AN OVERVIEW OF SOCIAL SECURITY DISABILITY
The ultimate issue in anyone’s disability case is whether they are unable to perform any type of work due to a medically determinable physical or mental impairment that can be expected to last at least twelve months. There are no benefits available for a disability that lasts less than twelve consecutive months. The Social Security Administration (SSA) takes into consideration factors such as your medical impairment(s) as well as your age, education, vocational training and past types of work when making a determination regarding disability.
SSA operates two programs that provide benefits based upon a disability:
- The Social Security Disability (SSD) Insurance program provides disability benefits for those who are insured under the Social Security Act because of their contributions from taxes on their earnings. Three basic categories of individuals qualify for benefits on the basis of disability: (1) a disabled worker under the age of sixty-five who has been employed or self employed long enough and recently enough under Social Security; (2) an individual disabled since childhood (before age twenty-two) who is a dependent of either a deceased insured parent or a parent entitled to disability or retirement benefits; and (3) a disabled widow/widower, age fifty to sixty, whose deceased spouse was insured under Social Security.
- The Supplemental Security Income (SSI) program provides SSI payments (including children under the age of eighteen) to individuals who are disabled and have limited resources and income. Two categories exist under this program: (1) a disabled adult age eighteen or over, and (2) a disabled child under the age of eighteen years.
There is no difference in the definition of disability for these programs. For more detailed information on these programs and your eligibility, please visit www.ssa.gov
THE DISABILITY EVALUATION PROCESS
There are several steps that Social Security goes through in determining whether an individual is disabled under their definition of disability.
STEP 1: Is the disabled person making over $1,000.00 per month gross before taxes? (Note: This amount typically increases every year.) If so, you are considered to be engaged in substantial gainful activity (SGA) and are “not disabled” no matter how serious your medical condition is.
If you are not working or are earning less than $1,000.00 per month, the evaluation process moves onto Step 2.
STEP 2: Is the disabled person’s impairments severe? A severe impairment is one that significantly limits or eliminates the ability to perform basic work activities such as
walking, standing, lifting, carrying, seeing, remembering, concentrating, etc. If your impairments are controlled by medications, diet, therapy, etc., they are not considered to be severe. If the combined effects of your impairments are considered not severe, the evaluation process stops here and the person is considered “not disabled” under the Social Security Act.
If the impairment or effect of combined impairments is severe, the process moves onto Step 3.
STEP 3: Does the impairment or impairments meet or equal a Listing in the Listing of Impairments? The Listing of Impairments is medical criteria for all body systems developed by the Social Security Administration’s medical experts and consultants. The Listing of Impairments describes, for each of the major body systems, impairments that are considered severe enough to prevent a person from performing any substantial gainful activity. Most of these impairments are permanent or are expected to end in death.
The actual Listing of Impairments can be found on Social Security’s official website at www.ssa.gov/disability/professionals/bluebook/AdultListings.htm. Again, the medical evidence must show the impairment has lasted or will be expected to last for a continuous period of at least 12 months. If a single impairment or combination of impairments meets a Listing, they will be considered “disabled.”
If the impairment does not meet a Listing, the process moves onto Step 4.
STEP 4: Does the impairment or impairments preclude the person from performing their past relevant work (PRW)? PRW is any work that has been performed in the last 15 years in which a person has earned at least SGA and done so for at least 5 months. Does the person have the residual functional capacity (RFC) to perform their past work despite their impairments and symptoms? Your impairments may cause physical and mental limitations that affect what you can do in a work setting. Your RFC is what you can still do despite your limitations. If you have more than one impairment, the way in which all these impairments affect you will be considered. Your RFC takes into consideration the limiting effects of your impairments on your physical, mental and environmental restrictions (e.g. lifting, walking, standing, fatigue, pain, shortness of breath, cold, heat, ability to concentrate, follow instructions, etc.) If you are found to be able to perform your PRW, you are considered “not disabled”.
If you cannot perform your past work, you proceed to Step 5 in the evaluation process.
STEP 5: Do your impairment or impairments preclude your ability to perform any other work? If you do not have the RFC (in conjunction with your age, education and work experience) to perform other work, you will be found disabled. However, if you the ability to perform other types of work, you will be denied benefits.
WHAT IS NEEDED TO SHOW AN IMPAIRMENT?
The impairment must be a medical, anatomical, physiological or psychological abnormality that can be shown by a medically acceptable clinical and laboratory diagnostics. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms and laboratory findings.
Symptoms are your own description of your physical or mental impairments. Your statements alone are not enough to establish that there is a physical or mental impairment.
Signs are anatomical, physiological, psychological abnormalities which can be observed apart from your statements (symptoms). Signs must be shown by medically acceptable clinical diagnostic techniques like x-rays, CT scans or an MRI. Psychiatric signs are medically demonstrable phenomena which indicate specific abnormalities of behavior, affect, thought, memory, orientation and contact with reality. Signs must also be shown to be observable facts that can be medically described and evaluated.
Laboratory findings are anatomical, physiological, or psychological phenomena which can be shown through the use of medically acceptable laboratory diagnostic techniques. Some of the studies include blood tests, electrophysiological studies, electrocardiogram, electroencephalogram and psychological tests.
SSA will need evidence regarding your impairments from acceptable medical sources. Acceptable medical sources include licensed physicians, licensed or certified psychologists, psychiatrists, licensed optometrists and persons authorized to send them copies of the medical records from a hospital, clinic or mental institution.
Your medical evidence and records should be complete enough to allow SSA to determine: (1) the nature and limiting effects of your impairments, (2) the likely duration of your impairments and (3) your RFC to do work-related physical or mental activities. It is also extremely helpful to have a medical assessment that outlines your ability to do work-related activities such as sitting, standing, moving about, lifting, carrying, handling objects, hearing, speaking, and, if you are claiming a mental impairment, the medical assessment should also include your ability to remember, pay attention/concentrate, get along with others, etc.
If your family doctor simply writes a letter that you are totally and permanently disabled, that will not be enough. The letter must contain medical details (i.e. history, clinical findings, laboratory findings, diagnosis, treatment and medical assessment). It will still be up to SSA to determine whether you are disabled according to the Social Security guidelines, not your physician, but it will be a very good start.
If your own doctors cannot give SSA sufficient medical evidence about your impairment for them to determine whether you are disabled, SSA may ask you to take part in physical or mental examinations. These are called “consultative examinations” and SSA schedules and pays for those examinations. SSA typically only has you undergo a consultative examination to obtain more detailed medical findings about your impairments or to resolve conflicts or differences in your medical findings/assessments. If a consultative examination is scheduled for you, you must attend or SSA may find you “not disabled” if you refuse to go to your consultative examination.
If you have a diagnosis of addiction to drugs (prescription or non-prescription) or alcohol in addition to your impairment, this will be taken into consideration. As of 1997, drug or alcohol addiction was no longer considered an impairment for disability purposes within the Social Security context. Additionally, if one or the other is considered to be a “material contributing factor” to your disability, SSA can deny your disability benefits no matter how severe your other impairments may be.
If you have a physical or mental impairment you must have symptoms (for example, pain, shortness of breath, weakness, anxiety, etc.). Social Security may find that you are disabled based on your symptoms including pain in some cases if there are medical signs or findings that show there is a medical condition which could be reasonably expected to produce those symptoms and the condition limits your ability to work.
You would not be found disabled if you are unemployed because of an inability to get hired for a job, lack of work in your local area, the hiring practices of employers, technological changes in the industry in which you have worked, economic conditions, an inability to pass a pre-employment physical, etc.
Your impairment must be so severe as to prevent you from performing your former work and any other work. If you cannot perform the work you have done in the past, Social Security will consider your residual functional capacity, your age, education and past work experience to see if you can do other work. If you cannot, you will be found disabled.
OTHER FACTORS USED IN THE DISABILITY EVALUATION PROCESS
- Age: In addition to your medical impairment, Social Security also takes into consideration your age and the extent to which your age affects your ability to adapt to a new work situation. Social Security has several categories which break down age groups:
(1) A “younger individual” for Social Security purposes is a person under the age of 50 years old. Generally, Social Security will not consider that your age will seriously affect your ability to adapt to a new work situation if you are under 50 years old.
(2) If you are between 50 and 54 years old, you are “closely approaching advanced age”. Social Security will consider that your age, along with a severe impairment and limited work experience, may seriously affect your ability to adjust to a significant number of jobs in the national economy.
(3) If you are between 55 and 59 years old, you are in the “advanced age” category. Social Security considers that at age 55 and over, the point is reached where age significantly affects a person’s ability to perform SGA. If you are severely impaired and of advanced age and cannot perform medium work, you may not be able to work unless you have skills that can be used in or transferred to less demanding jobs which exist in significant numbers in the national economy.
(4) If you are between 60 and 64 years old, you are “close to retirement age”. If you have a severe impairment, Social Security will not consider you able to adjust to sedentary or light work unless you have skills which are highly marketable.
- Education: Education is another factor that Social Security takes into consideration along with your medical impairment and your age. Education means formal schooling or other training which contributes to your ability to meet vocational requirements. However, if you do not have formal schooling, this does not necessarily mean that you are uneducated or lack these abilities. Past work experience and the kinds of responsibilities you had when you were working may show that you have attained certain abilities. Although you have little formal education, your daily activities, hobbies, or the results of testing may also show that you have intellectual ability that can render you employable.
The importance of your educational background may depend upon how long it has been between the completion of your formal education and the beginning of your physical/mental impairments and by what you have done with your education in a work setting. Formal education that you completed many years before your impairment began, or unused skills and knowledge that were a part of your formal education, may no longer be useful or meaningful in terms of your ability to work. Therefore, the numerical grade that you completed in school may not represent your actual educational abilities. However, if there is no other evidence to contradict it, Social Security will use your numerical grade level to determine your educational abilities. The term “education” as Social Security uses it also means how well you are able to communicate in English since this ability is often acquired or improved by education. Social Security has several categories that they use in judging a person’s education:
Illiteracy means the inability to read or write. Social Security considers someone illiterate if the person cannot read or write a simple message such as instructions or inventory lists even though the person can sign his or her name. Generally, an illiterate person has had little or no formal schooling.
Marginal Education means an ability in reasoning, math and language skills which are needed to do simple, unskilled types of jobs. Social Security considers formal schooling at a 6th grade level or less as a marginal education.
Limited Education generally means formal schooling from the 7th grade through the 11th grade level to be a limited education.
High School Education and Above is someone with the educational abilities commensurate with a high school diploma, GED or college education.
Inability to Communicate in English is also considered an educational factor because English is the dominant language of this country and it may be difficult for someone who does not speak and understand English to do a job, regardless of the amount of education the person may have in another language. Therefore, Social Security considers a person’s ability to communicate in English when they evaluate what work they can do.
- Past Relevant Work Activity:
The last factor that Social Security takes into consideration, is your past work activity. Your work experience means the skills and abilities you have acquired through work you have done. Work you have already been able to do shows Social Security the kind of work that you may be expected to do. Social Security considers that your work experience applies when it was done within the last fifteen years, lasted long enough for you to learn to do it, and was SGA. When determining your disability status, work you performed more than fifteen years ago will not be considered.
If you do not have any work experience, Social Security will consider that you are able to do unskilled work because it requires little or no judgment and can be learned in a short period of time.
Social Security states that work exists in the national economy when there are a significant number of jobs having requirements that you are able to meet with your physical or mental abilities as well as having the proper vocational qualifications. Isolated jobs that exist only in very limited numbers in relatively few locations outside of the region where you live are not considered “work which exists in the national economy.”
Social Security further breaks down types of work into the following categories:
Sedentary work involves lifting no more than then 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers and small tools. Although a sedentary job is defined as one that involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required only occasionally.
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing. Social Security determines that a person can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.
Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects up to 25 pounds.
Heavy work involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds.
In order for Social Security to evaluate your work skills and help determine the existence work in the national economy you are able to do, occupations are classified as unskilled, semi-skilled and skilled.
Unskilled work is work that needs little or no judgment to do simple duties that can be learned on the job in a short period of time. A person can usually learn to do this type of work within thirty days.
Semi-skilled work is work that needs some skills but does not require doing the more complex type of work duties. Semi-skilled jobs may require alertness and close attention more so than unskilled work.
Skilled work requires qualifications in which a person uses judgment to determine the machine and manual operations to be performed in order to obtain the proper form, quality, or quantity of material to be produced. Other types of skilled jobs may require dealing with people, facts, figures or abstract ideas at a high level of complexity.
If you have done semi-skilled or skilled work in the past, Social Security will determine whether the skills you have attained, can transfer to other types of occupations. Transferability of skills is most probable among jobs in which (1) the same or a lesser degree of skill is required, (2) the same or similar tools and machines are used, and (3) the same or similar materials, products, processes, or services are involved. However, when skills are so specialized or have been acquired in such an isolated vocational setting that they are not readily usable in other industries (e.g., like jobs in mining, agriculture or fishing), Social Security considers that the skills are not transferable.
HOW DO YOU APPLY FOR SOCIAL SECURITY BENEFITS?
The fastest and easiest way to make an application is via the internet at the Social Security Administration’s website at www.ssa.gov On the home page, there will be a section in the middle of the page entitled Disability Benefits. Click on that link and it will take you to the page entitled Apply Online for Disability Benefits which gives you four steps to follow to make application.
At the current time, the Social Security Administration does not allow individuals to complete all of the application for Supplemental Security Income (SSI) over the internet. It does allow you to start the process over the internet but you will ultimately have to go in person to your local Social Security office to provide your financial information because it is a need-based program.
You can also telephone the Social Security Administration at 1-800-772-1213 Monday through Friday from 7:00 a.m. to 7:00 p.m. to make an application via the telephone if you are not comfortable with the internet process. When you call, you will be given the option of going in person to your local Social Security office or having your application taken over the telephone. If you choose to apply in person, the representative at the toll free number will schedule a date and time and let you know of the location of your nearest Social Security office. If you choose a telephone appointment, you will be given a date and time that a representative will call to take your claim on the telephone.
As a general rule, a person does not need an attorney’s assistance to file the application. Social Security makes this part relatively straightforward. Again, it is very important that the application be completed as accurately as possible, do not exaggerate or minimize your disability. Always keep a copy of your application for future reference. You are more than welcome to contact our office at any time if you have specific questions about the application process. Our office does file internet applications for individuals in certain situations.
You should have as much of the following information as possible ready for your disability application:
- Medical Information
- Names, addresses and phone numbers of all doctors, hospitals and clinics you have been to in the last 12 months.
- Dates you were seen at these places.
- Name(s) of medicine(s) you are currently taking.
- Dates of any upcoming medical appointments.
- Verification Information
- An original or certified copy of your birth certificate. If you were born in another country, they will need proof of U.S. citizenship or legal residency.
- If you were in the military service, the original or a certified copy of your military discharge papers (Form DD214) for all periods of duty.
- If you have worked recently, your W-2 Form from last year, or if you were self-employed, your federal tax return (IRS 1040, Schedules C and SE).
- Workers’ compensation information, including date of injury, claim number and proof of payment amounts and dates of payments.
- Social Security Number(s) of your spouse and minor children.
- Your checking or savings account number if you have one for direct deposit purposes.
- Dates of marriage(s) and divorce(s).
- Other Information
- Name, address and phone number of a person who they can contact if they are unable to get in touch with you.
- Types of jobs and dates you worked in the 15 years before you became unable to work.
- Your educational history as well as any vocational training you may have had other than on-the-job training.
The most common mistake people make when pursuing disability benefits is failing to obtain medical and/psychiatric care and treatment. Some people with long-term chronic medical problems feel that there is nothing more that doctors can do, and for the most part, they stop going for treatment. This is a mistake for both medical and legal reasons. First, no one needs medical care more than those individuals with chronic medical problems. Secondly, medical treatment records provide the most important evidence of a disability in a Social Security case. If you do not have your own medical support, Social Security will send you for a consultative examination by one of their doctors which is not typically helpful to your case. The lack of ongoing and current medical treatment is very damaging to anyone’s Social Security case.
Another common mistake is when people do not see a doctor because they do not have health insurance. There are numerous offices in every county that provide no-cost or low cost medical and psychiatric treatment.
IF YOUR APPLICATION GETS DENIED
If you are denied, you must appeal the denial within 60 days of the date on the denial letter which is called Notice of Disapproved Claim.
You may appeal your denial in one of four ways:
- Visit the Social Security Administration’s website at www.ssa.gov to file your appeal. You still have to click on the link entitled Disability Benefits which takes you to the page entitled Apply Online for Disability Benefits however you would then click on Internet Appeal to complete the appeal forms;
- Telephone the Social Security Administration at 1-800-772-1213 and schedule an appointment for your appeal to be handled either by phone or mail;
- Go in person to your local Social Security Administration office to submit your appeal and be sure to take along your denial letter; or
- Contact an attorney to file your internet appeal.
Your denial letter will give you specific details about appealing the decision. Remember that it is important that you take one of the above steps within 60 days of the date on that letter.
If you do not appeal your denial within the sixty days allotted, you will have to start over by filing a new application and you could lose any back benefits that you may have been entitled to. It is important to appeal the denial within sixty days of the date stamped on the decision. It is better if you begin the appeal process right away after receiving the Notice of Disapproved Claim letter because there is typically a very long wait until a case can be heard in front of an Administrative Law Judge. In 2010 and into the foreseeable future, the anticipated wait time for a hearing is 24 months from the date you file your appeal.
An attorney is not required to file your appeal however if you do hire an attorney, she will prepare and gather the evidence you need to help you best present your case at the hearing in front of the judge. She will prepare you for, and be there with you, during the hearing. An attorney represents your interests at the hearing and will be your advocate. The judge cannot be your advocate.
The fee in which an attorney can charge is contingent upon you winning your case. The attorney fee is 25% of all of the back benefits you are entitled to up to a maximum of $6,000.00 whichever is less in your particular case. In addition to the fee, you would be expected to reimburse the office for the expense of gathering medical records, obtaining medical opinion letters, completion of forms by physician, etc. Our office will keep a running tab of all costs and expenses that we pay out while your case is on appeal. After you receive a favorable decision from the judge, we will inform you in writing of these expenses and ask that you reimburse our office after you receive your back benefit check.
The hearing is not open to the public. There will be a hearing monitor present, a vocational expert who evaluates the job market and possibly a medical expert. The hearing is recorded and it is informal but your testimony will be taken under oath.
After a hearing it typically takes 60 days for the judge to write a decision unless the judge requests additional evidence or more information.
If you have questions beyond this outline, do not hesitate to contact my office toll free at 1-888-833-0307. You can also visit our website at www.rpplawfirm.com or contact me via e-mail at email@example.com for additional information. My initial consultation is always free of charge.