Should I apply for disability?
If you have an injury or impairment that has lasted or is expected to last for at least 12 consecutive months and has prevented you from working, then you should apply for Social Security Disability. It is important to note that impairments can be physical or mental, and, in some cases, applicants have never been able to sustain work due to their severe impairments. In either case, you should contact the SSA to see if you are eligible for disability benefits
How is disability determined?
The Social Security Administration uses a 5-step sequential evaluation process in order to determine whether or not a claimant is disabled.
*Click here to read more about the 5-steps...
At Step One, the SSA looks to see if the claimant is engaged in Substantial Gainful Activity (SGA). Every year the SGA levels increase to account for cost of living adjustments. The current SGA level is $1220 gross per month for non-blind individuals, and $2,040 for those who are statutorily blind. In laymen’s terms: are you still working, either full-time or part-time? If so, are you earning more than $1220 per month before taxes (gross)? If no, then proceed to Step Two.
At Step Two, the SSA looks to see if the claimant has a severe impairment that has lasted or is expected to last for at least 12 consecutive months. A severe impairment is one that prevents an individual from being able to perform at least one work-related activity such as sitting, standing, walking, reaching, bending, maintaining concentration, following simple directions, and interacting with co-workers, supervisors, or the public. A non-severe impairment has no more than a minimal impact on an individual’s ability to perform work-related activity. In laymen’s terms: do you have an impairment that interferes with your ability to work that has lasted or is expected to last at least 12 months in a row? If yes, then proceed to Step Three.
At Step Three, the SSA looks to see if the claimant’s impairment is so severe that it meets or medically equals one of SSA’s Listing of Impairments, often referred to as the Blue Book. Some impairments are so severe that they automatically qualify for disability. The list of these impairments and their criteria can be found in the SSA’s Blue Book (add link), officially called “Disability Evaluation under Social Security.” However, it is important to note that only a medical professional is qualified to make the determination as to whether or not an individual’s impairments are severe enough to meet or medically equal a Blue Book Listing, and that in most cases, claimant’s impairments are not severe enough to meet or equal Book Listing. In laymen’s terms: do you have an impairment that is so severe that it satisfies all or most of the criteria listed in the Blue Book’s Listing of Impairments? If yes, then you are automatically found to be disabled. If no, then proceed to Step 4.
At Step Four, the SSA looks to see if the claimant can perform his or her Past Relevant Work (PRW). PRW is defined as all work performed at SGA levels for the past 15 years prior to the alleged onset date or the date your disability began. In order to make this determination, the SSA must define a claimant’s Residual Functional Capacity (RFC). A claimant’s RFC is his or her ability to perform work-related activity despite his or her severe impairments. In laymen’s terms: considering your severe impairments, do you still have the ability to perform any of your work from the past 15 years? If no, then proceed to Step 5.
At Step Five, the SSA has determined that a claimant does not have the RFC to perform any of his or her past relevant work so the burden shifts to the SSA to find other work that a claimant can still perform within the limits of his or her RFC that exists in significant numbers in the national economy. In other words, the work does not have to be local or even within the state in which you live. The SSA just has to find work that exists in “significant numbers” anywhere in the U.S.A. At this step, the SSA considers the claimants remaining work capacity, age, education, work experience, and transferrable skills. The SSA developed the Medical-Vocational Guidelines (add link) or “Grids” to determine whether or not a person has the RFC to perform any other work. In theory, the older a claimant is the easier it is for him or her to be found disabled because he or she does not have the RFC to perform other work. In laymen’s terms: do you have the RFC to perform any other work? If no, then SSA should find that you are disabled.
When should I apply for disability?
You should apply for Social Security Disability, either SSDI, SSI or both, if you have an injury or impairment that has lasted or is expected to last for at least 12 consecutive months and has prevented you from working for approximately 6 months. Of course, this is a general guideline, and you can apply as soon as you become injured and unable to work. However, practically speaking, most injured workers do not realize the full extent and impact of their injury on their ability to return to work at first.
Often times, injured workers fully intend to return to work after they have made a full recovery. Unfortunately, for some individuals, recovery never happens, and they are never able to return to work. By 6 months post-injury, most individuals have a good idea about the course of their recovery and when they will be able to return to work, if at all.
When is my claim likely to be scheduled for a hearing?
Pursuing disability benefits is a long process. In practice, we see most hearings scheduled between 12-18 months from the date of the Request for ALJ Hearing (link). However, in San Diego, it can take up to 24 months for a hearing to be scheduled from the date of the Request for ALJ Hearing. If a hearing is not scheduled within 24months from the date of the Request for ALJ Hearing, then it is flagged as an “aged case,” and a hearing will be scheduled for the next available hearing date regardless of the claim’s position in the queue of cases waiting to be scheduled.
In very few instances, a hearing will be flagged for “critical case processing,” which means a hearing will be scheduled within 6 months. Examples of cases approved for critical case processing are cases in which the claimant is homeless with no shelter, a veteran with 100% VA disability rating, terminally ill, or actively suicidal.
What happens if my disability appeal is late?
If your disability appeal, either your Request for Reconsideration or your Request for Hearing is filed late, you may still be able to get the SSA to re-open your claim. If it has been less than one year since the date of your denial, and you had a good reason for missing your appeal deadline, then the SSA may accept your appeal even though it was not timely filed. Some examples of “good reasons” for missing your appeal deadline include if the claimant was seriously ill and unable to contact the SSA, if there was a death or serious illness in the claimant’s immediate family, or if the claimant did not receive a notice of the determination or decision because SSA used an incorrect address or the claimant moved.
If you need help filing a late appeal, please contact our office and we may be able to help you.
How long does the disability process take?
The Social Security disability process can take anywhere from several months to two years to complete. Once your initial application is filed, the Social Security Administration has 120 days to respond. Approximately 70% of claims are denied at this point. If your claim is denied, you have only 60 days to appeal the denial by filing a Request for Reconsideration. At the Request for Reconsideration stage of the process, your claim will be reviewed with “fresh eyes. ” In other words, someone at the Social Security Administration who did not make the first determination will review your claim once more and make a new determination. The disability attorneys at the San Diego Law Group can help you file your Request for Reconsideration in a timely manner. Once your Request for Reconsideration has been filed, the Social Security Administration has another 120 days to respond. Unfortunately, approximately 85% of claims are denied at this point. Once your claim is denied, you have only 60 days to appeal by filing a Request for Hearing before an Administrative Law Judge. The disability attorneys at the San Diego Law Group can help you file your Request for Hearing before an Administrative Law Judge in a timely manner. The majority of claims are won at the Administrative Law Judge Hearing because Administrative Law Judges can exercise discretion when making a determination. In San Diego, it takes approximately 12-24 months for your claim to be scheduled for a hearing due to the enormous number of backlogged claims nationwide. The Social Security Administration must give you 75 days advance notice of your hearing date, unless you waive notice. Within 60-90 days after your hearing, you will receive a written decision granting or denying your claim for disability benefits. Approximately 45-60 days after a favorable decision, you should start to receive your disability benefits. For more information about this, and for answers to other questions please contact the disability attorneys at the San Diego Disability Law Group for a free consultation by calling 619-338-9000.
What does a disability attorney do?
The Social Security disability claims process is complex, confusing, and fraught with frustration. The disability attorneys at the San Diego Disability Law Group can help you navigate this process by: explaining how things work in laymen’s terms; helping you file the various appeals in a timely manner; helping you prepare for your disability hearing; and appearing with you at your disability hearing to advocate on your behalf. The disability attorneys at the San Diego Disability Law Group will also review your disability file to make sure your medical records are up-to-date and request any missing records. We will work with you to get statements from people who know you well and who can attest to your inability to function. We will also work with your treating physicians to obtain medical forms describing your impairments and how they affect your ability to sustain employment. For more information about this, and for answers to other questions please contact the disability attorneys at the San Diego Disability Law Group for a free consultation by calling 619-338-9000.
What is the most common disability mistake?
The biggest mistake a claimant can make is trying navigate this complex process without the help of an experienced disability attorney, or waiting until the last minute to hire an attorney. The Social Security disability program is governed by complicated rules and regulations. To understand these rules and regulations, you need to speak the language of the Social Security Administration. You may know from your own experience that your condition prevents you from working. The legal issue, however, is whether your condition is severe enough to prevent you from working as defined by the Social Security Administration. If you cannot prove your disability under the law, then your claim will be denied. That is where the disability attorneys at the San Diego Disability Law Group come in. We will guide you through the appeals and hearing stages of the disability process and help you present you best legal argument for an award of benefits.
Most disability claims are denied at the initial application and appeals stages of the disability process; however, your chances of success greatly improve with the help of an attorney. The experienced disability attorneys at the San Diego Disability Law Group can help you improve your chances of obtaining disability benefits by: requesting your medical records and other important evidence; communicating directly with the Social Security Administration on your behalf; keeping track of dates and deadlines to ensure timely filings; and preparing you and your witnesses to testify at your disability hearing. However, you should not wait until the last minute to hire an attorney. For more information about this, and for answers to other questions, please contact the disability attorneys at the San Diego Disability Law Group for a free consultation by calling 619-338-9000.
What are disability hearings like?
Disability hearings are complex and often confusing to the unrepresented claimant. For this reason, many Administrative Law Judges will not conduct a hearing with an unrepresented claimant. Instead, the Administrative Law Judge will continue your hearing to a later date to give you time to hire a disability attorney to represent you at your disability hearing.
Disability hearings do not take place in a courtroom like you see on television. There is no jury, there are no members of the public present. Present in the hearing room with you will be the Administrative Law Judge and your attorney. Also present in the hearing room will be a Hearing Monitor, who is responsible for making an audio recording of the hearing, which is called the hearing “record,” a Vocational Expert, whose job it is to classify your past relevant work and identify any work you are still capable of performing given your functional limitations, and a Medical Expert, whose job it is to review and discuss your medical records in the context of your residual functional capacity, and determine whether or not any of your impairments are severe enough to meet or equal a “Blue Book” Listing.
Even though disability hearings do not take place in a courtroom, and State/Federal Rules of Evidence do not apply, many of the same formalities exist. For example, Administrative Law Judges wear the same black robes, and people may address them as “Your Honor.” In addition, all claimants, experts, and witnesses providing testimony will have to take an oath to tell the truth under the penalty of perjury. Also, the Social Security Administration has its own rules and regulations that govern procedural and evidentiary practices called the Social Security Rulings and the Program Operations Manual System (POMS). You may hear your attorney and the Administrative Law Judge discussing or make references to these rules and regulations throughout the hearing. For more information about this, and for answers to other questions please contact the disability attorneys at the San Diego Disability Law Group for a free consultation by calling 619-338-9000.