Social Security Disability Claims
Are You Disabled?
How does the Social Security Administration determine if you are disabled?
Social Security defines disability as any medical condition that has prevented you from working and is expected to last more than twelve months or result in death. If this describes your situation, you should file for disability with Social Security.
Five Step Sequential Evaluation
Social Security uses a five step evaluation process to determine whether or not you are considered “disabled.” This simply means that each step is considered in order.
The five steps are as follows:
- If you are not working, or your earnings are less than $940 monthly, you can qualify for disability. Proceed to the next step.
- How severe is your medical condition? If it is severe enough to interfere with basic work-related tasks, you can continue to the next step.
- The Social Security Administration (SSA) maintains a list of medical conditions that automatically qualify a person as “disabled”. Keep in mind that there must be medical documentation from a physician that shows show you have these conditions. If you meet the criteria, SSA must find you “disabled.” If you do not meet this criteria, you may still be found disabled. Please continue to the next step.
- If you are able to do the work you have done in the past, you will not be found disabled. However, if your condition impairs you to the point that you cannot do the work you used to do, you may qualify. You must go to Step Five.
- By evaluating your age, education, skills, and work history, the SSA will determine if you can do any other type of work. If you can, you will not be found disabled. This is the last step for evaluating your disability.
When you file a disability claim with Social Security you must be prepared to submit your medical information including the names of your treating physicians, clinics, and hospitals, and their addresses, telephone numbers, and dates of treatment. You must also supply information about your work history, proof of citizenship and personal information such as date of birth and marriages.
Obtaining Social Security benefits can require you to go through several different administrative or judicial stages. At each level, we provide a specialized analysis for each of our clients’ cases, and we employ the legal theories and techniques necessary to get you the benefits you deserve.
The lengths an individual must go in order to be found to be “disabled” varies from one person to the next. When you retain Henness & Haight to appeal an unfavorable decision from the Social Security Administration, we carefully examine the entire decision. If the decision was wrong, we will take all of the necessary and reasonable measures to help change it for you, including pursuing your case to federal court.
Our Fees
Fees in a Social Security disability case are paid on a contingency basis, and are subject to approval by the Social Security Administration. This means that you, as the client, do not pay any fee to us, unless and until you receive a favorable decision. This is true no matter how much time or our effort we undertake on your behalf.
If your case is successfully concluded at the initial administrative hearing level or at any stage before that, by law, the fee you pay us will be the lesser of either 25% of the past-due Social Security and/or Supplemental Security Income (SSI) benefits owed to you, and any auxiliary beneficiaries (eligible children and spouse), or $6,000.00, or the applicable maximum set by the Social Security Administration in accordance with the Social Security Act.
If an appeal of all or a part of the administrative hearing decision is filed, and is successful, by law, the fee you pay us will be a maximum of 25% of the past-due benefits owed to you, and any auxiliary beneficiaries, i.e. minor children.
Obtaining Social Security Disability Benefits
The first step in seeking Social Security Disablity benefits is to file an application. An application for Disability Insurance Benefits or Supplemental Security Income (SSI) must be filed with the Social Security Administration in person at a local Social Security Administration office, or by telephone. If you are represented by an attorney, your attorney can arrange for the filing of your application as well as preparing all of the necessary forms. Having an attorney prepare and mail the application prevents you from having to travel to and from the SSA office. It also eliminates the time you must wait until you are interviewed after arriving at the SSA office.
Unfortunately, approximately 60% of all initial Social Security Disability applications are denied. If your inital application is denied, you must appeal the denail in order to continue your pursuit of benefits.
Reconsideration is the first step after the application has been denied. If you wish to appeal a decision you must file a request for reconsideration with the local Social Security Administration office within 60 days, unless the time to appeal has been extended for good cause. A claim must be evaluated at the reconsideration level before an administrative hearing can be held.
Reconsideration involves another review of all the evidence in the file at the time of the initial decision, together with any additional evidence submitted after the initial decision. Reconsideration includes a review of the initial background information in the file for completeness; updating the information in the record, including your statement of your condition, reports of any medical treatment received since the initial filing, and any work activity subsequent to that time; and obtaining from you information on any conflicts in the record.
While most claimants believe that they will be required to proceed to the third step of the process – the administrative hearing – in order to get a favorable decision, proper development of the case do result in many persons winning their cases at the reconsideration level. For example, your attorney can be helpful in obtaining a narrative report from your treating physician which speaks directly to the issues which SSA wants addressed. Your attorney can also be helpful in the medical development of a case. Claimants who are represented at the reconsideration level avoid having to file their appeals in person at their local SSA office – their attorneys will do this for them as part of their representation.
If your claim is denied in whole, or in part at the reconsideration level then you can request a hearing before an Administrative Law Judge within sixty (60) days of the denial. The request for hearing must be in writing and filed with the local Social Security Administration office. Hearing requests are then forwarded to ODAR. After the request for a hearing is received by ODAR, the staff will await the arrival of the file from the local office before any further development is started. ODAR will contact those persons who are represented by attorneys by writing to their counsel. Experienced attorneys will usually begin to compile more medical and vocational evidence at this point, so as to assist the administrative law judge in their early evaluation of the case. This enhances the chance that the claimant will receive a favorable decision without having to appear at a hearing.
When a hearing is held, the administrative law judge, usually through a hearing assistant, decides whether the evidence in the file is adequate to resolve the issues or whether factual development of some type is necessary. The judge or assistant then decides what additional evidence is necessary, if any, and whether a vocational expert and/or or medical expert(s) should be called to appear at the hearing. The judge or assistant also notes any questions of law or policy which will require research prior to the hearing, and considers what action is needed regarding any confidential information in the file. Attorneys representing a claimant will often be contacted, advised of what the ALJ believes is necessary in the way of new evidence and/or pre-hearing legal analysis of one issue or another.
Once a case is ready for hearing, a scheduling clerk schedules the hearing together with a certain number of other claims to be heard by a particular administrative law judge in a particular area. Hearings are generally scheduled in the order of the dates of the requests for hearings. However, geography and other factors must also be considered. It is customary for attorneys representing claimants to be contacted before hearings are scheduled, so as to ascertain their availability and their clients for a particular date. The minimum time period for notifying claimants of a hearing date is 20 days.
A claimant may request postponement of a scheduled hearing but postponements are granted only for good cause, i.e. a viable explanation. If a claimant fails to appear, a show cause order may be issued – this requires the claimant to explain why they did not attend. If no acceptable explanation is provided, the request for a hearing can be dismissed. A show cause gives a claimant 10 days to submit in writing the reason why the claimant did not appear at the hearing. If no good cause is found, the request for hearing may be dismissed on the basis of abandonment. The time or place of the hearing must be changed if the claimant or his or her representative cannot attend the hearing due to a “serious physical or mental condition, incapacitating injury, or death in the family,” or if “severe weather conditions make it impossible to travel to the hearing.” Persons who are not represented by attorneys, and who subsequently retain legal representation are generally granted postponements, if such representation was only acquired shortly before the scheduled hearing.
The hearing itself is informal and not typical of conventional civil and criminal trials. A formal written decision is issued that must include a recitation of evidence considered and detailed reasons for the decision, regardless of whether the decision is favorable or unfavorable.
The next and final administrative level of appeal is to request a review by the Appeals Council. As with all of the other administrative appeals described above, this appeal must be filed within 60 days after receipt of the hearing decision. No case can proceed to the district court for judicial review without first having been reviewed by the Appeals Council.
After a claimant has exhausted (used) all of their administrative appeals, i.e. received an unfavorable decision from the Appeals Council, the Social Security Act provides for judicial review in the federal district courts. The civil action must be commenced within 60 days of the date of the decision of the Appeals Council. The claimant is presumed to have received notice of the Appeals Council decision five days after it was mailed, once again, in effect giving the claimant 65 days from the mailing of the notice to file. Social Security Administration regulations also provide for an extension of the filing deadline, where good cause can be shown. An extension is normally requested from the Appeals Council.
The Social Security Administration answers the complaint by filing a transcript of the administrative hearing together with all exhibits included in the record. At this juncture, the claimant (Plaintiff) will prepare a legal brief outlining their position about the case. The Defendant (Commissioner, Social Security Administration) will prepare and file a reply brief. If Plaintiff so chooses, they can then file their own reply brief. The court will then make a decision based on the briefs. In some jurisdictions, oral argument will be held before a decision is made, at which time the respective attorneys will state the reasons why the action of the Social Security Administration should be reversed or upheld. The briefs will contain a comprehensive summary of the medical and vocational evidence, as well as detailed legal arguments which explain the respective parties’ positions on the particular legal issues.
The United States district court can affirm or reverse, in whole, or in part, the Agency’s decision, or remand the case. A remand means that the case will be sent back to the Social Security Administration for further administrative proceedings. This usually entails a supplemental hearing before an Administrative Law Judge.
If the district court denies either all or part of the appeal, the case can be further pursued to the United States Court of Appeals. Similar to the district court, it can affirm or reverse, in whole, or in part, the Agency’s decision, or remand the case.
If the Court of Appeals affirms in its entirety an unfavorable decision, only the rarest of cases are appealed to, and decided by the United States Supreme Court.