STEPS IN APPLYING FOR DISABILITY BENEFITS:

INITIAL CLAIM - - All disability claims begin by filing an application with Social Security.  This can be done by you or by your lawyer.  I strongly recommend the application be made in person at your local Social Security district office

Social Security asks for a lot of information.  The most important advice that I can offer is to be truthful.  Do not exaggerate!  Do not minimize your problems.  Don't be sloppy and lazy, do a first class job of furnishing the information either to your lawyer or to Social Security.

Social Security will want to know about your age, education and work history for the past 15 years.  Be complete and accurate.

Social Security will want to know the name and address of EVERY doctor or hospital that has treated you for your disabling conditions.  Social Security will usually order the medical records.  There are no magicians at the Social Security office.  If you do not give complete information, how can the medical records be ordered?

You will also need to describe your work history and job duties for the past 15 years, including the amount of sitting, standing and walking that was done.  You will need to be specific about the amount of weight that was handled at your past jobs.

Once all of this information is gathered and compiled on the proper forms, the best way to file is a face-to-face appointment at the local Social Security District Office.  The claims representative at the Social Security office is not the person that makes the decision.  It is their job to see that you apply for all benefits to which you are entitled and aid in seeing that the forms are correctly filled out.  These are usually very nice people, unfortunately the government allots an inadequate amount of time to spend with you.  If you have hired an attorney, the attorney should have filled out the forms with the information furnished by you prior to this appointment and attend this initial appointment with you.

The process probably sounds a little like an application for a major loan!  Remember, the guy with the nicely typed papers, photographs, etc. is more likely to get the loan.

YOU CAN NOW FILE FOR BENEFITS ONLINE

Just go to www.ssa.gov for details.

THE INITIAL DECISION - - Disability Determinations Services, a state government office working with Social Security, does the initial disability review.  They will order copies of your doctor, clinic or hospital records, and sometimes send you to see a doctor for an examination at their expense.  If you miss this examination scheduled by Social Security, they may deny your claim.  A decision is then made based on Social Security's own guidelines.  In most cases, a person is turned down at this first step, and this includes many people with serious disabilities.  If you think Social Security is wrong, you have the right to request a reconsideration of your claim.  This must be done within 60 days after you receive the written notice of your denial.  You should not give up if you are denied at this step.

THE ADMINISTRATIVE HEARING - This can be a person's best chance to get a fair decision, properly applying Social Security law.  The administrative law, judge (ALJ), the official who will hear the case, listens to your testimony and evaluates the medical evidence.  The judge makes an entirely new decision, paying no attention to your earlier denials.  The hearing is informal and quite different from what you would expect in a courtroom.  After your hearing, you will get a written decision in the mail, either granting or denying you benefits.  Most people choose to be represented by a lawyer at a hearing, although it is not required. 

Social Security has severe delays in providing a hearing.  It could be over a year before your hearing.

APPEALS COUNCIL - If you lose at the hearing, there is one last level of appeal inside Social Security itself, known as the Appeals Council.  Like most other Social Security appeals, you must file for this within 60 days of the date of the judge's decision.  Your file, any new medical evidence, or any written argument you want to send, are considered.  However, the Appeals Council generally will not consider new evidence about your disability regarding the period of time after the hearing decision.  This means that it is very important to be fully prepared, and have all possible medical evidence ready, when you appear before the administrative law judge - you cannot just "fix" problems when you file with the Appeals Council.  Once again, the Appeals Council will mail you its decision.  It may uphold the hearing decision, reverse the local judge's decision outright, or send the case back for a new hearing.  Taking your case to the Appeals Council is a requirement if you want to have your case reviewed in United States District Court.  Because of the backlog in case it will take between 1 and 2 years to get a decision from the Appeals Council.

FEDERAL COURT REVIEW - - Within 60 days after you receive the Appeals Council written decision, a formal lawsuit can be filed with the United States District Court for your area, seeking review of Social Security's final decision.  The District Court is only permitted to review your medical evidence and a written transcript of the hearing.  No further evidence can be received.  Your lawyer and the government's lawyer file legal briefs arguing each side, and the District Court issues another written decision.  In many federal courts, you never appear in court in person-this is all done on paper, or sometimes with just the attorneys making legal arguments in court.  In general, the federal court can do one of three things: the judge can reverse Social Security's decision outright and order them to pay you benefits; the judge can uphold Social Security's decision denying you benefits; or your case can be remanded, or sent back to Social Security for a new hearing.

In order to have your case reversed or sent back to Social Security, you must show that there was no "substantial evidence" for Social Security's decision, or that the government committed a serious legal mistake in deciding your case.

The 5 Step Sequential Evaluation Process (20 CFR 404.1520):

The following are the steps used by an Administrative Law Judge to award or deny benefits, The text is taken from the statute.  This outline is included to give a better idea of what happens at a hearing.  The evaluation is far more involved than described below.

1. Is claimant engaged in substantial gainful activity (working)?

YES--Claimant working - Claim denied.

If you are working and the work you are doing is substantial gainful activity, we will find that you are not disabled regardless of your medical condition or your age, education, and work experience.

This is why a claimant may not be working while the claim is being processed.

Substantial gainful activity is defined as earning $1080.00 per month. 

NO--Claimant NOT working - Evaluate further (go to step 2).

2. Is there a severe physical or mental impairments?

NO--Claim denied.

You must have a severe impairment.  If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled.  We will not consider your age, education, and work experience, However, it is possible for you to have a period of disability for a time in the past even though you do not now have a severe impairment.

    YES--Evaluate further if significant impairments are present.

3. Does the impairment meet or equal a listing?

    YES -- Claim Allowed.

If you have an impairment(s) which meets the duration requirement and is listed in Appendix I or is equal to a listed impairment(s), we will find you disabled without considering your age, education, and work experience.

The Listing of Impairments describes, for each of the major body systems, impairments which are considered severe enough to prevent a person from doing any gainful activity.  Most of the listed impairments are permanent or expected to result in death, or a specific statement of duration is made.  For all others, the evidence must show that the impairment has lasted or is expected to last for a continuous period of at least 12 months.

The duration requirement is "an impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months".

NO--Evaluate further.

4. Does the Claimant have the residual functional capacity to perform past relevant work?

YES--Claim denied.

Your impairments(s) must prevent you from doing past relevant work. If we cannot make a decision based on your current work activity or on medical facts alone, and you have a severe impairment(s), we then review your residual functional capacity and the physical and mental demands of the work you have done in the past.  If you can still do this kind of work, we’ll find that you are not disabled.

A simplified definition of residual functional capacity is "the ability of an applicant to do work done in the past, despite the existence of a severe impairment".  At this step a Vocational Expert may be called as an expert witness and give opinions to hypothetical questions asked by the judge based upon restrictions given in the medical reports by all doctors who have examined the claimant.  A doctor reporting that the claimant can still do "sedentary" or "light" work are reasons to be turned down for benefits.

NO--Evaluate further.

5.  Is claimant able to perform any other type work?

YES--Claim denied.

NO--Claim Allowed.

At this stage the government has the burden to prove that a claimant can do other work in the national economy.

If you cannot do any work you have done in the past because you have a severe impairment(s), we will consider your residual functional capacity and your age, education, and past work experience to see if you can do other work.  If you cannot, we will find you disabled.

The claimant's age, education, work experience and residual work capacity are considered along with testimony from a vocational expert as well as the  Medical Vocational Guidelines commonly known as "The Grid" to make a decision.  If there is any type of work that you can still do on a full time basis, then you are not disabled. The GRID found at Code of Federal Regulations Title 20 Part. 404, Subpt.  P, App. 2 to Subpart P is used when a claimant's impairments are not severe enough to meet or equal a listing.  These vocational disability rules are used to decide whether a claimant can receive benefits on a vocational basis.  The claimant's age, education and work over the past 15 years are plugged into tables along with claimant's  residual functional capacity “RFC”.  The results are mechanical and a person under the age of 55 will USUALLY be denied.

A person over the age of 55 is not assured of winning if the claimant does not "meet" or "equal" a listing.  If the over 55 claimant has transferable skills that would allow the person to do sedentary or light work requiring little or no training the "grid rules" would find this person not disabled.

The job is to try to persuade the court that your impairment is not properly analyzed by The Grid. This can be done, but again, requires your lawyer having every possible bit of information from you and your treating doctors.