Social Security Disability
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Social Security Disability
What are SSD/SSI benefits?
The Social Security and Supplemental Security Income disability programs are the largest of several Federal programs that provide assistance to people with disabilities. While these two programs are different in many ways, both are administered by the Social Security Administration and only individuals who have a disability and meet medical criteria may qualify for benefits under either program.
The programs, which are provided by the federal government are split into two separate claims:
Social Security Disability Insurance pays benefits to you and certain members of your family if you are "insured," meaning that you worked long enough and paid Social Security taxes.
Supplemental Security Income pays benefits based on financial need.
Gilbert & Bourke LLP has helped hundreds of clients, most of whom had previously been denied benefits under either or both programs. When you apply for either program, the Social Security Administration will collect medical and other information from you and may even call a hearing before make a decision about whether or not you meet Social Security's definition of disability.
Do I Qualify?
IF YOU MEET THE FOLLOWING CRITERIA, YOU MAY QUALIFY:
- I have worked and paid Social Security taxes for five out of the last ten years prior to the date I became disabled;
- I am now disabled from jobs I performed within the last 15 years due to illness or injury;
- My disability is expected to last 12 months or longer, or result in death
- I cannot perform either my past work or any other kind of work due to my disability.
The definition of disability under Social Security is different than other programs. Social Security pays only for total disability. No benefits are payable for partial disability or for short-term disability. "Disability" under Social Security is based on your inability to work. The administration considers you disabled under Social Security rules if: You cannot do work that you did before, You cannot adjust to other work because of your medical condition(s); Your disability has lasted or is expected to last for at least one year or to result in death.
This is a strict definition of disability. Social Security program rules assume that working families have access to other resources to provide support during periods of short-term disabilities, including workers' compensation, insurance, savings and investments.
How do I get them?
Step 1: File an Application
The first step in seeking benefits is the filing of an application. An application for Disability Insurance Benefits or Supplemental Security Income (SSI) must be filed with the Social Security Administration. Applications are filed in person by the claimant at a local Social Security Administration office, or via telephone. If the Claimant is represented by an attorney, the attorney will arrange for the filing of an applicationon behalf of the claimant, as well as prepare all of the necessary forms that accompany the application. Entrusting an attorney to prepare and mail the application prevents the claimant from having to travel to and from the SSA office and eliminates the time that claimants may wait until they are interviewed after arriving at the SSA office.
Step 2: Filling A Request for Reconsideration
If a claimant's application is denied initially, it must be appealed if one wishes to continue their pursuit of getting benefits. Reconsideration is the first step after the application has been denied. A claimant who wishes to appeal a decision denying their claim must file a request for reconsideration with the local Social Security Administration office within 60 days, unless the time to appeal has been extended for good cause. A claim must be evaluated at the reconsideration level before an administrative hearing can be held.
Reconsideration involves another review of all the evidence in the file at the time of the initial decision, together with any additional evidence submitted after the initial decision. Reconsideration includes a review of the initial background information in the file for completeness; updating the information in the record, including the claimant's statement of his or her condition, reports of any medical treatment received since the initial filing, and any work activity subsequent to that time; and obtaining from the claimant information on any conflicts in the record.
While most claimants are of the belief that they will "have to" proceed to the third step of the process, or the administrative hearing, in order to get a favorable decision, proper development of the evidentiary and legal aspects of a case do result in many persons winning their cases at the reconsideration level. As an example of this, an attorney can be helpful in obtaining a narrative report from a claimant's treating physician which speaks directly to those issues which SSA wants addressed. An attorney can be helpful in how the medical development of a case is conducted in terms of what examinations, if any, their client may or may not be required to attend with SSA physicians. As is the case with persons who have attorneys represent them at the application level, claimants who are represented at the reconsideration level avoid having to file their appeals in person at their local SSA office - their attorneys will do this for them as part of their representation.
Step 3: Proceeding to a hearing before an Administrative Law Judge
Persons whose claims are denied in whole, or in part at the reconsideration level can request a hearing before an Administrative Law Judge within sixty (60) days of the date noted on the reconsideration denial. The Office of Disability Adjudication and Review (ODAR) assumes that a persons receives the notice denying their claim at the reconsideration level within five (5) days after the date of the notice, unless there is evidence to the contrary. As a result, the claimant actually has 65 days to appeal.
The request for hearing must be in writing and filed with the local Social Security Administration office. Hearing requests are then forwarded to ODAR. After the request for a hearing is received by ODAR, the staff will await the arrival of the file from the local office before any further development is started. ODAR will contact those persons who are represented by attorneys by writing to their counsel. Experienced attorneys will typically start doing further development, i.e. compiling more medical and vocational evidence at this point, so as to assist the administrative law judge in their early evaluation of the case. This enhances the chance that the claimant will receive a favorable decision without having to appear at a hearing.
When a hearing is held, the administrative law judge, usually through a hearing assistant, decides whether the evidence in the file is adequate to resolve the issues or whether factual development of some type is necessary. The judge or assistant then decides what additional evidence is necessary, if any, and whether a vocational expert and/or or medical expert(s) should be called to appear at the hearing. The judge or assistant also notes any questions of law or policy which will require research prior to the hearing, and considers what action is needed regarding any confidential information in the file. Attorneys representing a claimant will often be contacted, advised of what the ALJ believes is necessary in the way of new evidence and/or pre-hearing legal analysis of one issue or another.
Once a case is ready for hearing, a scheduling clerk schedules the hearing together with a certain number of other claims to be heard by a particular administrative law judge in a particular area. Hearings are generally scheduled in the order of the dates of the requests for hearings. However, geography and other factors must also be considered. It is customary for attorneys representing claimants to be contacted before hearings are scheduled, so as to ascertain their availability and their clients for a particular date. The minimum time period for notifying claimants of a hearing date is 20 days.
A claimant may request postponement of a scheduled hearing but postponements are granted only for good cause, i.e. a viable explanation. If a claimant fails to appear, a show cause order may be issued - this requires the claimant to explain why they did not attend. If no acceptable explanation is provided, the request for a hearing can be dismissed. A show cause gives a claimant 10 days to submit in writing the reason why the claimant did not appear at the hearing. If no good cause is found, the request for hearing may be dismissed on the basis of abandonment. The time or place of the hearing must be changed if the claimant or his or her representative cannot attend the hearing due to a "serious physical or mental condition, incapacitating injury, or death in the family," or if "severe weather conditions make it impossible to travel to the hearing." Persons who are not represented by attorneys, and who subsequently retain legal representation are generally granted postponements, if such representation was only acquired shortly before the scheduled hearing.
The hearing itself is informal and not typical of conventional civil and criminal trials. A formal written decision is issued that must include a recitation of evidence considered and detailed reasons for the decision, regardless of whether the decision is favorable or unfavorable.
Step 4: The appeals counsel
Step 5: Federal Court
How does Gilbert & Bourke get paid?
Most clients prefer … and most lawyers offer … a "contingent fee," a fee paid only if they win. This means that Gilbert & Bourke LLP will not be paid unless you receive your benefits. The usual fee is 25% (one-quarter) of back benefits up to a maximum amount set by SSA, which is currently $6,000. The fee comes from those benefits that build up by the time you are found disabled and benefits are paid. No fee comes out of current monthly benefits. Read More