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I frequently talk, or trade emails, with people who are thinking about applying for Social Security disability but are still working (and earning more than the SGA amount of $1,000 per month).

Sometimes people are surprised that they cannot still work and apply for disability benefits. Sometimes they want to discuss the likelihood of success for a disability claim, should they stop working and apply for benefits.

Often people want to know if their particular medical condition can provide a basis for disability. My answer is always yes, so long as the symptoms are severe enough to prevent them from working, and there is good medical support for the severity of the symptoms. It is not the diagnosis, but rather the severity of the symptoms that determine the success of a disability claim.

I invariably also say that stopping work should be a last resort. There are good reasons for this.

First, the path to Social Security disability benefits can be a winding one. It can take longer than hoped. These days in Maine, if a hearing is necessary, the better part of twenty months can pass (and if you take 60 days to appeal your initial and reconsideration denials, it can be two years). It is quicker in New Hampshire, but is still likely to be a 16-month process if a hearing is required.

Second, even if the disability application is granted right away, there is still a 5 full-calendar-month waiting period for benefits. As a result, it can often be almost 6 months before your are eligible for benefits, and the first check comes the following month. So that's almost 7 months from your last day of work. You have to be prepared financially for that gap in income.

If you have any choice about it at all, please think carefully before stopping work. However, when work becomes too much, you should apply for the disability benefits for which you have paid a premium through your FICA taxes over the years.

You can gain further insight into the Social Security disability claim process by downloading the free ebook below.

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Download free ebook:

Ten steps to prepare for your Social Security disability hearing

 

Every other Friday I publish links to articles of note on the topic of Social Security disability:

Some Social Security disability claimants do not hire a lawyer because they believe they cannot afford one. However, the SSA-approved contingency fee process means that it does not cost a penny to hire a lawyer, and there is no fee unless a disability or SSI claim is successful. We do not get paid unless you get paid.

I speak with prospective clients regularly, and many do not realize that fees for a Social Security disability lawyer are almost always contingency fees. This also means we talk with you a bit about your claim before we represent you. That way, you have a lawyer that believes in your claim as much as you do.

There is a permanent page on this site About Attorney Fees, which provides further detail. The bottom line is that you should seek help with your disability claim regardless of your current ability to pay for a lawyer.

 

The Social Security Appeals Council tracked the reasons for the remands from the 102,062 claims it reviewed in FY 2010, and compiled a list of top reasons for remands. The summary was published in the July Social Security Forum, a newsletter for NOSSCR members. Download Top Remand Reasons (link opens a 1-page pdf file).

The Appeals Council continues to remand about 22% of its cases. When you consider how many perfunctory AC requests for review are made, that strikes me a significant percentage. But you can increase your odds of a remand by focusing on high percentage reasons. We will take a look at the top 5 reasons here.

  1. The top reason for remand, constituting almost 42% of all remands, was evaluation of the medical evidence or RFC assessment. This includes weighing opinion evidence and assessing RFC. This makes sense, since weighing the medical evidence and RFC assessment are at the heart of almost all Social Security disability cases.
  2. The second place reason, constituting almost 15% of remands, was error in the step 2 analysis of severe/nonsevere impairments. 
  3. Procedural errors/improper dismissal is the number 3 reason, with almost 14% of remands. I think these errors are clear-cut, and are easy for the AC to analyze.
  4. Step 5 – grid and vocational testimony issues constitute the number 4 reason, with about 10% of remands.
  5. Lastly, credibility determinations provided the number 5 reason, with almost 8% of remands. Frankly, I am surprised that this one is so high, because it this argument never seems to prevail in federal court.

So there you go. Depending upon the facts of your particular case, be sure to highlight the errors that are most likely, statistically speaking, to result in an Appeals Council remand.

Every two weeks, I publish links to notable articles on the topic of Social Security disability. This week I published a rebuttal to a paper suggesting that Social Security administrative law judge decisions were inherently flawed, and that the entire ALJ system should be abolished. Please take a look, because I spent some time writing it.

Photo: Lunch on a summer day

The latest statistics for processing times for Social Security hearing offices around the country have been released by the SSA, and reprinted in the July 2011 NOSSCR Social Security Forum newsletter.

In Maine, the average wait for a hearing decision is now 365 days – exactly one year. Processing time runs from the date of the hearing request to the day a decision is issued. The 365 days is an average. Some disability claims are resolved more quickly, but a disability or SSI claim that requires a hearing and a written decision may take longer.

The bottleneck with claims seems to be staffing and budget concerns. I am seeing this in other ODARs as well. There seem to be enough judges to handle the claim volume, but many hours of staff time are required to get a claim ready for hearing, and staff hours are definitely down. The Portland, Maine hearing office has farmed out a small number of claims to other hearing offices to help manage its backlog. 

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Download free ebook:

Ten steps to prepare for your Social Security disability hearing

 

A 28-page working paper entitled What Should We Do About Administrative Law Judge Disability Decisionmaking? was recently published by Richard J. Pierce, Jr., who is currently a GWU law school professor.

Pretty much all you need to know about the author’s perspective on the issue of ALJ disability decisionmaking is contained in the first sentence and last sentence of the paper.

First sentence: The 1400 Administrative Law Judges (ALJs) who work for the Social Security Administration (SSA) are making a significant contribution to the economic problems the US is now experiencing.

Last sentence: My preferred solution would be to abolish the ALJ-administered part of the disability decisionmaking process and to use at least part of the resulting savings to implement a system of reviewing past decisions to grant disability benefits to determine whether each beneficiary actually suffers from a permanent disability so serious that he can not perform the functions needed to hold any job in the US economy.

That’s nice. So, not only should we abolish those pesky ALJs who are granting disability claims, but let’s use those savings to review the decisions of those disability claimants who have already been granted benefits.

A working paper is not a law review article. It is an essay, a work in progress. So maybe we should not judge it too harshly. But this essay is just so slanted, it is surprising that is being described as “legal studies.” It reads like a policy paper from the Heritage Foundation.

The paper discusses four areas that demonstrate the problems with ALJ decisions. Let’s take a look at each.

Continue Reading Administrative Law Judge Disability Decisionmaking

Social Security Ruling 11-1p, entitled "Titles II and XVI:  Procedures for Handling Requests to File Subsequent Applications for Disability Benefits" was published today in the Federal Register.

The Ruling prohibits a new application for benefits while a prior claim of the same title and benefit type is at the Appeals Council. This is a change in policy, and it forces disability claimants to make a choice between pursuing an appeal or filing a new application.

Social Security Rulings are binding on all components of the SSA. See 20 CFR 402.35(b)(1).

 

The phrase "lost in translation" aptly describes what often happens with a Social Security disability claim at Disability Determination Services (the state agency that makes disability determinations at the initial application and reconsideration levels).

DDS obtains your medical records and usually has them reviewed by a DDS in-house doctor (for physical impairments) and/or a psychologist (for mental impairments). However, Social Security assesses your ability to work based upon functional limitations. When reviewing your medical records, often your true limitations are lost in translation.

For those applying for disability benefits, there is often surprise that their medical records did not establish their disability claim. Those who then look at their medical records are usually surprised again that the records do not set forth the limitations that they experience in their daily activities. Be sure to tell your doctor about your limitations, and make sure that your doctor writes it down in your progress notes.

To avoid the problem of your limitations being lost in translation, your doctor must speak the language that Social Security uses, which is the language of functional limitations. Obtain a medical source statement from your doctor, which will set forth your doctor's opinion of your specific functional limitations. Your functional limitations will be used by the person deciding your disability claim, so don't those limitations get lost in translation.  

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Download free ebook:

Ten steps to prepare for your Social Security disability hearing

 

Every two weeks I highlight articles of note for Social Security disability claimants and their representatives: