Alabama Social Security Disability Attorneys
DISABLED & UNABLE TO WORK? OUR SSD LAWYERS CAN HELP!
DENIED BENEFITS? QUESTIONS ABOUT APPLYING? CALL NOW!
For those who are out of work or struggling to continue working due to serious health problems, Social Security Disability benefits can provide a huge lifeline, offering income and health insurance for those who qualify. It’s no secret that the process for getting these benefits is long and complicated. Our office gets calls every day, both from existing and potential clients, who have questions about various steps in the process. The intent of this blog is to answer some of those questions as well as explain some of the technical lingo/abbreviations and rules that Social Security uses so that you can have a great overview of every single step of the process. And there are a LOT of steps. Chapter One focuses on a few factors you should keep in mind if you are even considering applying for benefits. And away we go….
ARE SOCIAL SECURITY DISABILITY BENEFITS THE RIGHT CALL FOR YOU?
Having all your ducks in a row before you apply for benefits will streamline the process and increase your odds of getting your claim approved. For those who are considering applying for Social Security Disability benefits, there are several factors to think about before you file.
#1-IF YOU ARE STILL WORKING FULL-TIME, SOCIAL SECURITY WON’T EVEN CONSIDER YOUR HEALTH PROBLEMS. YOU MUST HAVE EITHER STOPPED WORKING ALTOGETHER, OR AT LEAST CUT DOWN YOUR HOURS/INCOME BEFORE SOCIAL SECURITY WILL EVEN CONSIDER YOUR CASE.
This may seem like a no-brainer, but we often have people contact our office about applying for disability benefits even though they are still working full-time. If you apply for benefits while working full-time, you will be denied automatically without any further consideration into your claim. And make no mistake—Social Security will know if you are working.
If you are still employed at a full-time job you are struggling to perform while considering applying for benefits, you face one of the biggest dilemmas of the entire process straight out of the gate: Do I continue working at this job even though my medical conditions make it very difficult, and maybe even dangerous, for me to do so? Am I at risk for doing further damage to my body by continuing to work a job that is too strenuous for me? Should I up and quit this job to pursue benefits knowing it might take a long time to get a check and with no guarantee that I will even get a check in the first place? We regularly talk to people in this difficult situation and we sympathize. Losing an income is tough for anyone. The vast majority of Americans are only a few missed paychecks away from being in real financial trouble. Before you make this call, take stock of your situation. Do you have a spouse who is working? Do you have other sources of income, such as rental property, you can rely on? Do you have family or friends who might be willing to help you out while you are going through the process? Does your current job offer short-term or long-term disability benefits that you might qualify for? While everyone’s situation is different, these are some of the things you should consider before you take the leap of quitting a full-time job to pursue benefits. But keep in mind that if you take that leap, it could be one or two years (even longer in some cases) before you see a payment from Social Security, so plan accordingly as best as you can.
If going the Johnny Paycheck route and quitting your job outright is just not an option financially, you can work part-time and still apply for benefits as long as you keep your income below a certain amount. Social Security sets this amount, and it typically increases a little each year as the cost of living goes up. In 2020, you can make up to $1,260 per month in gross income (meaning that’s the amount of your pay before taxes and other things are deducted from your paycheck) and still be eligible to apply for benefits. Social Security calls anything more than $1,260 per month “SGA”—substantial gainful activity. So, as long as you make below SGA, you can keep working as you apply for benefits.
Working a part-time job as you seek benefits has its pros and cons. The obvious pro is that you can continue to earn money to pay for important things such as bills and food. The con is that Social Security may deem your health problems to be less credible if you are working part-time: “If Mr. X can work 30 hours a week, he should be able to work 40.” Our office has various ways of addressing the stigma of a part-time job that will be covered in another blog post. For now, it’s just something to keep in mind as you wrestle with these decisions.
#2-YOU MUST MEET THE NON-MEDICAL REQUIREMENTS FOR ELIGIBILITY.
Even if you’ve stopped working, Social Security will check and see if you meet the non-medical requirements for benefits before they move on to looking at your health problems, so this is another hurdle that you have to clear. For the most common Social Security benefits, SSDI (“Social Security Disability Insurance”), you must have a certain amount of work credits in order to qualify. As you work and pay in taxes, you earn work credits that go toward your eligibility. As a general rule, you should qualify for benefits if you’ve worked and paid into the program (through taxes) for five out of the last ten years. If you haven’t worked anywhere in a long time, you might not qualify for this program. Given that there is an expiration date on your ability to draw these benefits, you should apply sooner rather than later after you stop working so you won’t risk losing your eligibility.
Social Security has abbreviations for everything. They call the last day you can prove that you are disabled and still qualify for benefits your Date Last Insured, or DLI for short. Say, for example, you have a DLI of 12/31/22. That means that as long as you are able to establish that you became disabled before 12/31/22, you can draw benefits until you get better or reach retirement age. You can find out your DLI by calling your local Social Security field office or online by setting up an account on www.ssa.gov/myaccount/.
If you don’t have enough work credits to qualify for SSDI, you might be eligible for SSI (“Supplemental Security Income”) benefits. SSI is for disabled people who are very low income and very few assets. The income limits for this program are strict.
There is some overlap between SSI and SSDI, so you should apply for both kinds of benefits. Unfortunately, there are some people who do not qualify for either program. That’s why it’s prudent to check and see if you are eligible on the front end of the process, especially before you consider quitting your job.
#3-YOU MUST HAVE AT LEAST ONE SEVERE IMPAIRMENT THAT PREVENTS YOU FROM WORKING.
While most people who are applying for Social Security Disability benefits have a number of different health problems, the rules require that you have at least one impairment that is “severe”—meaning it limits your ability to perform the duties of your job in some way or another. For example, severe arthritis in your right shoulder may make it painful for you to reach overhead with your right arm. Lower back pain due to degenerative disc disease might make it hard for you to lift heavy objects or sit or stand in place for long periods of time. Severe anxiety may make it hard for you to interact with people in public.
In order to establish severe impairments, having a record of medical treatment to back it up is key. X-rays, MRI’s, and other medical test results will help you show that what you are saying is true. Having treatment notes showing where you went to the doctor and complained about pain or other symptoms also helps. That is why the best disability claims are ones that are backed up by multiple medical records, ideally with treatment notes where a doctor has given you restrictions to avoid certain activities, such as lifting.
As a caveat, Social Security will only consider severe impairments that have lasted for at least a year, or that are expected to last at least a year. So, that broken leg is not going to impress them much because they make the assumption that the leg will heal in less than a year. If you are uncertain about how long it might take you to get better, it’s a good idea to go ahead and apply for benefits anyway. Social Security will probably deny your application pretty quickly based on “the durational requirement”—meaning they think you will be better in less than a year. But you can appeal that ruling. If you end up getting better during this process, that’s awesome! And if you don’t, you already have a case going and are ahead of the curve.
Often, a person who is pursuing disability benefits doesn’t have health insurance and cannot afford to see a doctor very much. In those situations, Social Security might send you out to see one of their doctors for an evaluation and pick up the tab for it. So while it’s beneficial to have strong medical records going into the application process, it isn’t necessarily a deal breaker for your case if you don’t.
#4-AGE IS A KEY FACTOR, BUT NOT THE ONLY FACTOR.
If you are here researching about disability benefits, you’ve probably read some other stuff online and/or talked to people you know about the system already. It’s common knowledge that Social Security’s rules make it easier to get approved for benefits as you get older and closer to retirement age. If you are less than 50 years old, Social Security labels you as a “younger individual.” Younger individuals have to establish that not only are they unable to work in the kinds of jobs they have done in the past, but they also could not do any job that exists in America. This includes jobs where you sit at a desk all day. Social Security does not care whether or not you’ve ever actually had a job working at desk before—they assume that since you are a younger individual, you can figure it out. Therefore, people that are younger than 50 have the highest burden to overcome in order to get benefits. That isn’t to say that you won’t be able to get benefits at all if you are younger than 50; our office has won many cases for people as young as 19 or 20 years old. But know that if you are younger than 50, you must have a rock-solid case, be seeing doctors regularly, and be significantly impaired such that you can’t even work at a desk.
When you turn 50, the rules for eligibility relax somewhat. They relax even more at ages 55 (Social Security considers you to be “advanced age” at age 55), and they relax again at age 60. The rules that apply to people ages 50 and up are commonly referred to as “the Grid rules” and they are very complicated, which is why they will be the subject of a later blog post. But for now the main thing you need to know is that generally speaking, your odds of getting approved start getting better at age 50 and continue to get better at 55 and 60.
This is merely the tip of the iceberg, but the takeaway here is that you should apply for disability benefits if you are:
- unable to work or working part-time and making less than SGA;
- have at least one severe impairment that limits your ability to function at work for at least a year;
- have worked enough to qualify for SSD benefits or meet the income requirements for SSI; AND
- your odds are better if you are at least 50 years old.
So now you have either stopped working outright or cut down your hours/income due to your medical problems. You’ve thought about your finances and made plans for how to survive during the disability waiting game. You’ve determined your non-medical eligibility for SSDI or SSI. You have seen at least one doctor who has diagnosed you with a severe medical impairment. You now have a solid foundation to move forward and file for disability. Chapter Two is all about gearing up to actually file your disability application.
GEARING UP TO APPLY FOR SOCIAL SECURITY DISABILITY
No one should file for disability without getting organized first. You might be amazed and overwhelmed with the amount of information Social Security will ask you for as part of your application. It’s better to gather everything before you file so you will have the requested info at the ready as soon as they ask you for it. Here is some of the information we tell our clients to gather before we file their application:
- A list of every doctor you have seen for the past five years. This is extremely important. If you don’t tell Social Security about a doctor, they won’t know to order records from that doctor. When making a list of your doctors, leave no stone unturned. Include any hospitals where you’ve received treatment (including ER visits), chiropractors, counselors/therapists, and specialists. Do not try to gather all of your medical records yourself before you file. Not only is this expensive and time-consuming for you, but we’ve seen many instances where a client has spent a ton of time and effort gathering up their medical records on their own and taken or sent them to the Social Security office thinking that will speed up their case, but the records end up getting lost, mislabeled, or overlooked. Social Security has their own process for obtaining your medical records. Let them follow that process.
- A list of all the medications you are taking. If you regularly use the same pharmacy, you can request a printout from them with this information.
- Information about all marriages, past and present, that lasted at least ten years. Social Security asks for this information because some people might be eligible to draw benefits from an ex-spouse or a spouse who has passed away, which can sometimes lead to a higher monthly benefit. You will need the spouse’s name, social security number, and birthday as well as the date of marriage and city/state you were married in, and the date of divorce or death of the spouse.
- A list of every full-time job you have held in the last fifteen years. This is also extremely important, especially for people who are 50 or older who might be eligible for disability under the Grid rules, which we will discuss in a later blog post. Do not include part-time jobs or jobs that you only worked for a month or two.
BUT DO I REALLY NEED A LAWYER FOR THIS, THOUGH?
Another thing to consider before you file is whether or not to hire an attorney to handle the application for you. Many people assume that an attorney will not want to get involved in your case until your case is on appeal. This isn’t true. While some law firms still don’t handle disability applications, many do, including our office. We also regularly talk to people who want to file the application on their own and see what happens before getting a lawyer involved. Often, these same people end up calling us back months later and becoming clients once their application is denied. You should strongly consider hiring a lawyer and letting them file your application for you. There are many benefits to this:
- A lawyer will make sure that all of the information you are submitting is complete, which gives you a better chance of being approved quickly.
- A lawyer can file your application on your behalf online. You don’t even have to be present—your attorney can gather all the necessary information from you over the phone and file your application online for you in less than an hour. I personally believe that going down to the Social Security office and applying for benefits in person is a bad idea. The Social Security employee you are meeting with may make observations about your appearance or demeanor and note them in your case file. We have taken plenty of cases where the client applied in person before they hired us and then we find something like this written in their case file: “this person was walking fine and didn’t seem to be in any pain” or “her nails were done and her hair was fixed” or “he did not appear to be uncomfortable and was able to recall all the requested information.” Obviously, these kinds of notes and impressions can you’re your case. Don’t give Social Security any more ammo to rule against you by letting an agency employee with no medical training make judgments about your appearance or demeanor. Applying online is the way to go.
- Your attorney will follow up with Social Security to make sure your case doesn’t slip through the cracks. As we will cover in a future post, your application has to go through several steps before it arrives on the desk of the person who will ultimately decide whether or not you can draw benefits. Oftentimes, the case won’t make it where it needs to go without calling Social Security and hounding them a bunch. If your case slips through the cracks and enough time passes by, you will have no choice but to start completely over months later and will lose valuable time in the process, ultimately delaying your chance to draw benefits. An attorney will stay on top of Social Security to make sure your application is moving along like it’s supposed to.
- Your attorney will receive copies of all of the same paperwork that you do and can help hold you accountable on deadlines and advise you on how to complete paperwork. Once your case makes it to the person who will analyze it to see if you are disabled, Social Security will send you various paperwork that has to be completed on a deadline. Your attorney will receive copies of everything that you do. We have had many clients hire us after their application was denied, only to learn that they had been denied due to “insufficient evidence” and “failure to cooperate” because the client hadn’t turned in the paperwork like Social Security asked them to. A lawyer can help you stay on top of the paperwork and make sure this doesn’t happen. A lawyer can also advise you on how to complete some of the paperwork so that you have the best chance of getting your application approved quickly.
- If your application is denied, your attorney will receive a copy of the denial and can therefore appeal it immediately, which may speed up the process.
- Attorney fees might be much lower if your case gets approved at the application stage. Hiring an attorney won’t cost you any money up front. By federal law, disability attorneys’ fees are set at 25% of your past due benefits but can never be any more than $6000. People are often hesitant to hire an attorney for their application because they don’t want to have any attorney fees deducted from their past due benefits when they feel like maybe they could handle it on their own. But most people who are filing for disability have only recently stopped working anyway, and Social Security does not pay SSDI benefits for the first five full months that a person is out of work (that’s a whole other blog post too). So if your case gets approved at the application stage after just a few months of being out of work, you will have accumulated very little, if any, back pay and the attorney’s fee will therefore be either zero or a small amount. If you file your application without the help of an attorney, you run a greater risk of being denied for the reasons already discussed and your case will take much longer to resolve, leading to a higher attorney’s fee in the end and less back pay for your pocket. Our office often files applications for clients who are approved quickly, aren’t entitled to any back pay yet, and we don’t receive a fee. We are happy when our clients get approved quickly, even if that means we don’t get a fee. It’s good karma!
After you have submitted your application for disability benefits (hopefully electronically), you may think all you have to do is sit back and wait for Social Security to make a decision on your claim. Wrong! Before Social Security will even begin to look at your disabilities, your case has to make it through several hurdles. Unfortunately, this isn’t always as simple as it seems. Chapter Three is all about making sure your claim gets to the right place as quickly as possible.
GETTING YOUR APPLICATION FROM THE COMPUTER TO DISABILITY DETERMINATION SERVICES
The first of many potential hiccups with a disability application happens at the very beginning of the application process—the wet signature requirement. If your representative files an online application on your behalf, Social Security requires that you verify the information and provide a wet signature before they will take any further action. Once your application is submitted online on your behalf, someone at Social Security prints off a paper copy of that application and mails it to you for you to review, verify, sign, and mail back to them. I’m not joking. At best, this delays the processing of your claim by at least several weeks. And any number of things could happen that might delay the process even more: Social Security might simply fail to mail the application. It could be sent to the wrong address. The post office could lose the application. Someone at your house might check your mail and stick the application in a drawer somewhere without telling you. You might glance at the envelope, think it’s junk mail, and throw it in the garbage. It is crucial that if you have not received a paper copy of your application in the mail within 2-3 weeks after filing, you or your attorney must follow up with Social Security to see what’s going on because nothing else will happen with your case until Social Security gets your signed copy back. If enough time passes and Social Security does not receive the signed application, they close out your file and you have to start over at square one again. Once you do receive your paper application, we always recommend making a copy of it (if you have access to a copier or scanner) before you mail it back and that you make a note of the date and time you mailed it.
In today’s world where so much can be accomplished online, the wet signature requirement seems particularly dated and unnecessary. It creates a pointless additional step for the claimant and slows down the process. As of this writing in May 2020, the National Federation of the Blind and several individuals have brought a lawsuit against Social Security asking them to do away with the wet signature requirement. They are arguing that this requirement is unfair to people who don’t have easy access to check their mail and to blind people who can’t read the application anyway. They also argue that the requirement is unnecessary since existing federal law already allows for electronic signatures. Our office will be following this case closely as it progresses through the court system.
Once Social Security receives your wet signature, the case gets processed to send to DDS (Disability Determination Services), which is where an initial decision will be made on your case. Getting the application to DDS is the first big milestone in the case. The processing and sending of the case to DDS is typically done by another arm of Social Security, the Workload Support Unit (WSU). Unfortunately, the WSU offices tend to have high turnover rates and the quality of the service varies greatly among WSU workers. WSU may misplace some of your paperwork or delay taking action to send your claim to DDS. WSU employees are also sometimes difficult to reach on the telephone. Some cases require weekly calls to DDS in order to get movement on your case. This is another great reason to hire an attorney before you file your application—they can bug the WSU on your behalf so you won’t have to.
Once your case finally makes it way to DDS, that’s awesome! Your file will be assigned to a DDS specialist who will obtain all of your medical records and any other information that they deem they might need to make a decision about your case. Your DDS caseworker is someone you should make sure to stay in touch with. Return all phone calls from them in a timely fashion and provide any requested information as quickly as possible. Some examples of information that your DDS specialist may request from you include:
- detailed information about your ability to function on a day-to-day basis (Function Report);
- detailed information about your work history (Work History Report);
- detailed information about certain conditions you might have (Cardiac Questionnaire, Migraines Questionnaire, etc.);
- detailed information about your education history, including school records if you have a cognitive impairment or learning disability; and
- detailed information about your drug and/or alcohol use if there is any issue about substance abuse that might affect your case.
Some of these forms are so crucial to the process that I will dedicate the next several blog posts to discussing them—their purpose as well as pointers for completing them in a way that is most beneficial to your case.
Your DDS specialist may also ask you to attend a doctor’s appointment (Social Security pays for this) where your impairments will be evaluated. This could be a psychologist, an internist, an orthopedic doctor, or several others depending on what your specialist thinks would be helpful for deciding your case. While DDS may not request an exam on every case, it is fairly common for them to do so. These doctor appointments are obviously very critical to your case and deserve a whole blog post too.
The takeaway here is that you can’t just sit back and do nothing once your application has been submitted—you have to constantly make sure Social Security is staying on top of your case and that nothing is slipping through the cracks. The failure to do so could cost you valuable months. Having an attorney that can handle the follow up for you can save you valuable time and take away some of the stress of the process.
If you have been reading along so far, you know that it takes a lot of effort and follow through to get your disability application on the desk of the person who will actually make an initial decision on it. Chapter Four focuses on when the real work begins—when your case has made it to Disability Determination Services (DDS) and assigned to a specialist. We will first focus on some of the paperwork that your DDS specialist will be mailing you so that they can learn more about you and your case.
FORMS, FORMS, AND MORE FORMS
Your DDS specialist will ask you for a whole lot of information when they are assessing your disability claim. He or she will want to know about your day-to-day ability to function, your work history, details about any specific medical conditions, who all lives in your household with you, the list goes on. Your specialist will be mailing you forms to complete about some of this information. Warning: many of the forms are lengthy and ask for a lot of detailed information. The manner in which you complete these forms can have a huge impact on how your case gets decided. Before I discuss a couple of the forms specifically, there are a few basic things to keep in mind:
- Don’t Expect Your Attorney to Complete the Forms for You.
People hate paperwork. Our clients often call our office and are aggravated because they’ve received an envelope full of paperwork from DDS. They don’t want to complete this pile of paperwork and want us to do it for them. While we love helping our clients and certainly wouldn’t mind completing the paperwork in theory (they did hire our office to handle the claim, after all), these forms are not designed to be completed by attorneys. Your attorney will not possess the level of knowledge about you that is needed to effectively complete them. How is your attorney supposed to know the heaviest weight you lifted at every job you’ve had in the last 15 years? Or whether you had to complete reports on that job? Or how often you shop for groceries? Or how often you go outside? I have heard from people who worked for Social Security that when they receive one of these forms and it’s been filled out by the claimant’s attorney, they are suspicious of the accuracy of the form and usually end up ignoring it. While we are always available to answer questions and give advice about completing these forms, it’s ultimately best for the client’s case if he or she completes the forms on their own.
- Don’t Disregard the Forms
One of the most common reasons that your DDS specialist might deny your claim is because you didn’t send your paperwork back in. If your specialist doesn’t get the paperwork back, they can simply say they don’t have enough information to make a decision on your case and deny it based on “insufficient evidence” or “lack of cooperation.” This happens a lot. Almost once a week I run across a case where the person’s application was denied for this reason and often, the application would have likely been approved had DDS gotten the requested information back. Fill the forms out and send them back asap. And if you are confused about how to answer something and you have an attorney, call and ask them about it. If you have trouble reading/writing, get help from a family member or let your attorney know so that they can arrange for you to give this information to your DDS specialist over the phone. Whatever you do, don’t ignore the forms, or your case might end up taking much longer than it has to.
THE WORK HISTORY REPORT
One of the forms that tends to trip people up the most is the Work History Report. The Work History Report asks you to list all of the full-time jobs where you’ve done substantial work in the last 15 years and describe the duties and physical demands of each job in detail.
I cannot overstate how important this form is. For applicants that are 50 and older, this form is even more important because of the Grid rules. I’ll get into the Grid rules in another post, but for now what you need to know is that if you are 50 or older, there are special rules that take into account age, education, past work experience, and the ability to adjust to other jobs that may be less physically demanding. The Grid rules often make it easier for people to qualify for benefits. I cannot tell you how many times that my client and I won in court under the Grid rules after clearing up the client’s work history in front of a judge when the client had filled out the Work History Report incorrectly during the application process.
Below are some of the most common mistakes we see on the Work History Report.
- Including Jobs From More Than 15 Years Ago or Incorrectly Reporting the Duration, Hours, and Pay of a Past Job.
When trying to decide if a person could return to any of their past jobs, Social Security looks at all of the jobs the person has worked in the last fifteen years. In order for Social Security to consider a past job in its analysis of a case, the claimant must have worked there for long enough to actually learn how to do the job and earned substantial income at the job. Social Security sets the amount that they consider to be substantial and it changes every year. For 2020, the amount is $1,260/month pre-tax. Generally speaking, Social Security won’t consider part-time jobs or jobs that a person only worked for a short time when deciding whether a person could return to past jobs.
It is common for a claimant to struggle to remember the details of his or her work history from 10-15 years ago, especially in cases where the person has moved or changed jobs a lot. We often have cases where our client inadvertently reports a job they did more than fifteen years ago or incorrectly states that they worked full-time at a part-time job. While it may seem like a harmless mistake, these types of inaccuracies can lead to the denial of an application that would otherwise be approved.
Example: Sally is 57 years old. She has worked in the same factory for 35 years in a job that required heavy lifting. She develops arthritis in her knees and can’t handle the job any longer, so she quits. After she stops working in the factory, she gets a cashier job at Dollar General where she works about 30 hours a week making $8/hour. There are a couple of weeks where another employee is out of work and Sally covers some extra shifts, working 40 hours. After six weeks on the job, Sally decides that even this part-time work is too strenuous for her and quits. She then files for disability benefits. She lists both the factory and the Dollar General on her Work History Report. She reports working 40 hours per week at the Dollar General since she did work 40 hours on a couple of occasions. She cannot remember the exact date she was hired so she quickly jots down that she worked there for about three months. DDS decides she is limited to light duty because of her knees. That clearly rules out the factory job, but DDS denies her claim anyway because she should still be able to do her past work at Dollar General. Sally did not even work full-time at this job and did not earn enough money there for Social Security to count it as a past job that she could return to, but her DDS specialist relies on the information provided in her Work History Report and issues the unfavorable decision based on Edna’s representation that she worked 40 hours per week at $8 per hour, earning $1280 per month. Had Sally clearly indicated that she only made $240/week at this job during all but two weeks and only worked there for six weeks total, DDS would not have considered her job at Dollar General and her case would have been approved under the Grid rules.
I’ve seen scenarios like Sally’s play out many times. To avoid being denied like Sally was, make sure your Work History Report is as accurate as possible. Try to round up old resumes, tax records, and bank records; log into your online account with SSA; and talk to your family and friends about what they remember about your job history. If you only worked somewhere for two months, make sure that’s clear on the form. Verify that the hours and wages you worked are accurate. It’s better to spend some extra time checking and making sure the numbers, jobs, and dates you report are correct than to take a wild guess and pay for it later.
- Understating the Physical Demands of a Past Job
Generally speaking, for cases that may be analyzed under the Grid rules, the more physically demanding your past work is, the better shot you have at getting your application approved. That’s why it’s crucial that you are as specific as possible about the physical demands and duties of each job you’ve listed on your Work History Report. Your DDS specialist takes the information from the Report and tries to match your job up with a job that’s listed in the Dictionary of Occupational Titles (the DOT for short). The DOT is a big book of jobs that Social Security uses that describes the duties, skill level, and physical demands of most imaginable jobs. If you are not specific enough about the duties and physical demands of your past jobs, your DDS specialist might mis-categorize your past jobs and find that a specific job was much easier than it actually was, leading to an unnecessary denial.
Example: Phil is 60 years old. He has worked in the same automotive plant since he was 25 years old. His job requires that he lift parts on an assembly line weighing 35-40 lbs off and on all day. Phil hurts his back and takes early retirement from the plant. He also files for disability benefits. Phil is annoyed with all of the paperwork he is being sent and completes his Work History Report in a rush. He has never really thought about how much the parts he lifted actually weighed, and he hurriedly checks a box saying the maximum weight he lifted was 20 lbs. DDS finds that Phil is limited to light duty. Because he reported lifting only 20 lbs in the auto plant, DDS finds his past work to be light duty work, concludes he should still be able to do that kind of work, and denies his application. Had Phil only took the time to think about how heavy the parts actually were and checked the right box, his claim would have been approved.
I often see Work History Reports where the person reported doing something very physically demanding, such as pouring concrete, but reported they never had to lift anything heavier than 10 lbs on the job. Take your time and really think about what you did on each job. Think about the hardest parts of the job and the duties that were difficult for you. Be specific.
As you can see, being accurate and specific is the key here. Don’t get denied because you rushed through the Work History Report. If you are willing to spend a little extra time on your Work History Report, you may avoid ending up like Phil.
THE ADULT FUNCTION REPORT
The other form that DDS sends in every case is the Adult Function Report. This form is more straightforward than the Work History Report because it contains questions about your current ability to function on a daily basis—your ability to complete household chores, do yardwork, and shop for groceries. The two biggest mistakes I see with this report is when people either understate or overstate their abilities.
Example 1: Jimbo files for disability. He has numerous chronic conditions. He’s had two lumbar fusion surgeries and isn’t able to walk really well, he’s had pacemaker put in recently, he has severe arthritis in his right shoulder, he is diabetic and requires insulin to control his blood sugar. Up until the last year or so, Jimbo has always worked and been very active. He doesn’t like admitting that his health isn’t great and he is embarrassed that he’s filing for disability. He receives his Function Report in the mail. Jimbo states on the function report that he mows his lawn, walks two miles every day, does all the chores in house, and babysits his small grandkids. In reality, Jimbo rarely feels like doing any of these things and is lucky if he has two days in a month where he can be this active. But Jimbo does not want to admit how limited he is. While there are a ton of medical records showing all of Jimbo’s health problems, DDS takes one look at his Function Report and concludes that his medical problems aren’t stopping him from doing his normal activities. They deny his claim.
Example 2: Edna applies for disability benefits. She has rheumatoid arthritis and depression. When she fills out her function report, she states that her pain is constantly a 10/10, that she rarely gets out of the bed because she’s in so much pain, and that she can’t even lift five lbs. While it is true that Edna has several days each month where this is the case, she also has good days where she feels great and can be productive. DDS gets the records from her therapist and reads that she’s been stressed out because she’s been providing care for her elderly mother that had a stroke and that she recently started taking a salsa dancing class. Edna’s credibility with her DDS specialist has now gone out the window. DDS denies Edna’s application because the limitations she reported are not consistent with her medical records.
The errors that Edna and Jimbo made on their Function Reports will follow them to their hearing with the judge, who gets a copy of it in the hearing file. It will be up to Edna, Jimbo, and their attorneys to try and clear up any inaccuracies in Function Report during their respective hearings. Don’t be like Edna or Jimbo. Fill out your Function Report in a way that is accurate and fair. If you have good days and bad days, make that clear and state how many of each you normally have in a week. Do not overstate your abilities or your disabilities.
These forms are an important part of your claim. The most important thing is that you complete them and turn them in. But almost more importantly, you need to do it accurately.
Once your DDS specialist has gathered all your medical records and received all of your completed paperwork, he or she still may not have enough information to decide whether or not you qualify for benefits. Social Security rules provide that in this situation, DDS can order a Consultative Examination (“CE” for short) so that an outside doctor can evaluate you. Obviously, the CE is very, very important to your claim. Chapter Four is all about tips and information about CE’s.
THE CONSULTATIVE EXAMINATION
DDS orders at least one CE in a large percentage of all disability claims. The purpose of the CE varies depending on what information your DDS specialist thinks he or she needs to make a decision on your case. You could be asked to see a general doctor or nurse practitioner for an overall physical. You might be asked to attend a mental CE with a psychologist for an evaluation of any limitations caused by mental problems such as anxiety or depression. They might set up an x-ray, breathing test, or heart test for you. The results of the doctor’s report from these CE’s will often make or break your disability application. Below are the most important facts and tips you should know prior to your CE:
#1: SOCIAL SECURITY PAYS FOR THE CE, SO IT IS NO COST TO YOU AND YOU BETTER SHOW UP FOR THE APPOINTMENT
If you are applying for disability benefits then you are not working (or not working very much), may not have health insurance, and are likely feeling great financial pressure. With this in mind, the SSA covers the cost of any requested CE’s. The fees that Social Security pays for these exams are regulated by the State you live in and are typically very low—around $200.
DDS also tries to schedule the exam with a doctor that is close to your house so that you won’t be inconvenienced by having to travel too far. In rare cases, an exam gets scheduled with a doctor that is located an hour or so away from a person’s home. If the doctor is too far away for you or something comes up and you can’t make it to the appointment, it is crucial to let your DDS specialist and/or your attorney know that ASAP so they can make arrangements to reschedule. Failure to show up for a scheduled CE without telling anyone is grounds for DDS to deny your application for lack of cooperation.
#2: THE DOCTOR DOESN’T ALWAYS DO A THOROUGH EXAM SO THE REPORTS ARE OFTEN INACCURATE
The old saying “you get what you pay for” applies here. Often these exams last five or ten minutes and are not thorough at all. And 99 times out of 100, the doctor that is performing the exam is someone you have never even met before. Social Security regulations encourage DDS to ask your regular treating doctor to perform the exam (if you have one and they are willing to do it), but this rarely happens in reality.
Given that the exams are often very brief and usually performed by a doctor that isn’t familiar with you, the doctor’s opinion ends up being super wrong in many cases. As an example, I once had a female client who was 60 when she stopped working. Her regular doctor had told her she needed double hip replacements and she needed a cane to walk. She was about 5’1 and weighed about 110 lbs. DDS sent her out for a CE to assess her physical abilities. The doctor issued a report stating that my client should be able to perform a job that required her to lift up to 100 lbs throughout the workday—almost her entire body weight! Luckily, I was able to convince the judge that the opinion was whack and we won the case anyway, but it’s a cautionary tale about what types of huge errors these doctors are capable of.
In order to protect yourself against a possibly whack CE opinion from a doctor you barely met, here are a few tips:
- Take a notepad to the examination with you or make notes in your phone. Note the time the doctor began examining you and the time the exam ended. Make note of any tests or range of motion exercises the doctor asks you to perform. The doctors often report that a person had a normal range of motion without actually checking the range of motion. If there is anything unusual about the doctor’s office or the visit in general, make note of that too. I once had a client that was sent out for a mental CE. The doctor conducted the exam in the back of an insurance office (not joking) and there was no privacy whatsoever. The client could hear the employees of the insurance office through the wall talking on the phone and selling insurance and was sure those employees had heard her evaluation as well. The doctor gave an opinion that was not helpful to our case. The client made notes about this and we were able to use that to discredit the opinion in court.
- Also make note of the name and appearance of the doctor who performed the exam. Social Security regulations require that the doctor who examined you must sign the report in order for it to be valid. I’ve had at least two cases where the client and I later figured out that another doctor or someone in that doctor’s practice (like a nurse practitioner) actually performed the exam and the doctor who signed the report wasn’t even present. I have successfully used this information in court to discredit bogus findings that are not helpful to a case.
- Ask the doctor which of your medical records that they have reviewed. The doctor is supposed to mention in the report which medical records (sent to them by your DDS specialist) he or she reviewed before examining you, but sometimes they fail to do that. Establishing an inconsistency on that part of the report is another way to discredit the exam findings if they are harmful to your case. If a doctor made assumptions about your abilities without reviewing all of the important medical records first, you or your attorney can make the argument in court that the opinion is not credible. If there is some particularly important medical information you believe the doctor must see, you can take a copy of that with you and ask them to review it before they issue the report.
- Be thorough. Don’t assume the doctor knows about all of your health problems—take your time and tell them about each one. Don’t leave anything out. If the doctor is trying to rush you through the interview portion of the exam or won’t listen to you, make note of that as well.
- Be polite. If you make the doctor angry for some reason, they might write something nasty about you in the report, which is obviously bad for the case. I’ve seen it happen before.
- Don’t overexaggerate your problems by taking a cane with you if you don’t actually need the cane or pretending to be in more pain than you actually are in. These doctors can smell BS a mile away. And don’t assume that no one is watching you in the parking lot. I’ve seen countless CE reports where the doctor noted that the client was walking fine in the parking lot and lobby and then took out a cane and started hobbling around once the exam started. If the doctor thinks you are overexaggerating your problems, they might put on their report that you were “malingering”—aka faking it, which is bad for your case.
#3: EVEN IF THE CE REPORT IS FAVORABLE TO YOU, YOU STILL MIGHT NOT WIN YOUR CASE.
CE reports where the doctor overstates your disability can be just as harmful as ones where the doctor understates them. Your DDS specialist has the power to discredit a CE report if they don’t think it’s consistent with the other evidence they have. They might decide that the doctor was just going along with whatever you told them during the visit and the report is therefore not an objective assessment of your abilities. They might decide that the doctor’s report doesn’t jive with the rest of the medical records they received. There are certain doctors here in Alabama that are notorious among my colleagues and I for issuing totally disabling CE reports to people that have no basis in fact or reality. We frequently see cases in our office where the CE doctor concludes that a person is very limited and should be awarded benefits, but DDS denied the person’s application anyway because the report was just too over the top. In these cases, it’s up to you or your lawyer to convince a judge that the doctor was actually correct.
#4: IF YOUR APPLICATION IS DENIED AND YOU GO THROUGH THE HEARING PROCESS, YOUR JUDGE MIGHT REQUEST A CE AFTER COURT.
If DDS does not ask for a CE during the application process, the judge who hears your appeal has the authority to order one later if they think the information is necessary before making a decision on your case. Some judges are more agreeable about doing this than others. Certain judges do not like to delay making decisions on their cases and are hesitant to do anything to hold the case up after a court hearing. Having a good attorney who can make the argument as to why a post-hearing CE is needed can go a long way. And if a CE is genuinely needed in order to paint a clear picture of your case and the judge refuses to request one, it can be grounds for an appeal to the next level if the judge goes on to deny your case.
After your DDS specialist receives and reviews all of your medical records, paperwork, and consultative examination report (if applicable), then he or she is usually ready to issue a decision. Even if you are one of the lucky few who gets approved on initial application, there are still many complicated variables to keep in mind.
APPROVAL ON INITIAL APPLICATION
DDS typically makes a decision on an initial claim within 3-6 months, though that timeframe can be longer or shorter depending on different variables. Obviously, the decision will shake out one of two ways—approved or denied. If your case gets approved on your initial application, congratulations! Did you have a rabbit’s foot in your pocket? In a 2018 report, Social Security disclosed that the average rate of approval for initial claims was only 22% between 2008 and 2017. A few tips to keep in mind if you do receive that unicorn of an award on your initial application:
- Social Security keeps the DDS offices on their toes by randomly selecting some cases for quality review. If your initial claim gets approved but your case is then flagged for quality review, your benefits may be delayed for months or longer. The quality review office may decide that DDS did not do a very good job on your case and send it back for further evaluation. In a small percentage of cases, this can lead to the reversal of your award. This only happens in a very small percentage of cases but know that it is a possibility.
- IMPORTANT: THE FIVE MONTH WAITING PERIOD. Most people who get approved for SSD (worker’s) benefits are surprised to learn that they will not receive any money for the first five full calendar months they are out of work. Social Security has this waiting period in place presumably to make sure that people who are disabled for only a few months don’t get to draw benefits—remember the disability is supposed to last at least a year. In reality, the waiting period means that when you are found to be disabled, there is a five-month window where you will be entitled to zero dollars. If you file for disability relatively quickly after stopping work and are approved relatively quickly by DDS, there is a chance that the waiting period won’t have even ended yet and you therefore won’t get your first check for another month or two after that.
Example: Roy hurts his back and stops working on January 3. He files for disability benefits later that same day, alleging he became disabled when he stopped working on January 3. Due to his age, the support of his doctors, the strength of his medical records, and the good job he does filling out all of his paperwork, Roy’s claim is approved by DDS on March 27. Despite having been approved for benefits on March 27, Roy has to wait until he’s been out of work for five full calendar months to receive his first check. Roy receives his first check in July.
Clients absolutely hate the five-month waiting period and many lawmakers have criticized it as well. To me, the rule makes no sense. Social Security is supposed to have already evaluated your case to see if your disabilities have lasted twelve months or should be expected to last twelve months, so the risk of a claimant drawing the benefits for a short term disability seem fairly minimal when compared to the burden of going five full months without any income. The rule is particularly silly when considering that most people aren’t even awarded benefits until they have a hearing with a judge, which is almost always at least a year from the time the claimant stopped working. Lawmakers have introduced various bills over the years that would eliminate the waiting period, but as of this writing, none have been passed into law and the waiting period remains.
Another caveat to the five-month waiting period is that it does not apply to SSI claims. SSI claims are payable going back to the date the claim was filed. If you have filed a claim for both SSD and SSI as discussed in a prior post, you may be able to draw SSI for the first five months you are out of work before having your benefits convert over to SSD on the sixth month. But if you do not meet the strict income requirements for SSI, plan for no money during those five months.
- IMPORTANT: 29 MONTH WAITING PERIOD FOR MEDICARE ELIGIBILITY. Perhaps even more harsh than the five-month waiting period for getting benefits is the waiting period for Medicare eligibility. A claimant who gets approved for SSD benefits is only eligible for Medicare after they have been drawing the benefits for two years. Added to the five-month waiting period in order to draw benefits in the first place, this means a person has to be deemed disabled for a staggering 29 months before he or she can sign up for Medicare. That’s a long time to go without any health insurance. Sure, you can purchase some insurance privately or pay to stay on a spouse’s insurance plan during that time, but those costs can take a large dent out of the monthly benefit amount. We often see clients that struggle to make ends meet while they pay for their own costly insurance during this 29-month period.
As with the SSI waiting period caveat, an SSD recipient who also meets the income requirements for SSI is eligible for Medicaid immediately upon being deemed disabled, which can be a major lifeline during the long wait for Medicare. However, only a portion of SSD recipients meet the income requirements for SSI and Medicaid.
- Continuing disability review. If the deciders believe your condition may get better over time, they might flag your case for review in a couple of years. This is particularly true for younger claimants who they believe may recover and return to work in the future. It is extremely important that you continue to get medical treatment and take care of yourself once you are drawing benefits. If you aren’t treating your conditions when Social Security checks back in on you in a couple of years, they can decide to cease paying your benefits. We get calls all the time from people who have had their benefits cut off like this and they are understandably panicked. Be diligent about your medical treatment and taking care of yourself in order to minimize the chance of this happening to you.
- Returning to work. You may draw SSD benefits for a while, have that surgery you desperately need, and make a miraculous recovery a year later. You may get a job offer and decide you would like to give it a shot. But what if you go back to work and then soon realize you’re not really up to it? Is it worth the risk of being cut off from all your benefits when you’re not 100% confident that you will actually be able to do a job after all this time? What if you go back to work and your pain returns? Social Security actually has protocols in place for this exact situation—the Trial Work Period. If you do get better and decide you want to return to work, it is crucial that you notify Social Security immediately. Even if you decided to attempt full-time work, you will still be able to draw your regular benefits for up to nine months while you test your ability work. If you are still working full-time at the end of the nine-month trial period, you will no longer be able to draw benefits. It’s important to note that the nine-month trial period does not have to be consecutive months. Also, you are generally only eligible for nine months of trial work every five years, whether used consecutively or spaced out. Working while drawing SSD is a very complicated issue with many nuances to it. You should always consult with an attorney to make sure you don’t mess anything up with your benefits.
As always, this stuff is complicated and that’s what lawyers are for. Our office is here to talk to you about any and all of this, so don’t hesitate to reach out.
Navigating the complex Social Security system can be a stressful and oftentimes scary process without the help of an experienced Social Security Disability attorney. Social Security Disability Insurance (SSDI) claims are especially overwhelming when you are already dealing with an illness or injury. Our firm strives to take the legal confusion and stress away from you so that you can focus on your biggest priority–your health and recovery.
We can help you get the benefits that are rightly owed while providing compassionate guidance and professional representation at all stages of the Social Security Disability process for adult and child disability cases, including:
- Initial Application for Social Security benefits
- Reconsideration of denied Social Security Disability claims
- Hearing before a Social Security Administrative Law Judge
- Administrative Appeal
Our focus is not only on the legal aspects of the case, but also on the human elements. We are committed to treating you as an individual and will work to understand your specific case, situation, and physical needs. We are real people helping real people throughout Alabama and the Southeast.
SOCIAL SECURITY DISABILITY IS NOT A HANDOUT.
Let’s debunk the biggest myth surrounding the Social Security Disability program—that these benefits are some kind of handout. Over the years, politicians have labeled this program as an “entitlement,” but that is simply not the case. The fact is, you have been paying for this insurance your entire working life, and if you become unable to work, you have earned these benefits.
Look at any paystub you’ve ever received and notice that a chunk of your paycheck was deducted for FICA. This stands for Federal Insurance Contributions Act. This is money the federal government has taken out of every paycheck you’ve ever earned and held in a pot. That money is there for you so that if you become disabled, you will be able to replace some of your household income, pay your bills, and take care of your family. It’s that simple.
Applying for SSD insurance is no different than asking your auto insurance company to pay for having your car fixed when you have an accident while driving. It’s insurance, and that’s why you pay for it. DO NOT FEEL GUILTY FOR APPLYING FOR THESE BENEFITS. You have paid into the system for this very reason, and the benefits are there for you if you need them.
Social Security does administer another program, SSI, for those who have not paid enough into the system, including disabled children. However, the SSI program is much smaller and has very strict requirements, with only extremely low-income households being eligible for these benefits. Also, the monthly benefit amount for SSI is typically much lower than monthly SSDI benefits. No one is living high on the hog off SSI benefits, but they are crucial benefits that help out the most vulnerable in our population. There is absolutely no shame in applying for these benefits, either.
Whether you think you may qualify for SSDI, SSI, or both, we are happy to talk with you today.
WE WILL HELP GET YOU THE SSDI BENEFITS YOU DESERVE.
Are you considering applying for Social Security benefits or have you already applied and been denied? While we are happy to discuss any case with any person at any time, here are the general requirements our office looks for when considering whether to take on a new disability case:
- You must have stopped working, or at least cut back to part-time work grossing less than $1000 per month;
- You must have worked and paid in taxes long enough to be eligible for SSDI benefits, or meet the household income requirements for SSI benefits;
- You must have at least one severe medical impairment, diagnosed by a doctor, that limits your ability to perform your duties at work;
- You must be seeing a doctor regularly;
- Stronger cases usually involve people who are 50 or older (the guidelines for eligibility relax the closer you get to retirement age) who have had a lot of medical treatment.
This list is not exhaustive and every case is different. Please call us if you think you might qualify or if you just want to learn more. We will shoot you straight. If there is no way you will qualify for benefits, we will tell you upfront so you don’t waste your time.
SOCIAL SECURITY DISABILITY – EXPERIENCE ON YOUR SIDE.
Our firm has extensive experience handling Social Security Disability cases, along with having the appropriate resources and in-depth knowledge of how the government views and deals with Social Security Disability benefit matters. We aim to understand your unique situation and ensure that you receive the level of consideration and the benefits that you deserve.
Call us today and let us see what we can do to help. We are always happy to speak with potential clients about their issues with Social Security Disability and never charge a fee unless we are successful in getting benefits.