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.
Free Claim Review

One of the most important things you can do for a client as a Social Security disability lawyer is to request reopening of a prior claim. In my opinion, the issue of reopening does not get enough attention.

Reopening a prior claim can add substantially to the retroactive benefits payable to your client. At a recent hearing of mine, the judge agreed (based upon new and material evidence) to reopen an SSI claim filed 22 months prior to the current claim. That is a welcome lagniappe for an SSI claimant.

Reopening is governed by 20 C.F.R. 404.988 for disability claims and 20 C.F.R. 416.1488 for SSI claims. 

A prior claim may be reopened within 12 months for any reason. The 12 month period runs from the date of the initial denial of the prior claim.

A prior Social Security disability claim can be reopened within 4 years if there is good cause. An SSI claim can be reopened within 2 years for good cause. In most cases, "new and material" evidence is the basis for a finding of good cause. The 2-year and 4-year time periods run from the date of the initial determination of the prior claim.

As a lawyer, you must check with the SSA for prior claims. You should not rely on the client for this information.

Social Security must consider the combination of your impairments when considering your eligibility for benefits. Even non-severe impairments must be considered in combination with your severe impairments. See 20 C.F.R. 404.1523.

This can be very important. Sometimes a seemingly minor impairment can rule out your past relevant work, and move your claim past step 4 of the sequential evaluation process. 

I have had cases where past relevant work was ruled out due to asthma (can't be around fumes), near blindness in one eye (no depth perception for factory work), and moderate anxiety (cannot interact with the general public), when those impairments were combined with the claimant's other impairments. Each of these claims then won at step 5 of the sequential evaluation process, via the medical-vocational guidelines.

Remember, your RFC must include all your impairments, even non-severe ones.

Drug addiction or alcoholism (DAA) cannot be a basis for Social Security disability. In fact, if DAA is a contributing factor material to your disability, you are not entitled to disability benefits. See 42 U.S.C. 423(d)(2)(C).

Social Security has a regulation governing how it will determine whether or not DAA is material to a disability claim. For an SSI claim, the regulation is 20 C.F.R. 416.935. The key factor is whether Social Security would still find a claimant disabled if that claimant stopped using drugs or alcohol.

To do this, the SSA must evaluate which of the claimant's impairments would remain if the claimant stopped using drugs or alcohol. The SSA will then determine whether or not the claimant's remaining limitations would be disabling. If the remaining limitations would not be disabling, then DAA is a contributing factor material to disability, and the claim would be denied.

However, sometimes it is impossible to untangle the effects of DAA from other impairments, particularly mental impairments. If the judge cannot determine the effect DAA has on the claimant's impairments, then DAA is not material. A tie goes to the claimant, pursuant to emergency message 96200 (see question #29).

Social Security Rulings are policy interpretations issued by the SSA. Social Security Rulings are binding on all components of the SSA, and are to be relied upon as precedents when adjudicating other cases. See 20 CFR 402.35(b)(1).

Social Security disability lawyers refer to the Rulings regularly. The Rulings contain very useful explanations of SSA's policy, and offer more detail than the regulations. If there is a Ruling on a topic at issue in your case, that Ruling is mandatory reading for your disability lawyer.

Sometimes, however, it can take a little while to find the particular ruling you need. This is partly due to the Rulings' odd numbering system.

Recently, the SSA published a new index of the rulings, grouping them by subject matter. It is a very helpful index, and I have added it to the "Resources of Note" section on the sidebar of this blog.

Hat tip to JOA on the Connect discussion board for the catch.

This Google search question led a recent visitor to the blog: Can disability go retroactive from the onset date rather than the date you apply for benefits?

I will answer that question right now.

Disability benefits are never paid retroactively from the onset date, because by definition you were not disabled prior to your onset date. However, both your onset date and your filing date are relevant to the determination of your benefits. 

For an SSI claim, benefits begin on your filing date if your claim is granted. There are no benefits available prior to your filing date for SSI, regardless of your onset date.

For Social Security disability, retroactive disability benefits are paid for up to 12 months prior to your filing date, depending upon the interrelation beween your filing date, your onset date and the 5 month waiting period. 

Benefits begin 5 months after your onset date. However, retroactive benefits do not extend further back than 12 months prior to your filing date. Let's look at an example.

Continue Reading Google Search Question – 3

I had a Social Security disability hearing with an administrative law judge at the Manchester, New Hampshire ODAR recently. I prepared a hearing memorandum for the judge, as is my practice.

The judge acknowledged my hearing memorandum, and said "I wish more of your colleagues would prepare them."

A hearing memorandum is not required at the Manchester ODAR, but you should submit one anyway. It is a real help to the judge, who after all, is the person deciding your disability case. Why wouldn't you want to help the judge grant your case?

If you are representing Social Security disability or SSI claimants in New Hampshire (or elsewhere), write a hearing brief.

An award of disability benefits under the Social Security disability insurance program comes with Medicare insurance. But not right away. Rather, the insurance begins two years after your date of entitlement. Your date of entitlement is your onset date plus the 5 month Title II waiting period.

In a typical disability case, that waiting period may not matter. Often claimants are out of work for a while before they apply for disability benefits, and if the claim is initially denied, two years from the date of entitlement may pass before a hearing is held and a decision issued.

But for claimants with the most serious and life-threatening medical conditions, the medical insurance is a necessary part of the program. For those claimants, the 24 month waiting period can present a tremendous hardship.

Waiting two years for Medicare insurance benefits has a tremendous human cost for those who are too sick to work, too soon for Medicare. Fortunately, fixing this problem is the topic of ongoing political discussion.

I received a fully favorable decision today for one of my clients. It was an unusual case, because I never spoke with the client until just before the hearing.

The client found me in March through my Maine Social Security lawyer website, and emailed me. She has such severe anxiety that she does not use the telephone, and rarely leaves her house. She lives several hours away, so I did not visit her at home. Instead, we communicated by mail and email for several months prior to her hearing. Unusual, but I have to say, it worked pretty well.

We finally met in Bangor on the morning of the hearing. The hearing was conducted by videoconference with a judge in Portland, Maine. The written decision has now followed.

It is important to prepare a client for the Social Security disability hearing. Ideally, that preparation takes place in person. But it can be done quite effectively over the telephone, and in fact, by email.

A client of mine just obtained a fully favorable decision at the Reconsideration level. 

In this particular case, Social Security assessed a residual functional capacity at the light exertional level. Since the claimant's past relevant work was also at the light exertional level, the claim was denied at step 4 of the sequential evaluation process. After receiving a denial notice, the claimant retained me. We appealed, and the claim went to Reconsideration.

I asked the claimant's doctor for her opinion on the claimant's limitations. The doctor completed a medical source statement, and assessed a sedentary RFC.

The doctor's medical source statement was adopted by the SSA. That sedentary RFC ruled out the claimant's past work at step 4. And since the claimant is over 50 and does not have transferable skills or education that provides for direct entry into skilled work, he grids "disabled" at step 5, under Rule 201.14 of the Medical-Vocational Guidelines. 

This is a fairly typical case story, and any Social Security disability lawyer worth his salt would obtain a medical source statement from the claimant's treating doctor. But why wait until the hearing? Why not do it soon after you get the case, so that you have a shot at winning at Reconsideration?

I treat Reconsideration like a hearing. I update medical records, get medical source statements when I can, and write a letter to the disability examiner explaining why the claim should be granted.