Welcome! This site is written for Social Security disability claimants, for their legal representatives, and for the network of people involved in the Social Security disability claim process. I hope you find it helpful.
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Each year, the Social Security Administration releases statistics about the disability and SSI programs in an easy-to-understand format, called the "waterfall" chart. The waterfall chart shows the percentage of claims approved and denied at the various levels of review.

Here is the latest chart, for FY 2015: 

The chart shows what claimants can expect, statistically, for their claim for Social Security disability benefits. I like this chart, and have posted an annual waterfall chart dating back several years.

However, much has changed since the baseline years 2008 & 2009, when ALJ allowance rates at the hearing level were 63% of claims.

From the 2009 baselineallowance rates are down at every level of review. In particular, ALJ allowance rates have declined significantly during the intervening years (62% in FY 2010, 58% in 2011, 53% in 2012, 48% in 2013, 45% for 2014). Hopefully this second year at 45% represents the end of the free fall in ALJ allowance rates.

It is tax time, and each year I hear from clients who won their cases the previous year and are wondering about the tax consequences of their disability benefits. This topic is particularly important for those who received a significant payment of past-due benefits.

The answer is part of your disability benefits may be taxable. Here is a video from the IRS on the topic of taxation of Social Security benefits. Also here is a link to IRS Publication 915

As you can see from the video and the publication, it's complicated. If you received a large lump sum payment of past due disability benefits last year, this is the time to get in touch with a tax accountant.

 

 

    I get frequent calls and emails from people who are still working, but are struggling, and are considering Social Security disability.

    Depending upon a person's individual circumstances, this is typically what I say to those who are currently working, but are exploring the disability process:

It is hard to plan for disability. It is unfortunately an imperfect process. Please bear in mind these things:

First, there is no disability from Social Security if you are working, and earning more than $1,090 per month (which is the level of "substantial gainful activity"). So you must have stopped working to apply. I typically suggest that people who are still working should keep working as long as possible.

Second, Social Security does not pay for the first 5 full calendar months of disability. So you need to be prepared financially for 6 months, at a minimum, of little or no income after you stop working. 

Third, not being able to perform your past work is not enough to qualify for disability benefits. Depending upon your age, Social Security will look at your ability to perform other work, including work that is sedentary, unskilled, and not demanding mentally. This work includes jobs that many people would perhaps never consider.

Lastly, you need to be able to back up the functional limitations that prevent you from working with significant medical evidence, preferably including opinions from your treating doctor(s).

 
That may be too blunt. But it reflects the reality of the disability process today. Disability has to be a last resort.

Although medical evidence is the centerpiece of a Social Security disability claim, non-medical evidence can play an important role, and help to persuade an administrative law judge that your are disabled from competitive employment.

Atlanta, Georgia Social Security disability attorney Jonathan Ginsburg wrote a good article on this subject, entitled "Unconventional, Non-Medical Evidence That Can Help You Win." You should read it.

Attorney Ginsberg correctly notes that the medical record alone often does not contain a complete picture of a person's capacity to work. Ideally, an opinion from your doctor will specify the functional limitations that prevent you from working. But you should not stop there. Non-medical evidence can contribute to your case.

Work records can be helpful. Those records may show a pattern of absences due to your medical condition. Or they may show that a person, before stopping work altogether, tried to stay employed with a series of jobs that were progressively less demanding. Written statements from co-workers or supervisors can also help to shed light on the difficulties experienced in the workplace. These statement can enhance a disability claimant's credibility

Attorney Ginsberg phrases the overall issue very well. The goal is "to paint a picture of a person who is applying for disability as a last resort and only because you cannot – not will not – work anymore."

In addition to work records, I also will seek out statements from a spouse, family, or a friend. These also can help to paint that picture.

Two administrative law judges are departing the Portland Office of Disability Adjudication and Review (ODAR).

Judge Vickie Evans departs this month. She is transferring to the Mobile, Alabama ODAR, where she will be the Chief ALJ. I wish her well.

Judge John F. Edwards has retired. Hearings already scheduled for Judge Edwards will be heard by other ALJs. I wish him well.

Social Security has issued a new rule regarding the production of medical evidence for Social Security disability cases. Entitled Submission of Evidence in Disability Claims, the rule makes several changes in the regulations effective April 20, 2015.

If you are practicing in this area of law, you have to read the new rule. It is likely to affect your practice and your procedures.

There is a good article discussing the new rule written by Delaware Social Security lawyer Steven Butler.

One notable change is that any and all medical source statements and opinions from treating doctors must be submitted. The rule is explicit that medical source statements do not fall within the attorney work product exception. That should give you pause before you ask all treating providers for opinions.

Those of us practicing in this area will be hearing more about this rule, so stay tuned. 

The reentitlement period is a safety net for Title II disability recipients who return to work. The reentitlement period begins at the end of the 9-month trial work period, and lasts for 36 months.

If you cannot continue working at the SGA level due to your disabling impairments during the 36-month rentitlement period, you do not have to go through the disability application process all over again. Rather, you just notify Social Security that you are unable to work, and they will restart your disability benefits right away. This safety net is intended to encourage you to test your ability to work.

You only get one 9-month trial work period, and only one reentitlement period.

Trial work and reentitlement are for Title II disability beneficiaries. There is no trial work period or reentitlement period for SSI beneficiaries.

Remember also, when you ask the ALJ for a closed period because you have returned to work, there is no reentitlement period.

Trial work is a concept that applies to people already entitled to Title II disability benefits. Sometimes Title II recipients will attempt to return to work to see how it goes. Social Security encourages this, and allows a 9-month period for a person to still receive disability benefits while testing his or her ability to work. However, this trial work can be a trap for the unwary.

Some recipients try working part-time, and may earn less than the SGA amount. They assume their disability benefits will not be affected by this part-time work. After all, they were allowed earn that much when they applied for disability benefits. But the trial work amount is quite a bit less than SGA, and this can cause problems for people who earn more than the trial work amount, and do not keep track of their months of trial work.

After 9 months of trial work, Social Security can terminate your benefits if you reach the level of SGA. The 9 months of trial are not necessarily consecutive, so a few months here and there of part-time employment can consume the trial work period. The SSA looks at a rolling five-year period for trial work, so that 9th month of trial work can sneak up on you.

Here is what to do to about trial work: 

First, be aware of the the trial work issue.

Second, keep track of your earnings, particularly if you are only working part-time. Keep your paystubs.

Third, let your local Social Security office know that you are working, and give them copies of your paystubs.

The goal is for both you and Social Security to know when you have reached the 9th month of trial work, so there are no surprises. You want to avoid an overpayment, where Social Security realizes after the fact that they have continued to pay benefits after 9 months of trial work, and seeks to get the overpayment back.

The things you tell your doctor about how you are doing (and what you are doing with your time) frequently end up in your medical progress notes. These progress notes provide your doctors with context and information about your condition.

Anyone applying for disability needs to know that those medical notes become part of the record for your disability claim. These notes are read carefully by the people making decisions on your claim, whether that person is a disability examiner or an administrative law judge.

I hate to say that you have to be careful what you tell your doctor, but you have to be careful what you tell your doctor. Because those statements made to your doctor are considered when your credibility is assessed by a decisionmaker.

I had a hearing for recently for a claimant disabled by chronic pain. The record contained a treating doctor's progress note stating that the patient "was helping a neighbor build an addition to his house." Now it turns out that the claimant was knowledgable about construction, and was simply walking next door to give his neighbor advice about how to proceed. He never picked up a tool or lifted a board. There is nothing inconsistent with that activity and a finding of disability due to chronic pain; people in pain still socialize, and carry on their lives as best they can.

But even when the actual facts are explained to the judge, credibility questions can remain. As a result, a case can become more difficult to win when doctors' notes contain statements about the patient's activities.

So be careful what you say to your doctor, because it may end up in your medical notes in a way that can raise questions about your claim.

For credibility analysis, be sure to read Social Security Ruling 96-7p.

The latest average processing time statistics for Social Security hearing offices around the country have been published by the National Organization of Social Security Claimants' Representatives (NOSSCR).

As of the end of January 2015, the average processing time for the Portland, Maine hearing office is now 443 days, which is just a week shy of 15 months. Processing time runs from the date of the hearing request to the day a decision is issued. The 443 days is an average. Some claims are resolved more quickly, but a claim that requires a hearing and a written decision may take even longer.

The processing time has been lengthening at hearing offices around the country, and it is causing real hardship to those Social Security disability claimants waiting for their hearing.