The Social Security Administration (SSA) has created two programs for Americans who cannot work due to injury or illness. The two primary safety net programs are Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI). Only 35 percent of applicants received initial approval in 2008. Part of the reason is because of the complex regulations and mechanisms within the system. A qualified legal professional can help guide you through the process.
SSD and SSI
Before beginning your application for Social Security benefits, it is important to know which program applies to your situation. Essentially, these programs allow beneficiaries to access their Social Security benefits earlier than retirement age.
In order to qualify for Social Security Disability (SSD), the applicant is considered fully insured if he or she has paid into the Social Security system for roughly five of the past 10 years. With a successful claim, the applicant can receive back benefits five months from after the disability, along with ongoing monthly payments.
After a worker turns 21, he or she must work three months (one quarter) out of every subsequent year in order to be fully covered. Applicants over age 31 need 20 quarters worked out of the previous 40 calendar quarters. Five years after stopping work, applicants will no longer be eligible.
NOTE: Applicants who don’t have enough quarters worked should still apply for SSD or SSI. Additional work quarters can be gained by amending tax returns with an attorney or tax preparer, especially for the self-employed. And this may be done within a three-year window.
Supplemental Security Income (SSI) differs from SSD in that it is intended to help those over 65 years old, along with the disabled. The amount of SSI available in each state differs because some states supplement SSI benefits.
Applicants must not earn more than $2,000 individually or $3,000 as a couple in order to qualify for SSI. A house of any value is excluded from asset limitations, along with a car of any value, if used
NOTE: Many applicants assume themselves to be part of common-law marriage because they reside with a partner. This is not always the case. Check the law to ensure that you do not falsely claim a common-law marriage.
Recipients of Social Security Disability (SSD) benefits may be eligible to receive up to 12 months’ benefits retroactively from the date of their application. This is dependent upon meeting certain requirements. Upon award, successful applicants may begin receiving benefits after the five-month waiting period has ended.
SSI benefits, meanwhile, do not go into effect until the application is filed. Recipients will begin receiving benefits on the first of the next month.
Filing an Application
Claims may be filed by phone, online or in person. Call 1-800-772-1213, visit www.ssa.gov or stop by a local Social Security office to initiate your application.
NOTE: How you describe your previous work experience can affect the outcome of your claim. It may be beneficial to emphasize the strenuous nature of physical labor. Also, never underestimate the weight of loads or the time spent working. Also, a detailed job description is more important than a job title.
NOTE: Claims should be filed as soon as possible, since partial months are not factored into benefits calculations. An application filed on May 3, for example, no part of May will be counted. Contact the SSA by phone to request a “Protective Filing Date,” which will lock in your file date and allow you to complete paperwork later.
NOTE: Filing an application online carries with it some inherent risk. Errors on the SSA Web site can cause your application to be lost. Filing in person provides the security of speaking face-to-face with a representative and also generates a receipt.
-- denial rate --
An estimated 65 percent of first-time claims for Social Security benefits are denied. If your first claim is denied, don’t give up – you have the right to file an appeal.
The SSA has created four administrative levels for appeals and applicants must appeal to the next level.
- Level 1: Initial Determination (Average 106 days)
- Level 2: Reconsideration Determination (additional 95 days)
- Level 3: Administrative Law Judge Hearing (additional year to 18 months)
- Level 4: Review (additional eight months to one year)
At each level, appeals must be filed within 60 days of the decision (plus an additional five days for postal delivery).
Once all appeals options have been exhausted, applicants can ask for a review by a local Federal Court. This requires an additional year to two years.
Each appeal level adds additional time to the application process, lengthening the time before benefits are received.
NOTE: Claims are frequently denied at the first two levels, but it’s not until Level 3 that applicants appear in front of a judge. Here, they may present evidence and witnesses may be called.
Re-Opening of a Claim
After a claim is denied, there might be good cause for it to be re-opened, such as new evidence or when the decision is wrong on its face. Requests for re-opening of an SSI claim must be filed within two years, while requests to re-open SSD claims must be filed within four years.
Exhaustion of Appeals
Once all appeals channels have been exhausted, claimants are faced with res judicata (Latin for “a matter already judged”), which means that he or she may not apply again under the same set of facts. In order to apply again, claimants must show that the circumstances regarding the claim have changed.
Some claimant may be able to file a second application stating that the day he or she became disabled is the day after the Administrative Law Judge’s decision (Level 3).
Administrative Law Judge (ALJ) Hearings
A hearing before an ALJ (Administrative Law Judge) is perhaps the most important part of the appeals process. Over the course of 60 to 90 minutes, the judge is asked to make an independent ruling that ignores previous denials. According to disabilityjudges.com, Indiana judges at this level usually rule in favor of the claimant roughly 45 percent of the time, slightly better than the national average of 44 percent. Represented clients have more success than those without attorneys.
Informal, Non-Adversarial Hearing
The informal Social Security hearing is nothing like a trial. It takes place in a small conference room – not a courtroom -- and no lawyer is present to argue against the claimant. The ALJ merely attempts to learn the facts.
Who attends the hearing?
Generally, you can count on four people attending your hearing: yourself, your attorney, the judge and a Hearing Monitor (who records the proceedings). It is likely that the judge will ask a Vocational Expert to attend and testify about job requirements and availability as they relate to physical and mental limitations. The judge may also request a Medical Expert to attend and testify as to the claimant’s condition. Additionally, you may request witnesses to appear and offer testimony.
During the ALJ Hearing, claimants are often asked to testify about their work history, education, medical history, symptoms, perceived work limitations and daily activities.
Claimants should also emphasize any emotional pain or stress brought on by their disabilities, including their inability to concentrate, memory problems, anxiety, short temper, anti-social behavior and mental illness. It is also important to connect these symptoms with their affect on workplace duties. The anguish of physical disabilities can cause mental strain, making it difficult to finish tasks, complete work on time, get along with colleagues, accept criticism and work regular hours. It can be helpful to discuss these issues with an attorney beforehand.
Responsibility of the attorney
Your attorney will collect medical records and help witnesses prepare before the hearing takes place. During the ALJ hearing, your attorney may ask questions of you, witnesses or experts, and also deliver a closing argument.
Building a successful case relies on establishing disability and the burden of proof falls upon the claimant. The claimant’s case must prove, through medical evidence, that he or she is unable to perform gainful employment because of a disability that
1. Is expected to result in death
2. Has persisted for 12 months, or
3. Is expected to persist for no less than 12 months
Establishing disability relies on four areas of evidence: objective medical facts, the diagnosis and opinion of doctors, pain experienced by the claimant and the claimant’s education, age and employment history.
NOTE: According to the Social Security Administration, the opinions and diagnoses of doctors are the strongest factor for judges in making their ruling. In fact, judges have been instructed to give the opinion of a doctor greatest influence, if it is supported by medical evidence, and must demonstrate good cause should the judge choose to ignore it.
Under the Social Security Act, the definition of disability includes a medical component and a vocational component. The Social Security Administration determines whether claimants are eligible for SSI or SSD by applying a five-step inquiry known as the Sequential Evaluation.
Five-Step Sequential Evaluation
- Can the claimant engage in substantial gainful employment? If the answer is “No”…
- Will the impairment last 12 months or result in death? If the answer is “Yes”…
- Does the impairment meet the severity of a defined medical listing? If the answer is “Yes”… the claimant is disabled, according to medical listing. If the answer is “No”…
- Can the claimant perform past relevant work? If the answer is “No”…
- Can the claimant perform other available work? If the answer is “No”… the claimant is disabled according to vocational standards. If the answer is “Yes,” the finding is not disabled.
Regardless of medical condition, age or education, a claimant who is engaged in substantial, gainful work will not be declared disabled.
Substantial Gainful Activity
The Social Security Administration defines Substantial Gainful Activity (SGA) as work involving significant physical or mental activities typically done for pay or profit. (The threshold for SGA is higher for blind claimants.)
Activities and their value are more important than income when it comes to self employment.
Part-time work represents something of a gray area when it comes to Substantial Gainful Activity. A judge might find that some part-time work constitutes SGA and not automatically deny benefits.
NOTE: Many part-time workers seeking disability require special equipment or accommodations. Claimants are advised to emphasize these when explaining part-time work to a judge.
Unsuccessful Work Attempts
The Social Security Administration considers any job lasting less than three months to be an “unsuccessful work attempt.” This often results when the employee requires help from co-workers, can work only irregular hours, requires special tools and performs work at a lower standard than his or her colleagues.
When employment lasts more than three months, but less than six months, claimants must demonstrate why the attempt was unsuccessful, such as frequent absences, sub-standard work or work done under special conditions, due to an impairment.
NOTE: A claimant’s date of disability should be the first time he or she was unable to work. This may yield additional months of benefits since subsequent “failed work attempts” do not count as work.
Work done under special conditions
Under a court ruling, work done with more assistance or supervision than normal implies that a claimant is not performing SGA, regardless of income.
Proving a Severe Impairment
In order to be declared disabled, claimants must prove that their physical or mental ability to perform basic work activities is significantly limited by an impairment, or a combination of impairments. A slight abnormality, or combination of abnormalities, may not rise to the level of a “severe impairment.”
NOTE: Medical records are more effective if the doctor describes the physical limitations that accompany a diagnosis, such as difficulty walking, standing or lifting, which can affect work performance.
Judges must take into consideration pain and other symptoms experienced by the claimant when ruling on the severity of impairment. These factors are a clear hindrance to the claimant’s ability to perform work when consistent with medical evidence.
Proving You Meet or Equal a Medical Listing
Do Impairments Meet or Equal an Impairment in the Listings of Impairments?
Claimants who demonstrate an impairment equal to a listed impairment and meet duration requirements are declared disabled without consideration to age, education or employment history. This comes at step three of the sequential evaluation and allows the claimant to skip steps four and five. He or she must prove the impairment meets all listed criteria.
Medical Equivalence to a Listing
An impairment is considered equivalent to the listing when it is determined to be equal in severity and duration to the listed impairment. Medical equivalence will likely be found even if the impairment
- Fails to exhibit at least one medical finding specified in the listing, or
- Fails to exhibit all medical findings, but at least one finding is not as severe as specified in the listing
When Impairments Fall Short of a Listing
When impairments fail to meet or equal a listing, the judge must explain why, based on the relevant evidence.
1.00 Musculoskeletal System
2.00Special Senses and Speech
4.00 Cardiovascular System
5.00 Digestive System
6.00 Genitouriny System
7.00 Hemic and Lymphatic System
9.00 Endocrine System
10.00 Multiple Body Systems
12.00 Mental Disorders
13.00 Neoplastic Diseases
14.00 Immune System
Proof of Residual Functional Capacity
Residual Functional Capacity (RFC) refers to the claimant’s ability to perform work duties under ordinary conditions on an ongoing basis (eight hours per day, five days per week, or an equivalent schedule). Basically, it describes the ability of the claimant to work, despite impairments. RFC exertional classifications are:
- Very heavy work (standing or walking for six or more hours, lifting 100 pounds or more)
- Heavy work (standing or walking for six or more hours, lifting weights of no more than 100 pounds)
- Medium work (standing or walking for six or more hours, lifting weight of no more than 50 pounds)
- Light work (standing or walking for six or more hours, lifting weights of no more than 20 pounds)
- Sedentary (sitting for six or more hours, standing or walking for no more than two hours, lifting weights of no more than 10 pounds)
The RFC is comprised of seven strength (exertional) activities, broken down into three work positions (sitting, standing and walking) and four worker movements (lifting, carrying, pushing, pulling). It also takes into consideration pain and other symptoms.
Mental impairments can limit exertional tasks even further. Judges must determine the extent of these limitations, based on medical testing (including psychological evaluations), activities of daily living, quality of occupational and social activities, intellectual function and ability to perform in a workplace environment.
Consideration of Non-Medical Evidence
Family members and social workers might be asked to provide non-medical evidence regarding the functional limitations related to mental impairment. This includes accounts of workplace performance and pain reports.
Substantial evidence of physical requirements require in order to establish RFC.
Claimants with severe impairments face frequent absenteeism and treatment for those impairments can further hinder workplace attendance. Vocational experts may provide evaluation of absenteeism related to impairments.
Inability to Perform Past Relevant Work
The Social Security Administration examines RFC through the lens of the claimant’s past relevant work if no decision regarding current work activity can be reached, based on medical facts, and if severe impairments exist. Claimants who are still capable of previous work will be found not to be disabled.
Defining Past Work
Work performed in the past 15 years, lasting long enough to learn it and constituting substantial gainful activity should be addressed when considering the claimant’s ability to perform past relevant work.
When following the Five-Step Sequential Evaluation, claimants are charged with proving steps 1-4. On step 5, however, the Social Security Administration must prove that he or she can perform other work.
NOTE: RFC is frequently based on the Dictionary of Occupational Titles (DOT), which outlines skill level and strength level.
The SSA must also prove that work the claimant can still perform is still available within the economy. Only at this stage is the testimony of a vocational expert relevant.
Proving Inability to do Other Work
A severe impairment must prevent claimants from performing past relevant work, but any work. The Social Security Administration considers RFC, age, education and work history when determining his or her ability to do other work.
Once again, the burden of proof lies with the Commissioner to show that the claimant can perform other work.
NOTE: It’s up to the claimant to provide proof at steps 1-4. But that burden shifts to the Social Security Administration at Step 5. They must prove that other jobs exist that the claimant can do. The Vocational Experts are very good, however, and the claimants’ attorney must be ready to cross-examine them.
Medical-Vocational Guidelines, also known as Grid Rules, may be used when impairments are strictly physical, not mental or emotional. Grid Rules may be relied upon solely when only exertional impairments are present or when non-exertional impairments do not affect RFC.
Age is considered a negative vocational factor when it comes to severe impairments. Both adapting to a workplace environment and overcoming severe impairments becomes more difficult as one ages. Therefore, the standard to be found disabled becomes easier as one grows older. The critical cages for a decision are 45, 50, 55, and 60.
Closely Approaching Advanced Age
Closely Approaching Retirement Age
Grid rules include six categories for education.
- Inability to Communicate in English
- Marginal Education (6th grade level)
- Limited Education (7th-11th grade level)
- High School Graduate or more – Does Not Provide for Direct Entry Into Skilled Work
- High School Graduate or more – Provides for Direct Entry Into Skilled Work
Level of Job Skill
Unskilled – Duties can be learned in little time and require little or no judgment. No work skills gained.
Semi-Skilled – No complex duties, but some skill required. May include alertness, close attention, inspecting, testing; coordination and dexterity may be required.
Skilled – Requires judgment, may require high levels of complexity in dealing with people, statistics or abstract ideas.
Loss of Hand and Finger Use for Unskilled, Sedentary Work
Claimants who have performed unskilled, sedentary work most often use their hands and fingers for repetitive actions. Should impairment limit and finger usage, the claimant may not be employable.
Prior work experience might be categorized as none, not vocationally relevant, unskilled, semi-skilled or skilled. Claimants who have performed work rising above unskilled in terms of complexity, and who have identifiable skills and are able to use them, meet the standard for skills transferable in skilled or semi-skilled work.
Vocational Expert Testimony
The Social Security Administration must prove the existence and availability of jobs the claimant can perform using the testimony of a vocational expert when the use of Grids is not warranted.
Known as the Grids, the Social Security Administration’s Medical-Vocational Guidelines reflect factors of disability (age, education and previous work experience) and medical factor (RFC) on the claimant’s ability to work. Within the grid, each rule includes a medical profile or exertional RFC (such as sedentary, light or medium) and a vocational profile (age, education, previous work experience).
A Vocational Expert may not argue against a grid rule finding when the grid determines that a claimant is disabled.
Maximum RFC Permitted for Disability Finding
|AGE||EDUCATION||PREVIOUS WORK EXPERIENCE||MAXIMUM RFC||RULE|
|60-64||6th grade or less||Unskilled||Medium||203.01|
|7th to 11th grade||Unskilled||Light||202.01|
|11th grade or less||
|11th grade or less||Skilled/Semi-skilled. Skills not transferable||Light||202.02|
|High school grad or more. Does not provide for direct entry into skilled work.||Unskilled or none||Light||202.04|
|High school grad or more. Does not provide for direct entry into skilled work.||Skilled/Semi-skilled|
|AGE||EDUCATION||PREVIOUS WORK EXPERIENCE||MAXIMUM RFC||RULE|
|55-59||11th grade or less||None||Medium||203.10|
|11th grade or less||Unskilled||Light||202.01|
|11th grade or less||Skilled/Semi-skilled. Skill not transferable.||Light||202.02|
|High school graduate or more. Does not provide for direct entry into skilled work.||Unskilled or none||Light||202.04|
|High school grad or more. Does not provide for direct entry into skilled work.||Skilled or Semi-skilled. Skills not transferable.||Light||202.06|
|AGE||EDCUATION||PREVIOUS WORK EXPERIENCE||MAXIMUM RFC||RULE|
|50-54||Illiterate or unable to communicate in English.||Unskilled or none||Light||202.09|
|11th grade or less – at least literate and able to communicate in English||Unskilled or none||Sedentary||201.09|
|High school graduate or more, does not provide for direct entry into skilled work.||Unskilled or none||Sedentary||201.12|
|High school grad or more. Does not provide for direct entry into skilled work.||Skilled/Semi-skilled. Skills not transferable.||Sedentary||201.14|
|AGE||EDUCATION||PREVIOUS Work Experience||Maximum RFC||RULE|
|Under 50||All educational levels including illiterate or unable to communicate in English.||Unskilled, none, or skilled or semi-skilled. Skills not transferab||Sedentary occupational base must be singificantly eroded.||201.00|
Grids may be used as a framework when exertional RFC fail to match definitions of sedentary, light or medium work and also when claimants have non-exertional limitations.
Claimants under 50 must prove they cannot perform work at any exertional level by demonstrating a combination of non-exertional and exertional impairments. Those who have difficulty standing or walking more than two hours per day, carrying or lifting 10 pounds for one-third of an eight-hour day, have frequent absenteeism or suffer the side-effects of medication are often unable to perform work at the Sedentary level.
- Pastural: Requiring the alternation of sitting and standing periods, the elevation of limbs, turning of the head, balance, bending, stopping, squatting or using a walker or cane.
- Manipulative: Trouble with reaching, grasping, handling, fingering.
- Environmental: Issues with working near fumes and dust. Intolerance to noise, height, humidity or extreme temperatures. Cannot be near dangerous machinery.
- Mental: Inability to relate to others, understanding or remembering instructions, attention loss, slow pace, stress tolerance deficit.
- Sensory: Barriers related to language, sound, touch or sight.
- Pain: Interfering with cognitive abilities.
Transferable Work Skills
A claimant cannot be disabled if he or she possesses skills that are transferable to occupations within his or her RFC and which widely exist.
Unskilled work yields no transferable skills, therefore, transferable work skills apply only to claimants with histories of skilled or semi-skilled work.
Working with an attorney
Winning disability on your own is difficult. Of course, it shouldn’t be. It’s a system that honest taxpayers have paid into for years and for which they deserve their fair share.
Informal surveys also suggest that Administrative Law Judges prefer to work with claimants who are represented by an attorney; they make the process simpler. Attorneys handle most of the work that would otherwise be done by the judge.
NOTE: Disability insurance companies often recommend firms to collect back due benefits and reimburse the claimant’s insurance company.
Claimants for Social Security Benefits are able to obtain representation on a contingent fee basis, which requires no up-front fee. This is because of the complex nature of Social Security claims and because of the lengthy appeals process.
As established by the Social Security Administration, the standard contingency fee is 25 percent of past due benefits up to $6,000, when the case is won before appealing to federal district court. When the case is won after appealing a hearing denial, should the claim proceed to the Appeals Council or federal district court, those maximums may increase.
To be frank, having a qualified attorney significantly increases the chance of a successful claim.
What Can An Attorney Do To Help?
- Preparing paperwork
- Explaining your options
- Evaluate medical records and history
- Gather testimony from vocational experts and others
- Calculate your potential award
- File all necessary legal briefs
Finding An Attorney
- A national referral service has been created through the National Organization of Social Security Claims Representatives at www.nosscr.org
- Those looking for an attorney may also consult the National Board of Legal Specialty Certification Web site: www.nblsc.us.
When benefits are awarded
- Generally, back benefits will be received within one to two months of award, although this will take long if an SSI application was filed. Back benefits may take three months or more.
- Regular monthly benefits start the month after back benefits are paid.
- Payments will begin automatically, so there is no need to visit your local SSA office in person.
- Back payments for SSA will begin on the first of the month following the “date of entitlement” – the day the claimant became disabled.
- Your monthly payment is calculated by the Payment Center.
- If you are over-paid, the Social Security Administration will find out eventually and ask for re-payment.
- Claimants become eligible for Medicare after receiving disability payments for 24 months. In the meantime, other health care programs might be available.
- Individuals who receive $25,000 or more and couples who receive $32,000 or more must pay income tax on a portion of their benefits.
Appeals Council Review
In rare instances, the Appeals Council in Falls Church, Virginia goes against the judge’s decision and denies benefits that have already been awarded. A notice must be sent within 60 days of the judge’s decision.
Continuing Disability Review
Generally, disability cases are reviewed every three years. Your date of review is included on your Notice of Award.
If, through its review, the Social Security Administration determines that your disability has ceased you may appeal. By filing the appeal within 10 days, you will keep benefits during the appeal process.
Ongoing Medical Care
Regular medical visits can help ensure you continue to receive benefits. Don’t assume that your chronic condition means you don’t require care.
How A Disability Attorney Can Help!
As you can see, we've given you A LOT of information, and not fully understanding the Social Security Adminsitation's (SSA) process can leave a disability applicant at a disadvantage. It only takes one mistake for SSA to deny your claim, but you don't have to take that risk.
Our Social Security disability lawyers are experienced, ready to answer your questions, and it's absolutely FREE. No matter where you are in the process, we can reveiw your status and provide advice and direction.
To speak with one of our disability attorneys, you can call us at 1-800-253-5537, or write to us with your story by using our free contact form.