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Social Security Disability Articles

Should I appeal a Social Security Disability denial?
Ten Social Security Disability mistakes to avoid
SSI v. Social Security Disability: How they differ
Five tips to win your Social Security Disability hearing in Virginia
Five reasons for appeals council reversal and remand of ALJ hearing decisions
Will a disability statement from a family member, friend, or former employer help my claim?
Top reasons why Social Security denies disability claims


SHOULD I APPEAL A SOCIAL SECURITY DISABILITY DENIAL?

Social Security Disability is not available for everyone who has an impairment. 
If you are under age 50 and are still capable of some kind of employment in the national economy then you probably cannot get Social Security Disability.  What you can do is contact your state Department of Rehabilitation and seek help in obtaining retraining or job placement.  This service should be free for anyone who has an impairment.  Of course, if you are still working and making $840.00 or over then you are presumed not to be disabled.

If you are over 50, then proving disability gets somewhat easier.
However, your age really does not help you until you are 55 or over.  If you are 55 or over, have a severe impairment that prevents Past Relevant Work (PRW), then you are a better candidate for disability.  If you have less than a high school education, are over 55, and have only a history of unskilled work, then you are even a better candidate for disability provided you have a severe impairment.  As the above discussion shows, when applying for Disability, it is better to be older than 55, uneducated, and have no skills.  If you lack any of these, the case for Disability becomes harder.  Alternatively, it is also helpful if the skills you acquired from your work are job specific and are not readily transferable to other occupations.

There are those cases in which the impairment is so severe that all employment is precluded even though the claimant is young, highly skilled, or highly educated.
But most cases involve claimants who because of their impairment cannot do their Past Relevant Work (PRW).  Then the Big Question becomes can they do other light work or perhaps sedentary/sit-down work in the national economy despite their impairment.

Where a case fits in the process can be determined by an experienced Social Security Disability Attorney.
The lawyer can evaluate the case and advise whether or not it is worth going forward.

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TEN SOCIAL SECURITY DISABILITY MISTAKES TO AVOID

  1. You must apply for disability after you stop working.
    If you stop working due to a disability, then you need to apply. Social Security only gives you a window of opportunity to apply. Usually, this is five (5) years, but if there is a gap in your work record it can be much shorter like one (1) or two (2) years. This is often a problem with housewives who drop out of the work force for a number of years to raise children.
  2. You must have enough quarters of work.
    If you have worked very little and Social Security says you do not have enough quarters, you may have to continue working in order to gain enough quarters to qualify.
  3. Your disability must last at least twelve (12) consecutive months.
    If you have a serious injury but you are going to recover within twelve (12) months, you are not going to qualify for Social Security Disability. A prerequisite for Social Security is that you have an impairment that has or is expected to disable you for twelve (12) consecutive months.
  4. You cannot be working when you apply.
    If you think you can work part time and qualify for Social Security Disability, you probably are not going to win your case. Social Security considers earned income an automatic disqualifier in most cases.
    In 2006, Social Security considers $860.00 per month as substantial gainful activity and an automatic disqualifier. So, if you make this amount even working part time, you cannot qualify for Disability. Also, even working part time, shows you have the ability to work.
  5. The Social Security doctor will probably not declare you to be disabled.
    Assuming a Social Security doctor will examine you and agree you are disabled is a common misconception. Most often, Social Security doctors rush people through like an assembly line. The exam is often very cursory and the examiner may not have the medical expertise to really understand your ailment. Usually, they give very little credence to subjective complaints.
  6. You fail to file a timely appeal of a denial.
    Only about a third of claimants are granted at the initial level. After a denial, you have 60 days to appeal. Your case cannot be given additional consideration unless you appeal.
  7. You fail to get medical treatment.
    Failure to obtain consistent treatment for your ailment is a common problem.
    Most Social Security judges will give little credence to an ailment that you have not sought medical treatment for. Thus, if you have a chronic pain complaint, you should at least make an attempt to manage the pain through a pain clinic or some other approach.
  8. You fail to have your own doctor’s support.
    Social Security rules give a lot of weight to a well written opinion by the claimant’s own treating physician. Thus, if you believe you are disabled, you need to first consult your own physician for his/her opinion.
  9. You fail to consult a specialist.
    It may be well and good to have an opinion from your family doctor. However, if you have an impairment that requires the opinion of a specialist, then you need to see one. For example, a lung problem may require a breathing test and the opinion of a pulmonologist. A heart problem may require a stress test and the opinion of a cardiologist.
  10. You fail to consult a Social Security specialist. 
    Social Security law is a unique area of the law. If you have a brain tumor, you would not see a family doctor, you would see a specialist. Likewise, for Social Security Disability, you need to see an attorney who specializes in that field.

In summary, many of the above mistakes listed above can be avoided if the claimant consults early on with an attorney who is a specialist in Virginia Social Security Disability law.

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SSI V. SOCIAL SECURITY DISABILITY: HOW THEY DIFFER
Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI) and are confused by many people. I have been a Virginia Disability Lawyer for over 35 years, and all of my clients know the difference between the programs.

These are the most important differences between SSI and SSDI programs:

  1. For SSDI, you must have an earnings record and show you are disabled.
    – Housewife:
     “Why can’t I get disability?”
    Response:
     “Where is your earnings record?”
    – Self-employed:
      “Where is my disability?”
    Response:
      “Did you ever file taxes and pay into Social Security?”
    – People who are paid in cash or under the table:  “Why can’t I get Social Security?”
    Response:  “You only get out what you paid in; it is not a free ride.”
  2. For SSI, you must meet the low income household requirements and show you are disabled.
    – SSI is a welfare program and even though its full name is Supplemental Security Income, it probably should have been called “Welfare Disability.”
    – Even if you are disabled, you may not be eligible for SSI if you have either income or resources.
    Income includes wages, Social Security benefits, and pensions.
    Resources are things you own like real estate, bank accounts, cash, stocks and bonds.
    As of 2013, an individual who has more than $2,000.00 in resources cannot qualify for SSI.
    As of 2013, a couple who has more than $3,000.00 in resources cannot qualify for SSI.
    – The same housewife who could not obtain Social Security may also not be able to obtain SSI because:
    (1) she has other unearned income, (2) her husband has too much income, and/or (3) she or her husband has too many assets.
  3. The SSDI is dependent on the earnings the worker paid in and could be as high as $2,053.00 per month.
    – Question:  “Why isn’t my benefit higher?”
    Answer:  “You get out what you paid in.”
    – Not working for a number of years or working at a minimum wage job is going to result in a lower benefit.
    – On the other hand, the maximum SSI amount an individual can receive in 2006 is $603.00 per month, but this does not depend on earnings.
  4. An individual on SSDI can also expect a payment to dependent children up to age 18 or until the child graduates from high school.
    – The dependent children share equally about 50% of the parent’s benefit.
    – On the other hand, there is no dependent care benefit for a recipient of SSI.
  5. SSDI & SSI are similar in one way: the disability test is the same.
  6. When you file for Disability, Social Security will first check if you are eligible for SSDI before allowing you to apply for SSI.
    – Generally, if your monthly Social Security check is higher than $603.00, you would not be eligible for SSI.
    – On the other hand, if your monthly Social Security check is lower than $603.00, you may be able to receive a small SSI check so your total benefit is about $603.00 per month.  

In summary, when a person says I am on “disability” or I want “disability,” there is a big difference between SSI and SSDI. Remember, SSI is a welfare benefit and Social Security Disability is an earned benefit.

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FIVE TIPS TO WIN YOUR SOCIAL SECURITY DISABILITY HEARING IN VIRGINIA
You have been denied twice and now your case is going to be heard at a hearing by an Administrative Law Judge (ALJ).

These are the five best ways to win your ALJ hearing:

  1. Get the best judge.
    Some judges approve 50 to 60% of appeals, but others only approve 15 to 20%.
    Can you shop around and get the good judge? Well, the answer used to be you could try to avoid the bad judges. However, Social Security has now adopted a new rule that says you will not know the identity of the judge until the day of the hearing. Thus, you may be stuck with the bad judge unless you want to withdraw and start the entire process over, which can take a year. Withdrawal may now be the only way to avoid the bad judge.
    Richmond ALJ Case Statistics: www.disabilityjudges.com/state/virginia/richmond.
  2. Have the support of your treating doctor.
    It is almost impossible to win without the support of your treating doctor. If your treating doctor does not support your case, then this is a signal you are not “disabled” at all. Not only must he/she support your case, he/she must write an evaluation supporting your case. Social Security will not accept a bare statement from a doctor saying you are “disabled” for work.
  3. Get medical treatment for your condition.
    Social Security will not accept your say-so that you are in pain or cannot work. You must have medical treatment for your condition that demonstrates you have an impairment that impairs your ability to work.
  4. Review the prior denials and Disability Determination Explanations carefully.
    The Department of Disability Determination Services (DDS) will prepare a Disability Determination Explanation (DDE). The DDE includes history of your medical care, a residual functional capacity assessment, etc. It will state the reasons why DDS found you “not disabled” and be supported by a doctor who reviewed the records.
    The DDE is important because the first thing the judge will look at in evaluating your case. Also, reviewing the DDE will show what you have to do to win the case.
  5. Pick the right lawyer.
    Lawyers specialize just like doctors do, so you should pick a lawyer who specializes in Social Security Disability.
    You should pick a local lawyer. If you pick a 1-800 number lawyer, you will never meet the lawyer until the date of the hearing. That lawyer will not know the judge, the vocational expert or your doctors.
    Your lawyer should be AV rated by Martindale-Hubbell and a member of the National Organization of Social Security Representatives (NOSSCR).

In summary, these are my five tips for winning your Disability Case based on my 35 years of experience in doing these cases.

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FIVE REASONS FOR APPEALS COUNCIL REVERSAL AND REMAND OF ALJ HEARING DECISIONS
You received an Unfavorable Hearing Decision by a Social Security Administrative Law Judge. How can you get the Appeals Council (AC) to reverse and remand the ALJ Hearing Denial? (“Remand” means the AC reverses the ALJ decision and sends the case back to ODAR for another hearing.)

The Social Security Appeals Council tracked the reasons for over 100,000 remands it issued in 2010. The list of the leading reasons for remands was published in the July Social Security Forum. The Appeals Council continues to remand about 22% of its cases.

You can increase your odds of a Remand by focusing on these high percentage reasons:

  1. 42% – Evaluation of the medical evidence or Residual Functional Capacity (RFC) assessment
  2. 15% – Step 2 analysis of severe/non-severe impairments
  3. 14% – Procedural errors or improper dismissal
  4. 10% – Step 5 analysis of the grid and vocational expert testimony
  5. 8% – Credibility determinations

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WILL A DISABILITY STATEMENT FROM A FAMILY MEMBER, FRIEND, OR FORMER EMPLOYER HELP MY CLAIM?

Remember that you can submit a “Witness Support Letter” or disability statement from a family member, friend, former employer or pastor in support of your disability claim. §404.1513(d)(4) states that Social Security will consider evidence from “other non-medical sources (for example, spouses, parents and other caregivers, siblings, other relatives, friends, neighbors, and clergy).”

When you have the right person with the right story to tell, it can be powerful evidence. A “lay statement” (non-medical statement) can be important because it puts a disability case in human context. I always ask my clients with upcoming hearings for at least three statements from family members, friends, etc. about how the claimant’s impairments have restricted his/her ability to perform work and daily activities. All of the statements are thoughtfully written and compelling. The statements are usually a one to two-page typed letters telling the story of how the claimant used to be before s/he became disabled, what changed medically, and what life is like now. There is a genuine quality to these letters and they are often very moving. Ideally, the statements should be in the record far enough in advance so the judge can read them before the hearing. In a typical case, the judge can only review the medical records and various SSA forms in the file prior to the hearing.  The human element is pretty scarce until the actual hearing when the judge finally meets the claimant. The judge may wonder, “is the claimant as disabled as s/he claims to be?” The statements contribute to the claimant’s credibility. They also often provide an excellent summary of the claim. Since the statements are in the record as evidence, the claimant’s attorney can refer to them in his/her closing argument.

Three or more supportive statements may benefit the case. In a recent hearing, my client got a statement from his former employer graphically detailing his attempt to continue working despite his disability. The judge said it was the most compelling statement from a former employer he had ever seen! We won the case and I believe the statement played a big factor in the judge’s favorable decision.

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TOP REASONS WHY SOCIAL SECURITY DENIES DISABILITY CLAIMS

Based on over 35 years of practice, these are the top reasons why claimants are denied Disability at the initial level:

  1. Still Working – Even if you are having difficulty working or only working part-time, the fact that you are working at all is a strong indicator that you are not disabled under Social Security rules. If you make more than $1,130 in a month (SGA 2016), you may not be eligible for Disability benefits.
  2. Failure to Pay into Social Security – If you have been a housewife, you got paid under the table, or you have worked for yourself and have not paid into the Social Security system, you may not qualify. If your work has been on and off or it has been many years since you worked, then you may not have enough “work quarters” to qualify.
  3. Not Severe Impairment – You must have a significant medical problem that requires doctor’s care and negatively affects your daily activities and functional abilities. Old age is not enough, and inability to find work is not enough.
  4. Too Young – Social Security considers anyone under age 50 to be a younger individual. Younger individuals must prove with written doctor support that they cannot do ANY type of job in the entire national economy, even a low stress sit-down job. It is not enough to show you cannot do your past work.
  5. Disability is Short-term – Your disability must last at least 12 straight months. It is not enough if you are going to recover or improve within 12 months.
  6. Unemployment Compensation – In order to receive Unemployment Compensation, you must certify you are able to work and show you are looking for work. Most Social Security judges feel that being on unemployment is a direct conflict with a Disability claim.

If your Disability claim has been denied, contact the Law Office of Gerald G. Lutkenhaus for a free consultation immediately because there is a 60-day deadline to file an appeal.

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