does, and you can be turned down for SSD benefits even if your doctors and Workers Compensation find you disabled. You should contact an attorney as soon as you become unable to work. If you have applied on your own and were denied, you should contact an attorney immediately so they can start preparing for your hearing, increasing your chances of winning. You may represent yourself, but statistics show that people represented by an attorney are approved significantly more often than people who are not.
We only get paid if you are approved, so there is no up front fee.
Social Security may tell you that applying for SSD is easy. Starting the application process may sound easy to some, but most people find the paperwork and phone calls in connection with applying for SSD benefits to be confusing and overwhelming. More importantly, even if the application process was easy, getting approved for SSD benefits is hard. In fact, the majority of people who apply on their own are denied because they make mistakes.
To file an application for SSD benefits, just call us and we will help you with everything. Nobody who practices regularly in this field has a higher winning percentage than us. We don’t get paid unless you get approved for benefits. If possible, before calling us, you should prepare a list of your doctors, your work history for the last 15 years, and a print out from your pharmacy since your disability onset. Social Security will use an authorization form SSA-827 to ask your doctors for your treatment records, but they are usually insufficient to win SSD benefits. We will help obtain the additional medical and vocational evidence for your application. We will ask you to sign an Appointment of Representation form, which allows us to discuss your claim with them.
You can apply in person at your local social security office. However, there are many downsides to applying in person. Interviewers can make personal observations that can be used against you. The wait for a Social Security representative to help you can be long, and simply traveling to your local office can be taxing on you physically or mentally. Most importantly, providing incorrect, inadequate or ambiguous information can delay or prevent you from getting approved for SSD benefits.
State Agency Denials
The initial SSD decision is actually made by a State agency, not Social Security. The State agency frequently fails to apply the Social Security rules and regulations correctly. We increase the chances of your getting approved because we can help minimize the likelihood of the State agency making an error in connection with your application. And if you are denied, when we appeal to Social Security, we will be able to highlight the errors that the State agency made. It is important to appeal a denial within sixty days of receiving your Notice of Disapproved Claim.
Requesting a Hearing
If your SSD claim is denied, and that includes being denied after reconsideration in some areas outside of New York, you are entitled to request a hearing before a Federal Administrative Law Judge (“ALJ”). It is very important during this appeal that the individual’s medical records be thoroughly compiled and organized. They should be presented to the Administrative Law Judge in a clear and concise way, highlighting the appropriate Social Security regulations.
The wait for a hearing can be many months or even take years. In the interim, we have direct access to the hearing office docket status, and can help make sure that the case proceeds through the various steps prior to the hearing. One way to avoid a hearing altogether is by requesting an on-the-record decision (“OTR”). We also have direct access to the Social Security efolder, and can view the records that will be used as exhibits at your hearing. By reviewing the efolder, we can tell what records were omitted from the efolder, which happens quite frequently, what errors the State agency made, what additional medical or vocational evidence is needed, or if an OTR would be appropriate.
I have handled thousands of hearings, and in my opinion it is the most complicated stage of the appeal process. The ALJ who presides over your hearing will take your testimony under oath. We will thoroughly prepare you for your hearing well in advance so you will not be nervous about it. The hearing is private, and usually is held in a small room with only the ALJ, the hearing assistant, you, your attorney and witnesses. The ALJ may also call a medical expert, vocational expert, or both to testify. Cross examining the experts can be the most critical part of the appeal process.
All the medical records that have been submitted will be admitted into evidence, and any objections must be placed on the record. You must explain to the ALJ all of the limitations that make it difficult to work on a sustained basis. The ALJ will ask questions about what you do when you are not working to see if that shows you could work. I usually find it necessary to ask claimants additional questions after the ALJ to clarify testimony that may appear adverse a disability finding. For example, you may tell the ALJ that you can cook, and then I have to ask questions to make clear that cooking is not an activity that can be sustained.
The ALJ Decision
Most of the time, the ALJ will not tell you at the hearing if you are being approved or denied. Most ALJs send a written decision in four to six weeks, but others are notorious for taking many months, and even insisting on supplemental hearings. If the decision is favorable, you should begin receiving benefits shortly after receiving a Notice of Award that explains the benefits you will receive.
There is a full five month waiting period from the date you are found disabled before you are eligible to receive SSD benefits. If you have minor children, then you may be entitled to receive an additional monthly benefit for them. After you have received SSD benefits for 24 months you can receive Medicare coverage. If the decision is not favorable, then you have 60 days to appeal by requesting the Appeals Council to review the ALJ’s decision.
Appealing an ALJ Decision
You can request Appeals Council review in 60 days by completing and submitting form HA-520. You can submit new evidence, and explain the reasons why the ALJ erred. The Appeals Council can approve benefits, decide not to review your appeal, or send your claim back to the ALJ for another hearing. Your chances of success are increased if you can cite the Social Security Rulings and other laws that support reasons why you say the ALJ erred.
Appealing an Appeals Council Decision
If the Appeals Council rejects your claim, your final appeal is commencing litigation in federal district court. You only have 60 days to file the lawsuit.
Many if not most attorneys who handle SSD claims do not litigate cases in federal court. I do, and have been a litigator for over a quarter century, and other SSD attorneys ask me to take over their cases when the Appeals Council denied review. Knowing what the courts have held in other cases not only is required for your lawsuit, but also helps you to present a better claim at the prior stages of the application process.
When filing the summons and complaint with related court documents, you must send us copies by certified or registered mail to Social Security’s Office of the General Counsel that handles the area where the Complaint is filed. The U.S. Attorney’s Office represents Social Security in the litigation. After the U.S. Attorney files the certified record and Answers your Complaint, the parties generally file summary judgment motions that discuss the facts and laws. Your legal briefs need to explain how Social Security misapplied or overlooked the law, including the POMS, Rulings and Regulations, and HALLEX and why the case law supports your arguments.
Hire Me, Not Binder & Binder
I was the Senior Litigator for Binder & Binder, and handled their most complicated cases. If they were the experts in this field, then I was the expert for the experts.
Binder & Binder gets its clients by spending millions of dollars on television advertising, and it produces thousands of clients. They may have won more cases than anyone, but they have also lost more. They run their practice as a business; they don’t call themselves a law firm, and you will have difficulty speaking with an attorney. I get my clients through referrals, and every one of them is important to me. People retain me because they know they are not a statistic in a mass production business. I run my practice as a profession, I operate a law firm, and you will be able to speak with me.
If you hire Binder & Binder, you may not be represented by a lawyer, which is important. When you deal with a lawyer you are protected by attorney-client privilege. When you deal with a lawyer, they are required to provide adequate explanations for your questions. If an attorney messes up your SSD claim, they can be sued for malpractice. Running a professional law practice as opposed to a business makes you more accountable.