Written by: Luis R. Gracia, Esq.
The Social Security Disability (SSD) process is not only difficult and long but quite frustrating. When you add a severe medial condition or conditions as well as financial strains to the mix, the process then turns into a seemly hopeless and even pointless exercise. There is not one single day that either one of my clients or individuals seeking my services ask me or my staff the ultimate question: What do I have to do to get Social Security Disability benefits?
Although it is impossible for me, or any attorney for that matter, to give a “shortcut” that can bypass all of the disability review process and get straight to an award of benefits, years of practicing Social Security Disability law have revealed ways to improve both adjudication time and results for my clients. This is what I have found.
One word: Immediately! The moment you feel your condition will not allow you to work at all for a significant period of time, specifically, for at least one year (or permanently), that’s when you should apply. Remember, in order to be disabled by social security regulations you have to prove that you cannot do any of your past relevant work, which is defined as work that you have done in the past 15 years, as well as any other jobs that exist in sufficient numbers in the national economy of the United States.That means that, for example, if you can no longer do your job, which you have done for 15 years and is paying you $1,000 an hour, but you can do a job that will pay you $8.00 an hour, you are not disabled by Social Security law. It is a tough standard. That’s why you have to prepare your case according to what Social Security is looking for and not what you believe makes sense. Believe me, common sense is not necessarily required in the pursuit of Social Security Disability benefits. In fact, the following “common sense” issues are irrelevant (i.e., do not count) in the disability review process:That you cannot think who in their right mind would give you a job with the medical condition(s) you have.That the possible, hypothetical, job Social Security says you could do pays very little.That you have never done that hypothetical job in your life and have never trained for it. That the hypothetical job Social Security says you can do does not exist in your city, county or state and even if it does there are no openings for it.
That the hypothetical job Social Security says you can do is something that you have never even considered doing.
So forget your common sense. You have to play the game Social Security has set up.
Both your age and your educational background can (and probably will) come into play in order to determine disability. I’ll elaborate on that later. Now, many people that think about applying for disability wait to file their application simply because they misunderstand the definition of disability itself. Disability for purposes of Social Security is the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or expected to last for a continuous period of not less than 12 months”. See 42 U.S.C. Sec. 423 (d)(1)(A). For some reason a considerable amount of people that suffer from significant medical conditions read the definition of disability to state that they have to be out of work for one year before they are allowed to apply. This is incorrect! As long as your condition is expected to keep you out of work for at least a year, you can, and should, apply. Further, at this time you should at least talk to an attorney experienced in social security law to receive some basic orientation as to how to prepare your claim.
The initial application stage is the first line that social security claimants have to cross in the disability process. The application seeks information about the claimant’s biographical history, work history, daily living functions, medical conditions and symptoms as well as limitations caused by those conditions.
1. Make sure you disclose ALL of your medical providers and their contact information in the application. I can say that in at least half of the initial disability denials that I see the adjudicator did not have all of the relevant medical information. Social Security is not going to be doing your work for you. So make sure to get all of the relevant medical information to them.
2. Disclose ALL of your medical conditions. Too often I see claimants that focus only on a specific condition that they believe is causing them the most problems. However, the social security administration is required to consider all of your medical conditions, individually and in combination, to determine whether you are disabled. Be sure to be specific as to the symptoms you are experiencing for each condition.
3. When it comes to your past relevant work, be detailed in the description of your physical and mental activities. If you have had to lift, carry, bend, stoop, crawl, etc., make sure to describe with particularity the circumstances in which you have had to engage in all of those activities. If your jobs required a fast pace of physical activity, make sure to describe what you were required to do. If your jobs required you to rigorously concentrate or keep attention for extended periods of time, make sure you are specific in describing how.
4. The magic word in the world of real estate is location. The magic word in Social Security Disability law is limitations. You have to be specific as to the physical or mental limitations that you have as a result of your medical conditions. Do not mix medical conditions with limitations. Too often I see claimants who tell me that the reason why they believe they cannot work at all is because of their bad back, heart, depression, etc. Those are NOT limitations. Those are medical conditions. The social security administration allows your medical condition to get you to the disability approval door but you will not get through that door without identifying and proving specific limitations that prevent you from working. Also, do not confuse limitations with symptoms. Pain, for example, is not a limitation but a symptom. Shortness of breath, fatigue, constant crying, etc., are not limitations either. Limitations are the individual physical and/or mental restrictions caused by the symptoms flowing from your medical conditions. So, if you can only lift 10 pounds instead of 20, you have identified a limitation. If you can only sit for 30 minutes at a time before your pain makes you change positions, you have identified a limitation. If you are able to remember only limited matters, if you are only able to concentrate for short periods of time or if you can only function in an environment that does not include other persons or has limited contact with the public or supervisors, you found limitations. Notice that I have listed things that you are able to do, although with constraints.
Do NOT waste time trying to convince Social Security of the things that you can no longer do.
Social security adjudicators are not interested in the things that you cannot do but rather in the things that you can. If the activities that you are able do are not sufficient to allow you to properly and regularly function in a normal work setting (employment for 5 days-40 hours a week or its equivalent), you are disabled.
If you receive an initial denial, you have 60 days to file a request for reconsideration. First of all, do not be discouraged by the denial. Most initial applicants are denied. Why? Well, like a former adjudicator stated in a social security disability conference, it doesn’t cost any money when a case is denied by mistake. It always costs money when a claim is approved.
So, what to do? Upon reconsideration, adjudicators want to see if your condition (medical and/or financial) has changed. The WORST mistake you can do after an initial denial is to stop your medical treatment. Lack of medical treatment is the number one killer of social security cases. Without medical treatment you cannot prove that your medical condition is causing you symptoms that are bringing about limitations which preclude you from working. No medical treatment, no disability benefits. It is really that simple. Second, if you go back to work after your initial denial, even if you are working under the financial limits imposed by social security, you may put your claim in jeopardy depending on the amount of time you are working. Now, after you have been deemed disabled, the administration has in place programs that allow you to work while you are receiving disability benefits. However, current work, unless done at truly insignificant levels, could reduce your chances of winning your claim even if you are technically eligible to apply for benefits.
Make sure that you are clear in documenting any changes in your condition.
For example, if you were under pain management treatment during the time you filed your initial application but later your physician(s) referred you for surgery, make sure to disclose that. If your pain has become more intense or your depression more severe, make sure to document such. If your medical condition has unfortunately turned into a terminal condition, you should immediately provide proof of it. Further, if your financial situation turns into a sudden emergency, (i.e., you’re going to be evicted or the bank is going to be foreclosing on your home), immediately give notice of it.
So, you have been denied again. DON’T GIVE UP! Many people are also denied in the reconsideration level. You have 60 days to file a request for hearing. At this time your file will be transferred to the Office of Disability Adjudications and Review (ODAR). This is the opportunity you have to finally face someone from social security and explain your case. That someone is an Administrative Law Judge (ALJ). In some cases, this is a positive development. In others, it may not be. By this time, however, you should have obtained the services of an attorney experienced in Social Security Disability claims.
The claim transfer from the local disability office to the ODAR allows for an opportunity to significantly shorten the waiting period and receive an approval on your claim. This is when you truly need a social security attorney to put his/her skills at work for you. Many judges do not like to hold hearings in cases where the evidence on the record proves the claimant is disabled. At this point, “on the record requests” can be made.
What is an On The Record Request (OTR)?
An OTR is a written petition sent to the ODAR that seeks a favorable decision without the necessity of a hearing. We have been quite successful in getting OTR approvals. By the time a case is being set for hearing, the bulk of the medical treatment is already available and you (or preferably your attorney) should be able to present the specific limitations that bring about your disability as well as each individual piece of documentation that supports the limitations you are claiming. Not every claim is fit for an OTR. If the record is devoid of specific limitations or does not clearly support the limitations claimed, or if there is an issue as to whether you could still perform a job even with the limitations you are claiming, the OTR request will most likely be denied. This does not mean that you will not prevail in your claim. It simply means that you will have to appear at the hearing. Remember, work on establishing your limitations with your medical provider! The moment your limitations are established, or you have sufficient medical support to prove you meet the requirements for disability, either submit or have your attorney submit an OTR. You have nothing to lose and the upside could be an approval without months of waiting.
The disability hearing is basically your “day in court”. It affords you an opportunity to tell an administrative law judge the reasons why you can no longer work. When you reach the hearing site, you will have an opportunity to review your exhibits (i.e., the documents that will be considered to adjudicate your case). If you discover that any of the exhibits are incomplete or incorrect, it is essential that you tell the administrative law judge. Failure to object to the exhibits that make up your file may result in a waiver of that issue later on.
At the hearing, you will find that the judge will have an assistant and, most likely, a vocational expert. First, the administrative law judge will place you under oath and will ask you questions that will include your background, your education, your past relevant work and the reasons why you can no longer work. After the judge is done with your questioning, he or she will ask the vocational expert hypothetical questions. Assuming that you have physical or mental limitations, the vocational expert will be asked whether there are jobs that you can perform with those limitations.
After the judge is done questioning the vocational expert, you will have the opportunity to ask questions of the expert also. Finally, the judge may ask you for a closing statement where you can make an argument summarizing the reasons why your claim should be paid. To be successful at a social security hearing, you may want to seek professional, legal help from an attorney knowledgeable in social security. This is because for all practical purposes, the hearing is basically a trial.
What happens if you do not win your disability hearing? After the hearing takes place, the administrative law judge that heard your case is going to be issuing you a decision. That decision can be either favorable or unfavorable. If the decision is unfavorable, you have the option to appeal it. You have 60 days to appeal to the appeals council, explaining the reasons why you believe the judge is incorrect in his or her decision.
You can appeal by filing an appellate form provided by social security or, in the alternative, provide the form with a written brief. If you are going to be submitting a brief with your form, it may be advisable to hire an attorney to help you write it. The appeals council will decide the case based on the judge’s decision and the information provided in your appellate form. Assuming that they affirm, or agree with, the administrative law judge’s decision, you will have 60 days to file a complaint in federal district court against the commissioner of social security. If you decide to go this route, you definitely need an attorney.
Basically, there are three ways in which the social security administration will consider you to be disabled; 1) Application of the listings of impairments, 2) Application of the “Grid”, 3) Erosion (elimination) of the sedentary work basis.
The first is by proving that your condition meets or equals at least one of the Social Security listings of impairments. You can find the listings here: http://www.ssa.gov/disability/professionals/bluebook/AdultListings.htm.
As the term implies, the Social Security administration has created a list of medical impairments that cover multiple medical conditions which affect both physical and mental abilities. If your condition meets or equals all of the requirements of a specific listing, you will be considered disabled as a matter of law. That’s the good news. The bad news, however, is that most claimants do not meet or equal the listings. As you can see by reviewing the above link, not only do you have to suffer from a condition described in the listings, you also have to meet every single specification contained under the listing upon which your medical condition falls. If you do not meet or equal every single requirement, you do not meet the listing at all. What to do? Talk to your physician(s) about the listings’ requirements. Show him or her the specifications of each listing that you believe cover your condition(s). If you are close to meeting one of the listings, discuss the steps you should take to meet its requirements.
The second way in which you can be considered disabled is by way of the Medical-Vocational Guidelines, also known as “the Grid”. In order to determine whether you are disabled, Social Security considers your residual functional capacity, i.e., your physical and mental ability to work taking into account your medical impairments, in addition to your age, your education and your previous work experience. For purposes of the Medical-Vocational guidelines, social security will look at your physical ability to do work. How do they use these guidelines? As the moniker states, Social Security has arraigned these categories in the form of a grid. You can review the Grid here: http://www.ssa.gov/OP_Home/cfr20/404/404-ap11.htm.
It is in the Grid where individuals of a more advanced age (generally 50 years-old or more) and past relevant work involving heavier types of jobs can find an advantage. So, for example, a 50 year old person with a high school education whose past relevant work involved doing some heavy work but that as a result of his conditions is limited to do a sit down job where the skills he has acquired during his working history are not usable, could still be found disabled. Look at rule 201.14. Now, in order to take advantage of the Grid, one has to prove that the skills acquired (if any) while doing past relevant work are not transferable to physically lighter work. This is when the Grid can become your enemy. Notice that the end column of the Grid has a category titled “Decision”. Depending on the case, that decision column indicates a “Not Disabled” result. Unfortunately, many claims are denied by way of the Grid. Younger individuals that cannot do any of their past relevant work but still can perform a physically lighter job will most likely be denied under the Grid. However, it is important to remember that if your claim is based mainly on mental/psychological impairments, the Grid is not applicable. Further, if your condition is significantly limiting your ability to even do a sit down job, the Grid will also not apply.
Erosion of the Sedentary Work Basis
The third way to prove disability is by showing that your ability to a sit-down job (or one where sitting is or can be done the majority of the work day) has been significantly eroded (eliminated). How do you prove that? Well, limitations, limitations, limitations. The lightest physical category recognized by Social Security is the sedentary work category. What is sedentary work? Social Security defines it as work where “the claimant must have the ability to lift no more than 10 pounds at a time and occasionally to lift or carry 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 occasionally and other sedentary criteria are met. “Occasionally” means occurring from very little up to one- third of the time, and would generally total no more than about 2 hours of an 8-hour workday. Sitting would generally total about 6 hours of an 8-hour workday. Unskilled sedentary work also involves other activities, classified as “nonexertional,” such as capacities for seeing, manipulation, and understanding, remembering, and carrying out simple instructions”. See Social Security Ruling 96-9P. So, what happens if, for example, your medical condition causes you pain severe enough that you can sit at the most for 5 hours, with multiple breaks along that time, and stand and walk no more than 2 hours in an 8 hour day? Well, most likely your ability to work has been eliminated. Significant limitations in the use of the hands and eye-sight could also eliminate sedentary job positions. The same is true with significant mental restrictions that cause a substantial loss in the ability to meet any one of several basic work-related activities on a sustained basis. It will all depend on the severity of your limitations.
The Importance of Limitations
Why are limitations so important? Because depending on the degree of your limitations the most important factor in performing and keeping employment will be eliminated: Reliability. If you are not reliable to perform your job as it is normally performed, you will not be able to keep competitive employment. That means that when you are seeking social security disability benefits your goal is to prove that you are not reliable any longer to do work and you will prove your unreliability by showing limitations that significantly curtail your physical and/or mental abilities. Again, working with your medical providers to develop and prove your limitations is essential. Further, an attorney experienced in Social Security Disability claims will be able to contact your physicians to obtain the necessary information to help your claim. Remember, when it comes to the Social Security process, the manner in which the medical documentation is presented is many times as important as the content of the documentation itself. Claimants with severe medical conditions that are able to show limitations resulting from those conditions will have a much better chance of prevailing in their claim than individuals with the same medical conditions that do not show the limitations they are claiming as a result of their impairments. On the other hand, claimants that document specific limitations will have a better chance than individuals who present general limitations, i.e., medical records stating that the claimant should be lifting no more than 10 pounds vs. records stating that the claimant should avoid heavy lifting. The former is certainly more persuasive than the latter.
Use time to your advantage
Finally, I would like to remind you, just as I remind my clients, of two things regarding the significant amount of time involved in the resolution of a Social Security Disability claim. You should do your best to use the amount of time it takes to process a disability claim to your advantage. Don’t just sit back and wait. Time gives you the opportunity to develop your claim. If you are close to meet a listing but you are missing some medical/diagnostic testing or treatment, use the time to obtain that testing. If your claim is weak on specific limitations, use the time to strengthen that aspect of the case. A rather weak claim at the time of the initial application can be made into a strong claim by the time your case is ready to go to hearing. It is true that it can take a long time from your initial application to the adjudication of your claim. There is no doubt that the wait is frustrating and stressful.
Still, use that time wisely and you will significantly improve your chances of prevailing.
Second, remember that if your claim is approved you will be entitled to receive back benefits. That means that the government has to compensate you for the time you spent going through the process to receive your approval. The point is that you should be using the time it takes for the claim to be adjudicated to improve and develop your case because in the end that time could, and most probably will, mean compensation to you.
Going through any legal process without the representation of an attorney may be a risky endeavor. Remember the old saying that goes “He who represents himself has a fool for a client”? Well, that is certainly true in Social Security disability law. Going through the process alone is a risk that you should not bear. Here at Rue & Ziffra, P.A., we have a department devoted solely to Social Ssecurity disability claims. If you have questions about the process or are thinking about applying, do not hesitate to call us.
*Luis R. Gracia is a partner in the Law Firm of Rue & Ziffra, located in Port Orange, Florida. Mr. Gracia devotes a significant part of his practice to SSDI and SSI claims and has handled thousands of cases all throughout Florida. He is a sustaining member of the National Organization of Social Security Claimants’ Representatives (NOSSCR).
The above entry is NOT LEGAL ADVICE and should not be intended or construed as such. It is intended only as general information. No individual reading it should act upon it. Reading this entry does not create any relationship between Rue & Ziffra, and individuals reading it. If you have questions or concerns, please seek professional legal counsel.