The Basics of Social Security Disability Benefits

If you have a disability that prevents you from working, you may be entitled to monthly payments from Social Security. There’s a common misconception that Social Security only pays money when you reach retirement age. In fact, there are some financial safety net programs available for people that need help due to a serious illness or disability that leaves them unable to work.

At Byron A. Lassiter & Associates, P.C., Attorney at Law, we have been helping clients throughout northwest Florida and south Alabama for over 30 years. Attorney Byron Lassiter is Board-Certified in Social Security Disability law and is available to help you submit a thorough application or fight for your rights during the appeals process.

Social Security Disability is a complex process. The more you know and understand about the system, the better prepared you’ll be to approach a claim. We always recommend that you have qualified legal counsel to help you understand your rights and put forth the strongest case possible. If you’d like to discuss your options, contact our office today to schedule a free consultation.

The Difference Between SSDI and SSI

If you are unable to work due to a disability, there are two available programs through the Social Security Administration (SSA). These programs are Social Security Disability Insurance (SSDI) and Supplement Security Income (SSI). The purpose of the two programs is similar: to provide financial assistance to people who are prevented from working due to a disability.

The difference between SSDI and SSI lies in the initial qualifications for the programs. With SSDI, you must have worked for a certain number of years before becoming disabled and paid taxes into the Social Security system. Your assets and income don’t impact SSDI benefits, but your work credits do. On the other hand, SSI is a needs-based program. You don’t have to have a work history to qualify for SSI benefits.

How much you can receive from either program will vary. For example, the amount you can receive from SSDI will depend on how much you paid into Social Security and how long you were in the workforce before being employed.

Who Qualifies for SSDI?

You must be disabled to qualify for SSDI benefits. In addition, you must have worked a certain number of years and paid Social Security taxes during that period. Those are the basic qualifications for benefits but getting approved for SSDI isn’t a simple matter.

A doctor can say you’re “disabled” or that you have a qualifying condition, but that doesn’t mean your claim is going to get automatically accepted. For SSDI benefits, you must have a physical or mental disability that is severe and prevents you from performing substantial gainful activity. Further, that condition must be expected to last for a minimum of 12 months or be something that could result in your death.

How Do You Apply for SSDI?

The Social Security Administration (SSA) tries to make it simple to apply for benefits, but that doesn’t mean approval will be easy. In short, you fill out and submit your application for SSDI to the SSA. You can do this online or by contacting your local SSA field office to schedule an appointment.

When you apply for SSDI, you have the burden of proving that you are entitled to benefits. In other words, it’s your job to demonstrate to the SSA that you have sufficient work credits to qualify for benefits. You must also show that you have a lasting disability by submitting substantial medical records and physician statements that support your argument.

What if Your SSDI Application is Denied?

If the SSA rejects your initial application, you will be in the same position as more than half of all other applicants. The agency can deny your claim for any number of reasons, including inadequate medical evidence and application errors.

Many people wrongly assume that they should give up or file a new application if their claim is denied. If you file a new application with the same information, the SSA is going to deny your claim again. And many people win their cases on appeal, so it’s not the time to give up either.

The best approach is to have an attorney review your case and help guide you through the appeals process. You have just 60 days to file a request for reconsideration, where a fresh set of eyes will review your application materials to determine if you are eligible for benefits. You can also submit additional evidence during this stage to strengthen your case.

If you are not successful at this stage, there are still several more opportunities to appeal. Your attorney can request a hearing before an Administrative Law Judge (ALJ), where you can testify and call witnesses. The next step is an Appeals Council, and then you have the option of filing a lawsuit in Federal District Court.

Do You Need a Lawyer for Social Security Disability?

While you don’t need an attorney for Social Security Disability, this is a complex process, and having an attorney can significantly increase your chances of a favorable decision. Many people are hesitant to hire a disability lawyer because they are already struggling financially. The good news is that these legal services cost you nothing upfront. You are only charged a fee as a percentage of the back pay that the SSA owes when your claim is approved.

Applying for Social Security Disability and pursuing an appeal can be challenging, but it’s not impossible. The best way to improve your chances of getting the benefits you deserve is to educate yourself about the program and have a knowledgeable attorney at your side that can act as your constant advocate.

At Byron A. Lassiter & Associates, P.C., our experienced Social Security Disability attorney knows how to navigate the disability insurance program administered by the government. If you’ve become disabled and meet the requirements for SSDI or SSI, you have the right to apply for and receive benefits. Our office can help with the application process or represent your interests during an appeal if your application was denied.

Call our office today at (800) 544-3568 or contact us online to schedule a free consultation.

Proving Different Types of Disabilities

Before the Social Security Administration (SSA) will approve your claim for disability benefits, you’ll need to prove that you’re disabled. Whether you are attempting to prove that you have a disability that’s on the Social Security Administration’s listing of impairments (“blue book”) or a disability that isn’t found on the list, you’ll need to provide comprehensive, thorough evidence. Here’s what you need to know about how the SSA determines if you’re disabled and the types of evidence you’ll need to provide, regardless of the type of disability you have:

How the SSA Determines if You’re Disabled

The SSA determines if a person meets the eligibility requirements to be considered disabled by looking at five different things:

  • You aren’t gainfully employed. If a person is gainfully employed, which means that they are working and earning more than a certain amount of money per month, they will not be considered disabled in the eyes of the SSA.
  • Your condition is severe. A condition must be severe in order to qualify as an eligible disability. The SSA considers a condition severe if it prevents the person from engaging in substantial gainful activity and has lasted or is expected to last for at least 12 months or result in death.
  • Your condition is on the adult listing of impairments. If your condition is found within the adult listing of impairments, then you are considered disabled. The SSA assumes all of the conditions within the list to be severe enough to prevent a person from engaging in SSA.
  • Your condition prevents you from doing the work you did previously. Does your disability prevent you from doing the job that you did previously, whether that was manual labor, an office job, or something else? If so, then the SSA will just ask one final question; if not, then the SSA won’t consider you disabled.
  • Your condition prevents you from adjusting to other types of work. Finally, the last thing that the SSA will ask is whether or not your condition prevents you from adjusting to other types of work. If you can adjust to other work, then you won’t be found disabled.

Your Responsibilities As a Claimant

You’ll need to prove the elements above in order to have your claim for benefits approved. As a claimant, it is your responsibility to provide enough information to the Social Security Administration that it can make a determination about the nature and severity of your disability, the duration of your disability and for how long your disability is expected to last, and whether or not you can do work that is physically or/and mentally demanding as such.

Types of Evidence You’ll Need to Prove Your Disability

In order to help the SSA make a determination about the eligibility requirements and information about your disability listed above, it is your responsibility to provide the SSA with the evidence and documentation it needs. You will need evidence of your symptoms, evidence of the existence of your impairment, and evidence of the severity of your impairment.

  • Evidence of your symptoms. You’ll need to prove that you have symptoms related to your condition that prevent you from engaging in substantial gainful activity. It’s important to know that the SSA will do its due diligence in investigating your symptoms, including reviewing your medications, analyzing your daily activities, investigating other treatments you have received, and more.
  • Evidence of the existence of your impairment. Of course, you’ll need to provide proof that you have the condition that you claim you do. You must submit objective medical evidence from an acceptable medical source in order to establish this. Note that alternative practitioners, such as chiropractors and acupuncturists, do not qualify as acceptable medical sources.
  • Evidence of the severity of your impairment. After you have established that you have a condition/disability, then you will need to submit evidence that speaks to the severity of that disability. While you will want to submit any evidence from medical sources that you have, you also should submit non-medical sources of evidence, such as the testimonies of family members, friends, caregivers, employers, neighbors, clergy, and more. You’ll also want to submit your own testimony about the severity of your impairment.

What If the Social Security Administration Asks Me for Additional Documents?

If the Social Security Administration doesn’t have enough information to make a determination about the duration of your disability, the severity of your disability, and whether or not you can do work based on your disability, then it will contact you requesting the specific information it needs. It is important that you cooperate with the SSA and provide evidence as soon as possible.

Will I Be Asked to Submit to a Consultative Exam?

In some cases, claimants may be asked to submit to a consultative exam. A consultative exam is an examination that is conducted either by the claimant’s own doctor, or by an independent doctor who is paid for by the SSA.

The SSA may choose to use an independent doctor when there are inconsistencies in a claimant’s medical record, the claimant or their doctor has specifically expressed the desire to have the exam performed by another medical professional, or the claimant’s medical source is not a qualified medical source (e.g., a doctor who has had their license revoked, or an unlicensed medical professional, or a doctor who is not qualified to offer medical advice about a certain condition). If you are asked to submit to a consultative exam, you should consult with an attorney as soon as possible.

Get Help from a Qualified Social Security Disability Attorney

If you are disabled, you deserve Social Security disability benefits. There are few things more frustrating than filing a claim only to have the SSA deny it. At the law office of Byron A. Lassiter & Associates, P.C., our qualified Social Security disability law firm has more than 30 years’ experience representing clients like you. To learn more about how we can help and what your rights are, as well as how to prove different types of disabilities, call our law firm directly at 800-544-3568. You can also visit our law firm in-person or send us a message online.

Eligibility for Widow’s Benefits under the Social Security Act

Statistics show that about four million widows and widowers receive monthly Social Security benefits based on the earnings record of their deceased spouse. For many of these Widows or Widowers, but especially for women who may have been out of the workforce, these are benefits which provide funds crucial to paying for the essentials of daily living.

What types of benefits are covered by the Social Security Administration?

Widows and widowers who are not disabled can receive:

  • Reduced benefits as early as age 60 or, or if they are willing to wait until their full retirement age, full benefits.
  • If widows or widowers qualifies for retirement benefits on their own record, they can switch to their own retirement benefit as early as age 62.

What benefits are available for Disabled Widows or Widowers?

Disabled Widows and widowers can receive benefits as early as age 50, provided they are disabled AND their disability started before or within seven (7) years of the wage-earner’s death.

It is important to note that if a widow or widower is caring for the wage-earner’s minor child or children and is receiving Social Security benefits on behalf of the minor child or children, the seven-year period of time does not begin to run until those payments end. Thus, in a case where a wage-earner dies and there are minor children, the surviving spouse has an extended period of time, until benefits for the youngest child have stopped, plus an additional seven years, to establish eligibility for benefits as a disabled surviving spouse.

The surviving disabled spouse must attain the age of 50 within the 7-year window described above. If a disabled surviving spouse does not attain the age of fifty within seven years of the wage-earner’s death, and there are no minor children, no widow’s or widower’s benefits are available. Nonetheless, the disabled surviving spouse may qualify for disability benefits under their own earnings record.

What is the definition of disability used by the Social Security Administration in determining whether a surviving widow or widower is eligible for benefits as a disabled surviving spouse?

The Social Security Administration uses the same definition of disability for the surviving spouse of deceased wage-earners as the one used for disabled wage-earners. Although there are many regulations that precisely define disability, as that term is utilized for the Social Security Administration’s programs, there are three general concepts:

  • The individual is unable to do the work they performed before, as a result of a medically diagnosed condition(s);
  • The individual is unable to adjust to other full-time work because of the medically determined condition(s), including consideration of other vocational factors, such as the individual’s age, education and work experience; and
  • The individual’s inability to work has either lasted, or is expected to last, for at least 12 consecutive months, or result in the individual’s death.

The Social Security Administration’s definition of disability is strict. There are no benefits payable for partial disability. If all of the criteria are not met, no benefits are paid.

How much is the Widows or Widower’s benefit?

The amount the surviving spouse is eligible to receive, as survivor’s benefits, depends on the average lifetime earnings of the deceased wage-earner. The higher the earnings were, the higher the benefits are for the surviving spouse:

  • If the surviving spouse is of full retirement age or older, the benefit amount is 100 % of the deceased wage-earner’s benefit amount.
    For a surviving spouse between the ages of 60 to full retirement age, the benefit ranges from 71 1/2 % up to 99 percent of the full retirement benefit amount.
  • For disabled widows or widowers who are between the ages of 50 through age 59, the benefit amount is 711/2 percent of the wage-earner’s benefit amount.
  • For a widow or widower of any age that is caring for a child under the age of 16, the benefit amount is 75% of the wage-earner’s benefit amount.

Other factors that affect eligibility:

If a disabled widow or widower remarries before reaching the age of 60, they cannot receive benefits as a surviving spouse while they’re married.

If the widow or widower, either disabled or not, remarries after attaining the age of 60, the marriage does not disqualify them from continuing to receive benefits on the earnings record of the deceased wage-earner.

Widows, widowers, and surviving divorced spouses cannot apply online for survivors’ benefits. They should contact the Social Security Administration at 1-800-772-1213 (TTY 1-800-325-0778) to request a telephone appointment.

If applying for disability benefits on a deceased worker’s record, the application process will go faster an Adult Disability Report, form SSA-3368-BK is prepared in advance. This report should be readily available at the time of their appointment, and can be downloaded by clicking on this link: SSA-3368-BK Adult Disability Report

What happens at a Hearing with an Administrative Law Judge?

Many people with Social Security Disability claims, either for Disability Insurance benefits (DIB) or Supplemental Security Income (“SSI”), or both, apply for benefits and are turned down. After the claim is initially denied a request for reconsideration may be filed and must be filed within sixty days of receiving the initial denial notice. At both the initial and reconsideration level there is no opportunity to meet with the person or people who make the decision on the claim.

After a claim is denied at the reconsideration level, however, a Request for Hearing can be filed, and must be filed within sixty days of receiving the reconsideration notice, unless there is “good cause” for the delay. At the hearing, the individual has the opportunity to talk with the Administrative Law Judge, (“the ALJ”); this is the only opportunity in the disability process to speak with an actual decision-maker, and thus it is an important opportunity to present one’s case for being eligible for benefits.

The hearing procedure is managed by the ALJ; not all hearings are the same, and in fact no two hearings are the same, as every individual’s situation is unique in the details. Nonetheless, the general scheme of the hearing is the same in most hearings.

Also, while in the past, prior to COVID-19, hearings were primarily held in person, before the ALJ, most hearings are now conducted via telephone. The individuals on the phone are generally the court reporter, who makes a recording of the hearing, the ALJ, a vocational expert, the individual claiming benefits (the claimant), and the claimant’s representative.

Generally, no one else is to be on the phone, or even in the room with the claimant as each individual’s testimony is expected to be his or her own, and the ALJ will usually go over those ground rules at the outset of the hearing. Thus, one should be prepared to answer questions from the ALJ and his or her representative, if the claimant has a representative. Because the issues in a Social Security disability claim are complex, and vary quite a bit from person to person, having experienced, professional representation greatly increases the odds of success.

What is the ALJ Hearing About?

First, it is important to determine what the hearing is, and is not, about. Most cases are won or lost before the hearing begins. That is because the Social Security Administration’s definition of “disability” has a lot of parts to it, and quite a few regulations detailing the specific requirements an individual has to meet in order to qualify.

It is important to understand that the claimant has the burden of proof in a disability case. That is, it is not the duty of the Social Security Administration (“SSA”) to prove a person qualifies for benefits – the claimant has to prove that all of the criteria for eligibility are met. SSA makes the determination as to whether all of the criteria are met based upon the evidence, most of which is documentary.

If an individual is found to not be disabled, it doesn’t necessarily mean the person is not disabled – it just means that the claimant didn’t prove the case. And because most of the evidence is in documentary form and must be submitted at least five business days in advance of a hearing, in most cases, by the day of the hearing, the issues in the case have either been addressed by the documents, or the documentary evidence required is not in the file, which will lead to a denial regardless of what a person says at the hearing.

Evidence That is Presented at an ALJ Hearing

SSA uses a five-step process, called the sequential evaluation process, to determine whether a person qualifies for benefits. If a claimant fails at one of the first four steps, the claim is denied at that level, without going through any of the remaining steps. Because each of the five steps has its own criteria, care must be taken to make sure each step is properly documented, to the extent possible.

At the hearing level, if the claim is properly prepared, the ALJ should have a lot of additional evidence that was not available at the initial and reconsideration levels. Therefore, due to the additional documentation, the claimant has the opportunity to address, through documentary evidence, the issues that were an obstacle to qualifying for benefits at the lower level. Additionally, the testimony of the claimant is often quite helpful in explaining the nature and extent of the individual’s impairments, and how those impairments affect the ability to sustain full time employment.

The gist of SSA’s definition of disability, and the focus of the ALJ in deciding the case, is whether the evidence establishes that the claimant’s physical, mental, or both, impairments are of such severity as to prevent the individual from performing all types of substantial gainful activity for a continuous period of at least 12 consecutive months.

Either their Past Relevant Work or any other work which exists in significant numbers in the national economy, considering an individual with the vocational profile of the claimant, as established by the evidence. While there are many regulations that address the specifics, this is the standard for qualifying for disability benefits.

Work and Financial Requirements for SSD and SSI Claims

A threshold inquiry in a DIB case is whether the individual is insured, for disability purposes. That, in general, means has the claimant worked at least five years out of the ten-year period of time before they claim to have become disabled. Whether a person is insured, for disability purposes, is determined by one’s earnings record. SSA obtains earnings information from the IRS which it utilizes in making the determination of whether a person is insured.

If an individual has worked “under the table”, and not reported their income to the IRS, SSA may determine that the individual is not insured, and thus not eligible for benefits regardless of their medical condition.

Another situation is when an individual last worked over five years prior to filing. In such a case, while the person was insured at a point in the past, their insured status expired, and they were not insured at the time they became disabled. Again, without insured status, the individual will not qualify for disability insurance benefits, as a claimant must be insured at the time the disability is alleged to have occurred.

For SSI claims, there is no insured status requirement. In SSI claims, an individual has to meet certain financial criteria – that is, the household can not have “excessive” income or resources. In an SSI claim, excess income or resources can prevent an individual from qualifying, regardless of the medical conditions preventing them from working.

Generally, the ALJ will ask some questions relating to the claimant’s address, and have the SSN confirmed as a means of making sure that the person on the phone is really the claimant, and also to confirm that the address on file is the correct mailing address to which the decision should be mailed. Sometimes additional questions, such as the name of a recent medical provider, is asked as a means of further confirming the person on the phone is the claimant.

Vocational Analysis for Determining Disability

The claimant is generally then sworn in, to testify under oath regarding the truth of the answers provided during the hearing. The individual is generally asked about their age, date of birth, highest level of education completed, and whether the person has received any vocational training of any kind.

The significant thing at this point is that the rules for determining disability are best understood as a vocational analysis. That is, the younger an individual is, and the better educated an individual is, the easier it is for that person to learn a new job or skill. Consequently, SSA has rules that make it somewhat easier to qualify for individuals who are over the age of 50, and easier still for individuals over the age of 55.

A person with more education has a somewhat more difficult time qualifying for disability than an individual of the same education with less education. The ALJ then will normally go through the individual’s work history for the preceding 15 years. The only important information at this point is a brief description of the claimant’s job duties – such as how much standing, walking, lifting and carrying were involved, whether the job was performed full time or part time, and how long the job was performed.

The vocational expert who testifies following the claimant’s testimony has to classify the work experience based on the Department of Labor’s publications. Information generally describing the job is usually sufficient. This is not the time to discuss the limitations – the Judge just needs to have a good understanding of the claimant’s work history.

This is important in determining whether the individual has the ability to return to any of their past relevant work, and also whether the individual has acquired any skills from their past employment that could be utilized in other jobs. Generally, only jobs that have been performed on a full-time basis in the preceding 15 years are considered, as jobs change over time, and any skills obtained from jobs performed more than 15 years ago are likely no relevant to the way jobs are currently performed.

Examining a Claimant’s Ability to Work

If an individual is insured for benefits, in DIB cases, or not precluded from qualifying due to excess income or resources in SSI cases, the first step of the process addresses whether a claimant has engaged in substantial gainful activity since the alleged onset of disability. In order to qualify for disability, one must be unable to engage in full time employment.

As a starting point, the ALJ will generally ask questions at the beginning of the hearing about whether the claimant is presently working, and when they last worked. If an individual is presently employed full time, they do not qualify for benefits, although sometimes a person may qualify for a “closed period” of benefits, if they had a period of at least 12 consecutive months for which period of time it can be established that they were unable to work.

A person’s testimony regarding their work may also indicate whether the earnings information obtained from the IRS is up to date. Also, payment of short-term disability benefits frequently winds up being reported as wages, so it is important to describe any payments received after the last date employed, such as vacation pay, sick time, disability payments, or any other payment of benefits.

This enables the Judge to address in the decision any posted earnings after the onset of disability – a failure to explain what appears to be the payment of wages can cause a favorable decision made by the Judge to be sent back for further proceedings, thus substantially delaying or even preventing the individual from receiving benefits.

Does the Claimant Have a Qualifying Disability?

Then, at this point of the hearing, the hearing gets to the “disability” part. The Judge may ask a question such as “tell me what conditions you have that make it impossible for you to work now”. The claimant should then discuss their specific medically documented problems and how they impact upon the ability to engage in such activities as sitting, standing, walking, lifting, carrying, or otherwise affecting the ability to work.
If a problem does not impact the ability to work on a full-time basis, the Judge doesn’t need to hear about it. Additionally, the Judge can only consider medically documented problems. If a claimant has medical problems, but no treatment, the regulations do not allow the ALJ to consider those problems.

If there is treatment, but there is no diagnosis but just a review of a person’s complaints, that is not enough for the Judge to find a medically determinable medical impairment. The regulations require, to the extent possible, objective findings such as x-rays, MRIs, or other testing to establish the existence of a medical condition that could cause the specific limitations claimed.

The ALJ is not allowed under the regulations to find a person disabled unless they have a documented medical condition, confirmed by objective medical evidence. This is a problem in many cases, as working people often have their insurance through their employment, and when their employment ends, so does their insurance coverage.

Without insurance, medical treatment is difficult to obtain. Thus, while individuals will frequently try to tell a Judge that they have no medical treatment because of a lack of insurance, that explanation does them no good. Judges hear that situation from a great many claimants, but most will somehow find a way to get at least some medical treatment.

At any rate, if there is no documented evidence of a medical condition that would have the symptoms claimed, the ALJ is not allowed to consider testimony about the undocumented medical condition, or find any limitations in the ability to work, as it relates to undocumented medical conditions.

Regardless of how sincerely the individual describes the problems, the ALJ cannot find any limitations unless there is medical evidence documenting that the medical condition exists, and the medical condition would reasonably be expected to cause the symptoms described. Thus, again, the documentation is critical in determining what symptoms can be considered.

Symptoms and Limitations Caused by the Claimant’s Medical Condition

After the various medical conditions are identified by the claimant, the symptoms arising from those medical conditions need to be described by the claimant. The symptoms should be described in vocational terms – that is, how does it affect the individual’s ability to sit, stand, walk, lift, carry, or concentrate, deal with co-workers, the general public, etc.

The specific restrictions are important, because the ALJ will generally need to include the symptoms described in one or more questions to the Vocational Expert. After the specific limitations are described by the claimant, the individual’s daily activities are discussed. This is the opportunity to illustrate through the limited daily activities, how the symptoms limit the claimant’s ability to engage in full time work.

The claimant will be asked about whether he or she drives, grocery shops, sweeps, mops, cuts grass, goes to church or other social activities, and in general describe how the symptoms impact daily activities. The description of limitations illustrates the obstacles an individual would have in either returning to their past relevant work or any other work.

After describing their functional limitations and illustrating those limitations through the limitations in daily activities, the claimant’s part of the testimony generally concludes.

Vocational Expert (VE) Testimony

At this point in the hearing, the judge takes testimony from the Vocational Expert (“VE”). The VE, based upon a review of the vocational portions of the file prior to the hearing as well as the claimant’s testimony, classifies all of the individual’s jobs within the prior 15 years, describing the physical level of exertion as well as the skill required, and the length of time needed to learn the job.

As a general rule, after obtaining a description of the individual’s Past Relevant Work, the Judge will pose one or more hypothetical questions to the VE. The hypothetical individual described will be of the claimant’s age and education and have the claimant’s work history.
The judge then describes the functional limitations the hypothetical individual has, both physically and mentally. The VE is then asked whether such a hypothetical individual is able to perform the claimant’s past relevant work. If the VE indicates the past relevant work could not be performed, the ALJ will typically then ask about whether the individual could perform other jobs which exist in significant numbers in the national economy.

The VE’s responses to these questions are important parts of the decision. If the VE testifies that the hypothetical individual can not perform either their past relevant work or any other work existing in significant numbers in the national economy, that testimony is crucial evidence the ALJ considers in determining whether the individual qualifies for benefits.

The important part to understand is that the VE only answers the hypothetical questions asked. The VE does not determine whether a person is disabled; the ALJ does that. The person’s testimony at the hearing, and the medical evidence regarding the person’s physical and mental limitations, provide the information in the ALJ’s questions to the VE.

No Partial Disability Benefits Through the SSA

It is important to recognize that SSA doesn’t provide partial disability benefits. Either a person is 100% disabled, or they are not disabled under SSA’s regulations. Proving that a person is unable to do their past work is not enough to qualify for benefits – if there are full time jobs available in the national economy the individual can perform, the individual does not qualify for benefits.

Also, the availability of jobs in the local economy, or lack thereof, does not matter under the regulations, as SSA regulations require the Judge to consider all full-time jobs in the national economy.

Whether an individual thinks they qualify, or thinks they should qualify, is not relevant to the Judge. Also, whether a person needs the benefits, or doesn’t need the benefits is not relevant – either a person is qualified to receive the benefits, or they are not.

Whether a person has continued to work while they believed themselves disabled also is usually not important, except that the Judge can only find a person to be disabled when the claimant has stopped working. If an individual was able to work with a serious medical condition in the past, what has changed so that they are no longer able to continue working?

In that way, a claimant’s testimony which is intended to be about overcoming difficulty frequently turns into testimony that the individual has been able to work in the past with the same problems that are now claimed to be disabling; the testimony contradicts the point the claimant should be trying to make.

This illustrates an important point –when a person goes off on a tangent about something that was not asked, it is frequently self-defeating. Many claimants unknowingly undermine their own cases in their testimony. It is important to simply answer the question truthfully, and then stop.

If a claimant is talking a lot, the case is probably going a lot worse than they think. Most hearings are conducted in 45 minutes or less and are quite often completed within 30 minutes.

Most Important Evidence in an ALJ Hearing

The crucial part of the disability case is the medical evidence. Medical opinions regarding a claimant’s diagnoses from treating and examining sources can be helpful, but much more important are whether any such opinions are supported by the medical evidence, including any objective testing, and the consistency of any such opinions with any other medical opinions, as well as the other medical and other evidence in the file.

As referenced in the beginning, the key is the medical and other documentary evidence, and a lack of evidence will generally not be cured by testimony at the hearing, no matter how sincerely it is given. As the disability process is quite complex, having experienced legal representation is most often the difference between being found disabled and losing the case.

Answers to Questions about Social Security Disability

1. How can I tell if I am disabled enough to apply for Social Security Disability benefits?

Social Security regulations make it easier to be found disabled as you get older. For individuals who are under the age of 50, the standards are very high, and the medical evidence needs to be fairly compelling that the symptoms from your diagnosed medical conditions preclude you from engaging in full time employment. It becomes easier to qualify for more people at age 50, as the Social Security Administration’s rules recognize the greater difficulty older people have in adjusting to new work situations. The rules become more relaxed for most people at age 55, and even more people at age 60. For individuals over the age of 55, the biggest problem is often whether they have the ability to return to any work they have done on a full time basis within the last fifteen years. If you’re over age 55 and you cannot do any job you have done in the past 15 years, you should definitely apply. If you’re over age 50 and have a severe impairment that keeps you from doing all but the easiest jobs, you should apply.

If you’re a younger person, you don’t have to be bedridden in order to be found disabled. But you need more compelling medical evidence. The rules require that you produce medical evidence supporting your disabilities, and the more medical evidence you can provide, especially objective test results such as MRI or x-ray reports, the better your chances are. If you are under the age of 50, you must provide medical documentation of conditions that are so severe that they keep you from being able to do any of the work you have done within the last fifteen years, and also, that keep you from being able to do any other work on a full time basis.

It is important to note that being unable to work and being found “disabled” by the Social Security Administration (SSA) are two entirely different things. The Social Security Administration does not consider the area in which you live – if there are jobs that exist in the nation you can perform on a full-time basis, the fact that these jobs are not near where you live does not matter. Also, the rules don’t consider factors such as you not being able to drive to work, or you don’t have transportation to get to work.

Also, even though your health may keep you from being able to work, unless your condition is medically documented, you most likely will not be found disabled. Many people lose their insurance when they become unable to continue with their jobs. That poses a significant problem in providing documentary evidence about the medical treatment. Sometimes, the Social Security Administration will order a medical exam, but you generally should not rely on the Social Security Administration’s medical personnel to prove the claim for you. The rules are clear that it is up to the individual claiming to be disabled to PROVE that they qualify for disability benefits.

If you really are unable to work, and have medical treatment to support your claim, you should apply for disability benefits. If you are denied, you should file a request for reconsideration, and then request a hearing before an administrative law judge. If you have applied, and your claim is denied, a lawyer with experience handling disability cases may be able to help you to figure out a way to win your case at the reconsideration or hearing before an Administrative Law Judge. Statistics show that people who are represented have a much greater chance of winning before a Judge. The sooner you get legal representation, the better your odds are of success because your representative will know the kinds of evidence that are needed to prove you qualify.

If the claim is denied by an Administrative Law Judge, that decision can be appealed to the next level – the Appeals Council. The odds of winning at the Appeals Council are very slim. Generally, if you have not already hired an attorney to assist you before the Administrative Law Judge, an attorney will not want to become involved with an appeal to the Appeals Council. The rules provide a presumption that the Administrative Law Judge was in the best position to evaluate the claim, and the Appeals Council only overturns the judge’s decision when there is clear evidence that the rules for evaluating the evidence were not followed.

2. How do I apply for Social Security disability or SSI benefits?

The Social Security Administration (SSA) offers three ways for you to apply for Social Security disability benefits:

  • By telephone.
  • In person at a local Social Security office. This is not available at this time.
  • By the Internet.

If you want to complete an application for SSI or Social Security disability by telephone, you must telephone SSA at 1-800-772-1213. If you want to apply by phone, you will be given a date and an approximate time to expect a phone call from someone at the Social Security office who will take your application over the phone. The application will then be mailed to you for your signature.

If you want to use the Internet to apply, go to . If you want to apply for SSA’s other disability program — Supplemental Security Income (SSI) –you cannot complete an SSI application online but you can complete one of the necessary supporting documents, the Adult Disability and Work History Report, on the Internet.

3. Do you have any advice about applying for disability benefits?

Yes.

  • Give SSA all the information it asks for in a straightforward way.
  • Be truthful. Do not exaggerate or minimize your disability.
  • Get representation if your claim is denied initially. Although you can request further appeals, unless you provide some different information, your claim will probably turn out the same way at reconsideration or with the Administrative Law Judge. If your claim is denied, parts of the claim are not being properly documented, but if you don’t understand the rules, it will be hard for you to fix it.
  • When you complete the Disability Report, a form that SSA requests completed at the time the application is submitted, explain how your medical impairments keeps you from working. Your explanation must show why you cannot do any job you have done in the past 15 years and also address why are unable to do other work.

4. What happens if I am denied benefits and I do not appeal within 60 days?

You’ll have to start over with a new application. Starting over is different from an appeal. It means that you will lose any back benefits you would have been entitled to receive under the first application. There is a financial cost to missing deadlines, as well as the loss of the time put into the first claim — your new claim will start at the very beginning. Additionally, the evidence used to deny your claim the first time will still be considered on your second claim, so your odds of winning on the second claim are actually worse. It is very important to appeal all denials within 60 days. It’s better if you appeal right away – there is no advantage to waiting sixty days to do something that can be done right away. The more you delay, the slower your case will be processed in a system that is already a fairly slow bureaucracy. The faster you get your appeals filed, the quicker you can get to the hearing stage, which is where the best chances of success are.

5. How do I appeal?

Your denial letter will tell you about appealing. The first appeal is called a “reconsideration.” You must request reconsideration and then, after the reconsideration is denied, you must request a hearing within the 60-day time limit.

6. What are the two biggest mistakes people make when trying to get disability benefits?

  1.  Failing to appeal. More than half of the people whose applications are denied fail to appeal. Many people who are denied on reconsideration fail to request a hearing. If you are genuinely unable to work full time, you should appeal.
  2.  Not getting appropriate medical care. Some people with long-term chronic medical problems feel that they have not been helped much by doctors. They may stop going for treatment. Or there is not much money to pay for doctor visits. Failing to get medical treatment is a mistake. The single most part of your disability claim is your medical treatment records. The better your medical evidence, the stronger your case for disability is.

7. Since medical evidence is so important, should I have my doctor write a letter to the Social Security Administration and should I gather medical records and send them to SSA?

SSA will gather the medical records, so you don’t have to do that. Whether you should ask your doctor to write a letter is a hard question. A few people win their cases by having their doctors write letters. You can try this if you want to. The problem is that the medical-legal issues are so complicated in most disability cases that a doctor may inadvertently give the wrong impression. Thus, obtaining medical reports may be something best left for a lawyer to do.

8. How much do lawyers usually charge?

Most lawyers represent people on Social Security Disability or SSI claims on a “contingent fee,” basis. This means the lawyer is paid a fee only if you win your case. The usual fee is 25% (one-quarter) of any back benefits you get, up to a maximum limit set by SSA. The maximum fee which can be charged for claims handed before the Social Security Administration is $6,000. Most times, however, the fee is much less than $6000, because the fee is the lower of $6,000 or 25% of your back benefits. The fee comes from those benefits that build up by the time you are found disabled and benefits are paid. No fee comes out of current monthly benefits.

Although the fee will not normally exceed the maximum fee of $6,000, if your lawyer has to appeal your claim beyond a decision by an administrative law Judge, your fee agreement will still be limited to no more than 25% of your back benefits – so unless you win, there is still no fee.

In addition to the fee, many attorneys expect you to reimburse them for the expenses of gathering medical records, obtaining medical opinion letters, etc.

Possible Phishing Schemes

The Social Security Administration’s Acting Inspector General, Gale Stallworth Stone, is warning citizens about a nationwide telephone “imposter phishing” scheme. The Social Security Administration (SSA) and its Office of the Inspector General (OIG) have received several reports from citizens across the country about persons receiving phone calls from individuals posing as OIG investigators. The caller indicates an issue exists pertaining to the person’s Social Security account or Social Security number (SSN) and directs the person call a non-SSA telephone number to address the issue.

The reports indicate the calls include a recording from a caller stating she is “Nancy Jones,” an “officer with the Inspector General of Social Security.” The recording goes on to say the person’s Social Security account, SSN, and/or benefits are suspended, and that he or she should call 806-680-2373 to resolve the issue. Citizens should be aware that the scheme’s details may vary; however, citizens should avoid calling the number provided, as the unknown caller might attempt to acquire personal information.

OIG investigators occasionally contact citizens by telephone for investigative purposes, but they will not request sensitive personal information from a citizen over the phone. If a person receives a similar suspicious call from someone alleging to be from the OIG, citizens may report that information to the OIG at 1-800-269-0271 or online via https://oig.ssa.gov/report.

Acting Inspector General Stone said, “This phishing scheme is targeting unsuspecting persons for the purpose of Social Security benefit theft or identity theft.” She warns citizens to be cautious, and to avoid providing personal information such as your SSN or bank account numbers to unknown persons over the phone or internet unless you are certain of who is receiving it. “You must be very confident that the source is the correct business party, and that your information will be secure after you release it,” Stone said.

If a person has questions about any communication—email, letter, text or phone call—that claims to be from SSA or the OIG, please contact your local Social Security office, or call Social Security’s toll-free customer service number at 1-800-772-1213, 7 a.m. to 7 p.m., Monday through Friday, to verify its legitimacy. (Those who are deaf or hard-of-hearing can call Social Security’s TTY number at 1-800-325-0778.)

For more information, please contact Andrew Cannarsa, OIG’s Communications Director for the Social Security Administration, at (410) 965-2671. Also, feel free to call my office at (251)478-5297.

Please be safe and smart with your confidential information.

This information is shared with you to protect you by Byron A. Lassiter & Associates, P.C., a Mobile and southwest Alabama social security disability lawyer.

How Long Does it Take for Me to Receive My Social Security Disability Benefits?

Time is moneyAfter a person applies for either social Security Disability, or Supplemental Security income, or both, and the initial claim is denied by the Social Security Administration, a person has a right to request a hearing before an Administrative Law Judge.  The person has sixty days to file the appeal, requesting that hearing.  Hearings for social security disability cases in southwest Alabama and Northwest Florida are handled by the Mobile, Alabama Office of Disability Adjudication and Review (ODAR).  The Mobile, Alabama ODAR hearing office offers individuals the option to either have a video hearing, or to have a live, in-person hearing.  I believe that people have a much greater chance of success with an in-person hearing, because it is more difficult to convey pain, depression and anxiety over a video.  I recommend that our clients appear in person whenever possible.

The Mobile, Alabama hearing office is staffed with 14 judges.  Even though that is a lot of judges, there are a lot of cases for those judges to hear.  The average wait time of the Mobile, Alabama ODAR is 13 months.  That is, it takes about one year, and one month, between the time the hearing is requested and the time the hearing is held.  Since that is a very long wait, it is important to make the very best use of the hearing time.  The Birmingham, Alabama ODAR, by comparison, has more judges, 19, has an even larger backlog of cases, and the Birmingham ODAR has an average wait time of 14 months.  Because of the long delay our clients face, our office believes that it is very important for the case to be well prepared for presentation; our team works very hard to make sure that by the time of the hearing the evidence available has been located and submitted to ODAR.  The files are in an electronic format- that is, all documents must be scanned and electronically submitted to become a part of the evidence considered by the judge.

After the hearing, several things may occur.  The judge may decide that additional consultative examinations are needed.  In that event, the Social Security Administration pays for any additional medical and/or psychological examinations that are requested by the judge.  When those reports come in, the judge can arrange for another hearing, or make a decision based upon the additional medical evidence.  On average, at the Mobile hearing office, the time between the request for hearing and the time of the final decision is 449 days.  That is, the average processing time is about 15 months.  It is generally taking about two months after the hearing, on average, to get the judge’s final decision.  Since that time is only the average, some cases are faster, but some cases are slower.

The better prepared the case, the better the chance that no additional development after the hearing will be necessary, thus making the processing time faster.  At our office, we are all very aware of the importance of being prepared.  We recognize that our clients depend upon us to anticipate the specific evidence a judge will want to see in a case, and we take steps to make sure the additional evidence is obtained, to better speed up the process.