Social Security Disability Basics

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What to Expect from your Social Security Disability Claim
Applying for Social Security Disability benefits is a long, complicated ordeal for most applicants. While we always advise that you would be best served by hiring an experienced Social Security Disability Attorney to guide you through the process, this article will provide some basic information about what you can expect during the pendency of your claim.

How to Apply
The first step in the process of obtaining Social Security Disability benefits is to submit an application to the Social Security Administration. Typically, my clients complete the initial application by themselves, prior to hiring me. When people call me expressing interest in submitting an initial disability application, I usually tell them to go ahead and do so. Absent special circumstances, most of my clients can navigate the initial application phase without the assistance of an attorney. And, in my opinion, Social Security wants to hear people describe their conditions in their own words, without the legalese that we attorneys unwittingly insert into the proceedings. Also, in most cases, the sooner the better for submitting an application, because should you win, you may be entitled to back benefits going back to a date that is limited by the date of your application. That is, by delaying your application, you may be cheating yourself out of benefits. You can apply by calling the Social Security Administration and scheduling an appointment for submitting an application, by visiting your local Social Security office and waiting for an appointment, or, in some cases, by submitting an application online. To prepare for filing your application, you should collect and write down the names and addresses of all physicians who have treated you and whose offices may have medical records supportive of your claims. You should also give some thought to exactly how your day-to-day functioning and ability to work is affected by your medical conditions, and be prepared to explain your position clearly and succinctly.
There are two separate and distinct programs under which you may qualify for disability benefits through the Social Security Administration. The first program is referred to as Title II, or the Disability Insurance Benefit program. You are only entitled to Title II coverage if you worked a sufficient amount of time in recent years to be deemed to have paid enough into the system to be entitled to draw benefits from it. As a very general rule of thumb, you must have worked 5 of the last 10 years to be able to qualify for Title II benefits, but this is a huge generalization and is not the rule in every case. Exactly how many credits you need to have earned in the previous years depends on your age when you apply, among other things. Title II Disability Insurance is not a need-based program; that is, your income and assets are totally irrelevant to your application. The amount of benefits that you could receive is dependent upon the amounts that you paid into the system during your working years. Generally speaking, the higher your salary was, the higher your monthly disability check will be.
The second program that provides payments to disabled individuals is referred to as Title XVI, or Supplemental Security Income benefits. SSI is a welfare-based program that provides monthly payments to disabled individuals who have a sufficiently low amount of income and assets to qualify for the welfare disability payments.
If you receive SSI payments, then you also receive Medicaid coverage (a need-based health insurance program). If you receive SSDI payments under Title II, then you will receive Medicare coverage, but your Medicare coverage will not begin until two years after your first Title II payment is made (which is generally five months after your application date due to a standard waiting period).

What Must I Prove?
The Social Security Administration deems you “disabled” if you have a medical condition that has lasted or is expected to last at least twelve months, that makes you unable to return to your past work, and that makes you to adjust to any other type of work. It is not sufficient under Social Security rules that you be unable to work construction, even if your entire work experience is in the construction industry and you consider yourself to be unqualified for any other job. If there is ANY job that you would be able to perform given your physical and mental disabilities, your age, and your functional limitations, then the Social Security Administration will not find that you are disabled.

How do I Prove It?
The value that a Social Security Disability lawyer should provide is to help you in collecting, and in certain circumstances having produced, the objective medical records, witness statements, and other evidence that will prove to the Social Security Administration that you are disabled. The most important piece of evidence, by far, is the medical record file. Your attorney should also consider drafting and submitting to your treating physicians Residual Functional Capacity Questionnaires (“RFC’s”) that elicit from your physicians the exact information that must be presented in court to prove your disability. The RFC’s should outline exactly how your functioning is diminished by your disability and therefore, why you cannot work. It is generally not enough to prove only that you suffer from a medical condition, it is usually necessary to also prove to your judge HOW your medical condition affects your day-to-day functioning and WHY it makes you wholly unable to work. The lawyer’s job in this process is to advocate for you, to ensure that your story is effectively communicated to the judge, and to create the record needed to allow the judge to find in your favor. A lawyer may also draft and submit a detailed pre-trial brief (sometimes called an “On The Record Request,” sometimes simply a “Pre-Hearing Brief”), outlining in legal detail why your claim should be granted. A busy judge may appreciate receiving a synopsis of the file before the hearing (many of these files have hundreds and hundreds of pages of medical records and a summary brief can be very helpful), and my clients appreciate using the pre-trial brief as an opportunity to frame the argument in the way that is most persuasive to their cases.

Most disability applications go through multiple phases and appeals before they are granted. If your initial application that you file by yourself either online or in person is denied, you will receive a letter denying your claim and advising you of your right to file a first-level appeal, called a Request for Reconsideration. It is absolutely imperative that you follow the instructions on your denial letter exactly when you file your Request for Reconsideration. Better yet, hire an attorney to do it for you! The time limits are strictly enforced, absent qualifying factors, and if you miss the appeal deadline, you will have to file a whole new application. At the first-level appeal stage, you will have an opportunity to submit additional evidence into your file, and a second, different analyst will review your file and make a determination as to your application. Typically, you do not have the opportunity to be heard in person at the Request for Reconsideration phase. If you are again denied at the Request for Reconsideration level, you will receive a second letter so stating, and you will have another appeal deadline in which to file a Request for Hearing. Again, it is important to monitor closely your appeal deadline and to ensure that you submit all requested information in a timely manner. Better yet, hire an attorney to do it for you! At the Request for Hearing, or second-level appeal, you will again have an opportunity to submit additional information and to develop the file, and you will also have an opportunity to appear before an Administrative Law Judge in person and make your case. You do not have to have an attorney attend your hearing with you, and in fact, you may have anyone you want attend as your representative, whether or not the person is licensed to practice law. You may appear by yourself, or call other witnesses to speak at your hearing. .

You Won! Now What?
Once your judge determines that you are in fact disabled, the Social Security Administration will perform a final analysis to determine whether, in light of your work history, assets, and income, you are entitled to Title II, Title XVI, or, in some cases, both types of benefits. At the completion of this analysis, if all goes well, you will be paid back benefits back to either the date of your application, in the case of Title XVI cases, or, in the case of most Title II cases, to a date beginning five months after your application date. (It is possible in some Title II cases to prove that your disability existed prior to the application date, but this is a complicated consideration and is beyond the scope of this article). Your attorneys’ fees will be deducted from the back benefit payment. Going forward, so long as you remain qualified, you will continue to receive a monthly check from SSA.

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